07-002414 Quillon Yon And Kevin Yon vs. Town Of Grand Ridge And Department Of Environmental Protection Status: Closed Recommended Order on Friday, February 8, 2008.

Summary: With the additional recommended permit conditions, Grand Ridge provided reasonable assurances that the proposed domestic wastewater treatment plant and sprayfield would comply with all rules applicable to their construction and operation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUILLON YON AND KEVIN YON , )

)

Petitioner s , )

)

vs. ) Case No. 07 - 2414

)

TOWN OF GRAND RIDGE AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondents . )

)

RECOMMENDED ORDER

The final hearing in this case was held on September 18

through 20, 2007, in Tallahassee, Florida, before Bram D.E.

Canter, an Administrative Law Judge (ALJ), of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Kenneth J. Plante, Esquire

Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

For Respondent Department of Environmental Protection :

Nona R. Sc haffner, Esquire

Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent Town of Grand Ridge :

Timothy P. Atkinson, Esquire

Gavin D. Burge ss, Esquire

Oertel, Fernandez, Cole and

Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 3230 2 - 1110

STATEMENT OF THE ISSUE

The issue in this case is whether the Town of Grand Ridge

(Grand Ridge) is entitled the Domestic Wast ewater Facility

Permit that the Department of Environmental Protection intends

to issue.

PRELIMINARY STATEMENT

On April 11, 2007, the Department gave notice of its intent

to issue Domestic Wastewater Facility Permit N o. : FLA546429 - 001 -

DW2P/NP) to Grand Ri dge to construct and operate a wastewater

treatment plant and associated sprayfield . Petitioners Quillon

Yon and Kevin Yon filed a petition for hearing to challenge the

proposed agency action. The Department referred the matter to

DOAH to conduct an evid entiary hearing.

On September 12, 2007, Petitioners filed a Motion for

Continuance based on the Town's identification of a revised site

plan for the sprayfield . Following a telephonic hearing on the

motion, the motion was denied. The ALJ also ruled that evidence

presented at the hearing was to be confined to the proposed

project with the revised sprayfield site plan.

Respondents filed a Joint Motion in Limine, seeking to

strike Petitioners' allegations that the proposed project would

violate Departmen t statutes and rules that apply to projects

that are designed to have a direct discharge of pollutants. The

motion in limine was granted, because Grand Ridge does not

propose, and the Department's proposed permit does not

authorize, a direct discharge of treated wastewater to ground or

surface waters of the state.

Grand Ridge also filed a Motion for Costs and Attorneys'

Fees. A r uling on that motion was deferred to this Recommended

Order.

At the final hearing, Joint Exhibit 1, consisting of

documents in the Department's permitting file, were admitted

into evidence. Grand Ridge presented the testimony of Clyde

Moneyham, Jr., the t own m anager of Grand Ridge; Michael G.

Varner, who was accepted as an expert in geotechnical

engineering, including the study o f soils, field testing, soil

sampling and testing, and laboratory testing of soils; Glen

Allen, who was accepted as an expert certified wastewater

treatment plant and sprayfield operator; Eric Guarino, who was

accepted as an expert in geology, hydrogeology , groundwater

assessment, groundwater monitoring and groundwater quality; Amir

Zafar, who was accepted as an expert in wastewater treatment,

reclaimed water holding ponds, sprayfield irrigation, sanitary

sewer collection and transmission and hydraulic mode ling; and

Frasier Bingham, Ph.D, who was accepted as an expert in ecology,

state and federal wetlands delineation, including vegetation,

soils and hydrology, and state and federal endangered and

threatened species. Grand Ridge's Exhibits 1, 2, 5, 8, 12, 1 7,

19b, 19c, 19d, 19f, 19g, 19j, 19k, 19m, 19n, 19o, 19p, 19q, 20,

21, 24, 25, 28c, 28d, 29, 30a, 30b, 31, 32a, 32b, 32c, 32d, 33,

34, 36, 37, 38, 39, 53, 54b, 54d, 54e, 55 and 77 were admitted

into evidence. The Department presented the testimony of Jame s

Billizon, who was accepted as an expert in geologic and

groundwater issues pertaining to permit applications, both

domestic and industrial wastewater; and William Evans, P.E., who

was accepted as an expert in environmental engineering as it

applies to do mestic wastewater facilities. The Department' s

Exhibit 2 w as admitted into evidence . Petitioners presented the

testimony of Quillon Yon, Jerry Gilley, and James Stevenson.

Petitioners' Exhibits 2, 3, and 6 were admitted into evidence.

At the request o f Grand Ridge, the ALJ officially

recognized portions of the U.S. Environmental Protection Agency

(EPA) publication entitled , "Land Treatment of Municipal

Wastewater — Process Design Manual" (1981) , and the entirety of

the EPA publication entitled "Design Cr iteria for Mechanical,

Electric, and Fluid System s " (1974).

