The Issue Whether Respondent, John J. D'Hondt, as a licensed operator, should be disciplined for violations of Florida Administrative Code Rule 62-602.650(2), (4) and (4)(f).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is the State agency vested with the responsibility of regulating Florida's air and water resources, administering Chapter 403, Florida Statutes (2006), and the rules promulgated in Florida Administrative Code Rule Chapter 62. Petitioner has the statutory authority to establish qualifications; examine and license drinking water and domestic wastewater treatment plant operators and to place an operator on probation; and issue, deny, revoke, or suspend an operator's license pursuant to its rules. Respondent is the owner, supplier of water, and licensed operator of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants located in Volusia County, Florida. He holds Certified Operator Drinking Water License No. 0000542 and Certified Operator Wastewater License No. 0006032. The Volusia County Health Department is a county health department that has been approved by Petitioner pursuant to Subsection 403.862(1)(c), Florida Statutes (2006), to enforce Chapter 403, Florida Statutes (2006), and the rules promulgated for the State's drinking water program for Volusia County. As a result of not having received Respondent's September 2004 MOR, by letter dated October 20, 2004, the Volusia County Health Department notified Respondent that MORs were to be submitted to the Volusia County Health Department by the tenth of the month following the month of operation. The November 2004 MOR was to have been submitted to the Volusia County Health Department by December 10, 2004. Respondent signed and dated the November 2004 MOR on December 12, 2004; it was received by the Volusia County Health Department on December 27, 2004. The December 2004 MOR was to have been submitted to the Volusia County Health Department by January 10, 2005. On February 4, 2005, Respondent was sent a late reporting violation letter stating that the December 2004 MOR had not been received. This letter again reminded Respondent that MORs were to be submitted within ten days after the month of operation. The December 2004 MOR was received on February 11, 2005. The April 2005 MOR was to have been submitted by May 10, 2005. Respondent signed and dated the April 2005 MOR on May 17, 2005. It was received on May 27, 2005. The September 2005 MOR was to have been submitted by October 10, 2005. It was received on October 18, 2005. The November 2005 MOR was to have been submitted by December 10, 2005. It was signed and dated December 14, 2005, and received on December 19, 2005. Respondent did not timely submit MORs for the months of November 2004, December 2004, April 2005, September 2005, and November 2005. In 2004, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent maintained a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was informed that he was required to keep a separate operation and maintenance logbook for each of the drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that there was a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was again informed that he was required to keep separate logbooks for each plant. A non-compliance letter dated October 12, 2004, and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he needed to separate his operation and maintenance logbook. In 2005, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined logbook for the drinking water and domestic wastewater treatment plants. During the inspection, Respondent was again informed that he was required to keep a separate operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was keeping a combined logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to keep separate logbooks. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent again informing him that he was required to maintain separate logbooks for the drinking water and domestic wastewater treatment plants. On February 13, 2006, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to maintain a separate logbook for each plant. Over the extended period reflected by the inspections cited in paragraphs 11 through 15, Respondent failed to maintain separate logbooks for the operation and maintenance of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that the logbook did not contain sufficient entries of the performance of preventative maintenance and repairs or request for repairs of equipment. During this inspection, Respondent was informed that he was required to keep adequate entries of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. A non-compliance letter and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he was required to maintain entries of the performance of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was not keeping adequate entries of the performance of preventative maintenance or repairs for the domestic wastewater plant. During this inspection, Respondent was again informed that he was to keep such entries. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent informing him that he needed to maintain such entries for the domestic wastewater treatment plant. Photocopies of the combined logbook have essentially no entries for the performance of preventative maintenance or repairs or requests for repairs to a domestic wastewater treatment plant. Infrequent margin notes are not decipherable and do not differentiate between the two activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of John J. D'Hondt, as a Certified Operator Drinking Water and a Certified Operator Wastewater, be disciplined as set forth in the "probation" letter of March 15, 2006. DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2007. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John J. D'Hondt 2 Tropic Wind Drive Port Orange, Florida 32128 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, Acting General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Petitioner was wrongfully denied general permits to construct an extension to a public water supply distribution system and to construct a waste water treatment system at a camp being constructed by Petitioner.
