STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDDIE LEE ROSIER, SR., ERNEST ) DUBOSE, ALFRED W. JONES, MARY ) JAMES and NEWTOWN HOMEOWNERS ) ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-1055

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and KENSINGTON PARK ) UTILITIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice; a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officers Donald R. Alexander, on June 21, 1985, in Sarasota, Florida.

APPEARANCES

For Petitioners: Layon F. Robinson, II, Esquire

442 Old Main Street Bradenton, Florida 33505

For Respondents: Charles G. Stephens, Esquire

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

For Respondent/ Richard W. Groner; Esquire Applicant: Post Office Box 49948

Sarasota, Florida 33578-6948 BACKGROUND

This matter arose on March 17, 1985, when respondent, Department of Environmental Regulation (DER), issued a Notice of Intent to Issue permit to respondent/applicant, Kensington Park Utilities, Inc., authorizing the construction of a .175 mgd extended aeration sewage treatment plant and effluent disposal system located at 27th Street, west of Tuttle Avenue, Northeast of Sarasota, Florida. Thereafter, petitioners, Eddie Lee Rosier, Sr., Ernest Dubose, Alfred W. Jones, Mary James and Newtown Homeowners Association, Inc., filed a petition for formal hearing to contest the issuance of the permit. In brief, petitioners alleged that the proposed plant would contravene the requirements of Rule 17-4.245, Florida Administrative Code, and the Sarasota County Environmental Service Department, and that the project would pollute wells in the adjacent area, emit noxious odors, diminish the value of their property; and pose a health hazard to children in the immediate area.

The matter was forwarded by respondent to the Division of Administrative Hearings on April 8, 1985; with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated May 30; 1985; the final hearing was scheduled for June 21, 1985, in Sarasota, Florida.

At final hearings petitioners Eddie L. Roser, Sr. and Ernest Dubose testified in their own behalf. Petitioners also presented the testimony of Elizabeth Pipher, Robert Jackson and Robert J. Murphy. Respondent/applicant presented the testimony of Russell P. Klier, Edward G. Snipes, John G. Strasser, Horace Suttcliffe, Jr., Roger Woodruff, Milliard J. Yoder and Ronald Fishkind. It also offered applicant's exhibits 1-11. All were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioners and applicant on July 11, 1985. None were filed by the agency. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

The issue herein is whether respondent/applicant should be issued a permit to construct a .175 mgd extended

aeration sewage treatment plant and effluent disposal system in Sarasota, Florida.

Based upon all of the evidenced the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent/applicant, Kensington Park Utilities, Inc. (applicant), is a public utility located in Sarasota, Florida. On October 12, 1984, applicant filed an application with respondent Department of Environmental Regulation (DER); seeking approval to construct a domestic wastewater treatment and disposal system in an unincorporated area of Sarasota County Florida. 1/ More specifically, the project will be located on a thirty-five acre tract of land lying west of Tuttle Avenue and north of 27th Avenues just northeast of the City of Sarasota. It is directly east of a housing development known as Newtown Estates. A drainage ditch separates the two properties. Petitioners, Eddie Lee Rosier, Sr. and Ernest Dubose, either live in or near the Newtown subdivision. Petitioners, Alfred W. Jones and Mary James did not testify at final hearing and their interest in this matter is not of record. Petitioner, Newtown Homeowners Association, Inc., is a nonprofit corporation made up of homeowners or residents in the Newtown housing development. In this proceeding petitioners oppose the manner in which the project will be constructed as well as its location.

   
   

2. Applicant proposes to construct a 175,000 gallons per day capacity expandable extended aeration wastewater treatment system with effluent disposal to two percolation holding ponds of 125,000 square feet each and spray irrigation of a 3.2 acre site. The 3.2 acre spray area will serve as a backup to the percolation ponds. There will be total retention of effluent onsite, and none will be discharged to the ditch which separates Newtown and Kensington's property. The estimated cost of the project is $500;000. The project is designed to serve the present population of 1,750 until regional sewage treatment becomes available, at which time this plant will be shut down or tied into the regional system. If constructed, this plant will serve the western portion of its franchise area including Newtown Estates, Windmill Villages and Rolling Green. The entire plant site will be fenced with a locked gate in accordance with a Sarasota County ordinance.

