The Issue The issue presented for decision herein is whether or not the Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Robert Peterson, to construct a 0.007 MGD wastewater treatment facility with effluent disposal to Dual Class V injection wells in Key Largo, Monroe County, Florida.
Findings Of Fact On January 17, 1986, Robert Peterson, doing business as Peterson's Condominiums, submitted an application to the Florida Department of Environmental Regulation (DER) to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells into G-III groundwater. The proposed site is located at Mile Marker 95.6, U.S. Highway 1, Key Largo, Florida. The sewage treatment plant is to serve a ten unit condominium with provisions for four future units. The designed population to be served is 62. (Permit Application) The Plant is designed to treat the sewage so that after treatment and disinfection, the effluent will, on average contain no more than 20 parts per million biological oxygen demand (BOD-5 day) and 20 parts per million of total suspended solids (TSS). There will be 90 percent removal of these pollutants after treatment. The effluent will be disinfected in a chlorine contact chamber, with chlorine tablets used as the disinfectant. Sludge will be removed by a licensed scavenger truck to Monroe County approved disposal sites. Noise from the plant will be controlled by a blower filter, silencers, and a weather proof hood. (Permit Application). No control is contemplated for odor or aerosol drift other than proper plant operation. No lighting will be provided at the plant. Emergency power `from a rental portable generator will be used if there is an extended power failure. Along with the sewage treatment application, Respondent Peterson also submitted two permit applications for injection of the treated effluent into 2 Class V injection wells. The total volume of treated effluent that would enter into both wells combined is 6500 gallons per day. The 6 inch diameter wells would be 65 feet deep with casing and grout down to a depth of 30 feet. Upon receipt of the permit applications, DER reviewed the application and requested an additional application including groundwater samples measuring total dissolved solids. Peterson submitted two samples, both indicating total dissolved solids significantly greater than 10,000 milligrams per liter. (DER's Exhibits 2, 3 and 4). The samples (TDS) were taken approximately 1 and 6 miles from the proposed site. Based on DER's staff review of hundreds of groundwater quality analyses from the Keys, DER's staff determined that the samples submitted were consistent with other groundwater TDS levels throughout the Keys. (Testimony of Barrone and Me1e). Use of the samples by DER was reasonable and proper. Groundwater in which the TDS is greater than 10,000 milligrams per liter (parts per millions) is classified as G-III groundwater. Such water is considered non-potable. (Testimony of Barrone and Mele; Florida Administrative Code, Rule 17-3.403(1)). After review of the application, DER issued an "intent to issue" Peterson the permits requested on March 5, 1986. (DER's Exhibit 7). The "intent to issue" as drafted by DER established certain conditions to monitor water quality and to test treated effluent before it is discharged to Class V wells. As an example, flow, pH, and chlorine residuals are to be sampled daily; BOD and total suspended solids are to be sampled monthly and fecal coliform is to be sampled once per quarter. Test results are to be submitted to DER on a monthly basis and the analysis program is conditioned to demonstrate substantial compliance with water quality standards as set forth in pertinent sections of the Florida Administrative Code. Provided the monthly reports reveal violation of DER's standards, the permittee will be required to rectify the problems. (DER's Exhibit 7, testimony of Barrone and Mele). Additionally, DER has conditioned its intent to issue on a trial or experimental basis and this project will again be subjected to review in one year. (DER's Exhibit 7, condition 12). Should the permittee fails to bring the facility into full compliance within the one year period, an operational permit will not be issued. DER imposed this condition on the subject wastewater treatment plant, based on the fact that it is a new model and DER does not have extensive experience with the monitoring of this type plant. (Testimony of Barrone and Mele). Evidence introduced reveals that the plant manufacturer, Smith and Loveless, is the largest manufacturer of factory built water and wastewater pump stations and treatment plants. The manufacturer pioneered prefabricated treatment plants with over 30 years experience. Evidence reveals that there are at least three plants in operation in Florida without any operational problems. Upon "issuing the intent to issue", DER directed the permit applicant (Peterson) to publish notice in the Key West Citizen (Peterson's Exhibit 1). Notice of this proposed agency action was published in the Key West Citizen on March 17, 1986, giving any substantially affected party 14 days from that date to file a petition for administrative proceedings with DER's Office of General Counsel. (Petitioner's Exhibit 2). On March 26, 1986, DER received a letter from Petitioner McInerny, Popp and other local citizens (C.C. Waggle) protesting the proposed project. The Objectors indicated that they had heard that the proposed agency action was advertised in the Key West Citizen but that the Key West Citizen was not available in their area. 1/ Based on these protest letters, DER afforded Objectors, including Petitioners, a new point of entry into these proceedings. Petitioners Ohi, Popp and McInery timely petitioned for an administrative hearing challenging the proposed agency action. The challenges by Petitioners, based on DER's second point of entry, were timely filed. When the proposed facility becomes operational, it will not cause foul odors or create a nuisance due to aerosol drift based on the design features. (Testimony of Barrone, Mele and Sikorski. The extended aeration facility, as proposed, is the most reliable type of sewage treatment plant for this type operation. (Testimony of Mele). The expected pollutants produced from domestic sewage are BOD, dissolved solids and to a lesser extent heavy metals, nitrates, phosphorus and bacteria. (Testimony of Mele). After treatment, the effluent from this facility is not expected to be either toxic or carcinogenic. (Testimony of Mele). The Class V wells into which the treated effluent would be placed are approximately 500 feet from the nearest shoreline, the Atlantic Ocean. This is the closest distance to any Outstanding Florida Water. As such, the treated effluent will be diluted prior to its discharge into the Atlantic Ocean. (Permit Application, Testimony of Mele). Respondent Peterson has provided Respondent DER reasonable assurances that the proposed facility, upon operation, will not violate the Department's rules relating to air, noise and water quality standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Environmental Regulation enter a Final Order issuing Respondent, Robert Peterson, doing business as Peterson's Condominiums, a permit to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells with the conditions as set forth in the DER's "intent to issue" dated March 5, 1986. RECOMMENDED this 1st day of December 1986 in Tallahassee, Florida. JAMES E. BRADWELL 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 1st day of December 1986.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue The ultimate issue to be resolved in this proceeding is whether the Department should issue a permit allowing the construction of a wastewater treatment and disposal system as requested in the modified application filed by Thomas E. Wasdin. The applicant and the Department contend that reasonable assurances have been given that the proposed facility will not result in violations of any of the Department's rules or regulations. The Petitioner contends that the proposed facility is located too near to existing shallow water drinking wells and that the facility otherwise fails to comport with the Department's rules and regulations.
Findings Of Fact Petitioner is the president of Beach Woods of Brevard County, Inc. The corporation is the developer of "Beach Woods," a 376-unit planned unit development located in Melbourne Beach, Brevard County, Florida. One hundred eighty of the units have already been developed. Existing regional sewage treatment facilities operated by Brevard County are not adequate to accommodate the total number of units that the applicant proposes to develop. It appears that 24 more hookups are all that the existing facilities will tolerate. Beyond that number, a sewer moratorium is in effect, and unless the applicant can make some other arrangement for disposing of sewage, the development cannot be completed. The county has approved the planned unit development. In order to meet sewage treatment needs of the proposed development, the applicant is proposing to construct a "package sewage treatment plant" to accommodate waste that exceeds quantities that can be handled by existing regional facilities. Once the regional facilities are upgraded so that the development's sewage treatment needs can be accommodated, the applicant proposes to disassemble the package plant and utilize the regional facilities. The proposed plant would be a 50,000 gallons per day contact stabilization sewage treatment plant. Initially, it would be operated as a 5,000 to 15,000 gallons per day aeration plant. Once loads reach 18,000 gallons per day, it would become a contact stabilization plant. The Present collection and transmission system for sewage that exists at Beach Woods includes an 8-Inch collection station from which sewage flows to an existing lift station that pumps effluent via 6-inch pipes to the regional plant. When the proposed plant is completed, a computerized system would be set up to send effluent to the new plants when the limits that the regional plant can accommodate are met. Once the regional plant is upgraded to sufficient capacity, the bypass to the proposed plant would be eliminated, and all units would then be connected to the original collection system. The proposed treatment plant is based upon proven technology that has been in existence for more than 50 years. The plant should operate reliably, and proper consideration has been given to odor, noise, lighting, and aerosol drift. In close proximity to the plant, it is likely that there would occasionally be a "earthy smell" that would be noticeable, but not objectionable. Outside of the immediate proximity, no odor would be noticeable. Large fans would be operated in connection with the plant, and some noise would result. It does not, however, appear that the noise would be excessive or bothersome, even in the immediate vicinity of the plant. The plant would be lighted by street lights and would not result in any more excessive lights than normal street lights. The plant is not of the sort that aerosol drift is a likely problem. Adequate considerations have been given to providing emergency power to the plant in the event of a power outage. The plant could sit for at least 20 hours without power before any emergency would exist. If there was a power outage in excess of that period, emergency power sources are available. Consideration has been given to the 100-year flood plain. The plant has been placed at an elevation that keeps it outside of the 100-year flood plain. The land application system proposed by the applicant would utilize drain fields that would be alternately rested. Groundwater flows from the area of the proposed drain fields are in a southwesterly direction toward the Indian River. The Indian River in the location of the proposed facility is a "Class III surface water." Groundwater in the area of the proposed facility might be classified as either "G-I" or "G-II." Reasonable assurance has been given that the proposed sewage treatment plant would not operate in such a manner as to degrade surface or ground waters to the extent that any of the Department's specific water quality parameters set out in Chapter 17, Florida Administrative Code, would be violated. The proposed sewage treatment plant comports with local requirements and has been approved by Brevard County. The Allans Subdivision is a residential development that is located directly to the north of the Beach Woods development. Petitioner utilizes a shallow water well as a source of drinking water. The proposed land application site of the sewage treatment plant is located within 500 feet of the Petitioner's well. There are at least two other shallow water wells that serve as drinking water sources located within 500 feet of the proposed land application site. The applicant indicated a willingness to move the proposed facility so that no part of it would be located within 500 feet of the shallow drinking water wells. The evidence establishes that the plant could be moved to accomplish that. No specific plan, however was presented. Potential factual issues could exist respecting appropriate buffer zones for any relocation of the facility, even a minor relocation. The applicant is proposing to develop areas within 100 feet of the proposed facility. The applicant does not, however, propose to locate any public eating, drinking, or bathing facilities within 100 feet of the proposed plant or land application area. No map was presented during the course of proceedings before the Department of Environmental Regulation that preceded the formal administrative hearing or during the hearing itself to establish present and anticipated land uses within one mile of the boundaries of the proposed facility. The facility of such a size that it could not inhibit any conceivable present or proposed future land uses except within 500 feet of the proposed facility. Evidence was offered at the hearing from which it could be concluded that the Department has, in the past, issued permits for sewage treatment plants located within 500 feet of existing shallow drinking water wells. The testimony was that this has occurred despite a requirement in the Department's rules that there be a 500-foot buffer zone between any such plant and a shallow drinking water supply. No specific evidence was presented as to why the Department has allowed such a breach of its rules or why it should be allowed in this proceeding.
