95-000863 Thomas H. Adams vs. Resort Village Utility, Inc., And Department Of Environmental Protection
 Status: Closed
Recommended Order on Wednesday, January 10, 1996.

View Dockets  
Summary: Reasonable assurances provided subject to additional conditions for Advanced Wastewater Treatment monitoring. Remaining issues subject to stormwater permitting, not wastewater.





13Petitioner, )


16vs. ) CASE NO. 95-0863






35Respondents. )





46Petitioners, )


49vs. ) CASE NO. 95-0864






68Respondents. )







87Petitioners, )


90vs. ) CASE NO. 95-0865






109Respondents. )




116Petitioner, )


119vs. ) CASE NO. 95-0866






138Respondents. )





150Petitioners, )


153vs. ) CASE NO. 95-0867






172Respondents. )



177Upon due notice, this cause came on for formal hearing before Ella Jane P.

191Davis, a duly assigned Hearing Officer of the Division of Administrative

202Hearings, on September 6-8, 1995, in Apalachicola, Florida.


211For Petitioner, Alfred O. Shuler, Esquire

217Franklin County: SHULER & SHULER

222Post Office Box 850

226Apalachicola, Florida 32329

229For all other Samuel J. Morley, Esquire

236Petitioners: Karen D. Walker, Esquire


244Post Office Drawer 810

248Tallahassee, Florida 32302

251For Respondent Thomas I. Mayton, Jr., Esquire

258DEP: Department of Environmental Protection

2632600 Blair Stone Road

267Tallahassee, Florida 32399-2400

270For Respondent L. Lee Williams, Jr., Esquire

277Timely-filed Petitions for Formal Administrative Hearing initiated Case

285Nos. 95-0862 (Concerned Property Owners), 95-0863 (Adams), 95-0864 (Dende-Gallio

294& Buzzett), 95-0865 (Duncklee & Thompson), and 95-0867 (Slaught).

303The cases were consolidated before the Division of Administrative Hearings

313(DOAH) with a similar timely-filed Petition by Franklin County (DOAH Case No.

32595-0866). Petitioners in Case Nos. 95-0862, 95-0863, 95-0864, 95-0865, and 95-

3360867 collectively filed an Amended Petition for Formal Administrative Hearing.

346Franklin County likewise filed an amended petition, upon which it ultimately

357proceeded to formal hearing herein.

362In addition to the permitting process for the AWT facility, the developer

374(principal of the applicant herein), through its engineer, submitted information

384to DEP to comply with the stormwater permitting and regulatory requirements of

396Chapter 62-25 F.A.C. By letter dated May 22, 1995, DEP advised the developer

409that no stormwater permit would be required for the first phase of Resort

422Village. Thomas Adams, Petitioner herein in DOAH Case No. 95-0863, filed a

434separate petition challenging DEP's grant of an exemption from stormwater

444permitting. The matter was referred to DOAH and assigned Case No. 95-3623. The

457stormwater case was consolidated with these pending AWT cases, and the style of

470the cause was amended. DEP then formally withdrew the stormwater exemption. On

482August 18, 1995, jurisdiction of the stormwater case was relinquished to DEP,

494and DOAH Case No. 95-3623 was closed.

501Ultimately, all Petitioners, save Franklin County, proceeded to formal

510hearing herein upon a Second Amended Petition for Formal Administrative Hearing.

521The parties stipulated to the standing of the Petitioners in Case Nos. 95-

5340863 through 95-0865 and 95-0867, pursuant to Section 403.412(5), F.S.

544Concerned Property Owners, Petitioner in Case No. 95-0862, voluntarily dismissed

554that case at formal hearing. An order was subsequently entered closing DOAH

566Case No. 95-0862 and amending the style of this case as set out above.

580At the commencement of formal hearing, counsel for DEP announced that DEP

592no longer had reasonable assurances as to a portion of the draft Intent to Issue

607AWT Permit, but that staff might feel differently after hearing all the evidence

620presented at formal hearing. Accordingly, since DEP no longer fully supported

631its own Intent to Issue as drafted, DEP was assigned an order of proof after the

647applicant had rested and before Petitioners, who challenged the entire

657application/Intent to Issue, as drafted. It is noted, however, that DEP has,

669posthearing, joined the applicant in a joint proposed recommended order urging

680adoption of identical findings of fact and a recommendation to issue the permit

693with some modification of the draft Intent to Issue.

702At formal hearing, the applicant presented the oral testimony of Gary

713Volenec, Nicholas Andreyev, Randy Armstrong, and Ben Johnson. The deposition of

724Richard A. Mortensen, P.E., was introduced as Resort Village's Exhibit 10.

735Resort Village had 17 out of 19 exhibits admitted in evidence.

746DEP presented the oral testimony of Jonathan May and Victor Hultstrand and

758had 13 out of 13 exhibits admitted in evidence.

767The individual Petitioners presented the oral testimony of Tom Pratt,

777Graham Lewis, Woodard Miley II, Steve Leitman, Richard Musgrove, Justin

787Strickland, and Robert J. Livingston and had 40 out of 41 exhibits admitted in


802Franklin County presented no testimony or exhibits.

809A transcript was filed with the Division of Administrative Hearings on

820October 16, 1995. On October 26, 1995, the individual Petitioners and Franklin

832County filed a joint proposed recommended order, and the applicant and DEP filed

845a joint proposed recommended order. All proposed findings of fact have been

857ruled upon in the appendix to this recommended order, pursuant to Section

869120.59(2), F.S.

871Motions, orders, and notices of filing subsequent to the filing of proposed

883recommended orders are reflected in the record and will not be reiterated here.


8991. The applicant proposes to develop a 58-acre parcel of land located

911within a 100-acre commercial area on the western half of St. George Island,

924Franklin County, in the vicinity of Nick's Hole. The proposed development will

936consist of a mixture of hotel rooms, a recreational complex, restaurant

947facilities, and retail space. The wastewater facility will be located in an

959area specifically designated under the 1977 Development Order for resort support


9712. The applicant proposes to construct a 30,000 gallons per day (gpd)

984domestic wastewater treatment facility expandable to 90,000 gpd to serve the

996proposed development, with reclaimed water to be discharged through absorption

1006cells, constituting a reuse/land application system. The entire facility

1015constitutes an advanced wastewater treatment facility (AWT).

