95-003899 Save Our Suwannee vs. Robert Piechocki And Department Of Environmental Protection Status: Closed Recommended Order on Friday, December 22, 1995.

Summary: Reasonable assurances by experts with site specific information defeated anecdotal sinkholes on adjacent property for permitting dairy enterprise.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAVE OUR SUWANNEE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3899

)

ROBERT PIECHOCKI AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

________________________________)

ROBERT AND BEVERLY HAWKINS, )

)

Petitioners, )

)

vs. ) CASE NO. 95-3900

)

ROBERT PIECHOCKI AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on October 16, 1994,

in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing

officer of the Division of Administrative Hearings.

APPEARANCES

For Petitionesr Peter B. Belmont, Esquire

Save Our 511 31st Avenue North

Suwannee: Saint Petersburg, Florida 33704

For Petitioners Robert Hawkins, pro se

Robert and HC 4 Box 180

Beverly Hawkins: Old Town, Florida 32680

For Respondent Marty Smith, Esquire

Robert Piechocki: 125 North East 1st Avenue, Suite 1

Ocala, Florida 34478-3319

For Respondent Christine C. Stretesky, Esquire

Department of Department of Environmental Protection

Environmental 3900 Commonwealth Boulevard

Protection: Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Robert Piechocki is entitled to a permit as governed by Section

403.087 F.S. and Chapter 62 F.A.C. (formerly Chapter 17 F.A.C.) to construct and

operate a rotational grazing dairy, with an accompanying dairy waste management

system.

PRELIMINARY STATEMENT

Respondent Piechocki applied for the presently disputed wastewater permit

on August 18, 1994. The permit application seeks approval of a proposed

rotational grazing farm in Dixie County, Florida. After several requests for

additional information, the application was deemed complete.

On July 7, 1995, Respondent Department of Environmental Protection (DEP)

issued an intent to issue permit, including groundwater monitoring requirements

and specific and general permit conditions.

DEP's proposed permitting action was challenged by Petitioners.

At the commencement of formal hearing, Robert and Beverly Hawkins withdrew

their petition in DOAH Case No. 95-3900. That withdrawal result in a

recommendation of dismissal of that case.

At formal hearing, Applicant Piechocki presented the oral testimony of

Terry Tremwel, P.E., an expert in agricultural engineering and dairy waste

management; Mark Bardolph, an expert in dairy waste management; John J. Davis,

P.G., an expert in geology and hydro-geology; and Ron J. Kuehl, an expert in

soil science, and Malcolm Howell. The applicant had two composite exhibits

admitted in evidence

DEP presented the oral testimony of Edward Cordova, P.E., an expert in

dairy waste management design, and had one exhibit admitted in evidence.

In opposition to the requested permit, Save Our Suwannee (SOS) presented

the oral testimony of Ron Ceryk, expert in hydrology and hydro-geology with the

Suwannee River Water Management District; Robert Hawkins; Anthony Zenner; Dennis

J. Price, P.G., an expert in geology and hydro-geology; David Still, Director

for Research Management of the Suwannee River Water Management District; and

Hans L. Stoddard, D.V.M. SOS also had four exhibits admitted in evidence.

A transcript of the proceedings was filed in due course. All timely-filed

proposed findings of fact have been considered and are ruled upon in the

appendix to this recommended order, pursuant to Section 120.59 (2), F.S. To the

extent appropriate, the parties' prehearing stipulation(s) also have been

utilized in the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent Piechocki applied for the presently disputed DEP industrial

wastewater permit on August 18, 1994. After submittal of additional

information, the application was deemed complete. On July 7, 1995, DEP issued

an intent to issue permit, including groundwater monitoring requirements and

specific and general permit conditions. Petitioners challenged the intent to

issue. SOS was stipulated to have standing to bring its petition. At formal

hearing, Robert and Beverly Hawkins withdrew their petition in DOAH Case No. 95-

3900.

2. The permit application seeks approval of a proposed dairy farm to be

located on approximately 267 acres of property of which 255 acres will be

utilized as rotational grazing paddocks. The herd will be 699 cows.

3. The dairy will be located at a site in the extreme northeast corner of

Dixie County. The site is less than one mile from the Suwannee River.

4. At low water conditions, gravity dictates groundwater will flow from

the proposed dairy site to the Suwannee River, which is the bottom level of the

groundwater aquifer.

5. Petitioners' environmental concern is that nitrogen, phosphorous, and

pathogens from the dairy may reach the Suwannee River via surface water and

groundwater runoff, through sinkholes or from leaching through the soil.

6. The proposed dairy will have a waste management collection system

consisting of collection, storage, treatment lagoon, and application system

components. The waste management system is intended to collect the wastewater

deposited upon the high use surfaces of the milking parlor, the collection

system, and the cow transit area leading to the collection system.

7. Wastewater deposited upon the high intensity or impervious surfaces of

the milking parlor, the collection system and the cow transit leading to the

collection system will be flushed six times daily by a 2500 gallon flushing

tank. The cows are only on that area 15 percent of the time, so only 15 percent

of their waste must be processed this way. That water and any stormwater that

falls into the collection system will drain to the anearobic wastewater lagoon.

The adequacy of the design of the lagoon system was not refuted for a 25 year-24

hour storm (flood event). The wastewater will be used to irrigate the 255 acres

of rotational grazing patterns by a spray irrigation system. There will be no

direct discharge of effluent to waters of the state.

8. DEP inspections showed no ponding, but conditions of the permit provide

that wastewater effluent may not be applied to ponded areas and that there be no

surface water runoff from the dairy site. The only impact on the Suwannee River

will be from the groundwater flowing from the site. Groundwater concerns are

part of this wastewater permitting process.

9. Six groundwater monitoring wells are to be installed as part of the

proposed project. One of the wells will be located in the barn vicinity; one

will be placed up gradient of the barn; and four will be located along the farm

perimeter on the down gradient side of the dairy, specifically to provide extra

security to the Suwannee River. The wells have been adapted to optimize

monitoring within the expected flow pattern. The draft permit allows for a

change in the number of wells should either analytical data or water flow data

be other than as expected.