The Issue The issue is whether respondents should have a civil penalty imposed against them for failing to repair allegedly faulty on-site sewage disposal units.
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Respondents, Carl L. and Deborah J. Forrester, have resided on Lem Turner Road in Callahan, Nassau County, Florida, since December 1988. Their home is serviced by two underground sewage disposal systems, both located in the back yard and installed prior to 1983. In the fall of 1991, Betty Bailey and her now deceased husband began construction of a new home on the lot adjacent to the Forresters. The home was completed in early 1992. As a result of a complaint filed by Bailey with the Nassau County Public Health Unit, which is an arm of respondent, Department of Health and Rehabilitative Services (HRS), respondents were required to obtain a construction permit to repair their sewage disposal systems. Because HRS concluded that respondents did not repair their systems as required by the permit, it contends they should be assessed a civil penalty until the violations are corrected, but that such fine not exceed $1500. This preliminary decision is embodied in an administrative complaint issued against respondents in early 1993. The street on which respondents live, Lem Turner Road, runs in a north- south direction. Beginning at the northern end of the block and going south are the Lindemann, Forrester, Bailey, and Campbell home sites, respectively. The natural slope of the land runs north to south so that water runs from the Lindemann property, which is the high point on the block, south over the Forrester property, then over the Bailey property, and finally through the Campbell property and into a small pond on an adjacent lot. Directly behind the Forrester lot is a home owned by Susan Lewis and her husband while Ronald K. Earl's home is located on a 3-acre home site directly behind Bailey's lot. There is also a sod farm which lies to the south and east of the block and, at its closest point, is no more than seventeen hundred feet from the Earl property. Since there is no central wastewater treatment plant, each of the homes in this area must use an individual sewage disposal unit (septic tank and drainfield). It is noted that because of the low elevation in the area, and the seasonal high water table elevation, at least 95 percent of all new systems currently installed in Callahan must use a septic tank with a mound-type of drainfield. When the Baileys were constructing their home, Betty Bailey noticed that the elevation of her property was lower than the Forresters' lot, and the area in the back yard immediately adjacent to the Forresters' property line was always "wet" and "mushy". Indeed, it was so wet that on occasion construction trucks would get stuck. She also observed water bubbling up out of the Forresters' yard adjacent to her property line. In an effort to eliminate the wet area, Bailey added a considerable amount of fill dirt to her lot and sodded the area. She recalls adding some twenty loads or so while Carl Forrester says it was much more than that. In any event, the elevation on her lot increased to a height slightly greater than that of the Forrester lot, and this changed the natural flow of stormwater runoff from over her lot to a ditch which straddles her property line. Even so, she says the fill and sod did not correct the wet condition near the property line and it still remained wet as of the date of hearing. After moving into her home in February 1992, Bailey began noticing a sewage odor emanating from the soggy area of ground running from her back yard to the Forresters' back yard. The odor, which was worst in the evening and when it rained, was so bad that it prevented her from using her screened back porch and swimming pool in the evening or entertaining friends outside. The condition still existed as of the date of hearing. Bailey spoke to Carl Forrester about the odor and mushy ground on several occasions. Once he told her there was an underground spring causing the wet ground and suggested she install a french drain system to convey stormwater runoff from her back yard. He also suggested the odor was caused by the nearby sod farm which used manure to fertilize the sod. Bailey contacted the Nassau County Public Health Unit on March 2, 1992, and requested that it check out the source of the problem. Shortly thereafter, Stanley Stoudenmire, a Nassau County environmental health care specialist, inspected the area where respondents' property abuts the Bailey property and observed "mushy" ground, standing water, flies, and bright green algae growth. He also smelled hydrogen sulfide, which is indicative of a failing drainfield, and observed water coming out of the ground. Without the need to take water samples, Stoudenmire identified the pooling liquid as effluent flowing from respondents' drainfields. All of these conditions were indicative of a failed sewage system and constituted a sanitary nuisance. It is noted that an improperly operating system is a threat to human life and safety since it can cause a number of diseases. After advising Carl Forrester that there was a problem with his drainfield, Stoudenmire was told by Forrester that his systems had been checked out by two septic tank firms and nothing was wrong. Nonetheless, Stoudenmire advised Forrester to repair the systems. Stoudenmire continued to monitor the situation and even ran a red dye test on one visit. This produced no evidence of a faulty system, but the test is not a conclusive indicator of a failed system. After Bailey continued to make complaints and further inspections revealed that no repairs had been made, Stoudenmire advised Forrester by letter dated July 9, 1992, that he must obtain a permit to correct the systems. On July 13, 1992, Carl Forrester made application for a permit. The application required him to make a site and soil evaluation and prepare a drawing of the proposed corrections. The next day, Stoudenmire conducted a soil and site evaluation on the Forrester property as an aid to them in determining the type of repairs that they needed and the specifications for the drainfield. According to the soil borings, which were not contradicted, the bottom of the existing drainfields were not separated from the seasonal high water table elevation by at least twelve inches, as required by Rule 10D-6.0571(4), Florida Administrative Code. Further, the area had a clay subsurface, which means that water percolation is not good. On July 16, 1992, respondents made application for a construction permit. The permit contained specifications consistent with Stoudenmire's evaluation and required respondents to disconnect both existing systems and install a mound-type drainfield, like that in Betty Bailey's back yard, so that the required 12-inch separation could be achieved. The permit required the work to be completed within ninety days. On September 15, 1992, Stoudenmire advised respondents by letter that they "had not notified (his) office of any efforts to correct the problem". They were told that unless corrective action was taken within ten days, "legal action would be pursued". On October 26, 1992, a second letter was sent to the Forresters by Stoudenmire advising them that he continued to receive complaints, that the repairs may have been done in "an illegal manner", and that they had "5 days from receipt of this notice to contact (him) for an inspection." In November 1992, Carl Forrester made certain "repairs", but they were not of the type required under the permit. Instead, he installed a french drain system, consisting of a 55-gallon drum, an electric pump and a drain pipe, which simply conveyed stormwater runoff and effluent from his back yard to a percolation system in his front yard. Bailey says that, as a result of these "repairs", she can now smell the sewage odor emanating from the front yard. Forrester also placed lime on the soggy area and sprayed the same area with a chemical. On November 26, 1992, HRS issued another warning letter to the Forresters stating that it was "imperative" that they "cooperate and respond immediately" due to continued complaints by Bailey. Stoudenmire also returned to the site and once again observed insects and "mushy ground", caused by a combination of effluent and stormwater, and could smell a raw sewage odor in an area which straddled the Forrester-Bailey property line. These conditions were the same as those previously observed on prior inspections, were indicative of a failed sewage disposal system, and constituted a sanitary nuisance. There is no evidence that the conditions had been corrected as of the date of hearing. During this same period of time, Susan Lewis, who lives directly behind the Forresters, occasionally smelled a raw sewage odor, especially in the evening, coming from the Forresters' back yard. When she spoke with Carl Forrester about the odor, he told her that he was aware of the problem, had "no doubt" there was sewage "going to" the Bailey property, but denied it was from his systems. However, he also told her he intended to correct the problem. Testimony by two other neighbors established that they do not smell any foul odors coming from the Forrester property but that when climatic conditions are just right, they can smell an odor from the nearby sod farm. However, it is found that the odor smelled by Stoudenmire, Bailey and Lewis comes from the Forresters' faulty drainfields and is different from that occasionally caused by the sod farm. Respondents do not want to incur the cost of disconnecting their two existing systems and installing an unsightly mound system, which would cost almost $3,000.00. In addition, Carl Forrester says that the trucks and equipment used to install a mound system would cause another $2,000.00 in driveway and landscape damage. Because of this, Forrester contends he will sell his home before installing a mound system. Forrester also blamed the newly added fill on Bailey's lot, which disrupted the natural flow of water, for causing the standing water on his property. However, there was no evidence that this condition caused the drainfields to operate in a faulty manner. Forrester also said four septic tank firms found his systems to be in compliance with HRS rules. But this testimony is hearsay in nature and cannot be used to make a finding in his favor. Finally, he blamed part of the odor on a rotting gum tree stump in his back yard which eventually dissipated. However, this contention is not accepted as being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a $1,000 civil penalty upon respondents for violating Subsections 386.041(1)(a) and (b), Florida Statutes, and Rule 10D-6.0571(4), Florida Administrative Code. Respondents should also be required to correct their failed system by installing a mound- type drainfield within thirty days from date of final order. DONE AND ENTERED this 20th day of May, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1300 Petitioner: 1-2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 6 and 9. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Covered in preliminary statement. Partially accepted in finding of fact 4. 9-10. Partially accepted in finding of fact 7. Partially accepted in finding of fact 12. Partially accepted in finding of fact 2. Respondents: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 12. 6-7. Partially accepted in finding of fact 6. 8. Partially accepted in finding of fact 7. 9. Partially accepted in finding of fact 6. Partially accepted in findings of fact 1 and 12. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 13-14. Partially accepted in finding of fact 11. 15. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire Post Office Box 2417 Jacksonville, FL 32231-0083 J. Gary Baker, Esquire Post Office Box 1177 Callahan, FL 32011
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue Whether the August 30, 1988 application of Petitioner James R. Regan for a permit to operate a wastewater (sewage) treatment facility should be granted in that Petitioner has provided reasonable assurances that the operation of the facility will not discharge, emit, or cause pollution in contravention of Department of Environmental Regulation standards or rules.