10223. The proposed project site is bordered on the west by airport property.

10354. West of the airport is property owned by the State under the C.A.R.L.

1049Program, bordering Nick's Hole.

10535. The Gulf of Mexico borders the southern portion of the Resort Village

1066site, and an Apalachicola Bay wetlands system (a/k/a "the marsh") borders the

1079northern portion of the Resort Village site.

10866. The proposed wastewater treatment plant will be located on the north

1098side of Leisure Lane.

11027. Apalachicola Bay is designated an Outstanding Florida Water (OFW),

1112which is the highest classification for environmental protection purposes. It

1122is also a Class II shellfish harvesting water and an acquatic preserve. It is a

1137National Estuarine Research Reserve and an International Biosphere Reserve.

11468. The Apalachicola River is the most important portion of the

1157Apalachicola Bay ecosystem, followed by East Bay, and then Nick's Hole.

11689. The Apalachicola Bay and the Apalachicola River System are designated

1179by the Northwest Florida Water Management District as the highest priority

1190watershed under the Surface Water Improvement and Management (SWIM) program.

120010. Apalachicola Bay is one of the most productive estuarine systems in

1212the northern hemisphere, and is recognized worldwide as an exceptional natural

1223resource area. The introduction of too many nutrients into the Apalachicola Bay

1235System could destroy this productivity.

124011. Nick's Hole is a small lagoon surrounded by extensive productive salt

1252marsh and seagrass beds. Nick's Hole and the northern wetlands are major

1264spawning and nursery areas for shrimp, oysters, fin fish and blue crabs. These

1277areas are recognized as some of the most environmentally sensitive and

1288productive nursery habitats in the Apalachicola River basin. Scientific studies

1298conclude that drainage leading into Nick's Hole and the northern wetlands should

1310be protected against nutrients or contaminants associated with sewage wastewater

1320in order to protect the productivity of the area and ecological condition of the

1334Bay System.

133612. Development of the subject property creates a potential for

1346introduction of nitrogen and phosphorous into Nick's Hole and Apalachicola Bay

1357which might result in an increased production of phytoplankton. Due to the

1369proximity of Nick's Hole and the northern tidal wetlands to the absorption

1381fields, there also are concerns about the potential for direct flow into surface

1394waters flowing into Nick's Hole and influx of effluent from the groundwater.

1406Hypereutrophication (quick aging) of all the waterbodies as a result of nutrient

1418loading is another concern.

142213. Groundwater degradation due to nutrient loading by the project and

1433transmigration of effluent and specific nutrients are of utmost concern with

1444regard to this project because the ecosystem in the vicinity of St. George

1457Island is unique and extremely sensitive. Nick's Hole is the most productive

1469area for its size in the entire Bay System, has limited flushing, and is a major

1485drainage system for St. George Island. The marsh system to the north of the

1499plant is among the richest on the island. Barrier islands, such as St. George

1513Island, present unusual environmental problems, primarily because they are

1522subject to extreme wave action during hurricanes, because there is little land

1534to treat waste and any nutrients will eventually wind up in the surrounding

1547waters, and because the tidal creeks have limited flushing capabilities.

155714. The parties' disputes center around whether or not there will be

1569ponding under normal conditions or the 25 year flood event which would result in

1583surface water runoff of effluent and proscribed nutrients and whether these

1594conditions would result in groundwater contamination flowing into surrounding


160415. The AWT will provide the highest level of treatment available for

1616wastewater. The reclaimed product will contain not more, on a permitted annual

1628basis, then the following concentrations: 5 milligrams of biochemical oxygen

1638demand (CBOD5) per liter, 5 milligrams of suspended solids per liter, 3

1650milligrams of total nitrogen per liter, and 1 milligram of total phosphorous per

1663liter. This is commonly referred to as "the 5-5-3-1 criteria" and is codified

1676in Section 403.086(4)(a) F.S.

168016. The highly treated effluent would be suitable for irrigation purposes.

1691However, DEP Rule 62-610.451(1), F.A.C. prevents such uses in a public access

1703area unless the capacity of the plant is 100,000 gpd or greater.

171617. The treated effluent leaving the AWT would be drinkable and of higher

1729quality than many public drinking water supplies.

173618. DEP did not require an antidegradation analysis because the proposed

1747facility does not directly discharge into surface waters. However, the

1757applicant undertook an anticontaminant modelling as more fully described below.

176719. In order to ensure reliability, the AWT will be built in three phases,

1781each having a 30,000 gpd capacity. While this will increase the applicant's

1794cost, it will more importantly allow incremental DEP review prior to the second

1807and third phase expansions so as to further ensure compliance with applicable

1819DEP rules.

182120. To dispose of the treated effluent and provide additional treatment,

1832the applicant proposes an absorption field land application system comprised of

1843three subsurface absorption cells, subject to compliance with Part V, Chapter

185462-610 F.A.C.

185621. Each of the subsurface absorption cells will be used on a rotating

1869basis to balance the amount of effluent which will percolate into the

1881groundwater at each location. That means one will operate after another on a

1894flexible rotation schedule.

189722. The absorption cells have been located toward the south side (Gulf

1909side) of the property to reduce the amount of effluent which flows toward, and

1923ultimately reaches, Apalachicola Bay. Although the applicant has modified the

1933locations of certain cells within the general south side location for all cells

1946over the period of DEP's application review, this minor adjustment would have no

1959significant impact upon the applicant's early data and calculations showing

1969safety of ground and surface water runoff from the AWT. Also, recent data

1982taking into account this minor relocation was submitted at formal hearing with

1994the same result. See Finding of Fact 54.

200223. The cells total approximately five acres in size, which allows a net

2015average effluent hydraulic loading rate of .41 gpd per square foot.

202624. This application rate is well below the application rate of 1.9 gpd

2039per square foot allowed by DEP Rule 62-610.523(3) F.A.C.

204825. DEP does not normally require such small wastewater facilities to

2059provide Class I reliability, however the Intent to Issue was not forthcoming

2071until agency personnel were satisfied, initially, at least, that this

2081applicant's AWT could meet Class I reliability. The evidence shows that Class I

2094reliability will be obtained, but that the modifications agreed to by the

2106applicant at formal hearing might enhance reliability. See, Findings of Fact

2117129-132. Additionally, the AWT facility will incorporate other design features

2127not required by DEP rules designed to enhance environmental protections.