10. The proposed dairy farm is designed to contain nutrients in the upper

zones of soil, in the root zone or in the argillic layer.

11. Mr. Piechocki plans to use a rotational grazing system. Fifty-seven

paddocks would be utilized and 699 cows would be moved from paddock to paddock.

This permits even grazing over the entire paddock area. If the contingency of

thinning plant cover occurs in part of any paddock, electric tape can be used to

seal that area off from the cows. Cows would be prohibited from congregating in

a bare area or from grazing in one area until it became bare. Presumably, the

same measures can keep cows out of any areas which subsequently pond or develop

a sinkhole.

12. Rotational dairy farming is relatively new to Florida, but has been

practiced in other parts of the country for some time. Rotational dairy farming

is designed to reduce the amount of nitrogen being imported as compared to a

non-rotational dairy. Rotational dairy farming is a concept which essentially

relies on the pasture production and grazing of grasses to meet most of the

nutritional requirements of the dairy cows. This compares to other types of

dairy farming where cows are generally brought together in a feed lot and fed

with hay and grains.

13. Rotational grazing means rotational loading of nitrogen. Rotational

grazing prevents higher loads at any one spot caused by the natural

congregational proclivities of cows in conventional confinement or free roam

dairies. Rotational grazing means there will be no "manure pack" created in the

feed lot, as was usual in older free roaming dairy systems which have created

groundwater degradation in South Florida through nutrients leaching from the

"manure pack" into the groundwater and surface runoff.

14. The 699 cows intended for this dairy herd would not produce enough

nitrogen in their manure to even produce a vigorous crop of grass, so the dairy

will have to add fertilizer to the soil in order to be economically profitable.

The fertilizer will contain phosphorous and nitrogen, but it is to the dairy's

economic interest to use the resident cow manure to greatest advantage since the

more vigorous a crop is produced naturally, the less imported fertilizer must be

purchased. Fertilizer will be applied only when testing shows it is necessary.

No environmental danger from phosphorous was demonstrated.

15. Each paddock area will be free of all cows and all irrigation spraying

for nine days at a time, thus "resting" from any nitrogenous deposit during that

period of time unless fertilizer is applied.

16. By rule, there is no requirement that each dairy have a DEP permit.

By policy established in 1990, DEP has required every new dairy in the Suwannee

River Water Management District to obtain an industrial waste management permit.

17. Contrary to opposing experts' assumption that all or part of the dairy

site was within the 100 year blood plain, Mr. Piechocki's experts were clear in

their finding that the site is not within the 100 year flood plain. Regardless

thereof, DEP has no requirement excluding utilization of sites which lie below

the 100 year flood plain.

18. For dairies of under 700 cows, DEP requires that there be no discharge

through a man-made flushing device to surface waters of the state. This project

has no such device.

19. In this case, the proximity of the Suwannee River and the presence of

a karst region made DEP personnel particularly cautious. Several on-site

inspections were made by DEP personnel. Also, DEP applied its higher standards

for dairies of over 700 cows.

20. DEP's rule and/or policy creates a threshold of 700 cows to which more

stringent rules apply for discharge to surface water, i.e., applicants must

prove the project will not degrade water quality even under the 25 year-24 hour

storm event criteria. This applicant ultimately demonstrated the dairy could

meet that standard.

21. DEP's concerns in this permitting process focus on nitrogen and

nutrient loading of nitrogen into the soil and in this case, the Suwannee River,

which has been designated an Outstanding Florida Water (OFW). This designation

entitles the Suwannee River to the highest level of environmental protection.

22. Nitrogen is necessary in limited quantities to grow the plants cows

eat so that they can produce milk. Some nitrogen from the plants goes into the

milk which, upon leaving the cow is transported off-site. Some nitrogen is

found in the waste produced by the cows, mostly manure. A portion of the

deposited manure then volatilizes approximately 70 percent of the nitrogen in

the manure into the air. The nitrogen remaining in the manure becomes part of

the soil and plant system over time. Any volatilized nitrogen that might be

returned to the soil by rainwater is considered lost as pure elemental nitrogen.

23. The unfavorable side effect of nitrogen with which DEP is concerned in

this case is when it affects groundwater and surface water runoff, and then only

if the nitrogen is in a concentration which violates drinking water standards.

24. The groundwater quality standard to be applied by DEP is the drinking

water standard for nitrogen content. The applicant ultimately demonstrated the

dairy will meet this standard.

25. The geology underneath the proposed dairy farm site is characterized

as karst geology but most of Florida is highly underlaid with karst. This type

of geology can be described as being cavernous with many connected conduits

allowing for rapid movement of groundwater. The site is classified by the

Suwannee River Water Management District Aquifer Vulnerability Map as being

highly vulnerable to groundwater contamination. The karst geology means that

sometime in the past, limestone rose up and cracked, creating fissures, which

ultimately resulted in sinkhole formation. Over time, sinkhole or collapse

features tend to plug up with sands or clays. The feature becomes less steep-

sided and more difficult to find, although a conduit between the surface and

groundwater aquifer may still exist. Surface depressions can be indicators of

subsurface solution features. Surface depressions can result in surface

ponding. If there is a direct conduit, surface waters can more rapidly reach

the groundwater aquifer as compared to other parts of the surface. Also,

because of the limestone fractures and the porosity of the limestone, water can

flow through the interconnected pore features.

26. Normally, karst is only a problem as regards nitrogen loading if a

particular conduit (or sinkhole) is subject to nutrient loading. If a sinkhole

is active, that is, extending to the surface, it creates a direct link to the

groundwater with no opportunity for treatment of contaminants through the soil.

Barring the presence of active sinkholes, if there is a sufficient overlaying

soil layer over any subterranean solution feature, the soil layer with crops

growing on it will provide the necessary safeguards to protect surface and

groundwater. However, the permit DEP intends to issue has conditions relevant

to that issue to the effect that if any sinkholes should form on the dairy

property, the cows must be fenced away from them or berms erected to prevent

runoff or the sinkholes capped with clay to prevent water moving downward.

