The Issue The parties have raised myriad issues hare. Petitioner has alleged being capriciously and arbitrarily denied its permit because similar treatment plants have been licensed nearby. The parties disagree over whether local Lake County Pollution Control Board rules are applicable to Petitioner's plant. If the rules are applicable, they disagree over their interpretation. The parties further disagree over whether Petitioner has pending an application for a waste water treatment plant operating permit. It is this last issue which is discussed below because it is dispositive of the case.
Findings Of Fact Petitioner operates a waste water treatment plant in Lake County, Florida which serves four motels at the intersection of U.S. Highway 27 and SR 19 immediately to the south of Interchange 27 on the Florida Turnpike. On October 27, 1972, DER issued a construction permit to Petitioner to construct the plant at a design capacity of 250,000 gallons per day (gpd). The treated effluent was proposed to be discharged via a spray irrigation system to the ground water on Petitioner's site. The plant has never operated at capacity. Its normal volume has ranged from between a low of 40,000 gpd to a peak of 140,000 gpd. Petitioner's plant is situated on a 12.5 acre site over a clay hard pan. The hard pan which is immediately below the ground surface prevents adequate percolation of the plant's effluent down to the underlying ground water. During periods of heavy rain the effluent from the plant has breached a retaining dike and flowed directly into a marsh area known as the Little Everglades to the north. Petitioner has submitted four permit applications to the Department. The first, submitted in September of 1972 was for the construction permit already mentioned. The next applications dated October 22, 1973, was for an operation permit. The application indicated that there would be no discharge to surface waters but there would be a discharge to ground waters. The application also indicated that the availability of space for the expansion of the plant was limited to the site at that time. Petitioner later purchased additional land not reflected in this application. The operation permit was never granted by the Respondent. As stated by Mr. Potter, President of Lake County Utilities, Inc., "In the fall of 1973, I made an application as engineer for the utility company to the Florida DPC [Department of Pollution Control] and to Lake County for an operation permit. That permit was denied by the Department on the ground that we had not satisfied Lake County as to the total containment of our effluent." Subsequently on August 30, 1976, Petitioner submitted a construction permit application to DER for permission to add a 1.32 acre oxidation-polishing pond, to regrade and regrass the existing spray irrigation field, to construct a 0.40 acre denitrification pond and to add a nutrient uptake. No increase in the design capacity was proposed. On that application Petitioner indicated that there would be a discharge to the surface waters of the state. In answer to that part of the application which asked for proposed drainage path of the effluent Petitioner stated, "From treatment plant to 'on-site' ponds to 'on-site' grassy pond and marsh would overflow to ajacent Florida DOT [Department of Transportation] borrow pit: thence via developed drainage waste to the 'Little Everglades' swamp: then, via developed canal and ditches and through natural ponds and marshes to 'Little Lake Harris' and ultimately the Atlantic Ocean." This permit was denied by DER because the Lake County Pollution Control Board did not approve the plan. Finally on September 29, 1978, Petitioner applied for another construction permit. Thee construction would include: Construction of storm water control structures and culverts: Regrading of water and sewer plant sites; Construction of percolation pond "A" and enclosing dikes; and Construction of percolation pond "B" and enclosing dikes. This application was made in response to advice from DER that Petitioner's plant should be in a no discharge condition in order to comply with Lake County Pollution Control rules. On November 2, 1979, the Department issued a Letter of Intent to deny the last permit application because the application was deemed to be incomplete and because the further data which DER requested was not provided. In response to DER's intent to deny the construction permit Petitioner on November 20, 1979, filed its Petition for an Administrative Hearing. Petitioner does not now intend to construct the proposed facilities for which it requested the construction permit in September of 1978. The following colloquy is from the final hearing. Mr. Stephens Have you-- Can you describe briefly the nature of the changes proposed in your 1978 construction permit application? Mr. Potter 1978 construction permit application on nominally the five acre parcel to create a diked pond or lake. Mr. Stephens Uh-huh. Mr. Potter Solely that. The part on the nominally two and a half acre parcel, give or take, was to create a deep percolation pond in which I proposed digging through the clay to the sand and shell below. Mr. Stephens Uh-huh. Mr. Potter So that waters that entered that pond, A, because of its depth, would denitrify and release nitrogen contents to the atmosphere; and, the water would, because of its hydraulic head in relation to the soil below, would push its way into the soils below. Mr. Stephens Uh-huh. Mr. Potter But in the event I could not dispose of the water through that form of percolation, it would overflow into the five acre diked area. And thereby I hoped to satisfy Lake County and the D.E.R. and solve this lingering festering problem. Mr. Stephens Uh-huh. You are the Petitioner in this case. Is it your desire or intention to complete those. . .that