The six - volume Transcript of the final hearing was filed

with DOAH. The ALJ granted the motions of Petitioners and the

Department to extend the time to file p roposed r ecommended

o rders. Each par ty timely filed a Proposed Recommended Order

which was carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the agency with the responsibility

and authority to regulate the construction and o peration of

domestic wastewater treatment facilities in Florida.

2. The permit applicant, Town of Grand Ridge, is a

municipality in Jackson County. Grand Ridge has a population of

approximately 950 persons.

3. Petitioner Quillon Yon is the owner of 95 a cres of land

contiguous to the site of Grand Ridge's proposed wastewater

treatment plant and sprayfield . He resides on this property

half of each year. He grows Pensacola Bahia grass as pasturage

for about 40 head of cattle. The rest of the property is

forested. There are potable water wells on the property.

4. Petitioners are co - owners of about 20 acres adjacent to

Ocheesee Pond which is east of the project site. Part of the

property is used to grow Coastal Bermuda grass as hay.

Petitioners fish on Ocheesee Pond.

The Proposed Project and Project Site

5. The challenged Department permit authorizes Grand Ridge

to construct and operate an "extended aeration secondary

treatment domestic wastewater treatment plant consisting of flow

equalization, influe nt screening, comminution, grit removal,

aeration, secondary clarification, and chlorination." The

permit also authorizes Grand Ridge to construct and operate a

slow - rate, restricted public access, land application system

( sprayfield ).

6. The treatment p lant and sprayfield would be constructed

on a 475 - acre site owned by Grand Ridge and located within the

t own limits. The wastewater treatment plant would be

constructed in the approximate middle of the site. The

sprayfield would be located in the souther n portion of the site.

The northern portion of the site would remain in its natural

condition.

7. The land uses surrounding the proposed project site are

mostly agriculture, consisting of row crops, hayfields,

vegetables, and cattle operations. Ocheesee Pond is a natural

waterbody located about 3,000 feet to the east of the project

site. Dickson Bay is a natural waterbody located 1,500 to 2,500

feet south of the project site. There are other wetlands and

unnamed surface waters near the project site.

8. The treatment plant would have the capacity to treat an

annual average daily flow of 205,000 gallons of domestic

wastewater. This design capacity would accommodate the

projected population growth of Grand Ridge through 2028.

9. The treatment plant is d esigned to meet Class 1

Reliability standards as established by the EPA . Class 1

Reliability relates primarily to the provision of backup systems

throughout the treatment plant, such as electrical power

sources, pumps, holding ponds, and treatment process es, which

give greater assurance that the facility will remain operational

in the event of system failures.

10. Grand Ridge provided reasonable assurance that the

treatment plant would meet all the design and operational

standards applicable to domestic w astewater treatment plants of

this type.

11. The treatment plant would be located a minimum of

1,600 feet away from any of the project site boundaries. The

only part of the plant that might produce objectionable odor is

near the "headworks" where the sew age comes in from the

collection system. Based on the location of the treatment plant

on the project site and the odor control measures to be

utilized, Grand Ridge provided reasonable assurance that the

proposed project would not create objectionable odor s so as to

create a nuisance to persons residing near the project site.

12. After the wastewater is treated, it would be stored in

two above - ground storage ponds until it is pumped to the

sprayfield . The ponds would be lined with a high - density

polyethyl ene liner.

13. The ponds would hold ten days of wastewater flow at

the average daily flow rate. Under the Department's rules, only

three days of storage capacity is required. Grand Ridge

provided reasonable assurance that the storage ponds would

prevent wastewater from being released even during unusually

heavy rainfall or rainfall of unusually long duration and that

all other standards applicable to wastewater storage would be

met.

14. Grand Ridge originally proposed a sprayfield of 168

acres. The pro posed sprayfield was later reduced to 106 acres

and generally occupies the relatively flatter terrain within the

original 168 acres. The rest of the 62 acres that had been part

of the originally proposed sprayfield are now proposed to be

left in their nat ural vegetation.

15. A portion of the wastewater sprayed onto the

sprayfield would be taken up by the grasses grown there for that

purpose , and the balance of the wastewater would percolate

through the soil to the groundwater. Because the wastewater is

t reated and returned to the groundwater in this process, it is

also referred to as reclaimed water.

16. The project is not designed to have a direct discharge

to ground or surface waters.

Soils at the Project Site

17. The Jackson County Soil Survey indica tes that the

predominant soil types at the proposed sprayfield are Dothan

loamy sands and Fuquay coarse sands. Ninety - five percent of the

soils in area of the proposed sprayfield are defined in the soil

survey as being well - drained, meaning that water rea dily

percolates down through them. Because the soils are well -

drained, they are generally suitable for a sprayfield .