27. Mr. Robert Hawkins, who owns the property directly north of the dairy

site, but on the opposite side of the county road, demonstrated that his

property is riddled with sinkholes, some as deep as seven feet, through which he

can watch deep water often run rapidly to the Suwannee River. He theorized that

this phenomenon occurs whenever both the Steinhatchee Refuge (basically a swamp)

on the west side of his property and the Suwannee River to the east of both his

property and the proposed dairy site rapidly fill from heavy rains. Then the

water bubbles up through the sinkholes. Eight years ago, Mr. and Mrs. Hawkins

and a friend paddled a canoe the length of his woods to the Suwannee River. He

also claimed the water flows through the porous karst environment under all

surrounding properties as well as his own, but he has not observed the

phenomenon occurring on the dairy site. He has no recognized area of expertise

and did not know the geology of the dairy site in particular. He has been on

the site only one time, briefly, and then had observed some depressions but no

sinkholes. He had allowed cattle to roam freely on his own property for

fourteen years some years ago.

28. Mr. Hawkins' theory had limited support in the testimony of Dennis J.

Price, an expert in geology and hydrology, but Mr. Price seemed to believe one

additional monitoring well on the southern border of the dairy site would

provide sufficient security.

29. Mr. Malcolm Howell owned the proposed dairy site property from 1956

until Mr. Piechocki bought it. Mr. Howell also owns parcels of real property

scattered throughout the area. He confirmed other testimony to the effect that

30 years ago, a hurricane caused water to stand for several days on the county

road north of the dairy property and on the parcel immediately southeast of the

dairy site property. It is logical that flooding is likely to occur again under

the same conditions. However, Mr. Howell has never seen a sinkhole on the dairy

property.

30. Although there are some depressions at various locations on the dairy

property, no witness could say unequivocally that they were former sinkholes.

The theory most damaging to the applicant is that these depressions are solution

holes that developed on top of limerock and filled in, resulting in a gentler

grade than an active sinkhole, but no witness could unequivocally say that these

areas are over open karst fissures. There is limerock on the site which could

indicate a conduit. Limerock also is highly porous. Ground penetrating radar

was done. Ground penetrating radar is very site specific. Ground penetrating

radar detected no active sinkholes on the dairy site. A fracture trace analysis

may or may not have been more accurate for showing fracture resolution conduits,

but such an analysis was not required and was not performed. The applicant has

made adequate arrangements to prevent cows being in the depressed areas should a

ponding effect or sinkhole occur. Ponding is more a nuisance (flies and odor)

concern than a problem affecting groundwater.

31. The Natural Resources Conservation Service (NRCS) sets standards and

assists farmers in developing dairy designs and other soil related designs

pertaining to agriculture. Under its criteria, there must be at least a three

inch thick layer of soil with at least five per cent silt plus clay content.

DEP uses this criteria as a guideline. The applicant meets this guideline.

32. In order to analyze the soil at the dairy site, the applicant had

qualified engineers make 47 borings eight feet deep over a 600 foot grid.

Except for one boring, all borings met NRCS standards. Only one sample was

shown by professional soil testers to be 2 percent clay and 2 percent silt. In

an abundance of caution, DEP required additional borings. Cal-Tech, a

consulting firm retained by the applicant, made about a dozen soil borings at

the proposed dairy farm site. Eight of the borings identified sand only as

being encountered to depths of 10 to 12 feet. The clay and organic content of

the soils is not uniform across the proposed dairy farm site, but it may be

assumed the 59 borings are representational. DEP was then satisfied that

reasonable assurances based on soil content had been provided.

33. DEP reviewers consulted with field representatives of the NRCS and

reached the independent conclusion that the dairy would have a negligible impact

on all Florida waters and an immeasurably small impact on the Suwannee River.

34. In assessing this application, DEP accepted figures and calculations

produced by the applicant's experts, but the draft permit provides safeguards in

case the data is other than as represented. The experts used standard and

accepted formulas, even down to measuring the estimated averages of cow manure

as collected and standardized by the American Society of Agricultural Engineers.

In designing the dairy, a critical decision formula was utilized by the

applicant's engineer, Mremwel. Mass-loading and mass balance equations were

made for the proposed dairy farm operation to determine "worst case" loading of

nitrogen and phosphorous to the Suwannee River. These calculations of the dairy

farm's impact to the Suwannee River were made using low flow conditions for the

river. Mremwel used low flow per the United States Geologic Survey

standards to predict a higher concentration of nitrogen would affect the

Suwannee River than probably would ever actually reach it. He assumed that once

nitrogen got below the argillic layer of the earth, there would be no further

adsorption to the soil. The foregoing assumption is very unrealistic because

even subsoil and limerock can absorb some nitrogen, but the assumption was made

to maximize the estimated nitrogen or phosphorus (primarily from phosphate

fertilizers) that could be transported to the Suwannee River as a result of this

dairy. Even using this "worst case" scenario, any change at all would be

undetectable at low flow and have no negative offsite effects. Assuming

arguendo there were some occasional cumulative impact not accounted for by these

calculations, the dynamic flow of the Suwannee River would flush most nutrients

quickly.

35. In parts of the application process, DEP consults with Suwannee River

Water Management District (SRWMD) personnel. In this case, SRWMD personnel had

reviewed the initial application and presented some groundwater and wastewater

concerns primarily related to the vulnerability of the aquifer in a

karst/sinkhole region.

36. Among those who testified, there were still some concerns, but the

witnesses were either basing their assumptions on 100 year storm event criteria

and/or had not reviewed all the supplemental material such as additional boring

data on soil content which the applicant submitted in response to DEP's requests

for further information, and/or had never been to the site. The SRWMD witnesses

deferred to experts in other fields. They expressed no clear opinion as to the

adequacy of the agricultural engineering or dairy waste management system

proposed for this dairy.

37. The SRWMD had issued an Environmental Resource Permit for a road at

the diary site, but deferred to DEP on ground and wastewater issues.