construction? Mr. Potter Now that I have been made aware of the law, the law of Chapter four oh three, the rules of Florida D.E.R. and become clear as to the ordinances adopted by the County Commission and the Lake Pollution Board of Lake County as to Class 3-B waters, I have no intention of squandering my money, and, in effect, the money of my customers, in such a wasteful pursuit. Mr. Stephens So you're saying here under oath you don't intend to perform that work even if granted a permit? Mr. Potter Not shy of a court order. As the result of Mr. Potter's testimony on behalf of the Petitioner at the final hearing, it is found that Petitioner has withdrawn its September 1978 application for a construction permit. There is not now pending before the Department of Environmental Regulation a valid permit application for the Petitioner to operate its waste water treatment plan. On May 9, 1980 Lake County Utilities, Inc. served Petitioner's Fourth Interrogatories to Respondent which asked by Interrogatory 10: Please state when and by whom the Department of Environmental Regulation has caused field studies to be made and samples to be taken out of the waters of Lake County (and specifically the geographical vicinity of U.S. 27 - S.R. 19 - Fla. Turnpike) periodically and in a logical geographic manner so as to determine the levels of water quality of the waters as such studies and sampling is within the powers and duty of the Department as mandated by the Florida Legislature in Chapter 403 of the Laws of Florida. (emphasis in original) The Department responded: 10. The Department conducts sampling in the waters of Lake County in conjunction with individual permit applications and not on a systematic basis throughout the County. Respondent objects to this interrogatory as being irrelevant to this proceeding in that the subject permit was not denied on the basis of anticipated water quality violations, but rather, as a result of the pollution control ordinances of Lake County, Florida, which prohibit any discharge to surface waters from the subject facility, and which the Department is required to enforce pursuant to Section 403.182(6), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it Is RECOMMENDED: That the State of Florida, Department of Environmental Regulation enter a Final Order dismissing the Amended Petition for Administrative Hearing without prejudice, however, to the filing of a new application by Petitioner for a waste water treatment plant operating permit. DONE and RECOMMENDED this 12th day of May, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1981.
The Issue Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs; (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans." It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number 4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project. There are inconsistencies in the plans and specifications, such as: (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1. Rejected as not being necessary to the conclusions reached in this Recommended Order. 3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively, but modified. 13. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified. Rejected as being immaterial or irrelevant or subordinate or unnecessary. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24, 24, 25, 26, 27 and 27, respectively, but modified. 34. Adopted in Findings of Fact 17 and 18, but modified. 35-37. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40. Rejected as being immaterial or irrelevant or unnecessary or subordinate, but see Findings of Fact 37 and 38. 41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29, 29, 32, 30, 32 and 32, respectively, but modified. 51. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified. 54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. Adapted in Finding of Fact 55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37. 73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39. 77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39. 80.-82 Adopted generally or covered in Findings of Fact 40- 41. 83.-90. Adopted generally or covered in Findings of Fact 42 and 43. 91.-96. Adopted generally or covered in Findings of Fact 44 and 45. 97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47. 108.-109. Adopted in Finding of Fact 48. 110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50. 18. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52. 125. Rejected as immaterial or irrelevant or unnecessary or subordinate. 126.-127. Adopted in Finding of Fact 52. Adopted in Finding of Fact 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 53. Adopted in Finding of Fact 55. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 13-15. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony COPIES FURNISHED: Rex Smith Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Wings S. Benton, Esquire 1020 D. Lafayette Street, Suite 205 Post Office Box 5676 Tallahassee, Florida 32314-5676 L. Thomas Hubbard, pro se THA Building 3110 Spring Glen Road Jacksonville, Florida 32207
