SUBJECT: Part 31, State Groundwater Discharge of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of The City of South Lyon regarding the permit issued to A.J. Van Oyen Builder, Inc.

Permit No. M 00954
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This contested case involves a third-party challenge of the State Groundwater Discharge Permit (permit) issued to A.J. Van Oyen Builder, Incorporated. The permit allows for a groundwater discharge of wastewater for a proposed residential development within Lyon Township, Oakland County. The Application for a Permit, filed on February 25, 1997, was public noticed on May 29, 1997 and Permit No. M 00954 was issued by the Michigan Department of Environmental Quality (Department) on June 30, 1997. The City of South Lyon filed a petition for a contested case hearing on the issuance of the permit on August 26, 1997. A hearing was held in this matter on June 1, 2, and 8, 1998. The Parties availed themselves of the opportunity to file post-hearing briefs.

This Tribunal has considered the testimony, exhibits, pleadings and arguments of the Parties in reaching this Final Determination and Order.

The petition for contested case hearing was filed under the provisions of Part 31, Water Resources Protection, of the Natural Resources Environmental Protection Act (NREPA), 1994 PA 451, as amended, MCL 324.3101 et seq.; MSA 13A.3101 et seq., and the administrative rules, 1980 AACS, R 323.2201 et seq. The formal hearing was conducted pursuant to the Administrative Procedures Act, 1969 PA 306, as amended, MCL 24.201 et seq.; MSA 3.560(101) et seq. This Final Determination and Order constitutes the final agency decision in this matter pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.

Through the filing of its petition, the City of South Lyon (City) requests this Tribunal conduct a de novo review of its challenges to the A.J. Van Oyen Builder, Inc. (Van Oyen) groundwater discharge permit. The professional staff of the Department of Environmental Quality, Waste Management Division (WMD), issued the subject permit and is responsible for administering this portion of Part 31 of the NREPA and its administrative rules.

The City is represented in this matter by Parvin C. Lee, Jr. of Booth Patterson, P.C. The Department, is represented by Neil D. Gordon, Assistant Attorney General, Department of Attorney General. Van Oyen is represented by Barry M. Levine, Braun Kendrick Finkbeiner, P.L.C.

The City called five witnesses to testify: Keith D. McCormack, Civil Engineer and Vice President of Hubbell Roth & Clark, Inc.; Bruce D. Hulman, Civil Engineer and Hydro-Geologist, Hubbell Roth & Clark, Inc.; Dr. John R. Wolfe, Environmental Engineer and Economist, Limno-Tech, Inc. (LTI); J.B. Beauboeuf, MDEQ, Senior Environmental Engineer, WMD; and Brian E. Thurston, Environmental Engineer, MDEQ, Community Water Supply Section, Drinking Water and Radiological Protection Division.

The Department called three witnesses to testify: Brant O. Fisher, MDEQ, Environmental Engineer, Drinking Water and Radiological Division; Scott C. Ross, MDEQ, Chief, Groundwater Permits Unit, WMD; and Jim Janiczek, MDEQ, Chief, Hydrogeological Review Unit, WMD.

Van Oyen called two witnesses to testify: Roger Memmer, Senior Associate and Manager of the Environmental Department, Ayres, Lewis, Norris & May, Inc. and Mark Sweatman, President, Insight Environmental Services, Inc.

Sixteen exhibits were received into the record. A listing and description of those exhibits is attached to this Final Determination and Order.

Van Oyen has proposed a residential subdivision development on a 150-acre site in Lyon Township, Oakland County. The application is for a groundwater discharge permit to discharge wastewater from the proposed residential development. The site is situated along the northwesterly border of the City of South Lyon and is approximately 3/4 of a mile from the City's public water supply wells.