213726. Rule 62-610.550(3) F.A.C. provides that, "Absorption fields shall be

2147designed and operated to preclude saturated ground conditions at the ground

2158surface." See, Findings of Fact 114-121.

216427. Ponding has been observed after major storm events in isolated areas

2176within Resort Village and nearby, particularly near Leisure Lane and the

2187airport. However, several site inspections have revealed no ponding within the

2198absorption cell areas. St. George Island received 5.23 inches of rain on

2210October 2 and 3, 1992. A site inspection during this event revealed no ponding

2224at or near where the absorption cells will be located. The closest standing

2237water was observed 200-300 feet from the area. On August 14 and 15 1994,

2251Tropical Storm Beryl dropped over 10.25 inches of rain on an area encompassing

2264St. George Island. No ponding within the absorption cells area occurred

2275during this storm event. (Note Finding of Fact 119: The applicant has assumed a

228925-year-24 hour storm event would total ten inches of rain.) Hurricane/Tropical

2300Storm Erin dropped 7.17 inches of rain on the site over a three day period

2315ending August 4, 1995. The proposed areas for the plant as well as the

2329absorption cells were dry.

233328. Competent witnesses in all fields presented by the applicant testified

2344credibly that this site and AWT design promise high infiltration and low loading

2357rates in generally homogeneous soils with a rapid permeability rate, that

2368infiltration rates at the absorption cells will remain high, even under

2379extremely wet conditions associated with major storm events, and that surface

2390waters will dissipate quickly.

239429. In 1993, Richard A. Mortensen, P.E., a civil engineer, and Nicholas

2406Andreyev P.E., an environmental engineer, directed a soil, hydrogeolgic and

2416effluent disposal study and developed a groundwater monitoring plan for the


242830. On-site well drilling was conducted by a three-man team. A series of

2441monitoring wells and piezometers were installed to measure groundwater levels,

2451even through simple soil borings are all that are normally used for a system of

2466this size.

246831. Richard Mortensen has overseen more than 70 similar projects and was

2480onsite in May or June 1993. Petitioner's discomfort with the education,

2491training and experience of the persons doing the actual physical borings, well-

2503sampling, and pump tests for the applicant at this time and later as described

2517below is immaterial in light of the explicit directions before, and review

2529afterward, by Mr. Mortensen; the June 1993 presence of Ted Fussell, a registered

2542water well contractor and licensed geologist who formerly worked with the

2553Southwest Florida Water Management District as described in the testimony of

2564Gary Volenec, P.E. and the deposition of Mr. Mortensen; repeated on-site

2575oversight by Mr. Volenec, an environmental engineer specializing in wastewater

2585concerns; and the fact that physically taking such measurements is highly

2596technician-oriented work, not requiring exotic expertise.

260232. Soil tests showed horizontal permeability ranging from 74 to 151 feet

2614per day. A shallow aquifer pump test showed a weighted average permeability of

2627156 feet per day. These are "high" permeability rates; the higher the

2639permeability rates, the less "mounding" can be expected to occur. "Mounding" is

2651defined as that permanent change of groundwater as a result of a continuous

2664application of water.

266733. For purposes of modelling the groundwater flows in the initial

2678hydrogeotechnical report, Messrs. Mortensen and Andreyev made conservative

2686assumptions regarding the soil permeability and aquifer characteristics.

269434. Impacts to the groundwater were modeled by Mr. Andreyev, using a

2706computer program called "MODFLOW" calibrated to be consistent with the site-

2717specific data. Mr. Andreyev specializes in groundwater modelling. From 1986 to

27281990, he and his firm have conducted over 500 hydrogeologic studies, including

2740at least five studies on barrier islands. As found previously, St. George

2752Island is a barrier island. Mr. Andreyev has written and published various

2764groundwater and stormwater computer models, and has taught groundwater and

2774stormwater seminars to DEP and water management district personnel.

278335. MODFLOW is a three dimensional finite difference of groundwater flow

2794computer model published by the U.S. Geological Survey, and recognized

2804acceptable by DEP.

280736. Mr. Andreyev is familiar with, and skilled in, operating the MODFLOW

2819program, having used it in excess of 400 times.

282837. That Mr. Andreyev provided mixed fact and opinion testimony without

2839being formally tendered as an expert in any field is not controlling. Most of

2853his testimony was rendered without objection. Some of his testimony is

2864supported by learned treatises recognized by Petitioners' experts and admitted

2874without objection. Clearly, this record demonstrates that he has, by knowledge,

2885skill, experience, training, and education, expertise in hydrogeology and

2894groundwater and contaminant modelling on barrier islands, which can assist the

2905trier of fact in understanding the evidence or determining facts in issue.

2917Moreover, he testified concerning personal knowledge of the facts underlying any

2928opinion testimony, and what he perceived and inferred could not have been

2940accurately expressed except in the form of an opinion.

294938. The computer modelling simulated two years of continuous application

2959of effluent to ensure the "steady state" or equilibrium point of any potential

2972groundwater mound would be reached. Continuous application beyond two years

2982would not cause any further mounding effects. Messrs. Mortensen and Andreyev

2993concluded that if the recommended cell rotation were followed, loading 90,000

3005gpd would never create a groundwater mound over .2 feet MSL, and typically

3018would result in less than .2 feet MSL after resting. In contrast, the

3031absorption cells would have a minimum ground elevation of 5.5 NGVD, as required

3044by DEP.

304639. After the June 1993 study, slight changes in absorption cell locations

3058were made so as to further improve their performance and/or better utilize site

3071space, but as found previously, these relocations do not significantly change

3082the MODFLOW results. See below.

308740. Contrary to Petitioner's assertions, the more credible competent

3096evidence weighs in favor of a finding that normal tidal influences will not

3109significantly impact inland groundwater levels at the site.

311741. Further groundwater studies using additional monitoring wells were

3126conducted in October and November 1993 to better predict groundwater movement in

3138response to requests by DEP during the application review.

314742. During the monitoring period, there were three rainfall events,

3157including one with a total measured rainfall of 4.5 inches.