The Issue Whether Respondent, John J. D'Hondt, as a licensed operator, should be disciplined for violations of Florida Administrative Code Rule 62-602.650(2), (4) and (4)(f).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is the State agency vested with the responsibility of regulating Florida's air and water resources, administering Chapter 403, Florida Statutes (2006), and the rules promulgated in Florida Administrative Code Rule Chapter 62. Petitioner has the statutory authority to establish qualifications; examine and license drinking water and domestic wastewater treatment plant operators and to place an operator on probation; and issue, deny, revoke, or suspend an operator's license pursuant to its rules. Respondent is the owner, supplier of water, and licensed operator of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants located in Volusia County, Florida. He holds Certified Operator Drinking Water License No. 0000542 and Certified Operator Wastewater License No. 0006032. The Volusia County Health Department is a county health department that has been approved by Petitioner pursuant to Subsection 403.862(1)(c), Florida Statutes (2006), to enforce Chapter 403, Florida Statutes (2006), and the rules promulgated for the State's drinking water program for Volusia County. As a result of not having received Respondent's September 2004 MOR, by letter dated October 20, 2004, the Volusia County Health Department notified Respondent that MORs were to be submitted to the Volusia County Health Department by the tenth of the month following the month of operation. The November 2004 MOR was to have been submitted to the Volusia County Health Department by December 10, 2004. Respondent signed and dated the November 2004 MOR on December 12, 2004; it was received by the Volusia County Health Department on December 27, 2004. The December 2004 MOR was to have been submitted to the Volusia County Health Department by January 10, 2005. On February 4, 2005, Respondent was sent a late reporting violation letter stating that the December 2004 MOR had not been received. This letter again reminded Respondent that MORs were to be submitted within ten days after the month of operation. The December 2004 MOR was received on February 11, 2005. The April 2005 MOR was to have been submitted by May 10, 2005. Respondent signed and dated the April 2005 MOR on May 17, 2005. It was received on May 27, 2005. The September 2005 MOR was to have been submitted by October 10, 2005. It was received on October 18, 2005. The November 2005 MOR was to have been submitted by December 10, 2005. It was signed and dated December 14, 2005, and received on December 19, 2005. Respondent did not timely submit MORs for the months of November 2004, December 2004, April 2005, September 2005, and November 2005. In 2004, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent maintained a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was informed that he was required to keep a separate operation and maintenance logbook for each of the drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that there was a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was again informed that he was required to keep separate logbooks for each plant. A non-compliance letter dated October 12, 2004, and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he needed to separate his operation and maintenance logbook. In 2005, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined logbook for the drinking water and domestic wastewater treatment plants. During the inspection, Respondent was again informed that he was required to keep a separate operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was keeping a combined logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to keep separate logbooks. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent again informing him that he was required to maintain separate logbooks for the drinking water and domestic wastewater treatment plants. On February 13, 2006, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to maintain a separate logbook for each plant. Over the extended period reflected by the inspections cited in paragraphs 11 through 15, Respondent failed to maintain separate logbooks for the operation and maintenance of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that the logbook did not contain sufficient entries of the performance of preventative maintenance and repairs or request for repairs of equipment. During this inspection, Respondent was informed that he was required to keep adequate entries of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. A non-compliance letter and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he was required to maintain entries of the performance of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was not keeping adequate entries of the performance of preventative maintenance or repairs for the domestic wastewater plant. During this inspection, Respondent was again informed that he was to keep such entries. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent informing him that he needed to maintain such entries for the domestic wastewater treatment plant. Photocopies of the combined logbook have essentially no entries for the performance of preventative maintenance or repairs or requests for repairs to a domestic wastewater treatment plant. Infrequent margin notes are not decipherable and do not differentiate between the two activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of John J. D'Hondt, as a Certified Operator Drinking Water and a Certified Operator Wastewater, be disciplined as set forth in the "probation" letter of March 15, 2006. DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2007. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John J. D'Hondt 2 Tropic Wind Drive Port Orange, Florida 32128 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, Acting General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated January 8, 1999, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Health, including the county health departments such as the St. Lucie County Health Department ("County Health Department"), are responsible for supervising and controlling limited use public water systems. Section 381.0062(3), Florida Statutes (1997). Mr. Gorman is the owner of three duplexes located at 120 and 122 Laidback Way, Fort Pierce, Florida; 140 and 142 Laidback Way, Fort Pierce, Florida; and 160 and 162 Laidback Way, Fort Pierce, Florida. The duplexes were built in 1982 and 1983 and each contains two units which are available for rent. Water is piped into each duplex from a well located on the property. The wells providing water to 120 and 122 Laidback Way and to 140 and 142 Laidback Way were inspected by the Department of Health and Rehabilitative Services in May 1994 and found to be satisfactory pending results of water tests. Two-day bacteriological analyses were conducted on May 2 and 3, 1994, on the wells serving these two properties, and the results were satisfactory. 