Findings Of Fact On December 11, 1991, the Department of Environmental Regulation (DER), Ft. Myers office, received applications from the Orange Blossom Baptist Association, Petitioner, submitted by its project engineer, for general permits to install an extension to provide water to, and construct a waste water treatment facility for, a camp being built by Petitioner. These applications were reviewed by the Respondent, and on January 2, 1992, James Oni telephoned Petitioner's engineer to tell him the applications were incomplete and additional information was required. Some of this additional information was submitted by Petitioner on January 7, 1992, but the word "vertical" was left out of the application to indicate what the 18 inch separation of the water and sewer lines represented; no pump out was provided for the lift station; the flotation formula as submitted contained a typographical error where an "s" was substituted for a "5", leaving the calculation of storage capacity of the system indeterminable; the lift station was only 4.5 feet deep and should normally be 10 feet; the configuration of the sump to insure solids would settle to the bottom was not provided, nor was the amount of concrete to be used to obtain this configuration shown; and the type of equipment to be used was not clearly shown. In summary, when submitted the application was not technically correct, and it remained technically incorrect after the additional information was submitted by the applicant. General permits are required to be processed by DER within 30 days of their receipt, and if not denied within that 30 day period they must be approved regardless of their compliance with the statutes and regulations.
Recommendation It is recommended that a Final Order be entered denying Orange Blossom Baptist Association general permits to install a waste water treatment facility and to construct an extension to a public water supply distribution system in Highlands County, Florida. ORDERED this 6th day of May, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1992. COPIES FURNISHED: William N. Clark, P.E. 233 E. Park Avenue Lake Wales, FL 33853 Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs; (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans." It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number 4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project. There are inconsistencies in the plans and specifications, such as: (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1. Rejected as not being necessary to the conclusions reached in this Recommended Order. 3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively, but modified. 13. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified. Rejected as being immaterial or irrelevant or subordinate or unnecessary. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24, 24, 25, 26, 27 and 27, respectively, but modified. 34. Adopted in Findings of Fact 17 and 18, but modified. 35-37. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40. Rejected as being immaterial or irrelevant or unnecessary or subordinate, but see Findings of Fact 37 and 38. 41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29, 29, 32, 30, 32 and 32, respectively, but modified. 51. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified. 54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. Adapted in Finding of Fact 55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37. 73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39. 77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39. 80.-82 Adopted generally or covered in Findings of Fact 40- 41. 83.-90. Adopted generally or covered in Findings of Fact 42 and 43. 91.-96. Adopted generally or covered in Findings of Fact 44 and 45. 97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47. 108.-109. Adopted in Finding of Fact 48. 110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50. 18. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52. 125. Rejected as immaterial or irrelevant or unnecessary or subordinate. 126.-127. Adopted in Finding of Fact 52. Adopted in Finding of Fact 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 53. Adopted in Finding of Fact 55. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 13-15. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony COPIES FURNISHED: Rex Smith Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Wings S. Benton, Esquire 1020 D. Lafayette Street, Suite 205 Post Office Box 5676 Tallahassee, Florida 32314-5676 L. Thomas Hubbard, pro se THA Building 3110 Spring Glen Road Jacksonville, Florida 32207
The Issue Whether Respondent Sarasota County Public Utilities Department (Sarasota County) has provided reasonable assurances pursuant to Rule 17- 555.530(1)(a), Florida Administrative Code, that its proposed water treatment plant will comply with each applicable water quality standard contained in Part III, Chapter 17-550, Florida Administrative Code. Whether Respondent Sarasota County has provided reasonable assurance pursuant to Rule 17-555.530(1)(b), Florida Administrative Code, that its proposed water treatment plant meets adequate engineering design complying with the applicable engineering principles established in Rules 17-555.310 through 17-555.160, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: STIPULATED FACTS Sarasota County Utilities Department is a department established by Sarasota County, a political subdivision of the State of Florida and operates a public utility department which is charged with meeting, among other things, potable water needs of the residents of Sarasota County. At all times pertinent to the issues herein, HRS was responsible for receiving applications and issuing permits for the construction of water treatment plants and the accompanying well field. Petitioner, Charles P. Page, is a resident of Sarasota