STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LANNIE ROWE DEVELOPMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1201

) FPSC Docket No. 800201-W

FLORIDA PUBLIC SERVICE )

COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, an administrative hearing was held before P. MICHAEL RUFF, Hearing Examiner with the Florida Public Service Commission, on April 25, 1980, in Callaway Florida on the petition of Lannie Rowe Development Corporation (Lannie Rowe) to enlarge the territory for which it is authorized to provide sewer service pursuant to Section 367.061 Florida Statutes. On July 1, 1980 the case was transferred to the Division of Administrative Hearings but remains assigned to P. Michael Ruff, as DOAH Hearing Officer, for a recommended order.

APPEARANCES

For Petitioner, Lannie Rowe Development Corporation

J. Rowe Suddath

For Respondent Florida Public Service Commission Marta Crowley

For Respondents Imperial Oaks Homeowners' Association and certain individuals,

Lee Elzie

For Respondent City of Callaway Samuel T. Adams

The purpose of the hearing is to determine whether the petitioner is entitled to amend its Public Service Commission Certificate No. 119-s, pursuant to Section 367.061, Florida Statutes, to include approximately 110 acres of additional territory in Bay County, for which it proposes to provide water and sewer service. See Appendix A attached hereto and incorporated by reference herein. Included within that general area of inquiry are the issues of the physical and financial feasibility and capability of the petitioner utility to adequately serve the proposed additional territory, while maintaining an acceptable quality of service to its existing customers and whether any viable alternative sources of service exist in addition to that proposed by the petitioner. The petition to amend Certificate No. 119-5 was timely objected to by Respondents, the City of Callaway, the homeowners association, as well as by various private citizens, pursuant to Section' 367. 051, Florida Statutes.

FINDINGS OF FACT

1. The present certificate held by the petitioner, authorizes the provision of sewer service to territory in Bay County, Florida. The proposed geographic extension of that certificate will ultimately include approximately

   300 new customers, mostly single-family residences, but the proposed additional territory is not inhabited at the present time. Several residences have recently been constructed by a real estate development corporation affiliated with the utility. The utility presently serves 453 residential customers and between 12 and 16 commercial customers. Sewage lines have been laid in a portion of the proposed additional territory, but no physical connections which would permit domestic waste water to reach the utility's sewage treatment plant have yet been made. Thus, none of the residences recently constructed, are utilizing any portion of the sewage plant capacity.

   
   

2. The original sewage plant has been the subject of an investigation and reports of violations by the Department of Environmental Regulation (DER). These irregularities culminated in the issuance of a consent order by DER based upon an agreement between the utility and that agency concerning the former's violations of operating permit conditions, including effluent discharge limits and expansion of the collection system without prior authorization. (Exhibit 5). The consent order was issued April 19, 1979 regarding these deficiencies and, pursuant to the agreement between the agency and the utility embodied in that order, a temporary operating permit was issued on May 22, 1979 to enable the petitioner to continue operating its existing sewage plant in spite of the undisputed existence' of the violations.

   
   

3. The temporary operating permit was issued with specific conditions, including the required installation of the new sewage treatment plant and the agreement to implement the proposed connection to the Bay County Regional Community Collection system by 1982. Upon issuance of the consent order the utility commenced arrangements for the construction of the new sewage plant presently in service.

   
   

4. The new sewage treatment plant began operation March 17, 1980. It consists of a 2 million gallon per day capacity treatment plant capable of tertiary treatment and has totally replaced the previous plant. The old plant is held in reserve and can be placed in service with minor maintenance preparation, should the capacity of the new plant reach a level which will justify the return of the old plant's treatment capacity to service. The DER construction permit for the new treatment plant permitted a 200 thousand gallon per day capacity with the condition that it be an interim facility to be phased- out by August 1, 1982 when connection to the regional system is mandated. (Exhibit 8). In the course of the permitting process DER inspected the new plant on April 8, 1979, finding that certain additional. installations were necessary for appropriate operation of the plant. These items, including a filter time clock and filter pump, had been provided or ordered for installation at the plant by the date of the hearing.

   
   

5. The present flow of this hew plant ranges between 115 thousand and 126 thousand gallons per day. Approximately 55 to 60 percent of the Plant's capacity is currently being used from the standpoint of hydraulic load. The plant is currently performing tertiary treatment. The utility engineering witness established that approximately 44 thousand additional gallons per day of treatment load would be added to the present average daily flow by 1901. This additional flow would include that emanating from 100 additional residential

   units and one commercial unit. By January 1982, an additional 44 thousand gallons per day load would be placed on the plant. The Utility envisions placing the original sewage treatment plant back in service when the average daily flow through the new plant breaches 210 thousand gallons, unless the required connection with the regional sewage system occurs prior to that time. Based upon the utility's evidence of projected residential construction in the subject territory, additional flow would be generated in 1982 of approximately 35thousand gallons per day). The Public Service Commission staff engineer established that the new plant can accommodate those estimated flows and that the plant has an average efficiency of 90 percent treatment for BOD and suspended solid removal.