3/ The 1994 inspection report for the well serving the property at 120 and 122 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 30-gallon "p tank"; a 20-gallon water softener filter; and a 30-gallon brine tank. The 1994 inspection report for the well serving the property at 140 and 142 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 20-gallon "p. tank"; a 25-gallon water softener filter; and a 40-gallon brine tank. In a letter dated August 21, 1998, the County Health Department notified Mr. Gorman that he needed to submit the application enclosed with the letter and a $140.00 fee to bring the "permit" to current status for the property located at 140 and 142 Laidback Way. The letter was inartfully composed and conveyed incomplete information regarding the nature of the permit. The letter did, however, contain reference to "Chapter" 381.0062, Florida Statutes, and Chapter 64E-8, Florida Administrative Code, and it also provided notification that Chapter 64E-8 required quarterly sampling of limited use public water systems for bacteria and a lead and nitrate test every three years. The County Health Department sent Mr. Gorman an identical notice, dated August 21, 1998, regarding the property located at 160 and 162 Laidback Way. The County Health Department sent Mr. Gorman a somewhat different letter, dated August 31, 1998, regarding the "Limited Use Public Water Systems" for the property located at 120 and 122 Laidback Way. The letter notified Mr. Gorman that his permit to operate the "referenced water system has expired as of September 30, 1998." The letter reiterated the information contained in the August 21 letter and requested in addition that Mr. Gorman submit "a minimum 8.5 x 11 inch site plan of the system, drawn to scale, that accurately identifies the location of the source of water in relation to property boundaries and contaminant sources, i.e., well must be 75 feet from septic system, etc." and an "[e]quipment list: pump, tank, softener, automatic chlorinate, etc., manufacturer, model #, and capacity." Finally, Mr. Gorman was notified of the permitting and testing fees and told that the "[a]pplication with required site and equipment information must be submitted with necessary fees within 30 days receipt of this notification." Mr. Gorman responded with a letter dated October 16, 1998, in which he posed several questions to the County Health Department: Do you understand that these are duplexes? Are all rental properties including single family subject to these regulations? Can you give me a valid reason why rental units of two units or more should be subject to quarterly bacterial testing (I believe the statute only authorizes it annually) and not all other residential properties, public facilities or otherwise that might use well water? Mr. Gorman requested a response to his questions but did not provide the information, applications, and permit fees requested in the letters dated August 21 and August 31. In a letter dated December 14, 1998, sent certified mail with return receipt requested and referenced as a Notice of Violation, the County Health Department notified Mr. Gorman that he was operating limited use community public water systems without a permit at 120 and 122, 140 and 142, and 160 and 162 Laidback Way and that he had not provided the following required information: Signed, dated application form. An operation permit fee of $75.00 for the initial permit. A site plan of the property that accurately identifies the location of the well in relation to property, boundaries and contaminant sources such as septic tank systems. Capacity/size, model and brand information on system components. Well completion report if available or year well was installed if known. Required chemical analysis results (lead and nitrate). Initial satisfactory two-day source (well) water and system water bacteriological tests results. Mr. Gorman was told to contact Bruce McLeod within five days of receipt of the notice. Although Mr. Gorman received the notice on December 16, 1998, he did not respond. The County Health Department had not, as of the final hearing, received any reports of illness attributable to the water from the wells at the subject properties, and it does not have any reason to believe that the wells are contaminated. Mr. Gorman had not, as of the final hearing, submitted the applications, permit fees, or information requested by the County Health Department, and he had no operating permits for the wells providing water to the subject properties. The evidence presented in this case is sufficient to establish that the wells providing water to the three duplexes owned and rented by Mr. Gorman each contains two rental units and are limited use community public water systems. Mr. Gorman must have operating permits for the wells providing water to these properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order: Finding that Robert J. Gorman is guilty of three violations of Section 381.0062, Florida Statutes (1997), because he failed to obtain operating permits for the limited use community public water systems he maintains at 120 and 122, 140 and 142, and 160 and 162, Laidback Way, Fort Pierce, Florida; and Imposing an administrative fine in the amount of $1500.00, or $500.00 for each of the three violations. DONE AND ENTERED this 25th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1999.
