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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS H. ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0863

)

RESORT VILLAGE UTILITY, INC. )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_________________________________)

LUSIA DENDE-GALLIO and )

HARRY BUZZETT, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0864

)

RESORT VILLAGE UTILITY, INC. )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_________________________________)

CHARLES F. DUNCKLEE, )

MARIE A. DUNCKLEE, )

DONALD THOMPSON, and )

MARTA THOMPSON, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0865

)

RESORT VILLAGE UTILITY, INC. )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_________________________________)

FRANKLIN COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0866

)

RESORT VILLAGE UTILITY, INC. )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_________________________________)

W. WHITNEY SLAGHT and )

DOROTHY SLAGHT, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0867

)

RESORT VILLAGE UTILITY, INC. )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

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

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

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

APPEARANCES

For Petitioner, Alfred O. Shuler, Esquire

Franklin County: SHULER & SHULER

Post Office Box 850

Apalachicola, Florida 32329

For all other Samuel J. Morley, Esquire

Petitioners: Karen D. Walker, Esquire

HOLLAND & KNIGHT

Post Office Drawer 810

Tallahassee, Florida 32302

For Respondent Thomas I. Mayton, Jr., Esquire

DEP: Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent L. Lee Williams, Jr., Esquire

Timely-filed Petitions for Formal Administrative Hearing initiated Case

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

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

The cases were consolidated before the Division of Administrative Hearings

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

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

0867 collectively filed an Amended Petition for Formal Administrative Hearing.

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

proceeded to formal hearing herein.

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

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

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

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

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

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

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

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

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

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

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

and DOAH Case No. 95-3623 was closed.

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

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

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

0863 through 95-0865 and 95-0867, pursuant to Section 403.412(5), F.S.

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

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

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

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

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

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

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

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

applicant had rested and before Petitioners, who challenged the entire

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

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

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

with some modification of the draft Intent to Issue.

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

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

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

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

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

had 13 out of 13 exhibits admitted in evidence.

The individual Petitioners presented the oral testimony of Tom Pratt,

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

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

evidence.

Franklin County presented no testimony or exhibits.

A transcript was filed with the Division of Administrative Hearings on

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

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

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

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

120.59(2), F.S.

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

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

FINDINGS OF FACT

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

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

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

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

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

area specifically designated under the 1977 Development Order for resort support

facilities.

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

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

proposed development, with reclaimed water to be discharged through absorption

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

constitutes an advanced wastewater treatment facility (AWT).

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

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

Program, bordering Nick's Hole.

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

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

northern portion of the Resort Village site.

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

side of Leisure Lane.

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

which is the highest classification for environmental protection purposes. It

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

National Estuarine Research Reserve and an International Biosphere Reserve.

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

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

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

by the Northwest Florida Water Management District as the highest priority

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

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

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

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

System could destroy this productivity.

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

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

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

areas are recognized as some of the most environmentally sensitive and

productive nursery habitats in the Apalachicola River basin. Scientific studies

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

be protected against nutrients or contaminants associated with sewage wastewater

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

Bay System.

12. Development of the subject property creates a potential for

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

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

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

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

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

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

loading is another concern.

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

transmigration of effluent and specific nutrients are of utmost concern with

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

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

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

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

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

Island, present unusual environmental problems, primarily because they are

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

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

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

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

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

surface water runoff of effluent and proscribed nutrients and whether these

conditions would result in groundwater contamination flowing into surrounding

waters.

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

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

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

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

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

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

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

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

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

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

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

quality than many public drinking water supplies.

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

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

applicant undertook an anticontaminant modelling as more fully described below.

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

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

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

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

DEP rules.

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

the applicant proposes an absorption field land application system comprised of

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

62-610 F.A.C.

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

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

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

flexible rotation schedule.

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

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

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

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

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

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

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

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

the same result. See Finding of Fact 54.

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

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

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

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

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

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

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

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

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

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

129-132. Additionally, the AWT facility will incorporate other design features

not required by DEP rules designed to enhance environmental protections.

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

designed and operated to preclude saturated ground conditions at the ground

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

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

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

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

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

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

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

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

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

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

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

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

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

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

absorption cells were dry.

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

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

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

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

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

waters will dissipate quickly.