   
   

6. The cost of upgrading the original sewage treatment plant to DER specification would have been 100 thousand dollars, which would have changed its capacity from 83 thousand gallons to 125 thousand-gallons per day. The cost to construct the new plant was 123 thousand dollars. The addition of the required effluent disposal ponds and other disposal facilities raises that cost figure to approximately 215 thousand dollars.

   
   

7. Public witnesses, including those from the Home Owners Association, complained of the noise level and poor aesthetic and safety qualities attributable to the new plant's operation. Such complaints stem from the location of the plant, from the record of violations with the DER, as well as the fact that the new plant stores chlorine gas on the site. The new plant is constructed above ground level while the old plant was almost completely under ground. The utility engineering witness established that a sound baffle has been installed and that trees had been planted around the circumference of the plant both for aesthetic reasons and to aid in reducing the noise level. The Commission staff engineer verified the existence of these improvements and according to that witness, the noise level was reasonable for a plant of this type due to the sound baffle. The cost of constructing the new plant underground would have added fifteen to twenty percent to the figure of 123 thousand dollars which the new plant actually cost and the sound baffle was shown to be the most economically feasible alternative for sound control. Chlorine gas was also stored at the original sewage treatment plant when it was in operation and there was no showing that such practice is at variance with acceptable safe and efficient operating procedures for such utilities nor that any specific danger or inconvenience has been occasioned by that practice in the instant situation.

   
   

8. The public witnesses also were concerned about the location of the new sewage treatment plant. There is no particular engineering advantage for locating the plant at its present site, but the utility established that no other site was available. Moreover, the Commission staff's engineering witness established that the location of the plant was reasonable, appropriate and beneficial to the efficient operation of the system and that the territory proposed to be added with the amendment is a logical geographic extension of the territory presently served.

   
   

9. The Mayor of the City of Callaway opposed the expansion of the service area partly due to fears of pollution of Callaway Bayou. The witness expressed a concern that the plant would be treating sewage from other areas. There was no showing however of any extant danger of pollution of the Bayou or other surrounding surface waters. Indeed, the evidence affirmatively shows that such will not occur because of the current compliance with DER standards occasioned by the construction and operation of the new plant.

10. The City of Callaway has no current sewage treatment capability. The City has resolved to enter into a regional or interlocal agreement to finance and construct a regional treatment facility. Planning for such a facility is in its initial stages. No construction has taken place as yet however and no evidence was adduced to indicate any firm date upon which construction will begin.

    
    

    CONCLUSIONS

    
    

11. The amendment of Certificate No. 119-5 is feasible and in accordance with the provisions of Section 367.061 Florida Statutes.

    
    

12. Engineering testimony and other substantial, competent evidence has established that the petitioner is capable of providing adequate service to the territory proposed to be included in its service area without hampering service to existing customers and therefore the Commission should allow such authority.

    
    

13. The petitioner has reduced the noise level emanating from the new sewage treatment plant and has alleviated aesthetic objections occasioned by its construction by means of installation of a sound baffle and the planting of trees and shrubs.

    
    

14. The Respondents failed to establish the utility's inability to serve the area proposed for extension of service nor did they demonstrate a feasible alternative to service by the petitioner's system.

    
    

15. The Bay County regional sewage treatment facility will not be in operation for a number of years, and therefore the petitioner is the only viable alternative for sewage treatment service In the subject territory.

    
    

16. The utility should be allowed to continue plans for construction in accordance with the provisions of Section 367.051 Florida Statutes.

    
    

17. The utility should be allowed to continue its application process in accordance with Section 367.061 Florida Statutes.

RECOMMENDATION

Having considered the substantial, competent evidence in the record, the foregoing findings of fact and conclusions of law

It is, therefore,

RECOMMENDED that the application of Lannie Rowe Development Corporation, Post Office Box 120008, Panama City Florida 32401, for amendment of its Certificate No. 119-S, be authorized in a manner allowing the petitioner to proceed with its plan for construction and provision of sewage collection and treatment facilities and service in the geographical area proposed in the subject petition.

It is, further

RECOMMENDED that Lannie Rowe Development Corporation be directed to comply with all applicable provisions of Section 367.061, Florida Statutes.

DONE and ENTER this 16th day of July, 1980.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1980.

APPENDIX A

Township 4 South, Range 13 West, Bay County, Florida.