Findings Of Fact The sewage treatment plant that is the focus of this proceeding is "Weakley Bayou, Inc.," a corporation. The real property upon which it is located is owned by the wife of James R. Regan. Despite corporate status, Weakley Bayou, Inc. has been operated at the option and control of James R. Regan since its inception in the early 1970's. The permit application here at issue was made in Mr. Regan's name, and he has been treated as if he were the corporation throughout all stages of the permit process. Mr. Regan brought the Petition for Formal Hearing in his own name. He was also accepted as the qualified representative for himself and the corporation. "Weakley Bayou, Inc." is an aerobic gravity flow wastewater treatment plant located in Escambia County. In 1988 James R. Regan applied for a renewal of the operating permit for the facility. The Department of Environmental Regulation (DER) issued an Intent to Deny on December 16, 1988, based on agency perceptions derived from observations, monitoring of Petitioner- generated reports, and grab samples, that the facility did not meet the requirements set down in Rule 17-6 F.A.C. Specifically, the Intent to Deny focused on the following problems: A reclaimed water sample taken on December 6, 1988 revealed the facility was exceeding BOD5 (Biological Oxygen Demand) and TSS (Total Suspended Solids) limits in violation of specific condition number 17 of Permit Number D017-71682. The BOD5 was 232.8 mg/l and TSS was 1,430 mg/l. The same sampling showed the facility was exceeding 200/100 ml for fecal coliform in violation of specific condition number 17 of permit number D017-71682 and Rule 17- 6.180(1)(b)4.d., Florida Administrative Code. The fecal coliform was 79,000/100 ml. Ground water monitoring samples show the levels of nitrates in excess of 10 mg/l in well #l on two out of last four quarterly samples, which is in violation of Rule 17- 6.040(4)(q) paragraph 4.2, Florida Administrative Code. During the inspection on December 6, 1988, the sludge blanket in the clarifier was overflowing the weirs, solids had accumulated in the chlorine contact chamber and percolation ponds in violation of Rule 17- 6.110(3) and 17-6.180(2) (e) , Florida Administrative Code. Auxiliary electrical power is not provided as required by Rule 17-6.040(4) (c) and 17-6.110(3), Florida Administrative Code. The applicant was notified March 14, 1988, that emergency power would be required. During the period (1984-1988) that Petitioner's sewage treatment plant has been permitted by DER, it has been periodically inspected and the Petitioner's self-generated reports have been monitored. From time to time after inspections, Petitioner has been notified of pollution and contaminant hazards or violations pursuant to agency standards, which hazards or violations required corrections in order to retain his permit. Among these hazards and violations have been noted large sewage spills, overflows, poor equipment condition, and substandard plant operation. In most instances, Petitioner cooperated with DER and at least attempted to adjust the plant's operation to conform to the notifications. However, as of December 15, 1988, DER notified Petitioner of the following problems with the plant: sludge blanket in the clarifier overflowing the weir, solids accumulation in the chlorine contact chamber, solids accumulation in both percolation ponds, no auxiliary power on the site, and high levels of nitrates (6.9 ppm) in Monitoring well -1. DER's test of an effluent grab sample tested BOD at 232.8 mg/L and Total Suspended Solids (TSS) at 1430 mg/L. That is, samples taken by DER during an inspection indicated excessive levels of TSS, BOD, and fecal coliform, in violation of Chapter 403 F.S. and Chapter 17-6 F.A.C. Mr. Regan admitted that for approximately four years, broken and unrepaired pipes and fittings at his plant had caused sewage spills or overflows of approximately eight thousand gallons of sewage sludge. He contended that the surface enrichment around Monitoring Well #1 was caused by a separation of a two-inch PVC skimmer line which was corrected in March 1988. Although Mr. Regan established that the leak in the pipe had been repaired, the evidence does not permit a finding that this enrichment was solely from that source, that it will dissipate over a reasonable time, or that it has not polluted the ground water. 1/ Thus, there is no reasonable assurance that fixing the leak, by itself, protects the environment. Over a period of time, Petitioner's own groundwater monitoring reports showed excessive nitrate levels and these have worsened since late 1988, according to witness Ray Bradburn. Petitioner contended that a grab sample is not as accurate as a composite sampling. Although DER witnesses concur in this contention of Petitioner with regard to grab samples generally, and although one DER witness suggested that part of the December 1988 grab sample reading by itself would not cause him to deny the permit, no credible evidence disputes the accuracy of the December 6, 1988 grab sample as a grab sample.2/ Petitioner admitted that it was and continues to be his conscious management decision to keep the plant's auxiliary gasoline powered engine locked away from the plant site so as to discourage theft and vandalism, and so as to discourage childish curiosity which might expose Petitioner to liability. He was reluctant to secure the engine on the premises as a hedge against emergency shutdowns of the plant. Mr. Regan, upon advice of outside engineers, has attempted to correct many of the cited errors and omissions. However, notwithstanding the DER's express disapproval of such a method, Mr. Regan has instructed his plant operators to curtail the input of air from the plant's blower to the sewage at night so as to create a "belching" effect designed to clear out certain wastes and thereby attempt denitrification in the clarifier. DER witnesses did not explain in any detail why Regan's belching procedure was unacceptable except that addition of an expensive denitrification unit was preferable and constituted a "reasonable assurance," whereas Mr. Regan's method had not been demonstrated to be successful in the past. Mr. Regan, who bears the burden of proof in these proceedings, did not demonstrate that his "belching" system was a reasonable assurance of denitrification or offer expert witnesses to support such a theory. This sewage treatment plant is subject to a Notice of Violation which became final on September 21, 1989. 3/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the pending permit application. DONE and ENTERED this 31st day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.
The Issue Schofield Corporation of Orlando has applied to the Department of Environmental Regulation for a permit to construct and operate a Class III trash/yard trash landfill in Orange County, Florida. The issues are whether the applicant is entitled to the permit and, if so, what conditions should attach. Also at issue is Schofield Corporation's motion for attorney's fees and costs, pursuant to Section 403.412(2)(f), F.S.