The City objects to the permit because of the facility's proximity to its municipal wellfield and the availability of existing wastewater treatment systems operated by both the City and the Township. The City also challenges the permit limits for the discharge of sodium, chloride, phosphorus, nitrogen and volatile organic compounds as potentially posing a threat to its drinking water supply. Finally, it asserts the proposed discharge was not thoroughly examined in light of its recently adopted Wellhead Protection Plan.

STIPULATIONS

The Parties stipulated to the following facts:

1. Van Oyen is the proper Applicant for a permit under Part 31 of the NREPA.

2. The processing of the Application was procedurally correct.

3. There are facts establishing the Department has jurisdiction under Part 31, and the activity is regulated pursuant to Part 31.

I Find these stipulations are complete and legally correct, and I adopt them as Findings of Fact. Stipulations entered into by the Parties shall be used as evidence for the purpose of this determination and are binding. MCL 24.278(1); MSA 3.560(178); Dana Corporation v Employment Security Commission, 371 Mich 107, 110; 123 NW2d 277 (1963).

The issues in this case center around two rules contained in the Part 22, Groundwater Quality, administrative rules. 1980 AACS, R 323.2201 et. seq. The first is Rule 2204, Protected uses, which states:

All groundwater of the state, in usable aquifers and of a quality suitable for use as individual, public, industrial, or agricultural water supply, shall be protected for these uses.

The second is Rule 2205, Nondegradation of groundwater in usable aquifers; permissible and prohibited discharges, which states:

(1) The quality of groundwater in all usable aquifers shall not be degraded from local background groundwater quality as the result of a discharge, except as provided in R 323.2210.

(2) Discharges into groundwater may be made, consistent with the requirements of the act and applicable rules, if necessary measures are taken to prevent the degradation of groundwater in usable aquifers. The following are such measures:

(a) Proper wastewater treatment.
(b) Proper facility site selection.
(c) Controlling the zone of saturation at the site.
(d) Providing percolation and seepage barriers.
(e) Use of underdrainage.
(f) Containment of the discharge within the boundaries of the operation or activity defined by the hydrogeological study required by R 323.2207.

(3) Materials at concentrations that exceed the maximum contaminant levels for inorganic and organic chemicals specified in the national interim primary drinking water regulations, 40 C.F.R. §§141.11 and 141.12, which are promulgated pursuant to the safe drinking water act, 42 U.S.C. §300f, shall not be discharged into groundwater in usable aquifers even in those cases where the local background groundwater levels for these materials exceed the specified levels.

As regarding the proposed wastewater treatment, Mr. Jean Bernard Beauboeuf is the Department staff person who reviewed the Van Oyen Application and supporting data. He testified the proposed wastewater treatment facility is basically composed of two parts. First, wastewater enters a flow-through reactor type plant for treatment. Mr. Beauboeuf testified this plant is characterized as a large state-of-the-art plant, typical of any similar sized municipal facility. The plant itself is not a part of the permit at issue in this case. Second, once the wastewater effluent leaves the plant it is directed to a polishing pond where it is held until there is a sufficient amount for discharge to one of the two 1 acre groundwater infiltration beds. Once the wastewater is in the infiltration beds it will discharge to the groundwater at a maximum rate of 300,000 gallons a day. The groundwater discharge from these infiltration beds is the subject of this contested case.

The permit issued to Van Oyen is entered on the record as Exhibit P-7. It calls for at least four monitor wells, three of which are located down-gradient of the discharge, while the other is located up-gradient. In addition to those wells, Van Oyen proposes an additional down-gradient monitor well and two cluster wells that monitor groundwater at different depths. The monitor wells are approximately 100 feet from the discharge beds. Mr. Jim Janiczek, MDEQ, Chief, Hydrological Review Unit, testified the location, number and type of monitor wells are adequate.

The permit limits on certain substances are measured at both the effluent discharge from the plant and in the groundwater monitoring wells. Testing at the monitor wells is required on a quarterly basis for all substances listed in the permit except for volatile organic compounds which are tested annually, and nitrogen which is measured in the effluent. Biweekly monitoring of effluent from the plant is also required.