Findings Of Fact Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded. The sought-for consumptive use will not significantly induce salt water intrusion. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated. Several letters of objections have been received in addition to the objectors noted above. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: That no off-site runoff be permitted by the applicant. That flowmeters be placed on the well and quarterly reports made to the district.
Recommendation It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above. ENTERED this 28th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Eugene W. Harris Standard Sand and Silica Co. P.O. Box 35 Davenport, Florida 33837 Mrs. Mary Fausteen Thompson Box 82-C, Evans Road Polk City, Florida Mr. Clifton W. Golden 800 Oriole Drive Virginia Beach, Florida 23451 Mr. John C. Jones Executive Director Florida Wildlife Federation 4080 North Haverhill Road West Palm Beach, Florida 33407
The Issue The issues for determination in this case are whether Respondent Jeffrey Hill should pay the administrative penalty and investigative costs, and should undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (“Department”) in its Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (“NOV”).
Findings Of Fact Respondent is the owner and operator of a community water system and its associated piping, designated PWS No. 2124409, located on parcel ID No. 03-4S-17-07486-001 on Country Club Road, in Lake City, Columbia County, Florida (“the property”). Respondent is a “person” as defined in section 403.852(5), Florida Statutes. Respondent is a “supplier of water” as defined in section 403.852(8). The water system is a “public water system” and a “community water system” as defined in sections 403.852(2) and (3), respectively. The community water system is a Category V, Class D water system with a capacity of 28,800 gallons per day that supplies between 25 and 3,300 people, using groundwater as its source. Count I Count I of the NOV charges Respondent with failure to sample for nitrate and nitrite in 2012 and 2013, which was admitted by Respondent. Count II Count II of the NOV charges Respondent with failure to sample for primary inorganic contaminants for the 2011-2013 compliance period, which was admitted by Respondent. Count III Count III of the NOV charges Respondent with failure to analyze for secondary contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count IV Count IV of the NOV charges Respondent with failure to sample for volatile organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count V Count V of the NOV charges Respondent with failure to sample for synthetic organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count VI Count VI of the NOV charges Respondent with failure to sample for total coliform from June 2013 to date, which was admitted by Respondent. Count VII Count VII of the NOV charges Respondent with failure to employ an operator for the system since May 2013, which was admitted by Respondent. Count VIII Count VIII of the NOV charges Respondent with failure to submit test results required by Florida Administrative Code Chapter 62-550, and failure to file a monthly operation report since April 2013, which was admitted by Respondent. Count IX Count IX of the NOV charges Respondent with failure to issue Tier 3 notices in May 2013 and March 2014, advising customers of the failure to monitor for certain contaminants, which Respondent admitted. Count X Count X of the NOV charges Respondent with failure to provide a consumer confidence report to his customers in 2012 and 2013, which was admitted by Respondent. Count XI In Count XI of the NOV, the Department states that it incurred $530 in investigative costs related to this enforcement matter, which is admitted by Respondent.
Findings Of Fact Petitioner Ferncrest Utilities, Inc. owns and operates a sewage treatment plant at 3015 Southwest 54th Avenue, Fort Lauderdale, Florida. It presently services the needs of a population of about 2500 primarily located in three trailer parks, certain warehouses, a 153 room hotel, and several other business establishments. The plant was constructed and operated by a lessee of Petitioner's owners, but, in July 1979, Petitioner became the owner and operator of the facility. At that time, it was determined necessary to secure new operators and upgrade the plant equipment and method of process in order to properly service the existing and anticipated future number of customers in the area covered by a Public Service Commission franchise. Although the plant had been operating at a permitted capacity of 0.25 million gallons per day (MGD), Petitioner planned to expand the capacity to 0.60 MGD by modifying the aeration tank, and adding tertiary sand filters and equipment for clarification. Upon assuming control of the plant, Petitioner found that the 0.25 MGD permitted capacity had been exceeded by approximately 120,000 gallons per day for a number of years. Petitioner estimates that a population of 6,000 could be served under its new proposed design capacity. (Testimony of Forman, Exhibit 1) Pursuant to Petitioner's application for a construction permit, dated May 25, 1979, to modify the existing treatment plant, Respondent issued permit No. DC06-21789 on August 6, 1979. The permit specified that it was for construction of additional tank capacity for an existing 0.25 MGD wastewater treatment plant intended to approve effluent