18. Hand auger soil borings were taken throughout the

proposed site to determine the thickness of the sandy soils that

begin at the groun d surface. The thickness of the sandy soils

determines their capacity to store water. The thickness of the

sandy soils is greatest in the southern portion of the proposed

site where the sprayfield would be located, with an average of

about two feet.

19. Six deeper soil borings were made, ranging in depth

from 70 to 80 feet. Each of the deeper borings showed that

beneath the sandy soils exists a thicker layer of clayey sands.

Beneath the clayey sands is a confining layer of highly plastic

(almost imperm eable) clay. Below the clay is limestone.

20. Four double ring infiltrometer field tests were

conducted to determine the vertical infiltration rate of water

through the soils. The tests showed an average infiltration

rate in the area of the proposed spr ayfield of 4.5 inches per

hour. This is a good infiltration rate for a sprayfield .

21. Wastewater percolating downward through the soil would

reach the confining layer of clay and then move horizontally

along the clay layer. "Slug tests" were conducted to determine

the horizontal conductivity of the soils. The average

horizontal conductivity was determined to be 0.06 feet per day,

which was characterized by a geotechnical engineer as "fairly

slow."

2 2 . Permeability tests in a laboratory were performed on

the clay layer to determine how long it would take water to move

through the clay. The permeability of the clay layer was .00008

feet per day. At the thinnest clay layer (9 feet thick), it

would take approximately 189 years for treated wastewater

appl ied to the sprayfield to penetrate through the clay to the

underlying limestone.

2 3 . The project site is not a recharge area for the

Floridan aquifer due to the clay confining layer beneath the

site.

2 4 . The soils in the area of the proposed storage pond s

are stable and suitable for the construction of the proposed

ponds.

2 5 . In conducting the evaluation of the soils on the

project site, Grand Ridge's consultants found a few depressions,

but no sinkholes or other "karst" features. A k arst feature is

a s inkhole or other geologic form which indicates exposed

limestone or the presence of limestone near the ground surface.

Groundwater

2 6 . Five piezometers were installed at the site at depths

from 68 to 75 feet to determine the depth of the groundwater and

t he direction of the groundwater flow. Groundwater was

encountered at depths between 18.9 to 68.8 feet below the

surface. The direction of groundwater flow beneath the proposed

sprayfield was determined to be generally east and southeast.

27. A "mounding " analysis, using a computer model, was

conducted to predict how groundwater levels would be affected by

the application of treated wastewater to the sprayfield . The

main purpose of the analysis was to determine whether treated

wastewater could be applied to the sprayfield without causing

ponding of water on the surface of the sprayfield . The permit

contains a condition that prohibits surface runoff or ponding of

the applied reclaimed water.

28. Several conservative assumptions were used in the

mounding analysis. It assumed a perched groundwater condition

beneath the proposed sprayfield , because the Jackson County Soil

Survey indicated that the soils found there are indicative of

the presence of perched groundwater for part of the year.

Perched groundwa ter is a situation where a soil layer of low

permeability will cause groundwater to perch for a time before

it moves downward. Although the soil survey indicated that the

perched water condition might exist for three to four months a

year, the computer mo del used in the mounding analysis was run

with the assumption that the perched water condition was present

year round.

29. Another conservative assumption used in the mounding

analysis was an average annual rainfall amount of 64.9 inches.

The historic an nual rainfall for the area is approximately 55

inches per year.

30. Another conservative assumption used in the mounding

analysis was an infiltration rate of 3.5 inches per hour. That

was the average infiltration rate computed from the f ive

piezometers, but the piezometers in the area of the proposed

sprayfield showed an average infiltration rate of 4.5 inches per

hour.

31. Using these conservative assumptions, t he mounding

analysis showed the sprayfield could absorb 2.75 inches per hour

without ponding. Therefore, Grand Ridge provided reasonable

assurance that mounding would not occur at the permitted

application rate of 0.5 inches per acre , per week.

Sprayfield Operation

32. Grand Ridge's proposal to reduce the proposed

sprayfield from 168 acres to 10 6 acres did not affect the

permitted application rate of 0.5 inches per week, per week .

However, the permitted wastewater volume of .308 million gallons

per day (mgd) would have to be reduced to .205 mgd to correspond

with the reduction in the size of the sprayfield . Grand Ridge

agreed to this modification.

33. The sprayfield would be divided into seven zones that

could be operated independently. It is Grand Ridge's general

plan to rotate from one zone to another through the week,

spraying 0.5 inches pe r acre each day. That is likely to

require spraying for two to three hours each day. Because each

of the seven sprayfield zones would only be sprayed once each

week, this method of operation would meet the permit condition

of 0.5 inches per week, per wee k .

34. The spray nozzles along the boundary of the sprayfield

would be installed and operated to spray only inward, toward the

sprayfield .