County and resides at 259 Glen Oak Road, Venice, Florida. Sarasota County filed an Application for a Water Treatment Plant Construction Permit with HRS seeking to construct a well water collection system and a 12 mgd - electrodialysis treatment plant having an auxiliary power system to provide power for the well field and water treatment plant. Sarasota County has previously obtained a water use permit from the Southwest Florida Water Management District (SWFWMD) #208836.00, restricting Sarasota County to feed water for the water treatment plant to 7,303,000.00 gallons average daily withdrawal and 9,625,000.00 gallons peak monthly withdrawal. Sarasota County has received permits for the eleven (11) production wells from HRS. It was the duty of HRS to review the plans and specifications and all supporting documentation to assure that they address and meet every requirement listed in Rule 17-555, Florida Administrative Code, for the issuance of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That a final order be entered issuing permit No. PATS No. 204307 & WC No. 1591-91-036 to Respondent Sarasota County, as set forth in the Notice of Intent To Issue dated February 20, 1992, provided that the grant of the subject permit shall include the general and specific conditions in the Intent To Issue with the further recommendation that the third required specific condition found on page 1 of the Specific Conditions be modified as follows: Construction of the electrodialysis reversal water treatment plant covered by this permit shall not begin prior to the issuance of a permit as required by State of Florida Department of Environmental Regulation for the EDR concentrate discharge facility. DONE and ENTERED this 21st day of October, 1992, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2002 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 22(47); 23(48); 24(19-20) 29(49); 38(5); 39(19); 42-43(19,20); and 51(49). 2. Proposed finding(s) of fact 2,3,5,6,7,11,14,15,16,18, 19,20,21,25,26,30,31,35,40,45,46,47,49,and 50 are neither material nor relevant to this proceeding or the conclusion reached in the Recommended Order. Proposed finding(s) of fact 4,8,9,10,12,13,17,27,28,and 41 are rejected as not being supported by competent substantial evidence in the record. Proposed finding(s) of fact 32,33,34,36,37, and 48 are unnecessary. Proposed finding of fact 44 is rejected as not being the "opinion" of the Hearing Officer. The transcript will show that the Hearing Officer was only restating the testimony of Judith Richtar. But see Finding of Fact 49. Rulings on Proposed Findings of Fact Submitted by the Respondent Sarasota County The following proposed findings of fact are adopted in substance as modified if the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1 - 20(1) - 20, respectively); 21(27); 22 - 26(22 - 26, respectively); 27(28); 28(29); 29(31); and 30 - 44(32 - 46, respectively). For proposed findings of fact 45 through 65 see Findings of Fact 51 and 52. Proposed findings of fact 66 through 68 are unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Department of Environmental Regulation The Respondent Department of Environmental Regulation adopted Sarasota County's proposed findings of fact 1 through 44, 63 and 64, and 66 with modification. Therefore, the rulings on the Department's proposed findings of fact would be the same as the previous rulings on Sarasota County's proposed findings of fact adopted by the Department. COPIES FURNISHED: Bruce Wheeler Pitzer, Esquire 546 47th Street Sarasota, FL 34234 William A. Dooley, Esquire Nelson, Hesse, Cyril, et al. 2070 Ringling Blvd. Sarasota, FL 33237 Joseph W. Landers, Esquire Landers & Parsons 310 W. College Avenue, 3rd Floor Tallahassee, FL 32301 W. Douglas Beason, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues determined in this proceeding are whether Respondent engaged in construction contracting without a license as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Parties Petitioner is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Petitioner has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13. At all times material to this matter, Respondent was the owner of Advanced Connections, LLC. Neither he nor his company is licensed, registered, or certified to perform construction contracting services in Florida. Respondent holds only certification to perform backflow preventer testing. At the heart of this case is whether Respondent may perform backflow preventer repair without a license, certification, or registration. Facts Related to Work Performed It is undisputed that Respondent performed repair of backflow preventers for customers in Tallahassee, Florida. On July 25, 2014, Respondent performed a backflow prevention assembly test on two existing backflow preventers at Old Enrichment Center located at 2344 Lake Bradford Road, Tallahassee, Florida 32301. Respondent provided an invoice to Old Enrichment Center following the backflow test, which described the work performed as follows: “I was able to repair both units and they are Functioning [sic] properly. I had to replace one additional part on, AS #10896, the #2 check cage was cracked. Thank you For [sic] your business. Don’t forget to cover the backflows.” The invoice reflected that Respondent was compensated $343.00 for the worked performed and materials. On August 20, 2014, Respondent performed a backflow test on an existing backflow preventer for Li-Ping Zhang at a property located at 2765 West Hannon Hill Drive, Tallahassee, Florida 32309. Respondent provided an invoice to the customer describing the outcome of the test, and he provided an estimate for repair as follows: Invoice: Thank For this opportunity to serve you. The unit is failing. The #1 check valve is leaking across it. That means it is not holding pressure. The Manufacture of flowmatic no longer