quality, and further stated that plant design capacity would remain at that figure. A subsequent letter from Respondent's subdistrict manager to Petitioner on January 15, 1980, stated that an evaluation of the quality of the surface waters receiving the plant discharge and the effect of such increased discharge would have to be made before processing a request for an increase in permitted flow. (Exhibit 7) On February 8, 1980, Respondent issued a temporary operating permit for Petitioner to temporarily operate a 0.25 MGD contact stabilization sewage treatment plant, including additional tank capacity and tertiary filtration. Specific conditions attached to the permit stated that it was issued to give the permittee a reasonable period of time to complete construction of the modification outlined in DER Permit DC06-21789 and for subsequent assessment of the effects of discharge on receiving waters. The conditions further required that the facility continue to achieve 90 percent removal of BOD5 and total suspended solids at all times with specified average daily discharges of such substances. Another condition required that the effluent from the plant be adequately chlorinated at all times so as to yield the minimum chlorine residual of 0.5 parts per million after a minimum contact period of 15 minutes. (Exhibit 8) Thereafter, on July 21, 1980, petitioner filed the instant application for an operation permit for the facility at a design capacity of 0.60 MGD. On October 7, 1980, Petitioner filed a certificate of completion of construction. By letter of December 16, 1980, Respondent's South Florida Subdistrict Manager advised Petitioner that the application for an operating permit had been denied for the reason that monitoring of the Class III receiving waters by the Broward County Environmental Quality Control Board indicated that the dissolved oxygen concentration was frequently below the minimum of 5 milligrams per liter required by Section 17-3.161(1), Florida Administrative Code, and that Petitioner's plant contributed to the substandard conditions in those waters. Petitioner thereafter requested a Section 120.57(1), F.S., hearing. (Exhibits 1-2, 4, 8) Petitioner's plant discharges into the North New River Canal through a six inch effluent pipe. The canal extends from Lake Okeechobee to the intracoastal waterway approximately five miles in distance from the point of discharge of Petitioner's plant. Monitoring of water quality in the canal for the past several years by the Broward County Environmental Quality Control Board shows that the dissolved oxygen concentrations at various sampling stations have ranged from below one part per million to in excess of five parts per million, depending upon the season of the year. However, at no station did the dissolved oxygen concentration reach an average of five parts per million. In addition, the tests also showed that BOD5 is generally low in the canal waters. (Testimony of Mazzella, Exhibits 1, 3, 5) Petitioner's modified plant is now capable of treating 0.60 MGD and meets current basic state requirements of 90 percent (secondary) removal of BOD and total suspended solids. In fact, the plant has tertiary treatment and can consistently operate at a level of 95 percent treatment. The data submitted by the applicant as to effluent water quality characteristics showed removal of 98 percent BOD, 97 percent suspended solids, 50 percent total nitrogen, and 25 percent total phosphorus with an average chlorine residual in the effluent of 0.2 parts per million. The dissolved oxygen level in the effluent has been established at 6.5 milligrams per liter. (Testimony of Hermesmeyer, Dodd, Exhibit 1) Respondent's district personnel took one 24-hour sample of the effluent from Petitioner's plant in March 1981 and determined that a concentrate of 14.6 milligrams per liter of ammonia was being discharged to receiving waters. Respondent therefore determined that the dissolved oxygen levels of the canal would be further degraded because approximately 48 to 50 parts per million of dissolved oxygen would be necessary to offset the effects of oxygen removal resulting from the ammonia discharge. Respondent further found that, although the effluent from the plant had 6.5 milligrams per liter of dissolved oxygen, the amounts of phosphorus and nitrogen being discharged could lead to algal blooms and consequent eventual eutrophication of its waters. Respondent's reviewing personnel therefore considers that there would be negative impacts upon the receiving waters if Petitioner discharged its prior licensed capacity of 250,000 gallons per day, and that a discharge of 600,000 gallons per day would double such impacts. Respondent's personnel therefore believes that although Petitioner's facility meets the basic secondary treatment requirements of Rule 17-6.01, Florida Administrative Code, it does not meet the water quality-based effluent limitation specified in Rule 17-6.10. In order to meet such requirements, it would be necessary to redesign the plant for more efficient removal of nutrients or to redirect the discharge. (Testimony of Mazzella) Other facilities adjacent to or near the North New River Canal discharge directly or indirectly into the canal waters and contribute to an unknown degree to the poor quality of the canal waters. Additionally, agricultural use of land produces stormwater runoff containing fertilizer residue into the canal in an unknown amount. A sewage treatment plant operates at optimum level of treatment when it discharges at about 50 percent of its treatment capacity. (Testimony of Mazzella) In 1983, Broward County will require Petitioner's plant to conform to state advanced waste treatment criteria which will provide for additional removal of nitrogen and phosphorus from effluent. To meet this requirement, Petitioner, plans to investigate the possibilities of utilizing a landlocked lake on its property near the treatment plant as a seepage pond. Although Petitioner's plant is identified in area regional plans to be diverted to the Hollywood wastewater treatment plant in the future, there is presently no target date for tying in to such a regional facility. (Testimony of Hermesmeyer, Exhibit 1)