The City does not challenge the proposed facility's ability to adequately treat the wastewater, except for sodium and chloride. However, it asserts that if the treatment plant malfunctions a potential exists for groundwater discharges in excess of the permit limits. In addition, the City asserts, through the testimony of Mr. Keith McCormack, Civil Engineer and principal in the firm of Hubbell Roth & Clark, Inc., some package plants in the area have a history of exceeding permit limits.

Mr. Beauboeuf and others testified there are built-in protections in the case of a catastrophic event disrupting operations or if a system malfunction occurs. Mr. Memmer is an engineer and prepared the application in this case. He testified the protective measures associated with the system include a recycle line and a polishing pond to hold wastewater if there were a system malfunction. He testified the Van Oyen disposal system also has been designed so that in the event of a system malfunction, a diversion discharge flow basin will prevent any raw wastewater discharge to the ground.

I find, as a Matter of Fact, the proposed system is proper for this proposed residential wastewater treatment. I find, as a Matter of Fact, the City's assertion in regards to a system malfunction are speculative and based on a presumption that this plant will not be operated correctly.

Mr. Hulman, a hydrogeologist and consultant for the City, testified the soils at the site of the groundwater discharge consist of glacial deposits. See also Exhibit P-15. He testified there are two to three feet of top soil, below which is approximately 30 feet of sand. Below the sand is a cohesive silt-clay layer and below the clay layer is 140 to 150 feet of sand and gravel.

Mr. Sweatman, also a hydrogeologist, prepared the final hydrogeological report for the Van Oyen site. Exhibit P-15. He testified the unsaturated zone under the discharge beds consists of compacted sand and gravel to 44 feet and soil borings reveal sand and gravel underlying clay is present at 93' to 153' deep. Based on his analysis of the data, Mr. Sweatman characterized the Van Oyen site as the best groundwater discharge site he has ever seen in the area because the unsaturated zone will allow water to pass through it and the soils have very good capacity to absorb phosphorous. Further, the unsaturated zone is thick enough to accept a mound and the saturated zone will take the discharged water away.

Regarding hydrology, all the witnesses agreed the groundwater flow in the area courses from the northeast to the southwest traveling at an annual rate of approximately one hundred feet. All witnesses also agreed there are two aquifers in the area. The upper aquifer is unconfined and contains the groundwater that would receive the proposed Van Oyen discharge. The lower aquifer, as described by both Mr. Bruce Hulman and Mr. Brant Fisher, Environmental Engineer, MDEQ, is a confined leaky aquifer from which the City draws its drinking water. The point of contention is whether the clay layer separating the two aquifers is continuous, or whether it is absent in places and thus provides a connection between the two aquifers.

Mr. Hulman testified that if the clay layer is not totally impermeable, the water in the upper unconfined aquifer could bleed down into the lower confined aquifer. In support of this conclusion, he testified the potential exists because glacial deposits of soil are usually not uniform. He examined area water well logs and found the silty-clayee stratum described in them is a cohesive material which varies across the region. Some of the well driller's reports he examined show no clay layer and he opined there is a possible hydraulic connection between the upper and lower aquifers.

Mr. Hulman further testified the leaky nature of the confined aquifer creates doubt as to whether the protective clay lens would protect the lower aquifer from contaminants in the upper aquifer. He prepared a schematic cross section of induced recharge from the upper aquifer as a result of pumping the City's wells. Exhibit P-6. There is no question that when the lower aquifer is being pumped by the City's wells it is partially recharged by the upper unconfined aquifer. This is why the lower aquifer is characterized as being confined but leaky.

Mr. Hulman believes the clay layer is protecting the lower aquifer from the leaky underground storage tanks found within the wellhead protection area and up-gradient of the wellfield. This belief is premised on there being an insufficient draw down from the City's wells to cause those potential contaminants to pass down to the lower aquifer. He also testified that, under ideal circumstances, it would take 16 years for any contaminant discharged from the Van Oyen site to reach the City's wellfield.