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

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

effluent disposal study and developed a groundwater monitoring plan for the

project.

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

monitoring wells and piezometers were installed to measure groundwater levels,

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

this size.

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

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

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

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

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

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

water well contractor and licensed geologist who formerly worked with the

Southwest Florida Water Management District as described in the testimony of

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

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

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

technician-oriented work, not requiring exotic expertise.

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

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

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

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

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

application of water.

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

hydrogeotechnical report, Messrs. Mortensen and Andreyev made conservative

assumptions regarding the soil permeability and aquifer characteristics.

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

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

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

1990, he and his firm have conducted over 500 hydrogeologic studies, including

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

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

groundwater and stormwater computer models, and has taught groundwater and

stormwater seminars to DEP and water management district personnel.

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

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

acceptable by DEP.

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

program, having used it in excess of 400 times.

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

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

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

supported by learned treatises recognized by Petitioners' experts and admitted

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

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

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

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

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

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

accurately expressed except in the form of an opinion.

38. The computer modelling simulated two years of continuous application

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

groundwater mound would be reached. Continuous application beyond two years

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

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

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

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

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

by DEP.

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

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

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

the MODFLOW results. See below.

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

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

significantly impact inland groundwater levels at the site.

41. Further groundwater studies using additional monitoring wells were

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

response to requests by DEP during the application review.

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

including one with a total measured rainfall of 4.5 inches.

43. These studies indicated there is a subsurface groundwater ridge

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

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

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

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

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

airport.

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

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

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

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

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

Hole.

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

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

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

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

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

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

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

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

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

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

data.

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

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

intensive and more accurate representation of field conditions. It eliminated

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

analyze all rainfall over a 25-30 year period.

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

is approximately 2.2 feet NGVD.

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

impervious surface areas of the stormwater retention ponds and the revised

absorption cell locations, along with other factors.

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

effects".

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

affect the results of the model.

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

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

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

data.

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

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

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

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

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

characteristics.

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

run in order to reach a steady groundwater state.

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

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

approximately 2.7 feet NGVD.

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

approximately 4.2 feet NGVD.

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

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

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

will flow towards Nick's Hole.

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

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

towards Nick's Hole.

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

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

on an assumption that groundwater elevations generally follow topographic

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

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

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

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

with greater barrier island experience to have provided testimony more

consistent with published authorities and are otherwise more persuasive. The

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

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

Florida Water Management District, Mr. Andreyev performed a contaminant

transport analysis to estimate the long term migration and concentration of

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

from the AWT.

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

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

MODFLOW modelling.

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

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

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

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

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

71. Accurate contaminant transport modelling depends primarily upon

accurate groundwater modelling. Contaminant transport modelling will be

inaccurate if underlying groundwater modelling is inaccurate. Having determined

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

applicant's contaminant transport modelling is also deemed accurate.

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

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

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

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

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

retardation factors which are dependant upon the contaminant.

73. The computer model conservatively assumed all the nitrogen was

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

74. The dispersion coefficient was appropriate for the soil conditions

prevalent at the site.

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

the nutrients and soil conditions applicable, and thus provide conservative

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

which could potentially reach the Gulf and Apalachicola Bay.

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

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

to the model, the following loading rates will apply.

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

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

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

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

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

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

gpd even under the worst case assumptions.

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

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

phosphorous, respectively.

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

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

operation at 30,000 gpd.

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

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

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

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

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

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

mg/l of phosphorous.

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

than 1.1 BOD, .5 nitrogen and 0 phosphorous.

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

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

nitrogen and phosphorous.

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

of phosphorous will reach Apalachicola Bay.

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

phosphorous will reach Nick's Hole each year.

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

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

area and will fluctuate with the tides.

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

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

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

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

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

accepted below. See Findings of Fact 91-102.

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

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

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

lbs of phosphorous.

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

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

98,800,000 gallons into Nick's Hole.

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

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

phosphorous.

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

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

phosphorous.

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

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

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

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

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

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

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

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

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

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

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

at most.

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

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

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

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

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

at most.

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

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

102. The foregoing loadings comply with the antidegradation policy set

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

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

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

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

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

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

of Mexico.

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

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

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

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

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

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

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

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

data or methodology was established.