38. Pathogens are related to viral and bacterial agents which cause

disease syndromes. A number of pathogens are found in the manure and urine of

cows. DEP permitting rules only consider the potential for pollution from one

bacteriological pathogen: e.coli. Petitioners did not demonstrate any threat by

the dairy from e.coli.

39. Experts for Mr. Piechocki and DEP in the fields of agricultural

engineering, dairy waste management, geology, hydro-geology, and soil science

testified credibly that within reasonable professional certainty, the dairy will

abate and prevent water pollution to the extent required by the applicable

statute and rules. Petitioner has provided reasonable assurances to that

effect. Terry Tremwel, Mark Bardolph, Edward Cordova and John J. Davis each

gave their expert opinion that all existing applicable environmental permit

criteria had been met.

40. Petitioners presented no expert in dairy waste management.

41. The applicant has provided reasonable assurances any discharges will

be "free from" named nutrient concentrations covered by rule.

42. The Suwannee River collects groundwater from a tremendously large

area. This area contains numerous towns, private homes with septic tank

systems, commercial farms and timberland, recreational areas, and other uses

which all have some impact on groundwater quality. Further, most of these other

uses do not require environmental permits nor do they provide for any specific

safeguards to the quality of the groundwater. The potential impact of the

proposed dairy is negligible and insignificant when compared with all of these

other uses which may impact groundwater quality. Witnesses agreed that

virtually all human or animal activity within the Suwannee River drainage area

could potentially have an adverse impact on the quality of the groundwater

flowing into the Suwannee River. It was not established that the proposed dairy

would significantly degrade, either alone or in combination with other

stationary installations, the Suwannee River, or that the proposed dairy would

violate any applicable regulations protecting the Suwannee River.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

44. Mr. Piechocki has the burden to provide "reasonable assurances" that

his proposed dairy will abate and prevent water pollution to the extent required

by DEP rules and that the final proposed project will not discharge or cause

pollution in violation of statutes and rules. See, Rules 62-4.030 and 62-4.070,

F.A.C..

45. Section 403.087 F.S., provides authority for this permit process. This

statute is implemented by Chapters 62-4, 64-302, 62-522, 62-660, F.A.C.

46. Here, Mr. Piechocki has affirmatively provided reasonable assurances

based on plans, test results, and other information that the construction and

operation of the proposed facility will not discharge or cause pollution in

contravention of DEP standards and rules based on a "worst case" scenario

derived by experts in many fields. In opposition, Petitioners have presented

only a "parade of horribles" based on generalized geological information about

nearly adjacent, but not necessarily adjoining, areas.

47. Mr. Piechocki does not oppose, and no party objects to the general and

specific conditions DEP intends to include in its permit. The suggestion by

Dennis J. Price, P.G., would enhance the safety of the Suwannee River and would

be not unduly burdensome even if not proven to be absolutely necessary. Since

the draft permit allows the addition of wells if warranted, it might as well be

done now.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that:

(1) The Department of Environmental Protection enter a final order

dismissing the Petition in DOAH Case No. 95-3900 as withdrawn ,and

(2) The Department of Environmental Protection enter a final order

granting Respondent Piechocki permission to construct his dairy waste management

system in accord with the draft permit's general and special conditions as

modified to include one additional monitoring well on the southern border, and

dismissing the Petition in DOAH Case NO. 95-3899 on the merits.

RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December, 1995.

APPENDIX TO RECOMMENDED ORDER 95-3899 and 95-3900

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

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

Save Our Suwannee's PFOF:

1-10, 15-16, 19-20, 22-28, 30-33, 35-39, 41-45, 47-50, 60-61, 64-83, 85-93, 95-

102

Accepted, except that unnecessary, subordinate

and/or cumulative material has not been adopted.

Legal argumentation and proposed conclusions of

law have also been excluded or relegated to the

conclusions of the recommended order.

11-12, 17-18, 29, 34, 40 and 46

Rejected because as stated, or in context with other

proposals, they are not supported by the greater weight

of the credible evidence. However, the issues are

covered within the recommended order to the degree they

are material. Many of these proposals may be generally

true as related by Mr. Ceryk and other of Petitioners

witnesses, but are not site-specific and therefore not

accepted. Many are opinions of experts who ultimately

deferred to other experts. Legal argumentation on

accepted opinions was excluded.

13, 56-59 Rejected as immaterial and as legal argumentation

14 The proposal is accepted. The footnote is not precisely

supported by the transcript citation and is immaterial.

21 Accepted, except for the last sentence which is contrary

to the facts as found upon the greater weight of the

credible evidence.

51-55 Rejected as largely legal argumentation, but the 10

parts per million and cumulative discharge issues are

covered in the recommended order and the weight and

credibility of the testimony cited is likewise

discussed therein.

62 Accepted, except for the last conclusory sentence which is

legal argumentation contrary to the facts as found.

63 First sentence cumulative; second sentence immaterial.

84 Irrelevant under the facts of this rotational grazing

system.

94 Rejected as immaterial, cumulative, and as legal

argumentation.

Mr. Piechocki's and DEP's Joint PFOF:

1-5, 8, 14 Accepted.

6 Accepted, except that "pollutants" in the generic sense are

not the subject of permit but only as defined by statute

and rule.

7, 9 Accepted, except that conclusions of law are assigned to

that portion of the recommended order.

10-12, 15-29 Accepted, except for unnecessary, subordinate,

and/or cumulative material. Also, legal

argumentation has been excluded. Conclusions of

law are assigned to that portion of the

recommended order

13 The significance of the 100 year flood plain is covered in

Finding of Fact 17.

COPIES FURNISHED:

Marty Smith, Esquire

125 N.E. 1st Avenue, Suite 1

Ocala, FL 34478-3319

Christine C. Stretesky, Esq.