316743. These studies indicated there is a subsurface groundwater ridge

3177running east-west, slightly to the Bay side of the center of the island.

319044. Groundwater on the north side of this ridge will tend to flow towards

3204the Bay, while groundwater on the south side will tend to flow towards the Gulf.

321945. These studies also revealed a north-south ridge or high point in the

3232groundwater between the subject property and Nick's Hole in the vicinity of the


324646. Water which percolates into the ground south of the east-west ridge

3258will tend to move towards the Gulf, while water placed on the east side of the

3274north-south ridge will tend to move away from Nick's Hole.

328447. The absorption cells have been located towards the Gulf and east of

3297the airport in order to minimize any flows towards Apalachicola Bay and Nick's


331148. The 22 wells were monitored on 18 separate days.

332149. On three of the 18 days, the groundwater elevations for several of the

3335wells reported in the Applicant's Exhibit No. 1(c) were alleged by Petitioners

3347to be slightly higher or slightly lower than the field notes would indicate.

3360However, no single well had a discrepancy for more than two of the 18 days.

337550. In March 1994, another groundwater study, similar to the one performed

3387in October and November of 1993, was performed by Messrs. Leitman and Volenec.

340051. The purpose of this study was to confirm the previous studies, and to

3414gather additional data along the eastern portion of the site in fulfillment of

3427DEP requests. The gathered data did not significantly deviate from the previous


344052. In 1995, immediately preceding the September formal hearing, a new

3451MODFLOW analysis was performed by Mr. Andreyev. It was designed to be a more

3465intensive and more accurate representation of field conditions. It eliminated

3475some of the more conservative assumptions of the prior analyses and attempted to

3488analyze all rainfall over a 25-30 year period.

349653. Under pre-development site conditions, the groundwater mound or ridge

3506is approximately 2.2 feet NGVD.

351154. For this study, Mr. Andreyev incorporated the effects of the

3522impervious surface areas of the stormwater retention ponds and the revised

3533absorption cell locations, along with other factors.

354055. Surrounding property was also modeled in order to eliminate "boundary


355356. The presence of the stormwater retention ponds did not significantly

3564affect the results of the model.

357057. Consistent with the historical data, average annual rainfall was set

3581at 55 inches, and evapotranspiration of 40 inches was assumed. Mounding is a

3594long term phenomena, and the studies appropriately consider long term rainfall


360658. A calibrated soil net recharge rate of .0034 ft./day was incorporated

3618into the model. The underground aquifer was modeled as a "two layer" system

3631with the first layer extending from the surface to -10 feet NGVD. The second

3645layer extends from -10 feet NGVD to -32 feet NGVD.

365559. Proper calibration of the model requires the use of these aquifer


366860. Like the 1993 study, the recent 1995 study involved a two year model

3682run in order to reach a steady groundwater state.

369161. This more precise study showed less mounding than the previous study.

370362. Under the 30,000 gpd scenario, the groundwater mound will rise to

3716approximately 2.7 feet NGVD.

372063. With 90,000 gpd effluent, the groundwater mound will rise to

3732approximately 4.2 feet NGVD.

373664. The mounding will not affect the operation of the absorption cells.

374865. Under the 30,000 gpd scenario, 78 percent of the effluent will flow

3762towards the Gulf, 16 percent will flow towards Apalachicola Bay, and six percent

3775will flow towards Nick's Hole.

378066. Under the 90,000 gpd scenario, 74 percent of the effluent will flow

3794towards the Gulf, 18 percent will flow towards the Bay, and 8 percent will flow

3809towards Nick's Hole.

381267. Petitioners' contention that there is also a groundwater ridge under

3823the dunes which will inhibit the flow of groundwater towards the Gulf is based

3837on an assumption that groundwater elevations generally follow topographic

3846elevations. While this may be true with respect to mainland aquifers, it is not

3860necessarily true on barrier islands which tend to be highest at the center of

3874the island and decrease in proportional relationships to the distance from the

3886shoreline. With regard to this issue, the undersigned finds the individuals

3897with greater barrier island experience to have provided testimony more

3907consistent with published authorities and are otherwise more persuasive. The

3917applicant's groundwater modelling is found to be accurate and adequate.

392768. In response to concerns of DEP staff and employees of the Northwest

3940Florida Water Management District, Mr. Andreyev performed a contaminant

3949transport analysis to estimate the long term migration and concentration of

3960nitrogen (nitrate), phosphorous and biological oxygen demand (BOD) resulting

3969from the AWT.

397269. Mr. Andreyev used a three dimensional modelling program known as

"3983MT3D" for this purpose. MT3D uses flow in three dimensions consistent with the

3996MODFLOW modelling.

399870. This type of modelling is commonly used in connection with leachate

4010from landfills, gasoline spills, and other solvent spills, for precise tracking

4021of harmful contaminants. Its level of precision is not normally required for

4033AWT permitting. Rather, it is normally assumed that with proper treatment and

4045appropriate set-backs, effluent disposal will not have any harmful effects.

405571. Accurate contaminant transport modelling depends primarily upon

4063accurate groundwater modelling. Contaminant transport modelling will be

4071inaccurate if underlying groundwater modelling is inaccurate. Having determined

4080that the applicant's groundwater modelling is accurate and adequate, the

4090applicant's contaminant transport modelling is also deemed accurate.

409872. The governing parameters used in the applicant's contaminant transport

4108model were: the estimated hydraulic flow field; the duration of loading (5 year

4121intervals up to 30 years); the loading rates (30,000 gpd and 90,000 gpd); the

4137source concentration of each constituent (1 mg/L phosphorous, 3 mg/L nitrogen, 5

4149mg/L BOD); a dispersion coefficient (20 ft transverse and 2 ft vertical); and

4162retardation factors which are dependant upon the contaminant.

417073. The computer model conservatively assumed all the nitrogen was

4180nitrate, when in fact some portion may be less mobile.

419074. The dispersion coefficient was appropriate for the soil conditions

4200prevalent at the site.

420475. The retardation factors chosen were selected as low-end estimates for

4215the nutrients and soil conditions applicable, and thus provide conservative

4225(worst case) estimates of the amount, if any, of nitrogen, phosphorus and BOD

4238which could potentially reach the Gulf and Apalachicola Bay.