Mr. Hulman reviewed the hydrogeological reports which are available and opined there is not enough information to determine whether or not the discharge could be a threat to the City's wellfield. He testified that the only way to know is to drill and determine whether the clay layer is uniform. Mr. McCormack agreed there is insufficient data available to determine whether there is a direct connection between the two aquifers. However, he testified that based on his review of the hydrogeologic data for the City's wellfield and the location of the Van Oyen site, the draw down on the lower aquifer resulting from the pumping of the City's wells could not reach out as far as the Van Oyen site.

The leaky nature of the lower aquifer does not necessarily mean that it is otherwise directly connected to the unconfined aquifer, nor that contaminants could pass through the clay layer and threaten the City's water supply. Mr. Mark Sweatman, a consulting hydrogeologist retained by Van Oyen, testified the clay layer is a confining layer and there is ample confirmation the clay is present throughout the area. He testified that from his examination of the data, there is no direct connection between the upper and lower aquifers.

Mr. Janiczek also reviewed the subject application and supporting data and testified there are 3 or 4 hydrogeological studies involving the area. Therefore, sufficient data exists to determine there is no direct connection between the upper and lower aquifers and that the well field is protected. Mr. Janiczek testified his calculations provide the clay layer is between 10 and 20 feet thick and approximately 600 feet wide across the proposed Van Oyen seepage beds. He further testified there are 8 to 9 million gallons of water per day available in the City's wellfield, and only a small portion of the water in the upper aquifer may find its way to the lower aquifer.

Mr. Fisher testified that from his review of the data it appears the clay layer is continuous, and it is unlikely that any discharge from the Van Oyen site would migrate to the lower confined aquifer. If there is a release of contaminants in the upper aquifer, pumping on the lower aquifer has no bearing on the contamination. The contaminants would flow across the top of the clay layer and stay in the upper aquifer. Mr. Fisher opined that even if there was a release from the Van Oyen site it would have no impact of the City's wellfield. One basis for this opinion is the fact there are elevated amounts of nitrogen in the upper aquifer as a result of farming activities up gradient of the Van Oyen site, while there is no evidence of elevated levels of nitrogen in the lower aquifer.

Mr. Janiczek testified that whether or not there was a direct connection between the upper and lower aquifers, the plant effluent limits meet Safe Drinking Water Act standards and are protective of the public health and environment. The discharge is also protective of the most conservative uses, including drinking water. Mr. Beauboeuf testified that at the groundwater flow rate in the area it would take approximately eight years for the groundwater to travel from the discharge ponds to the Van Oyen property boundary. This time frame provides ample opportunity for Van Oyen to respond to any problems which may arise. As previously discussed, Mr. Hulman testified that based on a best case scenario, it would take 16 years for a discharge from the Van Oyen site to reach the City's wellfield.

Based on the foregoing, I find, as a Matter of Fact, the following:

1. There is sufficient data available to determine the likelihood of a direct connection between the upper unconfined aquifer and the lower confined aquifer is slim.

2. The site selection for the proposed groundwater discharge is proper and appropriate for the proposed use.

3. Based on the drinking water standards used as limits in the permit, and the distance between the Van Oyen site and the City's wellfield, the wellfield is adequately protected.

4. There are proper monitoring measures in place to track the discharge.

5. There is no need to keep the discharge within the boundaries of the operation, to control the zone of saturation or provide percolation and seepage barriers or the use of under drainage.

6. The permit limits assure there would be no degradation of the groundwater in the aquifer and the uses of the groundwater are protected.