Recommendation That Respondent issue a permit to Petitioner for the operation of its sewage treatment plant, with appropriate conditions as designed to protect the receiving waters. DONE and ENTERED this 27th day of May, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1981. COPIES FURNISHED: Alfred Clark, Esquire Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Martin S. Friedman and R.M.C. Rose, Esquires Myers, Kaplan, Levinson, Kenin and Richards 1020 East Lafayette Street Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issue to be determined by this Order is whether the Request for Administrative Hearing filed by Petitioner with the Department of Environmental Protection (“DEP”) on February 15, 2013, was timely1/ and, if not, whether the application of the doctrine of equitable tolling would serve to relieve Petitioner of the consequences of having failed to file a petition for hearing within the time allotted by applicable notice provisions.
Findings Of Fact The Parties Petitioner, SRQUS, LLC, is an active Florida, limited- liability corporation, and is the owner of submerged lands and adjacent upland property contiguous to Sarasota Bay. Petitioner is a closely held entity, the only members being Achim and Erika Ginsberg-Klemmt. Respondent, Department of Environmental Protection, is an agency of the State of Florida having jurisdiction for permitting Municipal Separate Storm Sewer Systems (MS4), including duties as a federally-approved state program for the implementation of the Federal National Pollutant Discharge Elimination System (NPDES) Program, pursuant to authority conferred under section 403.0885, Florida Statutes. Respondents, Sarasota County, City of Sarasota, City of Venice, Town of Longboat Key, and Department of Transportation (“DOT”) (collectively the “Applicants”) are responsible for certain existing stormwater point-source discharges to waters of the state from those portions of MS4 facilities owned or operated by one or more of the individual Applicants. The DEP issued a notice of proposed agency action to issue a renewal of an existing MS4 Permit to the Applicants. On January 30, 2013, Sarasota County arranged for the notice to be published in the Sarasota Herald-Tribune, which is a newspaper of general circulation in Sarasota County. The notice provided as follows: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF INTENT TO ISSUE PERMIT AND REQUEST FOR ADMINISTRATIVE HEARING The Department of Environmental Protection gives notice of its intent to issue a permit to Sarasota County, 1660 Ringling Boulevard, Sarasota, Florida 34236 within its jurisdiction and including the following co- permittees: Florida Department of Transportation District One, Town of Longboat Key, City of North Port, City of Sarasota, and City of Venice, for renewal of a Municipal Separate Storm Sewer System [MS4] permit. Any person whose substantial interests are affected by the proposed permitting decision of the Department may petition for an administrative hearing in accordance with Sections 120.569 and 120.57 of the Florida Statutes (F.S.). The petition must contain the information set forth below and must be filed (received) in the Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. Petitions must be filed within fourteen days of publication of this public notice or within fourteen days of receipt of the notice of intent, whichever occurs first. A petitioner must mail a copy of the petition to the applicant at the address indicated above, at the time of filing. The failure of any person to file a petition [or a request for mediation, as discussed below] within the appropriate time period shall constitute a waiver of that person?s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-5.207 of the Florida Administrative Code. A petition must contain the following information: The name, address and telephone number of each petitioner, the Department Permit Number and the county in which the MS4 is located; A statement of how and when each petitioner received notice of the Department?s action; A statement of how each petitioner?s substantial interests are affected by the Department?s action; A statement of the material facts disputed by the petitioner, if any; A statement of facts that the petitioner contends warrant reversal or modification of the Department?s action; A statement of which rules or statutes the petitioner contends require reversal or modification of the Department?s action; and A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the final action of the Department may be different from the position taken by it in the notice of intent. Persons whose substantial interests will be affected by any such final decision of the Department on the permit revision