424776. Because of this conservatism, it is reasonable to infer that the

4259actual contamination level will be less than was modelled. However, according

4270to the model, the following loading rates will apply.

427977. After 25 to 30 years of plant operation at 30,000 gpd, the

4293concentrations reaching the Gulf in mg/liter for BOD, nitrogen, and phosphorous,

4304will be, under a worst case scenario, 3.4, 1.4 and .28, respectively.

431678. The concentrations in mg/liter reaching Apalachicola Bay will be, at

4327most, .8, .5, and 0 respectively for BOD, nitrogen and phosphorous.

433879. No measurable level of these elements will reach Nick's Hole at 30,000

4352gpd even under the worst case assumptions.

435980. The quantity of nutrients reaching the Gulf after 25 to 30 years of

4373plant operation, in lbs/yr, will be 242, 99, and 20 for BOD, nitrogen, and

4387phosphorous, respectively.

438981. No more than 6.5 lbs of BOD, 7.3 lbs of nitrogen, and 0 lbs of

4405phosphorous will reach Apalachicola Bay each year, after 25-30 years of plant

4417operation at 30,000 gpd.

442282. No BOD, nitrogen or phosphorous will reach Nick's Hole at 30,000 gpd.

443683. At 90,000 gpd, after 25 to 30 years of plant operation, the

4450concentrations reaching the Gulf, in a worst case scenario, will be no more than

44644.2 mg/l BOD, 2.3 mg/l nitrogen, and .73 mg/l phosphorous.

447484. The concentrations reaching Apalachicola Bay after 25 to 30 years of

4486plant operation will be no more than 2.3 mg/l BOD, 1.3 mg/l nitrogen and .03

4501mg/l of phosphorous.

450485. The concentrations in mg/liter reaching Nick's Hole will be no more

4516than 1.1 BOD, .5 nitrogen and 0 phosphorous.

452486. At 90,000 gpd, the quantity reaching the Gulf after 25 to 30 years of

4540plant operation, in lbs/yr, will be no more than 850, 466 and 147 for BOD,

4555nitrogen and phosphorous.

455887. Similarly, no more than 113 lbs of BOD, 64 lbs of nitrogen and 1.5 lbs

4574of phosphorous will reach Apalachicola Bay.

458088. No more than 24 lbs of BOD, 11 lbs of nitrogen and 0 lbs of

4596phosphorous will reach Nick's Hole each year.

460389. For the small amount of nutrients that will eventually reach the Gulf

4616of Mexico and Apalachicola By, the zone of discharge is dispersed over a wide

4630area and will fluctuate with the tides.

463790. Randy Armstrong, a prior DEP Chief of Permitting, is currently a

4649private sector biologist and environmental consultant. He relied in part on Mr.

4661Andreyev's calculations. He testified without objection to performing further

4670calculations of his own to figure tidal exchanges on a daily rather than annual

4684basis. His testimony and calculations in Resort Village Exhibit 18-19 are

4695accepted below. See Findings of Fact 91-102.

470291. The Apalachicola River discharges, on the average 16,150,000,000

4714gallons of water each day into the Apalachicola Bay. This daily discharge into

4727Apalachicola Bay includes 53,876 lbs of BOD, 88,896 lbs of nitrogen, and 10,775

4743lbs of phosphorous.

474692. Daily tidal exchanges discharge 77,500,000 gallons of water per day

4759into the 70 acre marsh area adjacent to and north of the subject property, and

477498,800,000 gallons into Nick's Hole.

478193. For this 70 acre marsh area, daily loading of nutrients associated

4793with the tidal exchange are 710 lbs of BOD, 433 lbs of nitrogen, and 32.3 lbs of


481194. For Nick's Hole, the daily loading of nutrients associated with the

4823tidal exchange is 906.4 lbs of BOD, 552.07 lbs of nitrogen, and 41.2 lbs of


483995. Rainfall contributes 300,000 gallons of water to the 70 acre marsh

4852area north of and adjacent to the subject property and 382,500 gallons to the 88

4868acre Nick's Hole area on an average daily basis.

487796. For the 70 acre marsh area north of and adjacent to the subject

4891property, daily loading of nutrients associated with this rainfall are 2.75 lbs

4903of BOD, 1.25 lbs of nitrogen, and .08 lbs of phosphorous.

491497. For Nick's Hole, the daily loading of nutrients associated with

4925rainfall are 3.5 lbs of BOD, 1.59 lbs of nitrogen, and .1 lbs of phosphorous.

494098. After 30 years of plant operation, daily loading to the 70 acre marsh

4954area north of and adjacent to the subject property from 30,000 gallons of

4968effluent will be .02 lbs of BOD, .02 lbs of nitrogen, and 0 lbs of phosphorous,

4984at most.

498699. There will be no nutrient loading of BOD, nitrogen or phosphorous into

4999Nick's Hole or its surrounding marshes under the 30,000 gallon scenario.

5011100. After 30 years of plant operation, daily loading to the 70 acre marsh

5025area north of, and adjacent to, the subject property from 90,000 gallons of

5039effluent will be .31 lbs of BOD, .18 lbs of nitrogen, and 0 lbs of phosphorous,

5055at most.

5057101. For Nick's Hole, and its surrounding marsh area daily loading will be

5070at most .07 lbs of BOD, .03 lbs of nitrogen, and 0 lbs of phosphorous.

5085102. The foregoing loadings comply with the antidegradation policy set

5095forth in Rules 62-4.242, 62-302.300, and 62-302.700 F.A.C.

5103103. The amount of nutrients resulting from either 30,000 or 90,000 gpd of

5118plant operation is insignificant, relative to the amount of nutrients from the

5130tidal exchange and rainfall. The small amount contributed by the plant will not

5143be measurable or observable, and will not cause any degradation, quick aging, or

5156excessive photoplankton production of Apalachicola Bay, Nick's Hole, or the Gulf

5167of Mexico.

5169104. Petitioners attacked the applicant's raw data, calculations, and

5178modelling as inaccurate and/or unreliable. To the extent their witnesses

5188focused upon additional tests that the applicant could have performed but which

5200were neither required nor performed, these witnesses were not persuasive of the

5212applicant's unreliability. Likewise, some minimal errors by the applicant in

5222transposing raw data measurements are acknowledged, but it was not demonstrated

5233that such errors significantly affected the reliability of the applicant's data

5244or agency rule compliance. No other controlling inaccuracy in the applicant's

5255data or methodology was established.