35. Florida Administrative Code Rule 62 - 610.421(2)

requires a 100 - foot setback from the property line to the wetted

area of the sprayfield , unless the setback is vegetated with

trees or shrubs that create a visual barrier, in which case the

required setback is 50 feet. Grand Ridge proposes an 80 - foot

buffer zone around the wetted area of the sprayfield and, beyond

thi s zone, an additional 100 - foot vegetated buffer, consisting

partly of thickly - planted yellow pine trees. The total buffer

from the wetted area of the sprayfield to the property

boundaries would be 180 feet.

36. Because of the extensive buffers around the proposed

sprayfield , including forested areas, Grand Ridge provided

reasonable assurance that any aerosol drift from the sprayfield

would not move off the project site.

37. The sprayfield would not be operated when it is

raining at the project site. Fur thermore, because the permit

does not require a treatment plant operator to be on the site at

all times, Grand Ridge proposes to install rain sensors that

would automatically shut down the sprinklers when the sensors

detect rain. The sprinklers would have to be restarted

manually. During the shut - down, treated effluent would remain

in the storage ponds.

38. Grand Ridge has proposed to add a condition to the

permit that prohibits the operation of the sprayfield sooner

than four hours after a rainfall even t.

39. The sprayfield would be located at least 100 feet from

the wetlands on the project site. The spray nozzles would

direct spray away from the wetlands.

40. Grand Ridge also proposes to construct a one - foot - high

earthen berm around the wetlands near est the sprayfield to

direct any surface flow of rainwater away from them.

The Crops

41. Grand Ridge proposes to plant Coastal Bermuda grass in

the summer and rye grass in the winter on the sprayfield . These

crops were chosen for their high nitrogen upta ke, high water

uptake, and moisture tolerance.

42. The amount of nitrogen that would be applied to the

sprayfield as a component of the treated wastewater is about 120

pounds per acre , per year when the treatment plant is at full

capacity. This is less t han the amount of nitrogen generally

recommended for the fertilization of Coastal Bermuda and rye

grasses. Therefore, Grand Ridge might need to occasionally

apply supplemental nitrogen to fertilize the grasses. Grand

Ridge proposes to limit its applicati on of supplemental nitrogen

to only the amount necessary to maintain the crops, but never

more than 200 pounds per acre , per year. 1

43. The Town of Sneads, approximately five miles east of

Grand Ridge, grows Coastal Bermuda grass on its sprayfield . The

o perator of the Sneads sprayfield said that the Coastal Bermuda

grass has done well without the need to apply supplemental

nitrogen. Petitioners grow Coastal Bermuda on their property

near Ocheesee Pond.

44. Any supplemental nitrogen applied to the crop s would

be applied in split applications that will not exceed 40 pounds

per acre at a time. The supplemental nitrogen would be applied

just before spraying, which would help to release the nitrogen

into the soil.

45. The total nitrogen in the wastewater and in the

supplemental nitrogen fertilizer that would be applied to the

grasses is less than the amount of nitrogen these grasses are

generally able to take up. Even though it is reasonable to

expect that some nitrogen will percolate past the root zone o f

the grasses before it can be taken up by the plants, only a

small fraction of the nitrogen would likely percolate through

the soils and reach the ground water beneath the sprayfield .

46. Department rules provide for a "zone of discharge" for

a sprayfiel d that extends horizontally 100 feet from the wetted

area of the sprayfield or to the facility's property line,

whichever distance is smaller. Groundwater quality standards

must be met beyond the zone of discharge. In this case, the

100 - foot zone of disc harge would be applicable. Grand Ridge

provided reasonable assurance that nitrogen in the groundwater

would not reach concentrations that exceed the state groundwater

quality standard beyond the zone of discharge.

Monitoring

47. There are to be six groun dwater monitoring wells on

the proposed site which would be sampled quarterly for

compliance with groundwater quality standards. Samples would be

taken from these wells before the sprayfield is placed in

operation to establish the background quality of th e

groundwater.

48. The proposed placement of the groundwater monitoring

wells was determined by Grand Ridge in consultation with the

Department staff and takes into account the direction of

groundwater movement. The monitoring plan is reasonably

designed to intercept and determine the concentration of

nitrogen and other constituents of the reclaimed water as it

moves away from the proposed sprayfield .

49. There would be one surface water monitoring station.

It would be located at a small pond just north of the treatment

plant and would also be sampled quarterly.

50. Grand Ridge proposes to monitor the nitrogen levels in

the treated wastewater and in the soils of the sprayfield on a

bi - monthly basis to determine the amount of any supplemental

nitrogen th at should be applied to the grasses. This particular

monitoring is not required by Department rules.

Potable Water Wells

51. Florida Administrative Code Rule 62 - 610.421(3)

requires a sprayfield to be set back at least 500 feet from the

edge of the wetted area to existing or approved potable water

supply wells, unless the treatment facility meets Class 1

Reliability standards, in which case the setback requirement is

200 feet. Because this proposed facility would meet Class 1

Reliability standards, the 20 0 - foot setback is applicable.