Dept. of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Robert Piechocki

P. O. Box 2267

Chiefland, Florida 32626

Robert & Beverly Hawkins

HC 4 Box 180

Old Town, Florida 32680

Peter B. Belmont, Esquire

511 31st Avenue North

St. Petersburg, Florida 33704

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevrd

Tallahassee, Florida 32399-3000

Kenneth Plante, General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevrd

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

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

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

SAVE OUR SUWANNEE, INC.,

Petitioner,

vs. OGC Case No. 95-1694

DOAH Case No. 95-3899

ROBERT PIECHOCKI AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

______________________________/

ROBERT AND BEVERLY HAWKINS,

Petitioners,

vs. OGC Case No. 95-1711

DOAH Case No. 95-3900

ROBERT PIECHOCKI AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

______________________________/

FINAL ORDER

On December 22,1995, a Hearing Officer with the Division of Administrative

Hearings (hereinafter "DOAH") submitted her Recommended Order to the Department

of Environmental Protection, (Hereinafter "Department"). The Recommended Order

was also served upon the Petitioners, Save our Suwannee, Inc. (hereinafter

"Petitioner"), and Robert and Beverly Hawkins 1/ , and Co-Respondent, Robert

Riechoki (hereinafter "Applicant") A copy of the Recommended Order is attached

as Exhibit A.

On January 5,1996, Petitioner filed its Exceptions to Recommended Order

with the Department's Office of General Counsel. The Department served its

responses to Petitioner's exceptions on January 18, 1996. Applicant served his

responses to exceptions on January 23, 1996. The matter is now before the

Secretary of the Department for final agency action.

BACKGROUND

On August 18,1994, Applicant applied to the Department for a permit to

construct and operate a rotational grazing dairy with an accompanying dairy

waste management system l the northeast corner of Dixie County, Florida. The

proposed dairy would contain a maximum of 699 cows on approximately 255 acres of

land. This application was assigned file number FLA. 01 6197 by the Department.

On July 7,1995, the Department issued an intent to issue Applicant's requested

permit, subject to groundwater monitoring requirements and general and specific

conditions.

The Petitioners filed timely petitions challenging the Department's

preliminary permitting action. These petitions were forwarded to the Department

of Management Services, DOAH for the assignment of a hearing officer to hold a

formal hearing. The petitions were consolidated for final hearing before DOAH

Hearing Officer Ella Jane P. Davis (hereinafter "Hearing Officer"). A formal

hearing was held before the Hearing Officer in Tallahassee, Florida, on October

16, 1995 2/

On December 22,1995, the Hearing Officer entered her Recommended Order.

The Hearing Officer found that the proposed dairy farm operation would not

significantly degrade that water quality of the Suwannee River 3/ and

concluded that Applicant provided reasonable assurances that the proposed

facility would not violate any applicable water quality standards. The Hearing

Officer ultimately recommended that the Department enter a Final Order granting

the requested permit to Applicant, subject to the general and specific

conditions in the draft permit and a recommended additional monitoring well on

the southern border of the property.

RULINGS ON PETITIONER'S EXCEPTIONS

Preface

Various exceptions to the Recommended Order have been filed on behalf of

the Petitioner. As a preface to the following rulings on these exceptions, it

is appropriate to comment here upon the standards of review imposed by Florida

law on agencies reviewing recommended orders of hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may

reject or modify the conclusions of law and interpretations of administrative

rules contained in the recommended order of a hearing officer. See, also,

MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987);

Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA

1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA

1982).

The findings of fact of a hearing officer, however, may not be rejected or

modified, "unless the agency first determines from a review of the complete

record, . . .that the findings of fact were not based on competent substantial

evidence or that the proceedings on which the findings were based do not comply

with the essential requirements of law." Section 120.57(1)(b)(10), Florida

Statutes. (emphasis supplied) See, also, Martuccio v. Dept. of Professional

Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993); Freeze v. Dept. of Business

Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of

Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Consequently, if

the record of the DOAH proceedings discloses any competent substantial evidence

to support a finding of fact made by the hearing officer, the reviewing agency

is bound by such finding. Bradley, supra, at 1123.

Ruling on Exceptions 1. 2. 3. 4.

In these exceptions, Petitioner takes issue with various rulings of the

Hearing Officer set forth on page 19 of the Recommended Order. These rulings

reject Petitioner's proposed findings of fact 11, 40, 53, 54, 56, 57, 58, and

the last sentence of proposed finding of fact 63. These proposed findings of

fact were rejected by the Hearing Officer on grounds that they were not

supported by the greater weight of the credible evidence or were immaterial or

constituted legal argumentation 4/ rather than factual findings.

Petitioner's exceptions questioning the Hearing Officer's rulings on the

relevance and materiality of its proposed findings of fact are rejected. Issues

such as relevancy and materiality of evidence are "factual issues susceptible to

ordinary methods of proof that are not infused with [agency] policy

considerations". Martuccio, at 622 So.2d 609; Heifetz v. Dept. of Business

Regulation, 475 So.2d 1277,1281 (Fla. 1st DCA 1985. Thus, such evidentiary

issues are generally within the sound prerogative of the Hearing Officer as the

trier of the facts.

Petitioner's reliance on the administrative case of Leisey Shellpit, Inc.

v. Dept. of Environmental Regulation, 9 FALR 2814 (Fla. Dept. of Env.

Regulation), is misplaced. The Leisey Shellpit Final Order contains a specific

finding that a portion of the proposed project would be located within an

Outstanding Florida Water. In this case, it is uncontroverted that the proposed

dairy operation would not be conducted in the waters or even on the banks of the

Suwannee River. Furthermore, the Hearing Officer's significant findings in

Findings of Fact Nos. 7 and 8 that there "will be no direct discharge of

effluent [from the proposed dairy] to waters of the state" and "there will be no

surface runoff from the dairy site" were not even disputed by Petitioner in its

exceptions. Thus, the Hearing Officer correctly rejected Petitioner's

contention that Applicant was required to establish an Outstanding Florida Water

baseline year of the Suwannee River under Rule 62-4.242(2), Florida

Administrative Code.

In view of the above, Petitioner's exceptions are granted to the limited

extent of rejecting the Hearing Officer's characterization of its proposed

findings of fact 53 and 54 as "largely legal argumentation". Such

mischaracterization, however, is deemed to be harmless error. In all other

aspects, Petitioner's exceptions 1, 2, 3, and 4 are denied.