5260105. Expert witnesses Strickland and Musgrove's contrary testimony is

5269rejected as not proven, and accordingly, Dr. Livingston's conclusions based

5279thereon are not persuasive.

5283106. Petitioners' evidence regarding saturated ground conditions and

5291problems with the land application system relate almost entirely to Cell A. As

5304noted above, the applicant's witnesses have testified credibly and competently

5314that all cells will perform as designed, even under extreme storm conditions.

5326Since a rotational loading is contemplated, the performance of the cells is

5338enhanced, but even if any single cell fails, the other two should be sufficient

5352to keep the effluent below maximum rule standards. As noted above, some minor

5365readjustments of cell location since early data was run would not substantially

5377affect the validity of that data, as confirmed by the latest analysis.

5389107. Mr. Andreyev ran his computer models without absorption cell A being

5401utilized. He concluded that even if all the effluent were rotated among

5413absorption Cells B and C, the system would still function as designed.

5425Therefore, even if a problem were to arise with Cell A, it could be overcome by

5441changing the rotation schedule, which is flexible, to reduce or eliminate

5452effluent loading to Cell A.

5457108. Mr. Andreyev's modelling accurately estimates the groundwater

5465mounding impact created by loading both 30,000 gpd and 90,000 gpd of effluent

5480into the absorption cells.

5484109. Applying 30,000 gpd of treated effluent to the cells in addition to

5498the annual rainfall will cause a groundwater mound with a maximum elevation of

5511not more than 2.8 feet NGVD.

5517110. Applying 90,000 gpd of treated effluent to the cells in addition to

5531the annual rainfall will cause a groundwater mound with maximum elevation of not

5544more than 4.5 feet NGVD.

5549111. The foregoing elevations represent the maximum level of mounding, and

5560in most areas the mounding is lower.

5567112. The absorption cells will have a minimum ground elevation of 5.5

5579NGVD, as required by DEP. However, in the event that subsequent inspections at

5592each construction phase reveal a need, the applicant would be able to comply

5605with a higher minimum elevation if DEP were to require it.

5616113. Since the maximum groundwater mound will be below the ground surface

5628throughout the absorption cells, saturated ground conditions are precluded even

5638when the maximum groundwater mounding occurs.

5644114. DEP's concern, in interpreting its Rule 62-610.550(3) F.A.C., was

5654whether the absorption cells would be saturated at the end of their respective

5667resting periods. See, Findings of Fact 119-121.

5674115. At the end of the resting period, the groundwater mound is below the

5688maximum level.

5690116. Due to rainfall, the absorption cells will temporarily become

5700saturated during extreme storm events. However, this is a short term phenomenon

5712and will not adversely affect operation of the absorption cells.

5722117. The temporary saturation which occurs with intense storm events is

5733not a problem. The rainwater places additional downward pressure on the

5744effluent, which stays below the ground.

5750118. Petitioners asserted that in order to provide reasonable assurances

5760that this project is environmentally safe, the applicant must demonstrate that

5771the absorption cells could cope with a 25 year storm event.

5782119. Mr. Andreyev testified that in the course of hundreds of permit

5794reviews, he has never been required by DEP to model the impact of a 25 year-24

5810hour-ten inch flood/storm event on top of the normal heavy saturation figures he

5823had used in modelling for this project, which apparently is what the permit

5836opponents were urging. Mr. Mortensen and Mr. Volenec confirmed that DEP had

5848never requested such modelling for a 25 year flood event with regard to their

5862prior projects either and that DEP had required no further assurances on this

5875project beyond the data provided. Mr. Andreyev's experience was that this type

5887of concern was addressed by DEP during stormwater permitting.

5896120. The applicant's latest analysis takes the stormwater retention ponds

5906into consideration. See Finding of Fact 54-56. The fact that DEP rejoined the

5919applicant (within their joint proposed recommended order) in seeking to have the

5931AWT permit issued, is suggestive that any stormwater concerns of the agency have

5944been resolved by what their personnel perceived at formal hearing. In any case,

5957DEP's concerns about the subsequent application for a stormwater retention

5967permit should be addressed in that proceeding, not here.

5976121. Victor Hultstrand, DEP's Supervisor of the Technical Services Section

5986of Water Facilities, confirmed that the agency interprets Rule 62-610.550 (3)

5997F.A.C. only to prohibit saturated ground conditions for average conditions, not

6008short term conditions associated with infrequent major storm events. At one

6019point, before the agency deemed the application complete, Mr. Hultstrand

6029requested that the applicant work the 25 year storm event into its MODFLOW

6042analysis. However, Mr. Hultstrand conceded that his request was intended to

6053reassure himself personally and that there is no specific requirement in Rule

606562-610.550 (3) F.A.C. for such a study. This interpretation of the rule is

6078entitled to great weight and is accepted. Mr. Hultstrand was ultimately

6089satisfied with the additional information provided prior to the application

6099being deemed complete, without the superimposed 25 year storm data.

6109122. Nonetheless, Mr. Andreyev went a little further by incorporating the

6120rainfall during the latest MODFLOW modelling into his model. It ranged from

6132four to ten inches in his model. He also incorporated the mass balance of water

6147from all storms for 30 years. This figure was pulled from LANDAP, an acceptable

6161source. He averaged the water for a year closest to recorded distribution and

6174used that year's storm events. Therefore, his calculations do not represent a

6186particular storm, but represent the cycle of rainfall on a long term basis,

6199including all hurricanes, and all 25- and 100-year storms that have occurred on

6212the island. The joint posthearing proposal suggests DEP is fully satisfied with

6224the latest information.

6227123. Rule 62-610.567 F.A.C., requires that "The land application site

6237shall be designed to prevent the entrance of surface runoff. If necessary,

6249berms shall be placed around the application area." The applicant has proposed

6261to grade the site and to place berms around the cell boundaries in areas where

6276the ground elevation drops below 6 feet NGVD. This will require a short berm in

6291the corner of one absorption cell. The applicant has not specifically accounted

6303for wave action under hurricane conditions, however, while it is conceivable

6314that Cell A could experience run on with the berm and limited volumes of

6328stormwater could run off the cells in extreme conditions, even during a 25 year

6342storm event, if runoff somehow occurs from the absorption cells, no effluent

6354would be present in such runoff.