have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above. Mediation under Section 120.573, F.S. is not available for this proceeding. The permit application file and supporting data are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, NPDES Stormwater Section, 2600 Blair Stone Rd. Room 560, Tallahassee, Florida 32399-2400, phone number (850) 245-8430. Date of pub. January 30, 2013. Because a portion of the Town of Longboat Key extends into Manatee County, the Town of Longboat Key arranged for the notice to be published in the Bradenton Herald, which is a newspaper of general circulation in Manatee County. The notice was published on February 4, 2013. The substance of the notice, except for the date of publication, was identical to that published in the Sarasota Herald-Tribune. Neither Petitioner, nor its representatives, saw either of the published notices prior to the filing of the Petition. On or about February 8, 2012, as a result of the filing of a pre-hearing stipulation in related litigation involving an Environmental Resource Permit (“ERP”) issued by the Southwest Florida Water Management District (“SWFWMD”), Petitioner became aware of the existence of the MS4 Permit. Erika Ginsberg-Klemmt obtained a copy of the permit online, and on February 12, 2013, sent an e-mail to employees of the DEP Ft. Myers? office expressing her general concern with water quality from the disputed stormwater outfall. She expressed her belief that Sarasota County was in violation of the existing MS4 permit, and requested that the recipients of her e-mail “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in the past.” The e-mail did not request any information regarding the MS4 Permit renewal application, nor did it request any information regarding notices or deadlines related to the application. On February 13, 2013, Christopher Wright, a consultant for Petitioner, called the DEP to gather information and do some “legwork” related to Petitioner?s challenge to the SWFWMD?s ERP. The purpose of the call was to determine if information submitted to the DEP in conjunction with the MS4 application, particularly drainage basin maps, could have been of use in the SWFWMD litigation. Mr. Wright spoke with DEP employee, Heather Ritchie, regarding the drainage basin maps that had been submitted to the DEP. During the course of their discussion, Ms. Ritchie advised Mr. Wright that a Notice of Intent to issue the MS4 Permit had been issued by the DEP. However, Ms. Ritchie did not know when Sarasota County had published the notice or when the deadline for challenging the proposed agency action was to run. In short, Ms. Ritchie expressed to Mr. Wright that “she didn?t know what the status of things were.” The discussion then went back to the primary substance of the call, which was watersheds and discharge points. Ms. Ritchie agreed to provide Mr. Wright with an electronic copy of a drainage map from the MS4 Permit file. At 12:43 p.m., on February 13, 2013, Ms. Ritchie sent a map to Mr. Wright via e-mail, and indicated that “[i]f you have additional questions or comments, you may call or e-mail me.” Later on the afternoon of February 13, 2013, Mr. Wright decided that he should ask Ms. Ritchie for a copy of the Notice of Intent. At 5:59 p.m., on February 13, 2013, after the close of business for the day, Mr. Wright wrote to Ms. Ritchie thanking her for her “rapid response to my inquiry today,” and providing her with comments on various basin areas and discharge structures. Mr. Wright concluded his e-mail by stating that “at this time I would also like to request a copy of the Notice of Intent to Issue the MS4 Permit.” The next morning, February 14, 2013, Ms. Ritchie provided Mr. Wright with the Notice of Intent to Issue the MS4 Permit as requested. Later that morning, Mr. Wright inquired as to the time for filing a challenge to the permit. Ms. Ritchie replied at 2:34 p.m. that afternoon that the MS4 Permit “was publicly noticed by the county on January 30th with a 14 day window. The window closed yesterday.” There is no evidence that Ms. Ritchie had any specific information as to the date of publication or the deadline for filing a challenge prior to that communication with Mr. Wright. Petitioner filed the Petition on February 15, 2013. The disputes identified in the Petition were directed exclusively at a 46-acre drainage basin in downtown Sarasota, and a related discharge structure that discharges stormwater from the basin to Sarasota Bay just south of the intersection of U.S. Highway 41 and Fruitville Road. The disputed basin and discharge point are located in Sarasota County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Environmental Protection, issue a final order dismissing Petitioner?s Request for Hearing and Amended Petition for FLS000004-004 on the ground that the Petition was not timely filed. DONE AND ENTERED this 18th day of October, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2013.
The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
Findings Of Fact Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section 386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner. DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February 1987. APPENDIX (DOAH Case No. 86-4094) Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Rejected in Findings of Fact 4, 5. COPIES FURNISHED: James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800 St. Petersburg, Florida 33701 Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
