STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS V. INFANTINO and FRANCES )

INFANTINO, individually, and ) POINT O' WOODS UTILITIES, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 81-2407

) ISLAND VILLAGE CONDOMINIUMS, )

c/o Martin I. Gunn, and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 9, 1981, in Inverness, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was initiated by a petition filed by Thomas

1. Infantino and Frances Infantino, individually, and Point O' Woods Utilities, Inc., challenging the notice of intent by the Department of Environmental Regulation to issue a construction permit to Martin I. Gunn/Island Village Condominiums to build an extended aeration sewage treatment plant.

   
   

   Petitioners' objections to the notice of intent fall into two general categories: (1) that Martin I. Gunn/Island Village Condominiums is a public utility and has not complied with the provisions of law applicable to public utility companies, and (2) that the applicant has not given reasonable assurances that the proposed treatment plant will not adversely affect water quality standards.

   
   

   The Petitioners filed a collateral action before the Florida Public Service Commission seeking to have Martin I. Gunn/ Island Village Condominiums declared a regulated public utility.

   
   

   APPEARANCES

   
   

   For Petitioners: Thomas V. Infantino, Esquire

   Post Office Drawer B Winter Park, Florida 32790

   
   

   For Respondents: Donald F. Perrin, Esquire Island Village New Bank of Inverness Building Condominiums Highway 41, South

   Post Office Box 1533 Inverness, Florida 32650

   Department of William W. Deane, Esquire Environmental Twin Towers Office Building Regulation 2600 Blair Stone Road

   Tallahassee, Florida 32301 ISSUES

   On January 3, 1982, the Public Service Commission entered its final order in the collateral case, In re: Complaint of Point O' Woods Utility against Martin I. Gunn/Island Village of Inverness and the Department of Environmental Regulation. Said order finds that Martin I. Gunn/Island Village is not a utility regulated by the Commission pursuant to Subsection 367.021(3), Florida Statutes, because it is exempt under Subsection 367.022(7), Florida Statutes. This order entered by the agency charged with primary regulation of public utilities is dispositive of all issues in this cause arising from Petitioners' assertion that Martin I. Gunn/Island Village of Inverness is a public utility and has not complied with the applicable provisions of Chapter 367, Florida Statutes.

   
   

   The only remaining issues are those related to whether the applicant has given reasonable assurances that the proposed plant will not adversely affect water quality standards.

   
   

   The applicant presented evidence in support of its application. The Department of Environmental Regulation and the Petitioners presented no witnesses. The Hearing Officer has considered the proposed findings submitted. To the extent that those findings have not been incorporated in the following Findings of Fact, the proposed findings have been found to be irrelevant or immaterial, not based upon the most credible evidence, or are not findings of fact.

   
   

   FINDINGS OF FACT

   
   

   1. The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant.

      
      

   2. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet.

      
      

   3. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge.

      
      

   4. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge.

      
      

   5. There will be no adverse impact upon ground waters.

      
      

   6. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc.

      
      

   7. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department.

   8. The likelihood of geologic subsurface failure is remote.

      
      

   9. Ground water levels are included on the schematic plan which accompanied the application to the Department.

      
      

   10. The tops of the holding ponds are above the 100-year flood level.

       
       

   11. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet.

       
       

   12. The holding ponds would be more than 120 feet from the nearest surface water.

       
       

   13. The estimate of the cost is accurate at $98,000.

       
       

   14. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness.

       
       

   15. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners.

       
       

   16. Martin I. Gunn/Island Village is not a public utility.

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57, Florida Statutes.

       
       

   18. The proposed treatment plant requires approval of the Department of Environmental Regulation pursuant to Sections 403.086, 403.087 and 403.0876, Florida Statutes; and Rules 17-3, 17-4 and 17-6, Florida Administrative Code. Rule 17-3 sets forth the water quality standards or criteria. Rule 17-4 sets forth the permitting requirements, and Rule 17-6 sets out the requirements for domestic and industrial waste treatment.

       
       

   19. Rule 17-6.01, Florida Administrative Code, provides that all privately-owned domestic waste treatment plants comply with the Water Quality Standards of the state with 90 percent (secondary) treatment or better. The evidence shows that the effluent from the proposed treatment plant will meet this standard. In addition, Rule 17-6.10(1)(a), Florida Administrative Code, requires that a water quality-based effluent limit shall be determined by the Department based upon the characteristics of discharge, the receiving water characteristics, and the criteria and standards of Rules 17-3 and 17-4, Florida Administrative Code, to include ground water quality standards. See Rule 17- 6.20, Florida Administrative Code.

       
       

   20. The evidence shows that there will be no mixture of effluent and surface water, and that the quality of the ground water will not be degraded by the effluent. All effluent will be retained within the confines of the property owners. Therefore, the requirements of Rules 17-3.071, 17-3.101, 17-3.151 and 17-4.245, Florida Administrative Code, will be met.

   21. The applicant submitted its completed application for the proposed treatment plant. Evidence was received regarding the engineering standards from the treatment plant's design engineer. The treatment plant meets or exceeds the Department's standards. The applicant presented testimony in support of its application, giving reasonable assurances that the treatment plant's operation will not adversely affect the water quality standards.

       
       

   22. There is no evidence that the proposed treatment plant, its construction, or its operation will violate any provision of the Department's rules under the conditions associated with the Department's granting of the permit.

       
       

   23. The Public Service Commission has held in a collateral case that the applicant is not a regulated public utility. As the agency with primary regulatory jurisdiction, that decision is dispositive of the Petitioners' assertion in this cause that the applicant is a public utility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice.

DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1982.

COPIES FURNISHED:

Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790

Donald F. Perrin, Esquire

New Bank of Inverness Building Highway 41, South

Post Office Box 1533 Inverness, Florida 32650

William W. Deane, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Victoria J. Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-002407

Orders for Case No: 81-002407