6360124. Rule 62-600(2)(c) F.A.C. actually addresses the 25 year storm event.

6371It requires that: "The treatment plant structures essential for the purpose of

6383treating, stabilizing, conveying, or holding incompletely treated waste and

6392mechanical equipment shall be protected from physical damage by the 100 year

6404flood. The treatment plant shall be designed to remain fully operational and

6416accessible during the 25 year flood".

6423125. According to FEMA maps for St. George Island, the proposed site for

6436the plant is in an "A-9" zone, which has a 100 year flood elevation of 9 feet.

6453126. In order to provide an extra margin of safety, the plant has been

6467elevated so that the tops of the tanks will be between elevations 11.5 and 17.7.

6482127. All electrical hardware, blowers, and other componentry have been

6492elevated above the 25 year flood elevation.

6499128. The applicant provided reasonable assurances that the AWT auxiliary

6509generator will be sufficient to operate the plant's vital components during peak

6521flow conditions. One of Petitioner's concerns addresses what will be done with

6533the applicant's auxiliary generator in case of extreme weather events.

6543Portability of this item enables it to be moved about the site to avoid any

6558problems occasioned by such flood events, including ponding, should it occur.

6569Otherwise, the applicant has several safe locations for storage of the

6580generator, notably the fire station which is offsite. Failure of the applicant

6592to limit its versatility by designating a permanent location for its portable

6604generator does not defeat this application, nor does the absence of schematics

6616of the inside of standard purchase items.

6623129. The Intent to Issue calls for the presence of a certified Class C AWT

6638operator monitoring the system with seven ground water monitoring wells and

6649three surface water monitoring wells on a schedule established in the draft

6661permit. The Northwest Florida Water Management District expressed concern

6670regarding the number of hours that the plant operator would be on duty during


6685130. At formal hearing, the applicant, through its principal, Ben Johnson,

6696stipulated to accept a modification to DEP's draft permit to require that the

6709applicant have a certified plant operator at the site six hours on each weekend

6723day, six hours on three week days and one visit on each of the remaining two

6739weekdays, thereby resolving this concern. This modification of the permit draft

6750is acceptable to DEP.

6754131. DEP and Northwest Florida Water Management District personnel

6763expressed some concerns regarding the parameters in the Intent to Issue for

6775monitoring groundwater and surface water near the plant and indicated that

6786additional parameters should be added: total phosphorous (TP), phosphate (P04),

6796total nitrogen (TN), total kjeldahl nitrogen (TKN), ammonia (NH3), nitrate

6806(N02), and dissolved oxygen (DO). DO need only be sampled from the surface

6819water monitoring stations.

6822132. At formal hearing, the applicant, through its principal, Ben Johnson,

6833stipulated to accept a modification to the draft permit to require the

6845additional sampling.


6850133. The Division of Administrative Hearings has jurisdiction over the

6860subject matter and the parties hereto pursuant to Section 120.57(1) F.S.

6871134. All Petitioners have standing to bring this cause on for formal

6883evidentiary hearing.

6885135. The Department of Environmental Protection (DEP) has permitting

6894jurisdiction under Chapter 403, F.A.C. and Chapter 62 F.A.C. over the permitting

6906of domestic wastewater treatment facilities. Specifically, DEP has permitting

6915jurisdiction under Section 403.087, F.S. (1993) and Chapters 62-4, 62-600, 62-

6926601, 62-610, 62-640 and 62-699, F.A.C.

6932136. The permit applicant has the ultimate burden of persuasion to

6943establish that it has provided reasonable assurances that the proposed advanced

6954wastewater treatment facility will not violate the appropriate provisions of

6964Chapter 403, F.S. or the relevant DEP rules. However, once the applicant has

6977made a prima facia case, the opponents of the application/draft permit have the

6990burden of going forward with evidence to prove the truth of the facts asserted

7004in their petition. If the Petitioner fails to present evidence, or fails to

7017carry the burden of proof as to the controverted facts asserted . . . then the

7033permit must be approved. See, Department of Transportation v J.W.C. Company,

7044Inc., 396 So. 778 (Fla. 1st DCA 1981).

7052137. While the applicant's burden is "one of reasonable assurances" it is

7064not one of "absolute guarantees." See, Manasota 88, Inc. v. Agrico Chemical

7076Company and Florida Department of Environmental Regulation, 12 FALR 1319, 1325

7087(February 19, 1990).

7090138. Resort Village presented competent, substantial evidence that the

7099advanced wastewater treatment facility, as designed, and as set forth in the

7111application and DEP's Intent to Issue as drafted but further modified by those

7124amendments stipulated at formal hearing, provides those reasonable assurances.


7134Based on the foregoing Findings of Fact and Conclusions of Law, it is

7147RECOMMENDED that a permit be issued as set forth in the Intent to Issue as

7162drafted but further modified to provide that

7169(a) There will be a certified operator on site for six hours on each

7183weekend day, for six hours on three weekdays, and for a visit on the remaining

7198two weekdays; and

7201(b) The following will be added to the list of parameters to be sampled:

7215total phosphorous (TP), phosphate (P04), total nitrogen (TN), total kjeldahl

7225nitrogen (TKN), ammonia (NH3), nitrate (N02), and dissolved oxygen (DO).

7235Dissolved oxygen (DO) will only be sampled from the surface water monitoring


7248DONE AND ENTERED this 16th day of January, 1996, in Tallahassee, Florida.


7261ELLA JANE P. DAVIS, Hearing Officer

7267Division of Administrative Hearings

7271The DeSoto Building

72741230 Apalachee Parkway

7277Tallahassee, Florida 32399-1550

7280(904) 488-9675

7282Filed with the Clerk of the

7288Division of Administrative Hearings

7292this 16th day of January, 1996.


7302CASE NOS. 95-0863, 95-0864, 95-865,95-0866,95-0867

7309The following constitute specific rulings, pursuant to S120.59(2), F.S.,

7318upon the parties' respective proposed findings of fact (PFOF).