Findings Of Fact The applicant, Schofield Corporation of Orlando (Schofield), owns the proposed landfill site and existing permits for the site. The proposed site is located in West Orange County, southwest of the intersection of State Road 545 and Schofield Road on the west half of the northwest quarter of section 32, township 23 south, range 27 east, comprising approximately sixty acres within a larger eighty-acre parcel. In some undetermined distant past the site was cultivated in citrus. It is currently being excavated as a borrow pit. The materials proposed to be placed in the landfill include trash, yard trash, construction and demolition debris and clean debris, as defined in DER Rule 17-701.020, F.A.C. The northern half of the site is flat and will be used first for the composting operation. The southern excavated portion of the site will receive the permitted fill material until it is flattened. Then, the two functions will alternate; the composting will occur on the south, and the north end will be excavated to receive fill. The proposed facility will be operated by Chambers Corporation, a nationally recognized waste management company with approximately 20 years of experience in solid waste management. The landfill site will be completely fenced, with a gate entrance mid-site between the landfill and compost area. The gate will be locked when the facility is not in operation, and will be patrolled by security personnel 24 hours a day. "Spotters", or inspectors will be employed to examine incoming waste loads at the gate, from a high gantry, and at the place where the waste is deposited. The loads will be monitored by a television camera, and all haulers will be under contract. The landfill will not accept loads from trucks coming off the road looking for a place to dump. Receptacles will be maintained on site to receive errant non-permitted waste that is found in a load, and that waste will be properly disposed of elsewhere. Schofield has several permits related to its proposed operation. These include a type III landfill permit from Orange County, a compost facility permit from DER, a general construction and demolition debris landfill permit from DER, a surface water management permit from the South Florida Water Management District, and a permit to excavate or mine from the Florida Department of Natural Resources. Schofield also has a contract to receive yard waste from Orange County. The initial term of contract requires at least ten percent of the yard waste to be composted or recycled, with the percentage amount to be renegotiated in subsequent contract renewals. In the hierarchy of landfills, DER considers Class III the least environmentally sensitive. Problems with unauthorized waste and with water quality occur more frequently with Class I landfills, defined as accommodating more than twenty tons a day of residential garbage. In this case DER has proposed to grant Schofield its Class III permit without the requirement of a bottom liner or a leachate or gas control system because of the nature of the waste that will be accepted and because of the rigorous controls, described above, to avoid receiving unauthorized or hazardous waste. The Petitioners are an individual and a homeowners' association representing a residential area approximately a half mile south of the proposed site. Petitioners contend that the applicant's data is insufficient to provide reasonable assurances that water quality standards will not be violated. Petitioners contend that the landfill, if approved, should be required to have a liner to prevent leachate from polluting the groundwater. They further contend that the groundwater monitoring plan submitted by the applicant is inadequate to detect vertical movement of contaminated leachate into the Floridan aquifer, a major source of water supply in Orange County. Hydrogeology The site of the proposed landfill is within a high recharge area. Water percolates rapidly though the soil, moving downward into the aquifer, and laterally off site. The site is considered Karst terrain, underlined with limerock. There is evidence of relic sinkholes, thousands of years old, but there is a low probability of future open sinkhole development. The geology in the area of the site provides adequate structural support for the proposed facility. An aquifer is generally defined as a unit of material which contains water and can give up a sufficient amount of yield to provide some productive flow for pumpage. Below the site there are two aquifers: the shallow water table, or surficial aquifer, containing clean well-drained fine sands, about 70 feet down; and the Floridan, primarily limestone, encountered at a depth of approximately 115 feet. The two are separated by a confining layer of less permeable sands and clay. Flow in the Floridan at the site is primarily from the west to east. Flow in the surficial is also generally from west to east, but the Petitioners theorize, and have presented competent supporting evidence, that there are fissures in the confining layer, allowing some internal drainage within the site, causing surficial water to flow vertically into the Floridan, rather than laterally off-site in an eastward direction. Based on recent data taken from two piezometers installed near the middle of the site, the applicant's hydrogeologist, James Golden, concedes that "mounding" exists along the eastern boundary of the site, reflecting some flow westerly back into the interior of the site. Petitioners' theory regarding internal draining of the site is based in part on data as to groundwater elevation. Groundwater elevation or high groundwater table is the elevation at which water stands on a continuous surface under the site. Jammal and Associates is a consultant firm which has done field studies of this and neighboring sites in the past, for various purposes. Some open bore readings taken by Jammal and Associates in a 1983 study for the Orange County Rapid Infiltration Basin project indicate groundwater table levels on site up to 126 feet, National Geodetic Vertical Data (NGVD). Open bore readings are less reliable than cased hole readings; due to collapses within the hole, artificially high readings are sometimes obtained. Data from the applicant's consultants reveals groundwater tables at 96-98 NGVD. This data was most recently obtained in December 1991 from sealed and surveyed piezometer casings, but not from the area of the site where Jammal's higher readings were obtained. Although it may be conjectured that Jammal's high readings are anomalous, additional sealed borings need to be obtained before the anomaly is confirmed. Groundwater elevations are significant also to determine the depth to which the landfill may be excavated. Based on its December 1991 readings, obtained after the application for permit was filed, the applicant agreed to raise the proposed bottom of the landfill to approximately five feet above the level of the estimated high (wet weather) groundwater table in the area. Water Quality and Monitoring Specific conditions of the proposed permit include DER's requirements that Class GII water quality standards be met at the boundary of the zone of discharge, in accordance with Rule 17-3, F.A.C. The zone of discharge for this facility is a three-dimensional volume defined in the vertical plane as the top of the ground to the base of the most surficial aquifer, and horizontally 100 feet from the edge of the waste-filled area, or the property boundary, whichever is less. The groundwater monitoring plan proposed by the applicant includes one upstream monitoring well on the west side of the site and five wells along the east side of the site, with an additional well at the south, between the project and the Petitioners' residential area. The wells extend down into the upper zone of the surficial aquifer, but not into the deeper limestone Floridan. The downstream wells should detect any contamination in the surficial aquifer flowing from west to east at the zone of discharge. However, they will not pick up contamination draining internally within the site and into the Floridan. Such contamination is possible, even though leachate from Class III- type wastes is expected to be relatively benign. Volatile organic carbons (VOCs) have not typically been a problem in Class III landfills, unless those landfills were previously operated as Class I sites. Secondary drinking water standards for certain metals have been violated at some Class III sites, but such violations are often related to the problem of sampling newly-installed wells. From DER records, Petitioners presented evidence of consistent drinking water quality standard violations in Class III landfills. That such violations can occur in Class III landfills is clearly established. It is not so clear that such violations will occur in this facility, given the proposed controls on load content. However, even acceptable materials will not avoid the production of leachate or gas. Within demolition waste there are chemically bound components which are inseparable, for example, creosote and other preservatives, glues, paints, resins, varnishes and stains. The lignin, tannins and volatile organic acids which are produced when wood decomposes alter the pH of the groundwater. As the water becomes more acidic, heavy metals that were typically bound up in the waste or in the soil, are released in soluble form and travel with the water. The decomposition process occurring in the construction and demolition waste is enhanced by the addition of yard trash which becomes the food source for the biodegradation. Summary of Findings and Proposed Permit Conditions If, as applicant suggests, all groundwater moves primarily from west to east within the site, given the proposed operational controls and the proposed monitoring plan, reasonable assurances have been provided that water quality standards will not be violated beyond the zone of discharge. That is, any contamination likely to occur will be contained within the surficial aquifer and within the 100 feet or property line horizontal boundary. Transmissivity of the surficial aquifer is low enough to allow mixing of the leachate before it reaches the zone of discharge. The Petitioners, however, have presented credible evidence sufficient to question the groundwater flow premise and sufficient to require additional conditions on the permit. If leachate reaches the Floridan through fissures in the confining layer, it will move rapidly off site. In its proposed recommended order DER has suggested additional permit conditions and in its adoption of the proposed recommended order, the applicant has accepted those additional permit conditions. Those permit conditions recognize the fact that data presently provided by the applicant is insufficient to overcome the evidence by Petitioners as to the hydrogeological characteristics of the site with the possibility of internal drainage and vertical intrusion of contaminated water into the Floridan aquifer. The proposed recommended order provides this finding: ...that the ground water monitoring plan as proposed in this proceeding is adequate, provided that there be added to the permit conditions that the permittee conduct appropriate water table testing with cased piezometers during the next wet season to determine whether ground water flow is internal within the site and therefore not intercepted by the present ground water monitoring wells. The permittee shall consult with DER and get approval for the location and construction of these wells prior to their installation. The results shall be immediately submitted to the DER. The ground water monitoring requirements should be modified if necessary at that time pursuant to Rule 17-28.700(5) to assure proper monitoring at this site. (DER proposed Recommended Order, p. 17) The ground water monitoring plan modification suggested by DER is that deeper monitoring wells, into the Floridan aquifer, be required if the additional testing reveals the likelihood of internal on-site ground water drainage. These conditions are still inadequate since they lack specificity with regard to the extent of testing, the location and construction of the wells, and the amendments to the monitoring program to be required if internal drainage is confirmed. Moreover, the proposed conditions fail to address the possibility that the permit should require a liner for the landfill if the data to be obtained reveals the likelihood that contaminates will penetrate into the groundwater of the Floridan. Monitoring programs, however effective, only predict or detect problems; they do not remediate them. Groundwater contamination by landfills is not quickly and easily reversed. Unlike discharges from other facilities such as spray application or deep well injection, the leachate from a landfill is not "turned off". Without the additional data which all parties agree is needed, it is impossible to determine what additional conditions, if any, should be required or what amendments, if any, need to be made to the applicant's proposed monitoring plan.