52. Grand Ridge's consultants examined the records of the

Northwest Florida Water Management District (NWFWMD) to

determine whether there were any permitted potable water wells

near the proposed project. They also went to ev ery house near

the project site to determine if there were any unpermitted

wells. They found no record or other evidence of a potable

water well within 200 feet of the proposed sprayfield .

53. In April 2007, NWFWMD issued permits for two water

wells to P etitioner Quillon Yon. These wells are to be located

on his property south of the proposed project site. They have

not yet been installed. Also , in April 2007, NWFWMD issued a

permit to Merita Stanley for a well to be located at 450 Highway

69 in Grand Ridge. In May 2007, NWFWMD issued a permit to

Rodney Lewis for a well to be located at 7289 Shady Grove Road

in Grand Ridge. Grand Ridge 's counsel stated at the hearing

that he thinks the Stanley and Lewis wells have been installed.

Grand Ridge filed pe titions for administrative hearing with the

NWFWMD to challenge these four potable water well permits. No

information was provided about the status of the permit

challenges.

54. The permit documents that are part of Grand Ridge's

Exhibit 53 do not indica te a precise location for the recently

permitted wells. However, because the sprayfield is set back

180 feet from the property boundaries, the new potable water

wells would have to be drilled less than 20 feet from the

boundaries of the project site in or der to be within 200 feet of

the sprayfield . Mr. Zafar testified that, if it were necessary,

the proposed wetted area of the sprayfield could be adjusted so

that it is 20 feet further from the property lines.

Surface Runoff Entering the Sprayfield

55. Fl orida Administrative Code Rule 62 - 610.417(1)

requires a sprayfield to be designed to prevent the entrance of

surface runoff. The rule requires berms to be placed around the

application area, if necessary for this purpose.

56. In a hydrogeologic report fr om Grand Ridge's

consultants, it was recommended that "sprayfield areas with

greater than 5 percent slopes or adjacent to wetland areas be

bermed with a one - foot high grassed berm to reduce the

possibility of surface runoff." Grand Ridge proposes to place

one - foot high berms around the wetlands near the sprayfield , but

it was not made clear whether berms are to be placed to prevent

runoff from entering the sprayfield . Grand Ridge ' s Exhibit 77

shows only berms down gradient of the sprayfield . There are no

berms shown above the sprayfield .

Stormwater Leaving the Project Site

5 7 . One of the principal disputes in this case is whether

there would be contaminated runoff from the sprayfield that

would move off - site. Florida Administrative Code Rule

62 - 610.400( 1) states that off - site surface runoff of the applied

reclaimed water is to be "generally avoided." Florida

Administrative Code Rule 62 - 610.417(1) states that provisions

for on - site surface runoff control are to be described in the

applicant's engineering report and are subject to Department

approval. There are no more specific requirements for

controlling runoff associated with a proposed sprayfield .

5 8 . Grand Ridge's engineering report states that the

existing drainage patterns of the project site will be used.

The project site is highest near its southern boundary where the

elevation reaches 250 feet and slopes down to an elevation of

120 feet in the northeastern corner of the site. Grand Ridge

does not propose to do any grading on the site.

59 . Gra nd Ridge has proposed a permit condition that it

must obtain a National Pollutant Discharge Elimination System

Permit for construction of the sprayfield in order to address

stormwater and erosion in greater detail.

6 0 . Petitioner Quillon Yon testified tha t stormwater runs

off the northeastern corner of the project site and the

southwestern area of the project site and makes its way,

respectively, to Ocheesee Pond and to Dickson Bay. However,

Petitioners did not establish what size rainfall event causes

st ormwater to run off the project site (or, more importantly,

the proposed sprayfield area), what concentrations of

contaminants would be in the stormwater leaving the project

site, or what levels of contamination in the runoff would be

necessary to cause an adverse impact to Ocheesee Pond or Dickson

Bay.

6 1 . The average infiltration rate of 4.5 inches per hour

far exceeds the permitted application rate of 0.5 inches per

week. Grand Ridge would not be applying treated effluent to the

sprayfield during a rai nstorm. Any runoff from the sprayfield

would have to flow across 180 feet of vegetated buffer before

reaching the site boundaries. These and several other

conditions of the proposed permit provide reasonable assurance

that contaminated stormwater would n ot flow off the project

site.

6 2 . Petitioners' evidence was insufficient to rise above

speculation and to competently demonstrate that there is a

reasonable probability that stormwater contaminated with treated

effluent would flow off the proposed sprayfi eld , across the

vegetated buffer areas, and make its way to Ocheesee Pond or

Dickson Bay in concentrations that would adversely affect these

water bodies .