Section 18

Commence at the Northwest corner of said Section

18 said corner being the centerline intersection of U.S. Highway 98 (S.R. 30A) and Cherry Street; thence South 35 feet; thence East along the South right-of-way line 1475 feet to the POINT OF BEGIN- NING; thence South, along a line parallel to and

135 feet East of the East right-of-way line of Gay Avenue, 240 feet, to the North property line of Lannie Rowe Lake Estates; thence Easterly along

the North property line of Lannie Rowe Lake Estates,

460 feet to the West waters edge of Lannie Rowe Lake. Proceed South along the West waters edge, 1600 feet to the South property line of Lannie Rowe Estates. Proceed West, 330 feet along the, South property line of Lannie Rowe Estates to a line parallel to and 135 feet East of the East right-

-of-way line of Gay Avenue; thence South, 680 feet to the North right-of-way line of Hickory Street; thence West 135 feet to the East right-of-way line of Gay Avenue. Proceed South along the East right- of-way line of Gay Avenue, 680 feet, to the Westerly portion of the South property line of Imperial Oaks, Unit 1. Follow the property line of Imperial Oaks, Unit 1, East 200 feet; thence South 645 feet; thence East 1100 feet, along the North right-of-way line

of Lake Drive; thence North, 1350 feet, along the East property line of Imperial Oaks, Unit 1, to the North property line of Imperial Oaks, Unit 1, this being a line parallel to the South right-of-way line of Minneola Street. Proceed East, 750 feet, along said line and thence North, 250 feet, to the

North right-of-way line of Minneola Street. Proceed East along the North right-of-way line of Minneola Street, 1050 feet, to the West right-of-way line of Katherine Street; thence North, 1580 feet, along

the West right-of-way line of Katherine Street to

the South right-of-way line of Letohatchee Street. Proceed West, 780 feet, to a line parallel to and

120 feet West of the West right-of-way line of Comet, Street; thence proceed North, 300 feet along said line to a point on a line parallel to and 240 feet North of the North right-of-way line of Letohatchee Street. Proceed West along said line, 560 feet to the West right-of-way line of Jan Drive; thence

North along Jan Drive, 520 feet, to the South right- of-way line of Cherry Street. Proceed West along the South right-of-way line of Cherry Street, 180 feet, to a point which is the intersection of the West right-of-way line of Charlene Drive, extended, Charlene Drive being that portion of said street North of Cherry Street. Proceed North along the West right-of-way line of Charlene Drive, 250 feet; thence West 120 feet; thence North, 100 feet and thence proceed West, 190 feet, to the East right-

of-way line of Kimbrel Avenue. Proceed South along the East right-of-way line of Kimbrel Avenue, 350 feet, to the South right-of-way line of Cherry Street.

Return to the POINT OF BEGINNING along the South right-of-way line of Cherry Street, this being a part of the City of Callaway, Florida.

Township 4 South, Range 14 West, Bay County, Florida.

Section 13

Commence at the Northeast corner of said Section 13, said corner being the centerline intersection of U.S. Highway 98 (S.R. 30A) and Cherry Street; thence South 33 feet; thence West along the South right-of-way line of Cherry Street 50 feet to the POINT OF BEGINNING; thence South along the West right-of-way line of U.S. #98, 1850 feet, to a line

parallel to the right-of-way line of Hickory Street; thence West 110 feet, to a line parallel to the

West right-of-way line of U.S. #98; thence North 1140 feet, to a line parallel to the South right-of- way line of Cherry Street; thence West, 500 feet,

to the East property line of Gilbert Lake Estates; thence South along the East property line of Gilbert Lake Estates, 470 feet; continue West along the South property line of Gilbert Lake Estates, 610 feet, to the East right-of-way of Senica Avenue.

Proceed North, 560 feet, along the East right-of- way of Senica Avenue to the South line of Parkway Manor, this line being also the North line of Gilbert Lake Estates. Proceed East along the South line of Parkway Manor 320 feet; thence North along the East line of Parkway Manor, 660 feet to the South right-of-way line of Cherry Street; thence East along the South right-of-way line of Cherry Street, 930 feet, to the POINT OF BEGINNING, this area being a part of the City of Parker, Florida; and the Northeast 1/4 of said Section 13.

Section 18

The South 1/2 of the Southeast 1/4. Section 13

Commence at the Northeast corner of said Section 13 said corner being the centerline intersection of

U.S. Highway 98 (S.R. 30A) and Cherry Street; thence South 33 feet; thence West along the South right-of-way line of Cherry Street 50 feet to the POINT OF BEGINNING; thence South along the West right-of-way line of U.S. #98, 1850 feet, to a line parallel to the right-of-way line of Hickory Street to a POINT OF BEGINNING; thence West 110 feet, to a line parallel to the West right-of-way line of

U.S. #98; thence North 1140 feet, to a line parallel to the South right-of-way line of Cherry Street; thence West, 500 feet, to the East property line

of Gilbert Lake Estates; thence South along the East property line of Gilbert Lake Estates, 470 feet; continue West along the South property line of Gilbert Lake Estates, 610 feet, to the East right- of-way of Senica Avenue; thence South 1950 feet

to the North right-of-way line of Hickory Street; thence East 1220 feet to the West right-of-way line of U.S. Highway 98; thence North 730 feet to the POINT OF BEGINNING.

Docket for Case No: 80-001201

Orders for Case No: 80-001201