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Environmental Regulation issue its Final Order denying the application for Class III land fill permit. DONE AND RECOMMENDED this 17th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraph 1. Adopted in substance in paragraph 10. 3.-11. Rejected as unnecessary. 12.-23. Rejected as argument or summary of testimony, rather than findings of fact. 24. Rejected as unnecessary. 25.-30. Rejected as argument or summary of testimony, rather than findings of fact. 31. Rejected as unnecessary. 32.-41. Rejected as argument or summary of testimony, rather than findings of fact. Rejected as unnecessary. Adopted in substance throughout the recommended findings. 44.-50. Adopted in Preliminary Statement and paragraph 4. 51. Rejected as unnecessary. 52.-53. Adopted in paragraph 2. 54.-55. Rejected as statement of testimony rather than finding of fact. Adopted in paragraph 3. Rejected as unnecessary. 58.-97. Rejected as argument or statement of testimony, rather than findings of fact. Subparts a), b), c) and e) are rejected as unsupported by competent evidence. The evidence suggests that violations might occur and that insufficient data has been produced. Subpart d) is adopted, by implication in paragraph 18. 99.-101. Adopted in summary in paragraph 20. Respondent's Proposed Findings of Fact Addressed in Preliminary Statement. Adopted in paragraphs 1, 2 and 5. 3.-4. Adopted in paragraph 4. Adopted in summary in paragraph 11. Adopted in paragraph 13. Rejected as unnecessary or irrelevant, given the stipulation related to Section 403.412, F.S. standing. Rejected as cumulative. Adopted in paragraph 10. Adopted in paragraph 9. Adopted in substance in paragraph 9. 12.-13. Adopted in paragraph 13. Adopted in substance in paragraph 16. Rejected as unsupported by the evidence. If internal drainage is shown to exist, conditions other than additional monitoring wells may be required. Adopted in paragraph 17. 17.-18. Adopted in paragraph 3. 19.-21. Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 12. 24.-26. Adopted in general in paragraph 14. 27. The unlikelihood that unauthorized waste will be dumped is adopted in paragraph 3. Whether there will be a violation of ground water quality standards at the zone of discharge was not established, given the need for additional data on internal draining. COPIES FURNISHED: Thomas B. Drage, Jr., Esquire P.O. Box 87 Orlando, FL 32802 Irby G. Pugh, Esquire 218 Annie Street Orlando, FL 32806 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The disputed issues are as follows: Whether the proposed Water Conservation Plan is sufficient to meet the requirements of the District rule; Whether the proposed pumping will adversely affect wetlands and wetland vegetation in contravention of District rule; Whether the permit applicant has provided reasonable assurance of entitlement to the requested permit as required by the District rule; and What limiting conditions pursuant to Rule 40C-2.381, F.A.C., should be imposed on the Consumptive Use Permit (CUP).
Findings Of Fact THE PARTIES The Commission was created by the legislature pursuant to Public Law 67-1754 in combination with Public Law 85-503. Its principal office is located in New Smyrna Beach, Volusia County, Florida. The Commission is charged with maintaining a water supply and providing wastewater treatment and electrical power. The District is an agency created pursuant to Chapter 373, Florida Statutes, in charge of regulating, among other things, consumptive uses of water in a 19 county area of the State of Florida, including all of Volusia County. The geographical boundaries of the District are described in Section 373.069(2)(c), Florida Statutes. Vernon and Irene Beckham are property owners of the property proposed for the construction of the new State Road 44 wellfield. Volusia City-County Water Supply Authority is a cooperative created by interlocal agreement in accordance with Section 163.01, Florida Statutes (1991), which party made no appearance at the Formal Administrative hearing but adopted the position of the Commission. Nassau is an individual residing at 4680 Cedar Road, New Smyrna Beach, Florida. THE APPLICATION The present service area of the Commission encompasses approximately 43 square miles, of which only about 15 square miles of the service area are located in the City of New Smyrna Beach. On August 8, 1984, the District issued Consumptive Use Permit No. 2- 127-0214NG to the Commission for its Glencoe and Samsula wellfields, which permit would expire in seven years. The combined authorized withdrawal of the existing wellfields is 5.2 mgd on an average day and 8.31 mgd on a maximum day. In December 1990, the Commission submitted its Consumptive Use Permit Application to renew the existing permit, including the development of an additional water supply wellfield. This application also sought an increased allocation to meet projected demand for the Commission's service area. The total allocation sought was 5.59 mgd on an average day and 8.31 mgd on a maximum day. However, the District has recommended 5.29 mgd on an average day and 7.62 mgd on a maximum day by 1998. The source of the water for all three wellfields is the Floridan aquifer. The Floridan aquifer can produce the volumes of water requested based on the past pumpage from the Samsula wellfield and the Glencoe wellfield. The Glencoe wellfield has been in operation since early 1950. The Samsula wellfield has been in operation since 1982. The Commission has never exceeded the currently permitted withdrawals as measured by annual, daily, or peak basis. WATER DEMAND Approximately 75% of the demand is related to residential consumption. Approximately 10% of the demand is related to commercial and industrial consumption. Approximately 7% of the demand is related to irrigation. Lastly, approximately 8% of the demand is for miscellaneous consumption, including loss that occurs in the treatment process itself. Gross water use in the area served by the Commission is about 138 gallons per person per day. The approximate 103 gallons per person per day (net) used by residences is small as compared to other providers of potable water. The present population of the Commission's service area is approximately 31,570 customers. The projected 1997 population of the Commission's service area is 40,680. The Commission's population projections were obtained by methods consistent with the District's Permit Manual. VI. PERMIT CRITERIA Water Conservation Plan The Commission has submitted a complete Water Conservation Plan. The implementation of that plan is a condition of the permit. The Water Conservation Plan includes a customer audit program of the system to determine how much water is pumped and where the water goes once it is distributed. The customer audit program involves employees of the Commission discussing the historical water usage with the customer, detection of leaks, installation of water restrictors, and the prevention of freezing pipes in the wintertime. The Commission encourages reduced consumption through the water meter charges. Larger meters use more water than smaller meters. The monthly charge for the larger meters is higher thereby encouraging the use of smaller meters. The Water Conservation Plan includes a pressure monitoring program to detect leaks in the system. The program has been implemented. The system pressure monitoring plan measures the pressure in different zones around the Commission's service area and, should a large main burst, an alarm is triggered. Repair of that water main would occur immediately. The Water Conservation Plan includes an analysis of the economic, environmental and technical feasibility of using reclaimed water in Commission's Exhibit No. 14, Reuse of Reclaimed Wastewater Conceptual Planning Document. The Reuse of Reclaimed Wastewater Conceptual Planning Document involves four major phases of construction starting in 1991 with completion in 1995. The first phase is underway. As part of the reuse plan, the Commission is modifying the wastewater treatment plant to accept reuse water. The construction is 99 percent complete. A total cost for that is approximately 1.5 million. The Commission will be replacing some freshwater irrigation sources with reclaimed water. The Commission has valid DER permits for this use of reclaimed water. As part of the reuse plan, the Commission has entered into construction contracts to serve the municipal golf course, the landscape at city hall and city parks with wastewater. The transmission and distribution lines will be completed before October 1992. The cost is approximately $700,000. Other phases of the reuse plan include construction of the major infrastructure inside and outside the city for reuse distribution. Total investment is in excess of five million dollars. Major customers along the route have been identified to increase the demand on the reuse system. The Water Conservation Plan includes an employee awareness program and an educational program as well as a time frame to implement those programs. The Commission has a public relations program to inform the customers about water conservation which includes newspaper publications concerning reading water meters, xeriscaping, and methods to reduce water consumption and the time/temperature machine which has prerecorded messages. The Commission has a program for educating the public and encouraging xeriscaping or the use of drought resistant foliage. Xeriscaping is implemented at the wastewater lift stations. The Commission has used direct mailing to provide water conservation information to customers. The Commission has a program for inspecting and replacing defective meters. If a meter malfunctions, the replacement reduces the system losses and accurately records water usage. The Commission has a program to monitor unmetered uses, which includes reporting from users such as the fire department of their unmetered use. On a monthly basis, the fire department reports its water usage as calculated by its operation schedule. The Commission is using the lowest acceptable quality water source, including reclaimed water, for certain types of needs such as irrigation of golf courses. The Water Conservation Plan addresses the use of treated effluent to