Exceptions 5 and 6

Petitioner's exceptions 5 and 6 take issue with the last sentence of

paragraph 14 and the first sentence of paragraph 19 of the Recommended Order

primarily 5/ on the grounds of lack of relevancy and as not being supported by

the weight of evidence presented at the formal hearing. These two sentences

contain findings of the Hearing Officer that "no environmental danger from

phosphorous was demonstrated" and that " the proximity of the Suwannee River and

the presence of a karst region made DEP personnel particularly cautious" in this

case.

As discussed in the Preface above, Florida law imposes substantial

limitations on the authority of an agency to reject or modify the findings of

fact of a hearing officer. Also, as noted in the preceding ruling, questions

dealing with the relevancy and materiality of evidence are generally within the

sound prerogative of the Hearing Officer as the trier of the facts. Heifitz,

475 So.2d 1277,1281. In addition, a reviewing agency is not free to modify the

findings of fact in a recommended order to fit a conclusion desired by it or by

a party by interpreting the evidence or drawing inferences therefrom in a manner

different from the interpretations made and inferences drawn by a hearing

officer. Heifetz, 1281-1282.

The Applicant and the Department presented the combined testimony of five

expert witnesses at the formal hearing. These challenged findings appear to be

reasonable inferences drawn by the Hearing Officer from the testimony of these

five expert witnesses 6/ and are upheld. Consequently, Petitioner's

exceptions 5 and 6 are denied.

Exceptions 7 and 8

These two exceptions of Petitioner challenge findings of the Hearing

Officer in paragraph 22 of the Recommended Order dealing with the volatilization

of nitrogen in the air and the related return of a portion of the nitrogen to

the soil in the form of rainwater. The Department's responses do not directly

contest the two exceptions, but conclude that the challenged findings are not

relevant to the Hearing Officer's recommendation.

I agree with the positions of both Petitioner and the Department. The

challenged findings of the Hearing Officer do not appear to based on any

competent substantial evidence of record and are rejected. These findings,

however, are subordinate in nature and are not essential to support the Hearing

Officer's ultimate recommendation that the requested dairy permit be issued to

Applicant. Accordingly, Petitioner's exceptions 7 and 8 are granted, but the

rejected findings of the Hearing Officer are deemed to be harmless error.

Exceptions 10 and 11

Petitioner's exceptions 10 and 11 take issue with factual findings of the

Hearing Officer in the last sentence of paragraph 29 and the sixth and seventh

sentences of paragraph 30 of the Recommended Order. Petitioner argues in

essence that the respective findings of the Hearing Officer should be rejected

because they are not based on competent substantial of record. This argument

appears to be without merit.

The disputed findings of the Hearing Officer are based on the factual

testimony of Applicant's witnesses Malcom Howell and Ron Kuehl and Petitioner's

witness Dennis Price relying on their respective personal observations of the

physical characteristics of the land on which the proposed dairy project would

be located. (Tr. 314-315; 135-137; 288-289) These challenged findings appear to

be reasonable interpretations made and inferences drawn by the Hearing Officer

from the cited testimony of the named witnesses and are adopted in this Final

Order. See, Heifitz, 475 So.2d 1281-1282. Petitioner's exceptions 10 and 11

are therefore denied.

Exceptions 9. 12. 14. 16 and 17

These five exceptions dispute the correctness of various findings and

conclusions of the Hearing Officer in paragraphs 23, 34, 39, and 42 of the

Recommended Order. The core issue presented in all these exceptions relates to

Petitioner's basic contention that Applicant should have been required to

establish an Outstanding Florida Water baseline year existing water quality

value of the Suwannee River as a prerequisite for being entitled to issuance of

its requested dairy waste system permit. This contention was considered and

expressly rejected in the prior ruling on Petitioner's exceptions 1, 2, 3, and

4, which ruling is incorporated herein by reference. Petitioner's exceptions 16

and 17 also raise the issue of materiality of certain findings or conclusions of

the Hearing Officer in paragraph 42 of the Recommended Order. As also discussed

in the prior ruling, questions of relevance and materiality are factually based

issues generally within the sound prerogative of the Hearing Officer as the

trier of the facts.

Petitioner's exceptions 9,14, and 17 also object to the respective findings

or conclusions of the Hearing Officer as being legal conclusions rather than

factual findings. These challenged determinations of the Hearing Officer in

paragraphs 23, 39, and 42 of the Recommended Order actually appear to consist of

a mixture of legal conclusions and factual findings. As to "mixed questions of

law and fact", the reviewing agency does have the authority to substitute its

judgment concerning the ultimate determination as to whether the particular

facts found by the Hearing Officer establish reasonable assurance of compliance

with the applicable permitting laws. Harloff v. City of Sarasota, 575 So.2d

1324,1328 (Fla. 2d DCA 1991). A review of the governing law as applied to the

evidence in the record on review in this case indicates that these mixed

determinations of law and fact of the Hearing Officer are essentially correct

legal conclusions and proper factual findings supported by competent substantial

evidence of record. 7/

In view of the above, and for the reasons set forth in the incorporated

prior ruling, Petitioner's exceptions 9,12,14,16, and 17 are denied.

Exception 13

This exception finds fault with the Hearing Officer's conclusion in

paragraph 38 of the Recommended Order that "DEP permitting rules only consider

the potential for pollution from one bacteriological pathogen: e. coli." The

Department's response does not object to this exception of Petitioner. I concur

with Petitioner's position that this assertion of the Hearing Officer is not a

finding of fact, but is an incorrect legal interpretation of Rule 62-520.400,

Florida Administrative Code. This erroneous rule interpretation is therefore

rejected, but is deemed to be a subordinate legal conclusion having no

significant bearing on the Hearing Office's ultimate recommendation or the

disposition of this Final Order. Petitioner's exception 13 is therefore

granted.

Exception 15

Exception 15 takes issue with paragraph 41 of the Recommended Order

concluding that Applicant "has provided reasonable assurances [that] any

discharges will be `free from' named nutrient concentration covered by rule."

Petitioner once again contends that this is a designated finding of fact which

is actually an erroneous legal conclusion. 8/ As noted above, the

determination of whether an applicant has provided "reasonable assurance" is

essentially a mixed question of fact and law.