makes parts for your unit. But my supplier does have a repair kit available. Due to the Fact are no longer made for your device it may be better to have the unit replaced with a Wilkins 975-XL. Please See Quote * * * Quote for repair: Part: Complete Rubber Kit-$30.00 Labor: This unit may not be repairable due to the fact that there is a limited supply of parts. If there is damage to the #1 Check. I will not be able to repair the unit. If that happens I can return the parts but a labor charge would still remain. Please call with any questions. Thank you. (Quoted text from invoice without correction of grammar.) Respondent ultimately performed the repair on August 25, 2014. The invoice issued to Li-Ping Zhang reflected service provided as “[t]he repair was a success. The unit is Passing [sic]. Paid Cash $115.00 8.25.14 — signed Ian.” Both invoices include the Respondent’s company name, Advanced Connections, LLC. There was no evidence presented of financial or property harm caused by Respondent’s actions. On or about February 2, 2015, Petitioner received a complaint from City of Tallahassee filed against Respondent for his repair of backflow preventers in Tallahassee, Florida. Petitioner commenced an investigation into Respondent’s actions through its unlicensed activity investigation unit. At the conclusion of the investigation, Petitioner filed an Administrative Complaint alleging Respondent engaged in construction contracting without a license. Respondent disagrees with Petitioner and argues that he is eligible for an exemption under section 489.103(9), commonly known as the “handyman” exemption. Life-Safety Matter Respondent’s eligibility for the exemption hinges upon whether repair of a backflow preventer is considered a life- safety matter. The Florida Building Code provides minimum standards for building construction to “safeguard the public health, safety and general welfare.” See § 101.3, Florida Building Code, Building. The Florida Building Code, Plumbing, applies to “the installation, alteration, repair and replacement of plumbing systems, including fixtures, fittings and appurtenances where connected to a water or sewage system . . . .” See § 101.4.3, Florida Building Code, Building. The plumbing chapter of the Florida Building Code defines a backflow preventer as a device or means to prevent backflow of water from flowing from one system into the potable water system.2/ A potable water supply system shall be maintained in such a manner so as to prevent contamination from non-potable liquids, solids, or gases being introduced into the potable water supply through cross-connections or any other piping connections to the system. § 608.1 Building Code, Plumbing. To further explain the purpose of backflow preventers, Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen, who has 42 years of plumbing experience, has been licensed in Florida since 1981 and is also licensed in Georgia. He holds a certification in backflow preventer testing (issued by the University of Florida TREEO Center) and backflow preventer repair. Mr. Hagen has regularly conducted on-the-job plumbing training for 36 years. Mr. Hagen was accepted as a plumbing expert. Mr. Hagen testified that a backflow preventer is a life-safety device. He explained that this reference is accepted throughout the plumbing industry because the backflow preventer protects water systems by preventing chemicals and poisons from entering the public water system. Mr. Hagen provided examples of potential outcomes if a backflow preventer fails (e.g., three children died as a result of drinking water from a water hose where poison in the sprinkler system contaminated the water). Mr. Hagen also testified that only a licensed plumber is authorized to perform backflow repairs. Mr. Hagen’s testimony is credible. John Sowerby, P.E., a licensed professional engineer for 35 years, who previously worked in the Department of Environmental Protection’s (DEP) Source of Drinking and Water Program, also testified regarding the nature of backflow preventers. He testified that backflow preventers protect public health because they prevent contamination of potable water systems (i.e., water that is satisfactory for human consumption). Mr. Sowerby’s testimony is also found to be credible. Respondent’s testimony that a backflow preventer is not a life-safety fixture, is not supported by the evidence. Respondent testified that backflow preventers are “plumbing fixtures” that are installed between the public water supply line and the private water supply line. Respondent also testified that if a backflow preventer fails, it could cause contamination of the public water supply and public health would be at risk. More importantly, the applicable building codes and the testimony of Mr. Hagen and Mr. Sowerby establish that backflow preventers prevent contamination of public water supply and protect public health. Given that backflow preventers safeguard public health by protecting the public water supply, they involve life-safety matters. The Department has incurred investigative costs in the amount of $415.95 related to this matter. Ultimate Findings of Fact Respondent’s repair of a backflow preventer on a water service line is a life-safety matter and as a result, Respondent is not eligible for an exemption under section 489.103(9). The evidence is clear and convincing that Respondent’s repair of a backflow preventer at the two properties referenced herein constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in Counts I and II of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in Counts I and II of the Amended Administrative Complaint; Imposes an administrative fine of $6,000 ($3,000 for each count); and Requires Mr. Tuttle to pay the Department’s investigative costs of $415.95. DONE AND ENTERED this 26th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2016.