6 3 . Petitioners' counsel, on cross - examination, frequently

asked witnesses to assume hurricane and o ther extreme storm

conditions. Rainstorms of extreme magnitude can overcome the

ability of man - made stormwater controls to prevent runoff, but

it is neither practicable nor reasonable to require permit

applicants to install stormwater controls that would prevent

runoff during a hurricane or other extreme circumstances that

only rarely occur. The infiltration rate compared to the

permitted application rate, the wide vegetated buffers, and

other proposed permit conditions (such as the automatic shutoff

duri ng rainfall) make it unlikely that stormwater would run off

the sprayfield and off the project site except under extreme

rainfall. If there was runoff under extreme storm conditions,

the runoff from the project site would constitute an

insignificant contr ibution to the overall natural and man -

induced contamination of Ocheesee Pond and Dickson Bay caused

from the flows they would receive from all areas within their

watersheds.

On - Site Spring

6 4 . One of the factual disputes in this case is whether

there exi sts a spring on the project site. The Department

argues in its Proposed Recommended Order that, even if there

were a spring where Petitioners claim it is located, there is no

evidence that it is still flowing and, further, the operation of

the sprayfield would not adversely affect the spring even if it

were still flowing. However, the existence of a groundwater - fed

spring, whether it is still flowing or not, would suggest there

might be a direct conduit to the limestone aquifer. Therefore,

whether a spri ng exists is relevant to the question of whether

this project site is suitable for the operation of a sprayfield .

6 5 . There was no evidence presented in the form of maps or

government records to indicate official knowledge of the

existence of a spring on the project site.

6 6 . Petitioner Quillon Yon indicated that a spring is

located on a hill close to the southern boundary of the project

site. He described it as water flowing out of the ground and

running down the hill all through the year except during

droughts. He said that as a child growing up on the land he now

owns that is south of the project site, he would occasionally

gather water from the spring and his mother would sometimes wash

clothes at the spring.

6 7 . Petitioner Quillon Yon said it has b een many years

since he has seen the spring. He also said that the spring

might not be flowing any more because of the dry conditions of

the past several years.

6 8 . Jerry Gilley testified that he leased the project site

between 1985 and 2000 and construc ted some of the roads on the

site. He said he installed a culvert under a road located near

the spring, which he called Springhead Road, so the flow from

the spring would not wash out the road. He said the problem

occurred every time it rained. Curiousl y, Mr. Gilley said he

never actually saw the spring, but just the water running down

the hill from the spring.

69 . There was a site inspection by Petitioners during the

discovery phase of this case, one purpose of which was to look

for the spring. No one reported finding the spring.

7 0 . Dr. Frasier Bingham, a biologist, walked throughout

the project site to delineate wetlands and to look for

threatened and endangered plant and animal species. He did not

find a spring. However, Dr. Bingham described two wetlands on

the project site associated with "slope seeps" where water in

the soil beneath the ground surface emerges on a hillside to

create wet conditions. One of the se wetlands is in the area

where Petitioner Quillon Yon said the spring is located.

7 1 . Eric Guarino, a hydrogeologist, offered the opinion

that the spring described by Petitioner Quillon Yon would most

likely be caused by rainfall, rather than upwelling from a

hydraulic connection to groundwater, and, therefore, was not a

spring.

7 2 . The more persuasive testimony in the record is that

the feature described as a spring by Petitioners was probably a

slope seep. The slope seeps are not within the proposed

sprayfield . The existence of slope seeps on the project site

does not make the site u nsuitable for use as a sprayfield .

On - Site Well

7 3 . Mr. Gilley said there was a man - made well located on

the proposed project site which he thought was 40 to 50 feet

deep. No one else seemed to have any knowledge of the well's

existence.

Off - Site Featu res

7 4 . Florida Administrative Code Rule 62 - 610.310(3)(c)

requires permit applicants to prepare and submit a hydrogeologic

survey , which includes geophysical information concerning known

solution openings and sinkhole features within one mile of the

site. Grand Ridge's hydrogeologist reviewed topographic maps to

determine whether there was potential for sinkhole development

within a one - mile radius of the project site. No features were

found that indicated a potential for sinkhole development .

7 5 . Mr. Gilley said there is a sinkhole at the southeast

corner of Ocheesee Pond. It was not established in the record

how far this alleged sinkhole is from the project site.

Respondents contend that Mr. Gilley i s not competent to identify

a sinkhole. A sinkho le is a feature that occurs with regularity

in Florida and is recognizable to many people of average

intelligence without the need to have been trained or educated

as a hydrogeologist. Grand Ridge's hydrogeologist did not

identify this feature as a sinkho le in his hydrogeologic survey .

The record evidence does not show whether he was aware of the

feature, but did not consider it a sinkhole , or determined that

it was more than one mile from the project site.

7 6 . James Stevenson said there were five sp rings east of

Ocheesee Pond, which he estimated to be four to six miles from

the project site.