minimize withdrawals of groundwater. Issues Related to Reasonable Assurance Hydrogeology The Floridan aquifer occurs at approximately 100 feet below the land surface throughout Volusia County. It's overlain by approximately 100 foot of sandy and clayey material collectively called the Clastic aquifer or the surficial aquifer. The proposed SR 44 wellfield site is underlain by an approximate 900- foot depth of freshwater of the Floridan aquifer. In the high recharge area of the Deland Ridge, water moves rapidly into the surficial aquifer and recharges the Floridan aquifer. A regional groundwater gradient extends from the Deland Ridge towards the east. There is a volume of water in the Floridan aquifer that is constantly moving from the west to the east to replenish water that is being withdrawn. Based on the regional movement of the Floridan aquifer and the nature of the Floridan aquifer, the water that is being replenished by the withdrawal is mainly coming from the Floridan aquifer with some contribution from the surficial. Another way to determine the source of the water is by geochemical analysis. The source of the water for this use is characterized as freshwater category number three meaning that it is Floridan aquifer water that is replenishing the water that is being withdrawn and not surface water that is going directly into the Floridan aquifer system. Aquifer Tests The aquifer performance test at the SR 44 wellfield shows that the aquifer is able to produce the volumes of water requested. The depths of the proposed wells, and APT test well, at the SR 44 wellfield is 250 feet below land surface or 150 feet into the Floridan aquifer. The APT at the SR 44 wellfield site provided for the collection of data to show what happens to the water levels while the aquifer is stressed. The second APT at the SR 44 wellfield site tested the Floridan aquifer at a depth of 750 feet below land surface. The section of the Floridan aquifer tested was 500 feet thick. The second APT and geophysical logs showed that there were not any additional flow zones below the upper Floridan aquifer which would yield additional water. Prior to the pump recovery test at the Samsula wellfield, the wells were pumping at 2.59 million gallons per day for a couple of days prior to shutting them off. For a period of five days, four wells in the vicinity of the Samsula wellfield were monitored by the District for water level recovery. The actual observations and the predicted drawdowns in the model correlated well. Drawdown does occur at homeowners' wells when the Commission's Samsula wellfield is pumping, but it does not interfere with existing legal users based on the District rules. The drawdown will not cause a ten percent reduction in the withdrawal capability of the homeowner's well. Computer Modeling The PLASM model simulates the response of the surficial and Floridan aquifers to pumping. The computer model oversimplifies the nature of the surficial aquifer by characterizing the layer as a solid homogeneous type of a system, basically being all sand. In reality, there are some shell and clay layers or hardpan. The transmissivity or the ability to transmit water through the aquifer for surficial aquifer sand ranges between 1,000 up to about 12,000. The transmissivity in the model is 5,000 gallons per day per foot (gpdpf) for Layer 1 which was reasonable. In Layer 2, the data from the APT produced a value of 50,000 gpdpf and a leakance value, or value that would correspond to water that moves from the surficial aquifer down to the Floridan aquifer, of 0.0012 gpdpf. This 50,000 and 0.0012 values are reasonable numbers for this area of Volusia County. The PLASM model is an accepted model for simulating pumpage. In the PLASM model, the transmissivity was varied in two different directions, but it averaged 50,000 gpdpf in the Floridan aquifer system. In the Floridan aquifer system, water is going to be moving based on the transmissivity of the aquifer and a leakance value from the surficial aquifer. The water primarily flows in a horizontal direction. There is a component of vertical movement. The difference between the horizontal movement and the vertical movement is an order of magnitude. There's an order of magnitude difference between the 50,000 gpdpf and the 0.0012 gpdpf which shows that the majority of the water is coming from a horizontal direction. There is some vertical movement. The vertical movement is not only from above, but because of the Floridan aquifer there is also vertical movement from below. When a well is pumping water, the water is being replenished mostly from the horizontal direction and from the lower direction in the same aquifer system, with some contribution downward based on the leakance value from above. This is demonstrated or shown by a small predicted drawdown in the surficial aquifer and that predicted drawdown is basically two orders of magnitude less than the drawdowns in the Floridan aquifer. Proposed Recommended Withdrawal Rates The proposed recommended withdrawal rate from the SR 44 wellfield is 1.43 mgd for average daily flow. With the proposed recommended withdrawal of 1.43 mgd at the SR 44 wellfield, the maximum drawdown in the surficial aquifer is approximately 0.34 feet. With the proposed recommended withdrawal of 1.43 mgd at the SR 44 wellfield, the maximum drawdown in the Floridan aquifer is approximately ten feet. A withdrawal of 1.93 mgd at the SR 44 wellfield site would result in a maximum drawdown in the surficial aquifer of 0.7 feet and in the Floridan aquifer of thirteen (13) feet. The proposed recommended withdrawal rate from the Samsula wellfield is 1.93 mgd for average daily flow. With the proposed recommended withdrawal of 1.93 mgd at the Samsula wellfield, the maximum drawdown in the surficial aquifer is approximately seven tenths (0.70) of a foot. With the proposed recommended withdrawal of 1.93 mgd at the Samsula wellfield, the maximum drawdown in the Floridan aquifer is approximately seventeen (17) feet. The proposed recommended withdrawal rate from the Glencoe wellfield is 1.93 mgd for average daily flow. Under the existing permit, the Samsula wellfield is withdrawing at the higher rate of approximately 2.59 million gallons per day. The volumes of water requested from both the Samsula wellfield and the SR 44 wellfield have been reduced from what was originally proposed by the Commission. The reduced allocation for the Samsula wellfield will improve groundwater elevations and thereby reduce groundwater impacts. Water Quality The state water quality standard for public drinking water is 250 milligrams per liter (mg/l) chlorides. For water supply systems where the chloride level is below 250 mg/l, the District uses that level to determine whether or not the pumping is going to cause significant saline water intrusion. The proposed use cannot cause the water quality to exceed 250 mg/l in chlorides. The water quality data from the existing Samsula and Glencoe wellfields shows that none of the wells or trends from the indicate that they are either above 250 mg/l or trending in a degradation mode toward 250 mg/l. The water quality in the wells is stable without degradation of the water quality in either of the Glencoe wellfield or the Samsula wellfield. The water quality data collected during the APT at the SR 44 wellfield showed that the chlorides were below 250 mg/l and that during the test, there was no change or a trend of becoming salty. An independent study used geophysical methods to determine the depths below land surface where high concentrations of saline water exist. That depth was at approximately 1200 feet below land surface. Proposed Permit Conditions The Commission accepts the conditions of the permit as proposed in the Commission Ex. 10-B. The proposed conditions require the Commission to limit the withdrawals per wellfield as specified and to monitor each production well with a flow meter, monitor the groundwater levels, monitor the surface water conditions, monitor rainfall, and monitor the wetlands. The proposed permit conditions and the County's ombudsman program adequately address the possible impacts of the proposed wellfield on existing users. The monitoring will be able determine the impact of the wellfield on those users. The Commission accepts the condition to mitigate for interference with existing legal users in compliance with the proposed permit conditions. The Volusia County ombudsman program provides the method of investigating and resolving issues related to interference of the proposed wellfield operation with existing legal users. The Commission will participate in this program. The Commission's purchase of the property is contingent upon obtaining the consumptive use permit. The Commission will own the site as shown on various exhibits. The drainage pattern of Tiger Bay is northerly for most of the basin. A canal located north of the area provides the primary drainage for Tiger Bay. A small drainage area within Tiger Bay of approximately 90 acres drains south into the SR 44 wellfield site. Some of the drainage does come through the two 30-inch culverts under SR 44, and both commingle with the wetlands that are on the site as well as drain into a ditch located along the Ranchette Road. The maximum capacity at ideal conditions for those two culverts would be approximately 300 CFS, cubic feet per second. The entire Tiger Bay drainage basin is approximately 13,000 acres. The volume of surface water which can flow from Tiger Bay is 13,000 cfs. That volume could not flow through the culverts at SR 44 without overtopping the road. Ecology The upland communities surrounding the Samsula wellfield are primarily pine flatwoods and mixed pine forested areas. The proposed 1.93 mgd average day withdrawal quantity being recommended by the District for the Samsula wellfield will not adversely affect these upland communities because: (a) the upland communities do not rely on inundated or saturated conditions so the proposed consumptive use will not adversely affect the hydrology these upland communities rely on; and (b) the magnitude of the predicted drawdown will not cause a shift in vegetation meaning a change in the types of plants that already exist there. The wetland communities surrounding the Samsula wellfield site consist of cypress dome and bay swamp communities. With the projected drawdowns information for the Samsula wellfield, there will not be significant adverse impacts to uplands or wetlands that would be identifiable based upon the projected wellfield withdrawal rates as recommended by the District. Any potential for impacts has been reduced in that the current pumpage rates are projected to decrease. The proposed 1.93 mgd average day withdrawal quantity being recommended by the District for the Samsula wellfield will not cause the water table to be lowered such that these wetland communities will be significantly and adversely affected for the following reasons: The wetlands in the area of the Samsula wellfield lie in a sloped terrain. Underlying the site is a soil area known as a spodic horizon or a hardpan layer. The spodic horizon is an area where there is a deposition of organics and it has a different chemistry than the surrounding soils. The spodic horizon, when saturated, acts as a semi-impervious or impermeable layer which causes impedance of water as it goes through. This spodic horizon in the area of the Samsula wellfield is typically two feet below the soil surface. The predicted drawdown will not cause water levels to be dropped such that in normal wet season conditions, which is the time when hydrology to a wetland is most important, the spodic horizon will still be saturated