There appears to be competent substantial evidence of record in the form of

testimony from the various expert witnesses testifying on behalf of the

Applicant and the Department to support an underlying factual finding that any

pathogens present in the cattle manure and urine will not pose a significant

threat of groundwater contamination based on the design of the dairy management

system prescribed in the Department's notice of intent to issue. 9/ The

ultimate legal determination of whether Applicant has provided the necessary

reasonable assurance that there will be no water quality violations is addressed

hereafter in this Final Order.

In view of the above. Petitioner's exception 15 is denied, except for the

clerical modification of Finding of Fact 41 by substituting the terms

"substance" in lieu of the existing term "nutrient" on line two of this

paragraph.

Exception 18

This exception takes issue with proposed Finding of Fact 24 in the joint

"Recommended Final Order" of Applicant and the Department filed with DOAH

pursuant to Rule 60Q-2.031 (1), Florida Administrative Code, prior to the

Hearing Officer's entry of the Recommended Order on review. There is no

statutory or rule basis, however, for a party filing exceptions with the

reviewing agency challenging proposed findings of fact previously submitted to a

DOAH hearing officer prior to the entry of a Recommended Order. Florida law

only authorizes exceptions to a hearing officer's ultimate Recommended Order.

10/ See Section 120.57(1)(b)9, Florida Statutes, and Rule 62-103.200(1),

Florida Administrative Code. Consequently, Petitioner's exception 18 is denied.

Exceptions to Conclusions of Law

In these exceptions, Petitioner basically takes issue with the Hearing

Officer's critical Conclusion of Law 46 that Applicant has provided the

requisite "reasonable assurances" that its proposed dairy operation will not

violate applicable water quality standards and rules. Petitioner's argument is

essentially a repetition and further exposition of contentions previously raised

in previous exceptions and denied in the prior rulings in this Final Order.

The critical standard for Applicant's burden of proof in establishing its

entitlement to the requested permit is "reasonable assurance that applicable

water quality standards and rules will not be violated. See Section 373.414(1),

Florida Statutes; Rule 62-4.070(1), Florida Administrative Code. This critical

standard of reasonable assurance has been construed by the Florida courts to

mean "a substantial likelihood that the project will be successfully

implemented." Metro Dade County v. Coscan Florida. Inc., 609 So.2d 644, 648

(Fla. 3d DCA 1992). Thus, Applicant is not required by Florida law to provide

an absolute guarantee that its proposed dairy project will comply with all

applicable water quality standards.

In this case, Applicant and the Department presented the testimony of a

total of five expert witnesses in support of the proposed dairy project. Three

of these witnesses, two of which were Department personnel, were accepted by the

Hearing Officer as experts in dairy waste management design. (Tr. 34, 91,176-

177) All three experts in dairy waste management design rendered expert opinions

based on reasonable professional certainty that Applicant's proposed dairy waste

management system will comply with all applicable water quality standards and

rules. (Tr. 50-51,111,190). Another Department permitting specialist accepted

as an expert in geology and hydro-geology also gave an opinion that the proposed

dairy project would comply with applicable water quality rules and regulations.

(Tr. 149-154) These cumulative expert opinions clearly constitute a record

source of competent substantial evidence supporting a related legal conclusion

that Applicant has provided the requisite reasonable assurance by demonstrating

"a substantial likelihood that the project will be successfully implemented."

Petitioner did present the testimony of various expert witnesses in

opposition to the permit. The transcript of testimony at the formal hearing,

however, does not seem to contain any specific expert opinion based on

reasonable professional certainty by Petitioner's witnesses that the proposed

dairy project will violate any specific water quality standards and rules.

Petitioner's experts basically testified as to their personal concerns about the

possibility of the dairy project contaminating groundwater based on hypothetical

situations and "worst case scenarios. It is obvious that the Hearing Officer

chose to place more credibility and weight on the more definite and site-

specific testimony of the expert witnesses testifying in support of the permit

than those experts testifying in general opposition to the permit.

The decision to accept one expert's testimony over that of another is a

matter within the sound discretion of the hearing officer and cannot be altered,

absent a complete lack of competent substantial evidence of record from which

the finding could be reasonably inferred. See, Collier Medical Center v. State.

Dept. of HRS, 446 So.2d 83, 85 (Fla. 1st DCA 1985); and Florida Chapter of

Sierra Club v. Orlando Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA

1983). Furthermore, the sufficiency of the facts required to form the opinion

of an expert must normally reside with the expert and any purported deficiencies

in such facts relate to the weight of the evidence, a matter also within the

province of the Hearing Officer as the trier of the facts. Gershanik v. Dept.

of Professional Regulation, 458 So.2d 302, 305 (Fla. 3rd DCA 1984), rev. den.

462 So.2d 1106 (Fla. 1985).

In view of the above, Petitioner's exceptions to the Hearing Officer's

Conclusions of Law are denied.

Conclusion

Petitioner is to be commended for its demonstrated commitment to the

protection of the Suwannee River, an Outstanding Florida Water and a precious

natural resource of this state. In addition, the Department permit review staff

is also to be commended for the special attention and close scrutiny given to

Applicant's proposed dairy project due to its proximity to the Suwannee River.

It is undisputed that staff applied its more stringent standards prohibiting

discharge to surface waters to Applicant's proposed dairy project, even though

the maximum number of cows to be permitted at the site is slightly below the

more stringent standard threshold of 700 cows. Finally, the record is devoid of

any testimony rebutting or contradicting the emphatic testimony of the

Department's dairy waste management specialist Mark Bardolph that "this has been

the most highly reviewed dairy application that there has ever been in the

history of the Department during my tenure." (Tr. 103)

It is therefore ORDERED:

A. Page one of the Recommended Order is modified by inserting the year

"1995" in lieu of "1994" on the second line of the opening paragraph.

B. Page 19 of the Recommended Order is modified to delete therefrom the

Hearing Officer's rejection of Petitioner's proposed Findings of Facts 53 and 54

as "largely legal argumentation".