7 7 . Grand Ridge met the minimum requirement s of Florida

Administrative Code Rule 62 - 610.310(3)(c) .

CONCLUSIONS OF LAW

7 8 . The Division of Administrative He arings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007) . 2

79 . The Department is the state agency with authority and

responsibility to permit and regula te domestic wastewater

treatment facilities pursuant to Chapter 403, Florida Statutes,

and the rules promulgated thereunder.

8 0 . Subs ection 120.569(1), Florida Statutes, provides that

the right to participate in administrative proceedings extends

to any pe rson whose substantial interests will be affected by

proposed agency action.

8 1 . A petitioner's standing is not dependent on proving a

claim that the proposed agency action would violate applicable

law. Standing and the merits of a claim are different co ncepts.

See , e.g. , Village Park Mobile Home Ass'n., Inc. v. State Dept.

of Business Regulation , 506 So. 2d 426, 433 (Fla. 1st DCA 1987);

St. Martin's Episcopal Church v. Prudential - Bache Securities ,

613 So. 2d 108, 109, n. 4 (Fla. 4th DCA 1993). Instead,

standing requires proof that the petitioner has a substantial

interest and that the interest would be affected by the proposed

agency action. Whether the effect would constitute a violation

of applicable law is a separate question for determination.

8 2 . Petitioner Quillon Yon's interest in protecting his

contiguous real property from groundwater and surface water

contamination is a substantial interest for purposes of

standing. Petitioner s' interest in fishing on Ocheesee Pond is

also a substantial inte rest. These are interests of the type

and nature which this proceeding was designed to protect.

8 3 . The direction of groundwater flow and the horizontal

conductivity of the soils underlying the proposed sprayfield

shows that some of the groundwater benea th the proposed

sprayfield could move toward and then beneath the contiguous

property of Petitioner Quillon Yon. The record also shows that

this groundwater is likely to contain some nitrogen and other

wastewater constituents that percolated from the spra yfield .

This evidence is sufficient to show that Petitioner Quillon

Yon's substantial interest in protecting his contiguous real

property from groundwater contamination would be affected by the

proposed sprayfield operation. Although he did not prove tha t

the concentration of contaminants in the groundwater would

exceed applicable groundwater quality standards, Petitioner

Quillon Yon has the requisite standing to initiate and maintain

these administrative proceedings to present his contrary view.

8 4 . On the other hand, the evidence in the record

regarding the effect of the proposed project on Quillon Yon's

and Kevin Yon's s ubstantial interest in fishing on Ocheesee Pond

was speculative and incomplete. 3 Necessary details, such as the

size of the rain even t that would cause runoff from the

sprayfield and the project site , and the concentration of

nitrogen or of other contaminants in the runoff that would be

necessary to result in a detectable increase in these

contaminants' levels in Ocheesee Pond, were not presented.

There was also insufficient evidence to show that Ocheesee Pond

would be affected by groundwater contamination originating from

the project site. The allegation of harm to Ocheesee Pond was

the only e ffect on the interests of Petitioner Kevin Yon

presented at the hearing. Therefore, Petitioner Kevin Yon

failed to prove his standing.

8 5 . As the applicant for the permit, Grand Ridge has the

ultimate burden of proving its entitlement to the permit by a

preponderance of the evidence. Dept. of T ransp. v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

8 6 . Florida Administrative Code Rule 62 - 4.070(1) states

that a permit shall be issued only if "the applicant

affirmatively provides the Department with reasonable assurance

based on plans, te st results, installation of pollution control

equipment, or other information, that the construction,

expansion, modification, operation, or activity of the

installation will not discharge, emit, or cause pollution in

contravention of Department standards or rules."

8 7 . "Reasonable assurance" in this context means a

demonstration that there is a substantial likelihood of

compliance with standards, or "a substantial likelihood that the

project will be successfully implemented." Metropolitan Dade

County, v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d

DCA 1992).

8 8 . The reasonable assurance standard requires the

applicant to address reasonably foreseeable contingencies. See

Rowe v. Oleander Power Project, L.P. , 1999 Fla. Env. Lexis 5752

(DEP 1999) ; Chipola Basin Protective Group, Inc. v. Fla. Chapter

Sierra Club , 1988 Fla. Env. Lexis 112 (DER 1988).

89 . In advance of the final hearing, Grand Ridge proposed

several additional permit conditions affecting primarily the

operational aspects of the prop osed facility in order to address

some of the concerns raised by Petitioners. Each of the

proposed additional conditions would tend to reduce the

potential for adverse environmental impacts.