so that water is coming into the wetlands through rainfall directly, as well as rainfall that falls on the adjacent uplands and moves laterally through the soils to the wetland above the spodic horizon. Thus, the spodic horizon will prevent a shift in the "water budget" of these wetlands such that the wetlands will not be harmed by the proposed use. The wetlands systems surrounding the Samsula wellfield are primarily densely forested systems with a fairly substantial accumulation of organic or muck type soils in the surface. The soils assist these wetlands in retaining moisture which provides a "built-in system" for the wetlands to withstand fluctuations in hydroperiods. The wetland systems surrounding the Samsula wellfield appear to have an altered hydrology. The identifiable impacts are ditches or shallow swales along State Road 44. The wetlands south of 44 in the vicinity of wells one, two and three have been bisected by roads and there are swales cut adjacent to those roads. The power line that runs north-south has cut off and eliminated half of a cypress wetland south of 44 and about half of a cypress wetland north of 44. It is possible that these ditches and roads may have caused the altered hydrology in these wetlands. It cannot be concluded that the current Samsula wellfield operation has caused this altered hydroperiod. However, the drawdown that is predicted to occur at the Samsula wellfield under the proposed 1.93 mgd average day withdrawal being recommended by the District is much less than the drawdown that is occurring from the current pumpage at this wellfield. The projected drawdowns from the proposed three wellfield configurations indicate less potential for impacts than the current two wellfields as far as Samsula is concerned. Thus, even if the wetlands surrounding the Samsula wellfield have been affected in any way by the current pumpage rate, the reduced drawdown rates that will result from the 1.93 mgd average day proposed pumpage rate will greatly improve this condition. Other than slight alteration along the edge of SR 44, the wetlands in the vicinity of Samsula wells five and six have not been significantly altered. No changes in vegetation and no apparent changes in hydrology occur in those areas. The cypress wetland north of SR 44 has a drainage ditch emerging to the east. Another wetland immediately north of SR 44, north of well four, is adjacent to the road and the roadside swale or ditch in that vicinity. The species of wildlife identified are ones that are adapted to altered conditions. Abundant wildlife is generally found living in association with improved pastures and close proximity to man. Most of the wetlands in the area of the Samsula wellfield, north and south of SR 44, are in improved pasture or where roads and power lines have been cut. There was evidence of impacts to the wetlands and some drainage. The edge of the cypress dome north of SR 44 has blackberries and other weedy type species along the margins of it. The wetland immediately southeast of well one at the Samsula wellfield was a healthy bay dominated area with ferns underneath. The lichen line on the trunk of the tree and the mosses indicate that the water has been up to or near the historical high within the past season or two. Otherwise, the lichens would grow at the base of the tree. At the Samsula wellfield site, there are no wetlands within the inner drawdown contour of 0.7. There are some wetlands between the 0.7 and the 0.5 contours. The upland communities in the vicinity of the proposed SR 44 wellfield are primarily pine flatwoods and improved pasture. In the pine flatwoods areas, the soils indicate that the water table extends from a height of 0.5 feet below land surface and down to a hardpan layer. The water table in the pine flatwoods fluctuates between the hardpan and 0.5 feet below land surface. The proposed 1.43 mgd average daily withdrawal which is being recommended by the District for the proposed SR 44 wellfield will not significantly and adversely affect these upland communities because these upland communities are not reliant on inundated or saturated conditions, and the proposed consumptive use will not cause a shift in hydrology such that the vegetation found in these communities will no longer be there. The wetland communities in the vicinity of the proposed SR 44 wellfield consist of cypress sloughs and cypress domes which also have herbaceous areas with them. The cypress dominated wetlands are on the northeastern portion of the site and the northwestern portion of the site extending down through the central and southeastern part of the site. Cypress dominated wetlands occur on the southwestern border with one in the east-central portion of the site. Between the cypress dominated wetlands and pine flatwoods are grass prairies. The Commission determined the hydroperiod of the wetlands using vegetative physical evidence or biological indicators, such as lichen lines and mosses, and soil physical evidence from soil probes, which are indicators of long-term and sometimes short-term changes. The wetland on the east-central portion of the proposed SR 44 wellfield site inundates to approximately six and one half inches. In the dry season, the soils dry out to 0.15 feet below land surface. In the wet prairie or wet grassy area, the water table seasonally fluctuates between the hardpan layer of 2.2 feet bls and a tenth or two-tenths of an inch above the surface as based on adventitious roots growing from a St. Johns wort plant species. The water table fluctuations explain the seasonal high and the seasonal low water elevations. The factors which most influence the wetlands and their hydrology are subsurface flow during the wet season, the runoff and direct rainfall. The proposed 1.43 mgd average daily withdrawal for the proposed SR 44 wellfield will not significantly and adversely affect these wetland communities because these wetlands are also underlain by a spodic horizon which, as in the case of the Samsula wellfield wetlands, functions to provide lateral movement of water into the wetlands. The predicted drawdowns for the proposed SR 44 wellfield will not lower the water levels in these wetlands so as to prevent the spodic horizon from performing this function. The recommended withdrawal rate of 1.43 mgd for the proposed SR 44 wellfield reduces the opportunity for impacts. The part of the wellfield site where the greatest drawdown of 0.34 feet occurs is the furthest away from the majority of the wetlands on the site. However, the wetland and soil types on the surface layer are different than the wetland and soil types found at the Samsula wellfield site. The District is recommending a pumpage rate for the proposed SR 44 wellfield that would result in a maximum .34 feet of drawdown in the surficial aquifer while recommending a pumpage rate that would result in a maximum .7 foot drawdown in the surficial aquifer for the Samsula wellfield. The wetlands at the proposed SR 44 wellfield site do not have the dense canopy as well as the accumulation of muck soils in the surface that the wetlands at the Samsula site have. Additionally, the wetlands in the vicinity of the proposed SR 44 wellfield site include herbaceous systems which tend to be shallower systems, not as deeply set as the forested cypress systems are, and therefore tend to be more sensitive to changes that occur in the top couple of inches of soil which is above the spodic horizon. Thus, the wetlands in the vicinity of the proposed SR 44 wellfield would be significantly and adversely affected if the Commission were permitted to withdraw water at a pumpage rate that would result in a drawdown of greater that .34 feet. The drawdowns upon which the evaluation of potential wetland impacts are based are predicted drawdowns. Monitoring and Proposed Conditions To provide additional assurance, the District has recommended a series of permit conditions, numbered 31 through 45 on the Commission Ex. 10-B, that will require the permittee to conduct extensive groundwater and surface water monitoring, as well as vegetative monitoring in the vicinity of the proposed SR 44 wellfield and the Samsula wellfield site. Condition number 31 identifies the overall program of wetland and ground and surface water monitoring. Condition number 32 requires the permittee to install surficial aquifer monitoring wells in the vicinity of the wellfield sites. These monitoring wells will be constructed below the spodic horizon and inside and outside the "area of concern" which is the area within the tenth of a foot drawdown contour at the wellfield sites. This condition will enable the District to analyze how the proposed use is affecting the overall groundwater levels unaffected by the spodic horizon. Placing these wells both inside and outside the area of concern will allow the District to determine if any change in groundwater levels is due to the wellfields or normal climatic patterns. Condition number 33 will allow the District to obtain a constant record of information to analyze what trends are occurring in the wetlands in the wellfields and to have sufficient data during normal climatic variations of the wet and the dry seasons to determine the presence of a trend. The required period of record collection, defined in this condition as the shorter of one calendar year or one consecutive wet to dry season, is a sufficient period of record collection because the purpose of this condition is to obtain a picture in time of the existing conditions in the wetlands surrounding the wellfields during the dry season and the wet season. Condition 33 requires the permittee to submit an annual hydrologic report to the District. This is a sufficient time period of reporting because the purpose of the report is to allow the District to accumulate and assess an entire year's of data or the entire dry to wet season variation. With the annual report, any adverse wetland vegetation changes can be detected prior to any permanent harm to the wetlands. Condition number 34 requires the permittee to install shallow piezometers and staff gauges in the monitored and referenced wetland areas. The monitored wetlands are the wetlands inside the "area of concern." The referenced wetlands are outside the "area of concern." Condition number 34 will allow the District to analyze the hydrology above the spodic horizon. This in turn will allow the District to evaluate the hydrology of the monitored wetlands against the hydrology of the referenced wetlands to determine if any adverse impacts are occurring in the wetlands due to the wellfields' operation. Condition Number 35 requires the permittee to submit surveyed cross- sections of each of the monitored wetlands and the referenced wetlands. This condition will allow the District to receive a linear view of both the monitored and referenced wetlands so that when the District receives the groundwater and surface water information required by condition number 34, it can assign that information to a picture, and know what the wetlands look like under varying water conditions. Condition number 36 requires the permittee to select referenced wetlands similar to the wetlands that are going to be monitored in the area of concern. This will ensure that the reference wetlands match vegetatively and hydrologically with the wetlands that are being monitored within the area of concern. Condition number 37 requires the permittee to install rain gauges at both wellfield sites. This will allow the District to compare rainfall to groundwater information and determine what the relationship is between water levels in the surficial aquifer and the amount of rainfall that has occurred. Condition