Mr. Ross, Chief, Groundwater Permits Section, WMD, testified the permit limits the amount of total inorganic nitrogen which may be discharged by Van Oyen. According to Mr. Ross, the Safe Drinking Water Act standard for total nitrogen is 10 milligrams per liter (mg/l), but the effluent limits in the permit are set at one-half that amount, or 5 mg/l for total inorganic nitrogen. He testified there is no nitrogen limit set for the groundwater because background levels from upgradient sources are greater than the permit level.

Mr. Janiczek and Mr. Fisher testified the background levels for nitrogen in the groundwater are 6.5 parts per million, while the effluent limit is less than background. Mr. Janiczek testified the 5 mg/l effluent limit for nitrogen will actually dilute background levels. Dr. John Wolfe, Environmental Engineer and Economist for the City, agreed the limit is based on Safe Drinking Water Act standards, but his concern is that there are currently high levels of nitrate in the groundwater from non-point sources. Mr. Ross testified the permit limits for nitrogen are protective of the uses and will not degrade the groundwater.

I find, as a Matter of Fact, the permit limit for Total Inorganic Nitrogen contained in the subject permit is consistent with the administrative rules in that it protects the uses of the groundwater and will not result in a degradation of the groundwater quality.

Mr. Beauboeuf testified that salt will be an expected part of a residential wastewater because of its use in home water softeners. Mr. Ross testified the permit limits chloride and sodium in the discharge water to 250 mg/l and 150 mg/l, respectively. These substances are measured both in the effluent and the groundwater. The sodium limit is a health based limit and the chloride limit is a secondary Safe Drinking Water Act aesthetic based standard.

Mr. Beauboeuf testified that Mr. Memmer, Van Oyen's consultant, wrote a letter to him requesting the permit limits for sodium and chloride be removed because neither the plant nor the infiltration beds treat the wastewater for these substances. Exhibit P-10. Mr. Beauboeuf denied the request to remove the limits, but provided suggestions for complying with the permit. Exhibit P-11. One of the suggestions is to require each residence in the development to discharge water originating from water softeners to individual dry wells. He explained that this is an acceptable method to meet the permit requirements because the sodium and chloride are disbursed and diluted. Mr. Beauboeuf and Mr. Ross testified that such a method of discharging these substances would have an insignificant impact on groundwater. Even though the mass of salt discharged through individual dry wells would be the same as sending it through the facility, the concentration would fall within the permit limits. Mr. Beauboeuf noted the limits would have to be met at the plant effluent point and in the groundwater monitoring wells.

Dr. John R. Wolfe evaluated the Hydrogeologic Investigation Report Proposed Wastewater Discharge Facility Report, the subject permit and prepared a report. Exhibit P-9. Dr. Wolfe testified it does not matter whether salt is disposed of in dry wells or processed through the facility, the resulting mass load is the same. Salt cannot be biologically treated and will eventually be discharged into the groundwater. Therefore, the biologic treatment at the Van Oyen plant will not treat sodium and chloride and the Department's suggestion to dispose of salts in dry wells does not reduce the amount of salt being discharged. Mr. Hulman testified that his concerns about salt are secondary. However, he stated that if there is a release, then salt is an important indicator that other substances may be on their way.

Based on the foregoing, I find, as a Matter of Fact, the standards for discharge limits of 150 mg/1 for sodium and 250 mg/l for chloride are within limits which will protect the uses of groundwater and will not result in degradation of the groundwater quality. I find, as a Matter of Fact, water softener discharges to individual dry wells or other suggested alternatives are proper methods of meeting the permit requirements.

Dr. Wolfe testified the permit calls for an effluent discharge limit of phosphorous from the plant to be 2 mg/l, with a 1 mg/l limit at the monitor wells. He testified the soils under the discharge basins have the capacity to absorb phosphorous for approximately 10 years, and after that time additional treatment for phosphorous would be needed. He stated the groundwater background levels of phosphorous from non-point sources is a local pattern and this would be a new source.