   
   

3. Applicant is subject to the regulatory control of both DER and Sarasota County (County). The County has established a local pollution control program pursuant to Section 403.182, Florida Statutes. As such, applicant is required to obtain permitting approval from both the County and DER. In this regard, applicant's plans and specifications were reviewed by both DER and County personnel and both made on-site inspections of the property in question. All DER and County rules, regulations and standards were found to be met. Specifically, applicant has given reasonable assurances that the proposed project will not discharged emit or cause pollution in contravention of DER standards or rules. Further, the proposed groundwater discharge will not cause significant adverse effects to the designated uses of the adjacent groundwaters. This was not controverted by petitioners.

   
   

4. Petitioners' objections fall into four broad categories. First, they challenge the location of the project, and particularly its placement on the most westerly portion of a tract of undeveloped land which lies immediately adjacent to Newtown and a recreational area. Because of this, they fear that spray from the spray irrigation site will drift onto their homes and picnic area when easterly winds prevail. However, a 150 foot setback has been established in accordance with agency rules, and "downsprays" will be used to prevent such an occurrence. Second, they are concerned that in the event of an "emergency , raw sewage containing virus and bacteria may be dumped into the drainage ditch adjacent to their property. However this concern is unfounded. If an unanticipated emergency arose, only overflow water from the percolation ponds would be discharged into the ditch, and by that time the water would be 90 percent free of contaminants. Moreover, in the event of an emergency, applicant's facility is capable, with only minor modifications, of discharging effluent to another plant approximately two miles away. Third, petitioners are concerned that the plant will emanate a noxious odor which because of petitioners' proximity, will make living conditions in the Newtown area most undesirable. They point out that a city-owned sewage plant on 12th street which is a mile away emits noxious odors that can be detected in the Newtown area. However, petitioners' own expert concedes the plant's design is the "best design" possible for eliminating odors, and only through an

   unplanned malfunction could an odor occur. Moreover, applicant's plant is far superior to the city's; and is designed to eliminate the type of odor that is emitted from that facility. Finally, petitioners suggest that if raw sewage is dumped into the drainage ditch, it may eventually seep into "the underground water system" and endanger the well water of persons living immediately south of the project. But since no raw sewage will be discharged, this concern is without merit. This finding is corroborated by expert testimony of witness Suttcliffe who concluded that the treatment process posed no threat to surrounding groundwater.

   
   

5. Other contentions relating to the utility's hookup policy its potential for accidents involving neighborhood children, and the alleged diminishment of property values in the immediate area, while well intended are not within the purview of DER's regulatory scheme.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1); Florida Statutes.

   
   

7. Section 403.087, Florida Statutes, requires the applicant to obtain a permit from DER prior to construction of the proposed facility. In order for a permit to issue; applicant must affirmatively demonstrated and provide reasonable assurances, that all applicable requirements in Chapters 17-3, 17-4, and 17-6; Florida Administrative Code, will be met.

   
   

8. The preponderance of evidence discloses that applicant has provided reasonable assurances that all requirements in Chapters 17-3, 17-4 and 17-6 will be met, and accordingly, the permit should be issued.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the agency issue a permit to applicant as reflected in the agency's notice of intent to issue dated March 17, 1985.

DONE and ORDERED this 23rd day of July, 1985, in Tallahassee, Florida.

Hearings

Hearings

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 23rd day of July, 1985.

ENDNOTE

1/ There are in excess of one hundred such plants within the County at this time.

COPIES FURNISHED:

Richard W. Groner, Esquire

P. O. Box 49948

Sarasota, Florida 33578-6948

Charles D. Stephens, Esquire Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

Layon F. Robinson, II, Esquire

442 Old Main St. Bradenton, Florida 33505

Docket for Case No: 85-001055

Orders for Case No: 85-001055