9 0 . Proceedings under Section 120.57, Florida Statutes ,

are int ended to formulate final agency action, not to review

action taken earlier and preliminarily. J.W.C , supra , 396

So. 2d at 785 (quoting McDonald v. Department of Banking and

Finance , 346 So. 2d 569, 584 (Fla. 1st DCA 1977). Therefore, as

long as the due p rocess rights of the parties are preserved,

modifications to a project can be proposed and addressed at the

final hearing. In this case Petitioners' due process rights,

principally their right to have sufficient notice of the

proposed modifications to pre pare for the final hearing, were

preserved.

9 1 . Florida Administrative Code Rule 62 - 110.106(7)(a)4.

provides that additional public notice does not have to be

published by a permit applicant for modifications made after a

notice of intent was published un less the modifications are

substantial. A substantial modification is defined in the rule

a s "a relocation or modification of the activity or project that

is reasonably expected to cause new or significantly greater

adverse environmental impacts." Becaus e Grand Ridge's

modifications would reduce potential environmental impacts,

additional public notice was not required.

9 2 . Many of the rules that Petitioners contend Grand Ridge

failed to comply with are only applicable to projects designed

to have a dire ct discharge of a pollutant. Those rules are not

applicable here because Grand Ridge's project is not designed to

have a direct discharge , and Petitioners did not demonstrate

that the proposed project would have a direct discharge.

9 3 . Based on all the c ompetent substantial evidence

submitted at the final hearing and as discussed in the Findings

of Fact set forth above, Grand Ridge demonstrated by a

preponderance of the evidence that the proposed wastewater

treatment plant and sprayfield would comply with all applicable

Department standards or rules for a facility of this kin d,

except as set forth below. If the permit modifications

recommended by the ALJ are made, the proposed facility would

comply in all respects.

9 4 . Florida Administrative Code Rule 62 - 610.417(1)

requires that the sprayfield be designed to prevent the entrance

of surface runoff. There was competent evidence to support the

need for berms to prevent runoff from slopes greater than five

percent, but the evidence was not clear that berms w ould be

placed to prevent surface runoff into the sprayfield from higher

elevations adjacent to the sprayfield where the slope is greater

than five percent. Therefore, to comply with Rule

62 - 610.417(1), the proposed permit would have to be modified to

inc lude a condition that berms be placed to prevent surface

runoff into the sprayfield from higher elevations adjacent to

the sprayfield where the slope is greater than five percent.

9 5 . Florida Administrative Code Rule 62 - 610.421(3)

requires that the wetted area of this proposed sprayfield be set

back at least 200 feet from existing or approved potable water

supply wells. Because Grand Ridge stated at the hearing that

the Stanley and Lewis wells might have already been installed,

but did not show that these wells are more than 200 feet from

the wetted area of the proposed sprayfield , it failed to show

compliance with this rule. However, there is competent

substantial evidence in the record that the wetted area of the

sprayfield can be moved so that it is 20 0 feet from the property

boundaries. In order to show compliance with Rule

62 - 610.421(3), the proposed permit would have to be modified to

require the wetted area of the proposed sprayfield to be set

back at least 200 feet from the property boundaries .

9 6 . Grand Ridge filed a Motion for Costs and Attorneys'

Fees pursuant to Subs ections 120.569(2)(e) and Section 120.595,

Florida Statutes, arguing that the proceeding was initiated for

improper purposes. Grand Ridge presented no evidence of an

improper purp ose. Therefore, the Motion for Costs and

Attorneys' Fees is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order approving t he permit requested by the Town

of Grand Ridge , with the following modifications:

1. The permit should incorporate the conditions described

in Respondent's Exhibit 77;

2. A condition should be added to require that berms be

placed to prevent surface runoff into th e sprayfield from higher

elevations adjacent to the sprayfield where the s lope is greater

than five percent ;

3. A condition should be added to require the wetted area

of the sprayfield to be set back at least 200 feet from the

property boundaries ;

4. The permitted capacity of the land application system

should be reduced to .205 mgd; and

5. An investigation should be made to find the well

referred to by Mr. Gilley and, if it is found, to properly

abandon the well or take other appropriate action so that the

well does not impair the function of the land application

system.

DONE AND ENT ERED this 8th day of February , 2008 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Adminis trative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of Fe bruary , 2008 .

ENDNOTE S

1/ Petitioner Quillon Yon applies about 300 pounds per acre each

year to his property south of the project site.

2/ All references are to 2007 Florida Statutes, unless otherwise

indicated.

3/ Petitioners do not use Dickson Ba y for fishing or for any

other purpose. Therefore, the alleged potential for the

proposed project to adversely impact Dickson Bay does not affect

any substantial interest of Petitioners.

COPIES FURNISHED :

Michael W. Sole, Secretary

Department of Enviro nmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kenneth J. Plante, Esquire

Tana D. Storey, Esquire

B rewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

Timothy P. Atkinson, Esquire

Gavin D. Burgess, Esquire

Oertel, Fernandez, Cole and

Bryant , P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

Nona R. Schaffner, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order . Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.