7327Applicant's and DEP's Joint PFOF:

73321-107, 115-174, and 179-180

7336Generally accepted upon the whole of the evidence, not necessarily

7346upon the cited passages or only upon the cited passages. Unnecessary,

7357subordinate, and/or cumulative material has not been adopted. Interpersed

7366conclusions of law and legal argumentation have been rejected. Preliminary

7376matters will be found under "Preliminary Statement." Conclusions of Law will be

7388found under "Conclusions of Law."

7393108-114, and 175-178

7396Considered and factored into competency and credibility analysis

7404but otherwise rejected as subordinate and non-dispositive, and where

7413appropriate, rejected as mere legal argumentation.

7419Individual Petitioners' and Franklin County's Joint PFOF:

74261-3, 5-6, 10-13, 14 Number 2, 15-16, 19-24, 26-27, 35-36, 39-40, 50, 76, 80

7440Accepted, but unnecessary, subordinate, and/or cumulative material has

7448not been adopted. Interspersed conclusions of law and legal argumentation have

7459been rejected.

74614, 54, 81, 89-90

7465Accepted as modified to more accurately reflect the record as a whole.


7478Rejected as set forth in the recommended order.

74867-9, 14 Number 1, 17-18, 25, 29-30, 41-44, 46-49, 51-53, 55-61, 64 Number

74991, 63 after 64, 64 Number 2, 65-73, 77-78, 82-88, and 91-92

7511Rejected as out of context or otherwise contrary to the facts as found

7524upon the greater weight of the credible evidence as a whole. In some

7537instances also rejected as unnecessary, subordinate, or cumulative or because

7547legal argumentation was included with the proposed facts.

755528, 31-34, 37-38, 45, 62

7560Rejected as subordinate and non-dispositive, and where appropriate,

7568rejected as mere legal argumentation.

757379 Rejected as mere speculation and legal argumentation.


7583Samuel J. Morley, Esquire

7587Karen D. Walker, Esquire


7594Post Office Drawer 810

7598Tallahassee, FL 32302

7601Thomas I. Mayton, Jr., Esquire

7606Department of Environmental Protection

76102600 Blair Stone Road

7614Tallahassee, FL 32399-2400

7617L. Lee Williams, Jr., Esquire

7622Kenneth Plante, Esquire

7625General Counsel

7627Department of Environmental Protection

7631Douglas Building

76333900 Commonwealth Boulevard

7636Tallahassee, FL 32399-3000


7645All parties have the right to submit to the agency written exceptions to this

7659Recommended Order. All agencies allow each party at least ten days in which to

7673submit written exceptions. Some agencies allow a larger period within which to

7685submit written exceptions. You should contact the agency that will issue the

7697Final Order in this case concerning agency rules on the deadline for filing

7710exceptions to this Recommended Order. Any exceptions to this Recommended Order

7721should be filed with the agency that will issue the Final Order in this case.

Select the PDF icon to view the document.
Date: 02/29/1996
Proceedings: Final Order filed.
Date: 02/23/1996
Proceedings: Agency Final Order
Date: 02/23/1996
Proceedings: Recommended Order
Date: 01/10/1996
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held Sept 6-8, 1995.
Date: 01/05/1996
Proceedings: (DEP) Notice of Filing filed.
Date: 11/09/1995
Proceedings: Order sent out. (motion filed 11/7/95 is denied)
Date: 11/07/1995
Proceedings: Respondent, Resort Village Utility, Inc`s Response to Petitioners` Motion to Strike w/cover letter (Courtesy copy for HO) filed.
Date: 10/30/1995
Proceedings: (Petitioners) Motion to Strike filed.
Date: 10/26/1995
Proceedings: Joint Proposed Recommended Order of Petitioners And Franklin County; Proposed Recommended Order of Respondents Department of Environmental Protection And Resort Village Utility, Inc. W/tagged attachments; Applicants Memorandum of Law In Support of Appl
Date: 10/24/1995
Proceedings: Order sent out. (motion denied)
Date: 10/23/1995
Proceedings: Petitioner`s Expedited Motion for Leave to File Proposed Recommended Order In Excess of 40 Pages; Cover Letter filed.
Date: 10/17/1995
Proceedings: Post-Hearing Order sent out.
Date: 09/26/1995
Proceedings: Order Dismissing Case and Closing File sent out. (95-862 ONLY closed)
Date: 08/18/1995
Proceedings: Order of Consolidation sent out. (Consolidated cases are: 95-862, 95-863, 95-864, 95-865, 95-866, 95-867)
Date: 08/18/1995
Proceedings: Case No/s 95-862 thru 95-867, 95-3623: unconsolidated.
Date: 07/28/1995
Proceedings: Order of Further Consolidation (hearing set) sent out. (Consolidated cases are: 95-0862 thru 95-0867, and 95-3623)
Date: 04/10/1995
Proceedings: Administrative Order No. 1 sent out. (Consolidated cases are: 95-862, 95-863, 95-864, 95-865, 95-866, 95-867; formal hearing will commence at 10:30am on June 26, 1995 (June 27-29, 1995 are also reserved); Apalachicola)
Date: 03/17/1995
Proceedings: (L. Lee Williams) Supplement to Department of Environmental Protection`s Response to Initial Order filed.
Date: 03/17/1995
Proceedings: (Thomas H. Adams) Response to Applicant`s Motion to File Memorandum of Law in Support of Previously Filed Motion to Dismiss; Response to Applicant`s Motion to File Factual Statement filed.
Date: 03/10/1995
Proceedings: (L. Lee Williams, Jr.) Motion to File Memorandum of Law in Support of Previously Filed Motion to Dismiss filed.
Date: 03/10/1995
Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
Date: 03/09/1995
Proceedings: (L. Lee Williams, Jr.) Motion to File Factual Statement filed.
Date: 03/02/1995
Proceedings: Initial Order issued.
Date: 02/24/1995
Proceedings: (DEP) Motion to Consolidate (95-0862 through 95-0867); Request for Assignment of Hearing Officer and Notice Of Preservation of Record; Petition of Thomas H. Adams; Agency Intent to Issue filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
St. George Island, Florida

Related DOAH Cases(s) (7):

Related Florida Statute(s) (5):

Related Florida Rule(s) (6):