Mr. Memmer wrote a letter to Mr. Beauboeuf requesting the permit limit for phosphorous be removed because background concentrations are greater than the permit limits. Exhibit P-10. Mr. Beauboeuf denied the request to remove the limit. Exhibit P-11. He testified the groundwater is adequately protected by the phosphorous permit limits, and that background phosphorous in the groundwater is higher than the permit limits.

Mr. Ross testified the phosphorous limit in the permit is not health based but is based on the effects of phosphorous in causing eutrophication of surface waters. Mr. Janiczek testified that when a groundwater discharge application which contemplates a phosphorous discharge within 1,000 feet of surface water, the application is referred to the Surface Water Quality Division for its review and comment. Because this groundwater discharge site is much more than 1,000 feet from surface water, the discharge of phosphorous will not effect the surface water and there is no need for the special review. Mr. Janiczek testified the calculation on the Van Oyen potential discharge of phosphorous is conservative. Additionally, Van Oyen proposes additional treatment for phosphorous at the plant and the discharge bed can be moved to extend the effectiveness of phosphorous removal in the soil. Mr. Sweatman testified the Van Oyen discharge site soils have high phosphorus uptake capacity based on independent testing by Michigan State University.

I find, as a Matter of Fact, the permit limits for phosphorous are protective of the groundwater uses and the proposed discharge will not degrade groundwater quality.

Mr. Beauboeuf and Mr. Ross testified volatile organic compounds, such as solvents, are not expected in residential waste- water discharges. However, the permit issued to Van Oyen calls for yearly monitoring for volatile organic compounds at the effluent and in the monitor wells. Both Mr. Beauboeuf and Mr. Ross were of the opinion this is sufficient under these facts. Mr. Beauboeuf stated in the event volatile organics were in the wastewater, they would be partially treated by the plant and some would be removed as part of the waste sludge. Furthermore, they testified that if any volatile organics reached the ground, then micro organisms in the soil would also break them down. Mr. Beauboeuf opined that if there was a discharge of volatile organics from the plant they would be at levels too low for detection. Mr. Ross testified that monitoring of volatile organic compounds was added in this permit because of the concerns of the City. In his view the permit requirements are protective.

I find, as a Matter of Fact, the permit requirements for control of volatile organic compounds is protective of the groundwater uses and will not result in degradation of the groundwater.

The City's Wellhead Protection Plan, of which Mr. Hulman was the principal author, is the result of a voluntary program designed by the Department to ensure compliance with the requirements of the federal Safe Drinking Water Act. It is implemented through the cooperation of local units of government and the Department, and is a management tool designed to aid in the protection of public water supplies. In developing a plan, consideration is given to water demand, characteristics of surface and subsurface hydrology, and an inventory of potential threats to the water supply. A wellhead protection area is established as being a 10 year groundwater flow time-of-travel distance from a public water supply. Should a public water supply become threatened, the 10 year time-of-travel distance is to provide sufficient notice for action to be taken regarding the threat. The City of South Lyon's plan was finalized in January of 1998. Wellhead Protection Plan Groundwater Delineation City of South Lyon, Michigan January 1998. Exhibit P-2.

Mr. McCormack testified the bulk of the work on the Wellhead Protection Plan was done before the Van Oyen permit was issued. He opined that if the subject permit is issued there is a need for a more detailed study and an update of the Plan. His reason is that the Plan proposes a back-up city water well in the northeast portion of the City and down gradient of the proposed discharge site.

Mr. Thurston, Environmental Engineer, Drinking Water and Radiological Protection Division, wrote a memorandum to Mr. Beauboeuf indicating he had reviewed the Van Oyen application in light of the City's wellhead protection plan. Exhibit P-13. The memorandum raises concern about the permit application because the proposed discharge site is up-gradient of the wellfield although it is outside of the ten year capture zone. His concern was eliminated when he learned the City's wells drew water from a lower confined aquifer and not from the upper unconfined aquifer proposed to receive the discharge. He testified that irrespective of whether there is complete separation of the two aquifers, his concerns were allayed by the existence of the monitoring of both effluent and groundwater, the additional monitoring wells required, and the monitoring for volatile organic compounds. However, in Mr. Thurston's opinion, the City's wells are not vulnerable due to the existence of the clay layer and the distance between the wellfield and the proposed discharge site.