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

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

thereon are not persuasive.

106. Petitioners' evidence regarding saturated ground conditions and

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

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

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

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

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

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

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

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

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

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

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

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

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

effluent loading to Cell A.

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

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

into the absorption cells.

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

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

not more than 2.8 feet NGVD.

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

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

more than 4.5 feet NGVD.

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

in most areas the mounding is lower.

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

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

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

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

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

throughout the absorption cells, saturated ground conditions are precluded even

when the maximum groundwater mounding occurs.

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

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

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

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

maximum level.

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

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

and will not adversely affect operation of the absorption cells.

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

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

effluent, which stays below the ground.

118. Petitioners asserted that in order to provide reasonable assurances

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

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

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

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

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

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

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

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

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

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

of concern was addressed by DEP during stormwater permitting.

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

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

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

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

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

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

permit should be addressed in that proceeding, not here.

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

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

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

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

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

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

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

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

62-610.550 (3) F.A.C. for such a study. This interpretation of the rule is

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

satisfied with the additional information provided prior to the application

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

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

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

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

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

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

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

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

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

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

the latest information.

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

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

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

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

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

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

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

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

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

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

would be present in such runoff.

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

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

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

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

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

accessible during the 25 year flood".

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

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

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

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

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

elevated above the 25 year flood elevation.

128. The applicant provided reasonable assurances that the AWT auxiliary

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

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

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

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

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

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

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

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

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

of the inside of standard purchase items.

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

operator monitoring the system with seven ground water monitoring wells and

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

permit. The Northwest Florida Water Management District expressed concern

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

weekends.

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

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

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

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

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

is acceptable to DEP.

131. DEP and Northwest Florida Water Management District personnel

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

monitoring groundwater and surface water near the plant and indicated that

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

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

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

water monitoring stations.

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

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

additional sampling.

CONCLUSIONS OF LAW

133. The Division of Administrative Hearings has jurisdiction over the

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

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

evidentiary hearing.

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

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

of domestic wastewater treatment facilities. Specifically, DEP has permitting

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

601, 62-610, 62-640 and 62-699, F.A.C.

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

establish that it has provided reasonable assurances that the proposed advanced

wastewater treatment facility will not violate the appropriate provisions of

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

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

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

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

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

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

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

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

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

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

(February 19, 1990).

138. Resort Village presented competent, substantial evidence that the

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

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

amendments stipulated at formal hearing, provides those reasonable assurances.

RECOMMENDATION

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

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

drafted but further modified to provide that

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

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

two weekdays; and

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

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

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

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

stations.

DONE AND ENTERED this 16th day of January, 1996, 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 16th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER

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

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

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

Applicant's and DEP's Joint PFOF:

1-107, 115-174, and 179-180

Generally accepted upon the whole of the evidence, not necessarily

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

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

conclusions of law and legal argumentation have been rejected. Preliminary

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

found under "Conclusions of Law."

108-114, and 175-178

Considered and factored into competency and credibility analysis

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

appropriate, rejected as mere legal argumentation.

Individual Petitioners' and Franklin County's Joint PFOF:

1-3, 5-6, 10-13, 14 Number 2, 15-16, 19-24, 26-27, 35-36, 39-40, 50, 76, 80

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

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

been rejected.

4, 54, 81, 89-90

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

74-75

Rejected as set forth in the recommended order.

7-9, 14 Number 1, 17-18, 25, 29-30, 41-44, 46-49, 51-53, 55-61, 64 Number

1, 63 after 64, 64 Number 2, 65-73, 77-78, 82-88, and 91-92

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

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

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

legal argumentation was included with the proposed facts.

28, 31-34, 37-38, 45, 62

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

rejected as mere legal argumentation.

79 Rejected as mere speculation and legal argumentation.

COPIES FURNISHED:

Samuel J. Morley, Esquire

Karen D. Walker, Esquire

HOLLAND & KNIGHT

Post Office Drawer 810

Tallahassee, FL 32302

Thomas I. Mayton, Jr., Esquire

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, FL 32399-2400

L. Lee Williams, Jr., Esquire

Kenneth Plante, Esquire

General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Recommended Order. All agencies allow each party at least ten 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.