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
The Issue The issue presented for decision herein is whether or not the Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Robert Peterson, to construct a 0.007 MGD wastewater treatment facility with effluent disposal to Dual Class V injection wells in Key Largo, Monroe County, Florida.
Findings Of Fact On January 17, 1986, Robert Peterson, doing business as Peterson's Condominiums, submitted an application to the Florida Department of Environmental Regulation (DER) to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells into G-III groundwater. The proposed site is located at Mile Marker 95.6, U.S. Highway 1, Key Largo, Florida. The sewage treatment plant is to serve a ten unit condominium with provisions for four future units. The designed population to be served is 62. (Permit Application) The Plant is designed to treat the sewage so that after treatment and disinfection, the effluent will, on average contain no more than 20 parts per million biological oxygen demand (BOD-5 day) and 20 parts per million of total suspended solids (TSS). There will be 90 percent removal of these pollutants after treatment. The effluent will be disinfected in a chlorine contact chamber, with chlorine tablets used as the disinfectant. Sludge will be removed by a licensed scavenger truck to Monroe County approved disposal sites. Noise from the plant will be controlled by a blower filter, silencers, and a weather proof hood. (Permit Application). No control is contemplated for odor or aerosol drift other than proper plant operation. No lighting will be provided at the plant. Emergency power `from a rental portable generator will be used if there is an extended power failure. Along with the sewage treatment application, Respondent Peterson also submitted two permit applications for injection of the treated effluent into 2 Class V injection wells. The total volume of treated effluent that would enter into both wells combined is 6500 gallons per day. The 6 inch diameter wells would be 65 feet deep with casing and grout down to a depth of 30 feet. Upon receipt of the permit applications, DER reviewed the application and requested an additional application including groundwater samples measuring total dissolved solids. Peterson submitted two samples, both indicating total dissolved solids significantly greater than 10,000 milligrams per liter. (DER's Exhibits 2, 3 and 4). The samples (TDS) were taken approximately 1 and 6 miles from the proposed site. Based on DER's staff review of hundreds of groundwater quality analyses from the Keys, DER's staff determined that the samples submitted were consistent with other groundwater TDS levels throughout the Keys. (Testimony of Barrone and Me1e). Use of the samples by DER was reasonable and proper. Groundwater in which the TDS is greater than 10,000 milligrams per liter (parts per millions) is classified as G-III groundwater. Such water is considered non-potable. (Testimony of Barrone and Mele; Florida Administrative Code, Rule 17-3.403(1)). After review of the application, DER issued an "intent to issue" Peterson the permits requested on March 5, 1986. (DER's Exhibit 7). The "intent to issue" as drafted by DER established certain conditions to monitor water quality and to test treated effluent before it is discharged to Class V wells. As an example, flow, pH, and chlorine residuals are to be sampled daily; BOD and total suspended solids are to be sampled monthly and fecal coliform is to be sampled once per quarter. Test results are to be submitted to DER on a monthly basis and the analysis program is conditioned to demonstrate substantial compliance with water quality standards as set forth in pertinent sections of the Florida Administrative Code. Provided the monthly reports reveal violation of DER's standards, the permittee will be required to rectify the problems. (DER's Exhibit 7, testimony of Barrone and Mele). Additionally, DER has conditioned its intent to issue on a trial or experimental basis and this project will again be subjected to review in one year. (DER's Exhibit 7, condition 12). Should the permittee fails to bring the facility into full compliance within the one year period, an operational permit will not be issued. DER imposed this condition on the subject wastewater treatment plant, based on the fact that it is a new model and DER does not have extensive experience with the monitoring of this type plant. (Testimony of Barrone and Mele). Evidence introduced reveals that the plant manufacturer, Smith and Loveless, is the largest manufacturer of factory built water and wastewater pump stations and treatment plants. The manufacturer pioneered prefabricated treatment plants with over 30 years experience. Evidence reveals that there are at least three plants in operation in Florida without any operational problems. Upon "issuing the intent to issue", DER directed the permit applicant (Peterson) to publish notice in the Key West Citizen (Peterson's Exhibit 1). Notice of this proposed agency action was published in the Key West Citizen on March 17, 1986, giving any substantially affected party 14 days from that date to file a petition for administrative proceedings with DER's Office of General Counsel. (Petitioner's Exhibit 2). On March 26, 1986, DER received a letter from Petitioner McInerny, Popp and other local citizens (C.C. Waggle) protesting the proposed project. The Objectors indicated that they had heard that the proposed agency action was advertised in the Key West Citizen but