Mr. Beauboeuf testified he considered the City's Wellhead Protection Plan in formulating the permit, and determined the Department could authorize a discharge of this nature even if it were within the 10 year capture zone.

Mr. Brant O. Fisher noted the City may, at its discretion, update its Plan as a result of the Van Oyen permit. In his opinion an increase in pumpage of the City's wells due to a population increase would have little affect on the upgradient hydrogeology.

Mr. Janiczek testified, in light of his review, the permit protects the uses of Rule 2204 and does not violate the non-degradation standard of Rule 2205. He stated the ground water quality criteria of the Part 22 rules is much more conservative than the requirements of the Wellhead Protection Plan.

Mr. Sweatman testified that there is no need to update the Plan because the proposed discharge is outside of the wellhead protection area and the Van Oyen discharge meets drinking water standards and is safe.

I find, as a Matter of Fact, the City's Wellhead Protection Plan is not compromised as a result of the proposed Van Oyen discharge. If the City believes it is necessary to perform other studies and update the Plan, it may pursue that route.

As regarding the City's proposed back up well down gradient of the proposed discharge, Mr. Janiczek testified the isolation requirements of Part 31 are met by the fact it is 800 feet from the discharge site to the edge of the Van Oyen property. Because of the distance, the proposed discharge cannot be denied on those grounds. Mr. Thurston's testimony supports the fact there is adequate distance between the proposed City back-up well and the proposed discharge site.

I find, as a Matter of Fact, the City's proposed back-up well site is not compromised by the Van Oyen proposed discharge.

The City asserts that both the City and Township sewer systems are available to service the Van Oyen site. However, Mr. Ross testified the Public Health Code requires connection to an existing sewer system if the public sewer system is within 200 feet of a residential structure and only if the local government has an ordinance to require the connection. The City's and Township's sewer systems are more than 200 feet from the Van Oyen site and, therefore, connection with those systems is not required. The permit requires Van Oyen to connect to a public sanitary sewer system when such a system becomes available. Exhibit P-7, p 9.

I find, as a Matter of Fact, the City and Township public sanitary sewer systems are not available to the Van Oyen site at this time.

Based upon the findings of fact, I conclude as a Matter of Law:

1. The Department has jurisdiction over the proposed groundwater discharge and a permit is required.

2. Van Oyen is a proper applicant for a permit.

3. The permit application was processed correctly.

4. The City of South Lyon has standing to bring this action.

5. State Groundwater Discharge Permit No. M 00954 for A.J. Van Oyen Builders, Inc., will protect the uses of the groundwater. 1980 AACS, R 323.2204.

6. State Groundwater Discharge Permit No. M 00954 for A.J. Van Oyen Builders, Inc. will not result in a degradation the groundwater quality. 1980 AACS, R 323.2205.

7. The proposed ground water discharge will not contain any substance that is, or may become, injurious to the public health, safety, or welfare, or to the domestic, commercial, industrial, agricultural, recreational, or other uses which are being made or may be made of the groundwater. 1980 AACS, R 323.2206.

8. The Wellhead Protection Plan Groundwater Delineation City of South Lyon, Michigan, January 1998 will not be compromised by the issuance of the State Wastewater Discharge Permit.

It is DETERMINED, based on the foregoing Findings of Fact and Conclusions of Law, the provisions in Permit No. M 00954 are protective of the groundwater uses and quality, as well as the public health and safety.

THEREFORE, IT IS ORDERED: The State Groundwater Discharge Permit No. M 00954 for A.J. Van Oyen Builders, Inc., is ISSUED, and is effective on the date of this Order.