C. Finding of Fact 38 of the Recommended Order is modified by deleting

therefrom the third sentence.

D. Finding of Fact 39 of the Recommended Order is modified by inserting

"Applicant" in lieu of "Petitioner" at the beginning of the second sentence.

E. Finding of Fact 41 of the Recommended Order is modified by inserting the

word "substance" in lieu of the existing word "nutrient" on the second line of

the paragraph.

F. The Recommended Order of the Hearing Officer, as modified in paragraphs

A, B, C, D, and E above, is adopted and incorporated by reference herein.

G. The petition filed by Robert and Beverly Hawkins in OGC Case No. 95-

1711, also bearing DOAH Case No. 95-3900, is dismissed on the ground of being

voluntarily withdrawn and the Department's file is closed.

H. Permit number FLA. 016197 proposed for issuance by the Department to

Applicant Robert Piechocki on July 7, 1995, is hereby ISSUED, subject to the

conditions set forth in the notice of intent to issue permit and the

supplemental condition of one additional monitoring well on the southern

boundary of the proposed dairy site as recommended by the Hearing Officer, the

location of which is to be directed by Department staff.

Any party to this Order has the right to seek judicial review of the Order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

clerk of the Department in the Office of General Counsel, 3900 Commonwealth

Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of

the Notice of Appeal accompanied by the applicable filing fees with the

appropriate District Court of Appeal. The Notice of Appeal must be filed within

30 days from the date of this Order is filed with the clerk of the Department.

DONE AND ORDERED this 5th day of February, 1996, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

________________________________

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Bldg.

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

ENDNOTES

1/ The record reflects that the Petition of Robert and Beverly Hawkins was

voluntarily withdrawn at the commencement of the formal hearing.

2/ The date of the formal hearing is erroneously designated as October 16,1994,

on page one of the Recommended Order.

3/ A portion of the proposed dairy farm is less than one mile from the Suwannee

River, an Outstanding Florida Water. As an Outstanding Florida Water, the

Suwannee River is entitled to the highest level of environmental protection.

Rules 62-302.700 and 62-4.242, Florida Administrative Code.

4/ Petitioner's exception to the Hearing Officer's rejection of its proposed

findings of fact 53 and 54 on the ground of being "largely legal argumentation"

appears to be well-taken. Such mischaracterization on the part of the Hearing

Officer, however, is deemed to be harmless error. These proposed findings of

fact of Petitioner were basically considered and essentially rejected by the

Hearing Officer in her Findings of Fact 33, 34, 41 and 42.

5/ Petitioner's alternative suggestion that the last sentence of paragraph 14

of the Recommended Order should not be adopted because it is a "legal

conclusion" is rejected. This determination of the Hearing Officer appears to

be one constituting a mixture of fact and law. The factual portion of this

determination is upheld as reflected in the body of this ruling and the legal

portion appears to be a correct interpretation of the law as applied to the

weight of the evidence presented at the formal hearing.

6/ Expert testimony concerning potential ground water contamination by

phosphorous not being considered a significant problem at the proposed dairy

site due to its greater adsorption capacity is found at pages 70-72, 81, and 201

of the transcript. The Hearing Officer's challenged finding in paragraph 19 of

the Recommended Order relating to the Department's particular caution or concern

over Applicant's proposed dairy due to the proximity of the Suwannee River and

the presence of a karst region is amply supported by the testimony of the

Department's dairy management waste specialist Mark Bardolph. (Tr. 103-105,108-

110,115-

116)

7/ The Hearing Officer does mistakenly refer to Applicant as "Petitioner" in

the second sentence of Finding of Fact 39.

8/ Petitioner correctly notes that the reference to the term "nutrient" in

Finding of Fact 41 as applied to Rule 62-520.400, Florida Administrative Code,

is confusing and that the testimony of record deals with the potential for

groundwater contamination at the proposed dairy site from pathogenic substances

found in the manure and urine of cattle. For purposes of this Final Order, the

term "substance" as used in the rule will be substituted for the term "nutrient"

in the Hearing Officer's Finding of Fact 41.

9/ The Hearing Officer made a finding in the first sentence of her Finding of

Fact 39 that `[e]xperts for Mr. Piechocki and DEP in the fields of agricultural

engineering, dairy waste management, geology, hydrology, and soil science

testified credibly that within reasonable professional certainty, the dairy will

abate and prevent water pollution to the extent required by the applicable

statute and rules." This significant finding was not directly challenged in

paragraph 14 of Petitioner's exceptions or elsewhere and must be accepted as

valid in this agency review proceeding. Furthermore, the testimony of

Petitioner's key expert witness on this subject, Hans Stoddard, dealt primarily

with the existence of pathogens in cattle manure and urine, as opposed to its

potential existence in the groundwater at the proposed dairy site. (Tr. 303-

311) Dr. Stoddard is a veterinarian who possesses no particular expertise in

geology, hydrology, soils, or dairy waste management. Also, Applicant presented

rebuttal expert testimony from the Department's dairy waste management

specialist Mark Bardolph that past monitoring experience indicates pathogens

such as E. coliform are removed as the goundwater percolates through the soil.

(Tr. 319-320)

10/ Of course, to the extent that a party's proposed finding of fact is

specifically incorporated into the Recommended Order as one of the findings of

fact of a hearing officer, then such finding may be challenged by the filing of

an exception with the reviewing agency.

CERTIFICATE OF SERVICE

HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

United States Postal Service to:

Peter B. Belmont, Esquire Marty Smith, Esquire

511 31st Avenue North 125 NE 1st Ave., Ste. 1

St. Petersburg, Florida 33704 Ocala, Florida 34478-3317

Robert Hawkins, pro se

HC 4Box180

Old Town, Florida 32680

and by hand delivery to:

Ann Cole, Clerk, and

Ella Jane P. Davis, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Christine C. Stretesky, Esquire

Department of Environmental Protection

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

this 6th day of February, 1996.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

________________________________

J. TERRELL WILLIAMS

Assistant General Counsel

Marjory Stoneman Douglas Bldg.

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

Telephone [phone]