number 38 requires the permittee to monitor, on a weekly interval, the water levels in each of the monitored wetlands and in the referenced wetlands and submit annual reports of this data. Condition number 39 requires the permittee to install continuous recorders on the staff gauges and piezometers in the reference and monitored wetlands. The information gathered will provide the District with detailed records of the water fluctuations in these wetlands systems relative to rainfall input. Condition number 39 requires the permittee to submit annual reports of the information gathered to the District. The annual report will allow the District to determine if any adverse trends are occurring in the wetlands. No permanent adverse change could occur to the wetlands communities surrounding either wellfield before the District receives this annual report. Condition number 40 requires the permittee to conduct baseline water quality monitoring at each of the monitored wetlands. If any adverse change does occur to the wetlands surrounding either wellfield, and if the permittee chooses to mitigate for this adverse change by augmenting the wetland systems, then this permit condition will allow the District to ensure that the water used to augment those wetlands is of the same quality as the water currently found in those wetlands. Condition number 41 requires the permittee to initiate a baseline vegetative monitoring program of the monitored and reference wetlands at both wellfields. This condition will allow the District to have a vegetative picture of the wetlands prior to any pumpage. Condition number 42 requires the permittee to conduct a vegetative monitoring program of the monitored and reference wetlands at both wellfields with the initiation of withdrawals. Condition number 43 requires the permittee to provide a wetland similarity assessment for both wellfields. The permittee must compare the results of the wetland vegetative monitoring program each year against the baseline vegetative monitoring of the same wetland and against the vegetative monitoring of the referenced wetlands. This condition will assist the District in determining if any adverse trends are occurring in the wetlands surrounding either wellfield. Condition number 44 requires the permittee to create two duplicate reference herbarium collections of the flora present in the monitored and referenced wetlands and the adjacent upland areas. This condition will ensure that there is consistency in the vegetative identification throughout the monitoring program. Condition number 45 requires the permittee to mitigate any harm to the wetlands that is detected from the monitoring required by other permit conditions. This condition does not require any particular form of mitigation. The wellfield withdrawals at the projected rates and the suggested permit rates should not have an impact on threatened or endangered plant or animal species in the Samsula wellfield area or the proposed SR 44 wellfield area. The monitoring program will provide the data to determine on a short- term or long-term basis whether the pumpage rates are causing impacts. Potential harm can be mitigated by adjusting the quantities and locations of withdrawal. V. ATTORNEY'S FEES AND COSTS The Commission seeks fees and costs from Petitioner pursuant to Section 120.59(6), Florida Statutes (1991). Such entitlement requires a showing that the Petitioner brought this case or filed a pleading for an improper purpose. While the evidence does show that certain pleadings filed by Petitioner (or his attorney who withdrew 24 hours prior to the beginning of the hearing) may have had as one purpose the delay of the hearing scheduled for March 24, 1992, the totality of the evidence establishes that Petitioner's purposes were not improper. Section 403.412(5), Florida Statutes (1991), establishes the right of any citizen of the state to intervene into "proceedings for the protection of air, water, or other natural resources of the state from pollution, impairment, or destruction " The actions of Petitioner in this proceeding were not clearly shown to be for delay, harassment or other improper purpose. In fact, Petitioner handled himself well as a pro se litigant after his attorney's untimely withdrawal. If anyone acted with an improper purpose in this proceeding, it was Peter Belmont, Nassau's attorney until he withdrew less than 24 hours prior to the hearing. The record shows that Belmont entered into the representation of Nassau with full knowledge that he would seek all possible delays in the proceedings. He engaged in no preparation for the hearing and he left Nassau unprepared also. Belmont's bad faith actions in this case however can only be determined and remediated by the Florida Bar, not by the undersigned through an award of fees and costs. Finally, there has been no delay in these proceedings. The petition was filed with DOAH on January 16, 1992. The District moved to consolidate it with two other pending case set for January 20, 1992. Those cases were voluntarily dismissed. An Initial Order was sent to the parties on January 21, 1992, seeking suggested dates for the hearing. The hearing was set to begin March 16, 1992, less than 60 days from the filing of the case. A one week continuance was granted and the case was heard beginning on March 24, 1992. If anything, this case has proceeded expeditiously.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the St. Johns River Water Management District enter a Final Order GRANTING the Utilities Commission of New Smyrna Beach's Consumptive Use Permit, subject to the March 9, 1992 permit conditions proposed by the District (Commission's Exhibit 10-B). RECOMMENDED this 13th day of May, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0246 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, William Nassau Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(3) and 5(10). Proposed findings of fact 1-3, 6-9, 11, 12, 14, 19, and 22 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 15-18, 20, and 21 are unsupported by the credible, competent and substantial evidence. Proposed finding of fact 10 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Utilities Commission of New Smyrna Beach Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-19(15-21); and 35(12). Proposed findings of fact 12 and 20 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 32-34 are irrelevant. Proposed findings of fact 21-31 and 36-111 are subordinate to the facts actually found in this Recommmended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, St. Johns River Water Management District Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-21(22-46); 22(16); 23(7); 25(19-21); 29-31(12-14); and 32-142(43-153). Proposed findings of fact 24 and 26-28 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: William Nassau 4680 Cedar Road New Smyrna Beach, FL 32168 Nancy B. Barnard Eric Olsen Attorneys at Law St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Roger Sims Rory Ryan Lynda Goodgame Attorneys at Law Holland & Knight P.O. Box 1526 Orlando, FL 32802 Wayne Flowers, Executive Director St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429
Findings Of Fact Brevard applied for a permit to construct a Class I exploratory injection well at the site of the existing South Beaches Domestic Wastewater Treatment Plant, located on U.S. Highway A1A, one mile south of Melbourne Beach, Florida. The exploratory injection well is required to determine if the hydrologic characteristics of the Melbourne Beach area are suitable for deep well disposal of treated domestic waste water. The application proposes that an exploratory well be constructed to meet the Class I standard of Chapter 17-28, Florida Administrative Code, so that it can ultimately be used as a Class I injection well if the required testing indicates the hydrologic formations of the area are suitable for deep well disposal of treated domestic effluent. It is anticipated that a suitable zone for injection bay be found at approximately 3,000 feet below ground level. The conditions required by the Department for issuance of a construction permit would not authorize testing or operation of the well. Once the well is constructed, further approval from the Department is required prior to testing. If the Department authorizes testing, the well will he tested with water from the Indian River. If the test results are favorable, Brevard must then apply for an operation permit authorizing injection of treated effluent. Further Department review will occur prior to issuance of an operation permit. The evidence presented by Brevard and the Department establishes that the design specifications for the exploratory well satisfy the appropriate standards for a Class I exploratory well. The Amended Petition for Hearing raised a number of concerns which were adequately addressed by Brevard and the Department: The Petitioner failed to establish that the documents comprising the application contain false and mis- leading information. The maps and photographs submitted by Brevard adequately depict exist- ing residences, roads, public water systems and water wells. Although well #061 does not appear in the list of owners on the well inven- tory, it clearly appears next to that list on the actual map showing wells within the area of study. Such a clerical error does not draw into question the integrity of Brevard's data. The purpose of constructing and then testing an exploratory well is to determine if the hydrologic environment is suitable for deep well disposal of treated domestic waste water; obviously, it is impossible for Brevard to demon- strate the feasibility of deep well injection until the required testing has been completed. The application and accompanying documents adequately address the design specifications and life expectancy of the proposed well. The application and special conditions of the Department's draft permit provide sufficiently for monitoring during the con- struction and any later testing of the well. The application and the Department's draft permit adequately address the possibility of fluid discharge to surface and ground waters during construction and any later testing of the well. Existing knowledge of the geologic formations in the Brevard County area makes it extremely unlikely that construction and testing of the well could cause an earthquake) Deep well disposal of domestic effluent has been utilized in South Florida for years and has not yet caused an earthquake. No credible evidence was presented by the Petitioner to indicate that an earthquake could result from deep well injection activities in Brevard County. It is important to note that the design specifications and conditions of Brevard's proposal were reviewed and negotiated with the Technical Advisory Committee over a period of many months. Appropriate technical staff from the Department's St. Johns River District office, Brevard County, the St. Johns River Water Management District, and the United States Environmental Protection Agency participated on that Committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered issuing a permit to Brevard County to construct the Class I exploratory well proposed in its application. DONE and RECOMMENDED this 22nd day of November, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 22nd day of November, 1983. COPIES FURNISHED: Jeanne Whiteside 10520 South Tropical Trail Merritt Island, Florida 32952 Kenneth C. Crooks, Esquire Post Office Pox 37 Titusville, Florida 32781-0037 Dennis R. Erdley, Esquire Department of Environmental Regulation Twin Towers Office Building 2660 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