Dated: October 20, 1998

Richard G. Lacasse, Chief
Administrative Law Judge

Petition of The City of South Lyon regarding the A.J. Van Oyen Builder, Inc.

File No. M 00954

Petitioner 1 Map, Sanitary Sewer Service Study, City of South Lyon, Oakland County, Michigan, dated April 9, 1998, Hubbell, Roth & Clark, Inc. [HRC], Consulting Engineers.
Petitioner 2 White notebook entitled, Wellhead Protection Plan Groundwater Delineation, City of South Lyon, Michigan, January, 1998, Prepared by HRC.
Petitioner 3 Map, City of South Lyon, Wellhead Protection Plan Groundwater Capture Zone 25 Years Pumpage, March, 1998, HRC.
Petitioner 4 Faxed photocopy, dated April 9, 1998, HRC, Chronology of Events, Installation of Carbon Filter System, City of South Lyon, Michigan.
Petitioner 5 Summary of Discharge Monitoring Reports, Small Waste Treatment Package Plants, Tanglewood, Old Dutch Farms, Novi Meadows, Prepared by HRC. Admitted for purposes of impeachment only.
Petitioner 6 Schematic, City of South Lyon, Hypothetical Groundwater Flowpath, April, 1998, HRC.
Petitioner 7 Photocopy of Permit M 00954, A.J. Van Oyen Builder, Inc., Michigan Department of Environmental Quality [MDEQ] Authorization to Discharge to the Groundwaters of the State of Michigan.
Petitioner 8 Photocopy of letter dated July 16, 1997 to Roger G. Memmer, Ayres, Lewis, Norris & May, Inc. from Jean-Bernard Beauboeuf, Senior Environmental Engineer, Groundwater Section, Waste Management Division [WMD], MDEQ.
Petitioner 9 Photocopy of an Expert Report of Dr. John R. Wolfe, P.E., dated March 17, 1998, State of Michigan, County of Washtenaw.
Petitioner 10 Photocopy of letter dated June 13, 1997 to Jean-Bernard Beauboeuf, Senior Environmental Engineer, Groundwater Section, WMD, MDEQ from Roger G. Memmer, Ayres, Lewis, Norris & May, Inc.
Petitioner 11 Photocopy of letter dated July 16, 1997 to Roger G. Memmer, Ayres, Lewis, Norris & May, Inc. from Jean-Bernard Beauboeuf, Senior Environmental Engineer, Groundwater Section, WMD, MDEQ.
Petitioner 12 Photocopy of letter dated July 2, 1997 to Rodney L. Cook, City Manager, City of South Lyon from Jean-Bernard Beauboeuf, Senior Environmental Engineer, Groundwater Section, WMD, MDEQ.
Petitioner 13 Photocopy of Interoffice Communication dated May 29, 1997 to Jean-Bernard Beauboeuf, Senior Environmental Engineer, Groundwater Section, WMD, MDEQ from Brian E. Thurston, Community Water Supply Section, Drinking Water and Radiological Protection Division, Subject: Potential Impact on Water Supply Wells, Van Oyen Builders, Inc., Lyon Township, Oakland County.
Petitioner 14 Photocopy of State of Michigan, Wellhead Protection Program, Michigan Department of Natural Resources, Division of Land and Water Management, Office of Water Resources and Michigan Department of Public Health, Division of Water Supply, dated February 1994.
Petitioner 15 Hydrogeologic Investigation Report Proposed Wastewater Discharge Facility, A portion of Section 21, Lyon Township, Michigan, dated February 17, 1997, prepared by Insight Environmental Services, Inc.
Petitioner 16 Photocopy of faxed record, the Michigan Department of Public Health, Water Well and Pump Record, Oakland County, South Lyon, Section Number 21, Carriage Club Development, Preliminary Test Boring Only.