that the Key West Citizen was not available in their area. 1/ Based on these protest letters, DER afforded Objectors, including Petitioners, a new point of entry into these proceedings. Petitioners Ohi, Popp and McInery timely petitioned for an administrative hearing challenging the proposed agency action. The challenges by Petitioners, based on DER's second point of entry, were timely filed. When the proposed facility becomes operational, it will not cause foul odors or create a nuisance due to aerosol drift based on the design features. (Testimony of Barrone, Mele and Sikorski. The extended aeration facility, as proposed, is the most reliable type of sewage treatment plant for this type operation. (Testimony of Mele). The expected pollutants produced from domestic sewage are BOD, dissolved solids and to a lesser extent heavy metals, nitrates, phosphorus and bacteria. (Testimony of Mele). After treatment, the effluent from this facility is not expected to be either toxic or carcinogenic. (Testimony of Mele). The Class V wells into which the treated effluent would be placed are approximately 500 feet from the nearest shoreline, the Atlantic Ocean. This is the closest distance to any Outstanding Florida Water. As such, the treated effluent will be diluted prior to its discharge into the Atlantic Ocean. (Permit Application, Testimony of Mele). Respondent Peterson has provided Respondent DER reasonable assurances that the proposed facility, upon operation, will not violate the Department's rules relating to air, noise and water quality standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Environmental Regulation enter a Final Order issuing Respondent, Robert Peterson, doing business as Peterson's Condominiums, a permit to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells with the conditions as set forth in the DER's "intent to issue" dated March 5, 1986. RECOMMENDED this 1st day of December 1986 in Tallahassee, Florida. JAMES E. BRADWELL 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 1st day of December 1986.
The Issue The issues are whether Respondent's facility is a public water system subject to regulation by the Department of Environmental Regulation (DER) pursuant to Chapter 17-22, Florida Administrative Code, or whether it is exempt from those regulations by virtue of Rule 17-22.102 if the facility is subject to regulation by DER, whether Respondent should take the corrective actions set forth in the Notice of Violation and Orders for Corrective Action and should pay DER's expenses incurred in the pursuit of this case. DER presented the testimony of Cliff McKeown, a potable water engineer, and Linda Frohock, planning manager for the Department of Community Affairs (DCA). DER had Exhibits 1-4 admitted into evidence. Respondent, Lex Thompson, presented his own testimony and that of Hugh Kelly. The parties have submitted Proposed Findings of Fact and Conclusions of Law. They have been considered and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact DER is the Florida administrative agency which has the authority to administer and enforce the provisions of the Florida Safe Water Drinking Act, and the rules and regulations promulgated thereunder. (See Prehearing Stipulation). Respondent is a natural person and citizen of the State of Florida. Respondent owns and is responsible for the construction of a potable water distribution main extension ("the facility") which serves a subdivision known as High Bluff Acres-near the community of Midway in Gadsden County, Florida. (See Prehearing Stipulation). On February 1, 1980, Respondent was issued construction permit number DS20-27385 for the facility. The construction permit described the facility as a potable water distribution main extension to the Talquin Electric Company's Midway water- system. The project was to be constructed with approximately 940 linear feet of four inch PVC valves and appurtenances. Specific condition number 15 of the permit restricted operation of the extension until department approval was issued. This approval would be granted upon receipt of certification by the engineer of record as to construction in accordance with the approved plans and specifications and receipt of two satisfactory bacteriological analyses. DER has not received this information and had not issued an approval for use of the facility. The construction permit expired on September 1, 1981. (See Prehearing Stipulation). Respondent modified the facility by constructing it with 550 feet of one inch to one and one-half inch PVC water mains. (See Prehearing Stipulation). DER conducted an inspection of the facility on February 23, 1982. The facility was found to be in use without final DER approval. By letter dated February 26, 1982, DER notified Respondent of his non-compliance with Chapter 17-22, Florida Administrative Code, and requested Respondent to submit specified compliance items. (See Prehearing Stipulation). In October of 1982, DER personnel contacted Respondent . by telephone. Respondent agreed to obtain a permit renewal and modify the unauthorized water line as soon as funds in the form of rent were released by the Department of Community Affairs (DCA). On November 1, 1982, DCA notified DER that payments were being made. (See Prehearing Stipulation). On June 8, 1983, DER notified Respondent of his non- compliance with Chapter 17-22, Florida Administrative Code, and requested a reply on actions to be taken to correct the deficiency. By letters dated October 18, 1984, and December 17, 1984, DER notified Respondent that the facility was not approved for use. Respondent was further requested to inform DER as to the status of the facility. DER received no response to these requests. (See Prehearing Stipulation). The facility was not constructed in accordance with DER-approved plans, and DER has issued no written approval or consent for alterations to the system. (See Prehearing Stipulation). Respondent placed the facility in service without submitting a certification of completion and a copy of satisfactory bacteriological results to DER for approval and clearance. (See Prehearing Stipulation). The facility is not designed to provide maximum hourly system demand without development of distribution pressure lower than 20 psi. (See Prehearing Stipulation). DER has incurred costs and expenses in the pursuit of this case in the amount of $453.50. (See Prehearing Stipulation). Respondent's facility consists of distribution and storage facilities only and does not have any collection or treatment facilities. It obtains all its water from and is not owned or operated by the Talquin Electric System. Further, Respondent is not a carrier which conveys passengers in interstate commerce. (See Prehearing Stipulation) The public water distribution system constructed by Respondent is connected to twenty dwelling units in twelve structures. The High Bluff Acres subdivision is a government- subsidized, but privately-owned, low-income housing development, wherein DCA, acting on behalf of the U.S. Department of Housing and Urban Development (HUD), subsidizes the payment of rent for the housing. Respondent entered into several agreements on behalf of Salter, Stephens and Thompson, with the DCA to rehabilitate existing structures at High Bluff Acres and thus qualify for the Section 8 Moderate Rehabilitation Housing Assistance Program (HAP) established by HUD. The purpose for entering into the HAP contracts is to provide low cost housing to low income persons. These agreements were entered into over a period of several months during 1981 and 1982. Upon satisfactory completion of the rehabilitation pursuant to the agreements, Respondent entered into a HAP contract for each structure in High Bluff Acres, for a total of twelve structures (20 dwelling units). The HAP contract establishes the contract rent that can be allowed for each individual dwelling unit in a structure (the contract covers one structure). The contract rent is calculated according to a formula established by HUD for such purposes, and includes monetary allowances for utilities or other services which are provided by the owner. It does allow the lessor to recover his capital expenses in rehabilitating an individual housing unit. DER Exhibits 3 and 4 are two of the twelve HAP contracts entered into by the Department of Community Affairs and Respondent, Lex Thompson. Each of these contracts has an Exhibit B which is entitled "statement of services, maintenance and , utilities to be provided by owner." These exhibits show that Respondent has agreed to provide water to the units under the HAP contract. Contract rents paid to Respondent as authorized agent for the partnership include an allocation of money to reimburse Respondent for providing water to the tenants in the dwelling units. However, subsequent to Thompson's and DCA's entering into the contracts for payment of these rental subsidies, Respondent notified DCA that he had incurred additional capital expenses. Since his rental payments were already at the maximum allowable rate, however, Respondent did not seek to modify the aforementioned contracts because the amendment would not result in any greater payment of monies to him. At no time has Respondent amended the terms of the HAP contracts with respect to provision of water to the tenants at High Bluff Acres. He is still receiving the reimbursement for provision of water to tenants. The general partnership which had been receiving contract rents for the dwelling units was dissolved in May, 1985, and the contracts for each structure were assigned to various individuals. Respondent, individually, owns one structure and his wife owns another. DER has received no potable water quality or quantity complaints regarding the High Bluff Acres subdivision. Moreover, the potable water system existing in the High Bluff Acres subdivision does not constitute a present threat to the public health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein order the following corrective actions: That within 45 days, Respondent shall hire an engineer registered in Florida to design a new distribution system for High Bluff Acres or modifications to the existing system, and submit a completed application to the Department for a permit to construct or modify the system. That within 60 days of issuance of the permit, Respondent shall have the distribution system installed, tested(including pressure testing, bacterial testing, disinfectant-testing) and shall have the engineer sign and seal the plans indicating to the Department that the system conforms with the approved plans, and both DER and American Water Works Association standards. It is further RECOMMENDED that Respondent be ordered to pay the Department's costs and expenses in the amount of $453.50, and that same be paid to the Department by cashier's check within 30days. DONE and ORDERED this 4th day of November, 1985, in Tallahassee, Florida. DIANE K. KIESL1NG 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 4th day of November, 1985 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 13). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 4 is adopted in substance (See Finding of Fact 17). Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 18). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 19). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 22). Proposed Finding of Fact 8 is adopted in substance (See Finding of Fact 21). Rulings on Respondents Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 1). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 2). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 3). Proposed Finding of Fact 4, first sentence, is adopted in substance (See Finding of Fact 4). The second sentence is rejected as being unsupported by the evidence and irrelevant. Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 5). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 6). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 7). Proposed Finding of Fact 8, first sentence, is adopted in substance (See Finding of Fact 8). The remainder of Proposed Finding of Fact 8 is rejected as irrelevant. Proposed Finding of Fact 9 is adopted in substance (See Finding of Fact 12). Proposed Finding of Fact 10 is adopted in substance (See Finding of Fact 14). Proposed Finding of Fact 11 is adopted in substance (See Finding of Facts 19 and 20). Proposed Finding of Fact 12 is rejected as unsupported by the evidence, irrelevant and conclusory. Proposed Finding of Fact 13 is adopted in substance (See Finding of Fact 23), except that it is rejected as it relates to a potential threat because that portion is unsupported by the competent, credible evidence. COPIES FURNISHED: Clare E. Gray, Esquire Daniel H. Thompson, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William L. Hyde, Esquire 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302 Victoria Tschinkel Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent owns and operates a waste water treatment facility at Polynesian Village Mobile Home Park, owns the land at this village, leases these lots to mobile home owners, and provides them with waste water treatment. He was last issued an operating permit on January 18, 1983, by Petitioner. Respondent posted an Operational Bond (Exhibit 2) in the amount of $7,500 with Northwestern National Insurance Company as surety to faithfully operate the treatment facility and comply with all Rules and Regulations of the Petitioner. Englewood Water District, petitioner, was established by special act of the Florida Legislature in Chapter 59-931, Florida Statutes, and is given authority in Section 4 thereof to regulate use of sewers, fix rates, enjoin or otherwise prevent violations of the act or any regulation adopted by Petitioner pursuant to the act, and to promulgate regulations to carry out the provisions of the act. Pursuant to this authority, Petitioner promulgated Waste Water Treatment Facilities Design, Construction and Operation Regulations dated June 19, 1980, and revised April 28, 1983. During an inspection of Respondent's waste water treatment facility on October 17, 1983, leaching was observed at both the north and south drain fields with effluent from the system rising to the surface. Samples of this effluent when tested showed a fecal coliform count of 2800/100 ml. The basic level of disinfectant shall result in not more than 200 fecal coliform values per 100 ml of effluent sample (Rule 17-6.060(1)(b)3a, F.A.C.). Following this test, Notice of Violation (Exhibit 4) was served on Respondent. No action was taken by Respondent to correct this condition and on January 6, 1984, a Citation (Exhibit 5) was issued to Respondent scheduling a hearing for January 26, 1984. Following the issuance of that Citation frequent inspections of the facility were conducted by employees of Respondent to ascertain if steps were being taken by Respondent to correct the deficiencies. Additionally, inspections were made by inspectors from Sarasota County Pollution Control. Inspections were conducted January 9, 16, 17, 18, 20, 23, and 31; February 1, 8, 13, 14, 16, 21, 24, 25, 26, 27, 28, and 29; and March 2, 5, 8, and 9, 1984. These inspections revealed what appears to be a "blow-out" in the south drain field where effluent bubbles to the surface and flows onto the adjacent streets and propert (Exhibits 9 and 11). Effluent tested from this source had fecal coliform counts as high as 9440/100 ml. During one of these inspections effluent from the treatment plant was being discharged directly onto the road to a drainage ditch adjacent to the plant (Exhibit 8). The coliform count of a sample taken from this ditch was 13500/100 ml. Respondent was issued a second Citation on March 2, 1984, and this hearing was held on the violations alleged in that Citation, to wit: creating a public nuisance and leaching from drain field. Respondent contends that he is dealing with the Sarasota County Engineer to correct the problems and, after failing in his attempt to get the county to provide drainage from his property, he is now in the process of installing drain pipes. Respondent contends that the natural drainage of surface waters from his land to adjacent land was stopped by development on the adjacent land and the heavy rains this winter has saturated his land and inhibited percolation in the drain fields. Accordingly, the effluent from his plant could not be absorbed by the drain field. Respondent also contends that the drain field worked fine for several years before the drainage problem arose and believes it will again work well when the drainage situation is corrected.
