The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant matter, registered as a septic tank contractor with the Department. In July 2002, Respondent entered into a contract with Pro Gold Investments Corp. (Pro Gold), whose president and sole owner is Emerico Kemeny Fuller. The contract provided that Respondent would install a "new septic system" for Pro Gold at 453 Blue Road in Coral Gables, Florida (Blue Road Property) for $4,600.00, a job that should have taken only a "few days" to complete. Pro Gold gave Respondent a "job deposit" of $2,300.00. In July 2003, Pro Gold, by Warranty Deed, conveyed title to the Blue Road Property to Maurits de Blank's company, Mortgage Lending Company LLC (MLC), and it also executed a Bill of Sale, Absolute and Assignments of Contracts, which read as follows: PRO GOLD INVESTMENTS CORP, as Seller, in consideration of Ten Dollars ($10.00) and other valuable consideration paid to it by MORTGAGE LENDING COMPANY, LLC, as Buyer, the receipt of which is acknowledged hereby sells, assigns, grants, transfers, and conveys to Buyer all of Seller's right, title, and interest in the following described goods, contracts and personal property: SEE ATTACHED EXHIBIT "A- PROPERTY" AND EXHIBIT "B- CONTRACTS ASSIGNED" Seller covenants and agrees that it is the lawful owner of goods, contracts, rights or interests transferred hereby; that they are free from all encumbrances, except for outstanding amounts due, if any, to those parties set forth on Exhibit "B," and that it has the right to sell, transfer and assign the goods, properties and rights set forth in the attached Exhibit "A," and the right to transfer and assign the contracts, rights or interests shown on Exhibit "B," and will warrant and defend same against the lawful claims and demands or all persons. The "attached Exhibit 'A- Property'" read, in pertinent part, as follows: (Regarding transfer of 453 Blue Road, Coral Gables, Florida, "the Real Property") (Mortgage currently in favor of Mortgage Lending Company, LLC "the Mortgage") All property rights of any kind whatsoever, whether in property that is real, fixed, personal, mixed or otherwise and whether in property that is tangible or intangible, including, without limitation, all property rights in all property of any kind whatsoever that is owned or hereafter acquired by the Company and that is associated with, appurtenant to or used in the operation of the Real Property or is located on, at or upon the Real Property and is associated with or used in connection with or in operation of any business activity conducted on, at or upon the Real Property, and including, without limitation, the following: * * * All right, title, and interest in those certain contracts and agreements [set] forth in the attached Exhibit "B," which are hereby transferred and assigned to Mortgage Lending Company LLC. Among the "contracts and agreements [set] forth in the attached Exhibit 'B,'" was the aforementioned July 2002, contract wherein Respondent agreed to install a "new septic system" for Pro Gold on the Blue Road Property (Septic System Contract). This contract was still executory. Respondent had not done any work on the site in the year that had passed since the contract had been signed. In the beginning of August 2003, Mr. de Blank met with Respondent and advised him that MLC was the new owner of the Blue Road Property and that MLC had also received an assignment of the Septic System Contract from Pro Gold. In response to this advisement, Respondent stated "he did not do assignments." Following this meeting, Mr. de Blank sent Respondent documentation supporting the assertions he had made regarding MLC's ownership of the Blue Road Property and its having been assigned the Septic System Contract. Mr. de Blank then attempted, unsuccessfully, to make contact with Respondent by telephone. He "left messages," but his telephone calls were not returned. These efforts to telephonically communicate with Respondent having failed, Mr. de Blank "decided that it may make some sense to start a letter writing program." As part of that "program," on September 8, 2003, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables As background, and in chronological order: Pro Gold Investments purchased the above cited property and obtained a construction loan from our firm. One of the conditions was that all construction contracts would be assignable to our firm in the event of default. Pro Gold Investments entered into contract with your firm to install a new septic tank and drainfield at 453 Blue Road. Pro Gold Investments defaults and forfeits title in lieu of foreclosure. The deed was recorded on August 4, 2003, at Bk/Pg: 21484/4283. Not recorded but attached for your reference is an assignment of contracts to include the contract Pro Gold Investments entered into with your firm. See further attachment. The original can be inspected in my office. At this point, I request you proceed with the work as soon as practical and under identical conditions as originally agreed with Pro Gold Investments. Please call me at . . . to confirm a start date. Mr. de Blank did not receive any response to his letter. He finally was able, however, to reach Respondent on the telephone. During this telephone conversation, Mr. de Blank made arrangements to meet Respondent at the Blue Road Property to discuss Respondent's doing the work Respondent had agreed to do in the Septic System Contract. This meeting between Mr. de Blank and Respondent took place on September 11, 2003. During the meeting, Mr. de Blank went over with Respondent "what the job [was] going to be." Although Respondent indicated that he was "going to put in th[e] septic tank" per the Septic System Contract, Mr. de Blank had his doubts that Respondent would be true to his word. Following the meeting, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables We met today to discuss the above referenced job. My understanding is: You will start the job no later than the first week of October and will complete the job no later th[a]n the last week of October. I will obtain a copy of the approved permit. You indicated you will not need a survey.[1] Should you change you[r] mind, you can always refer to a survey I keep on site. You will have your insurance agent mail to my address a certificate of insurance. Though not discussed: I would like a partial release of payments made to date for the job. See further the attachment. Assuming you concur, then please send a signed and notarized copy to Maurits de Blank, Mortgage Lending Company, Post Office Box 430336, Miami, Florida 33143. Note that I prefer for various legal reasons that you use the release form as provided. Once the job has been started, I would like a list of firms supplying materials to the job. Notwithstanding that he had promised Mr. de Blank that he would "start the job no later than the first week of October," by the middle of October Respondent had yet to even "pull a septic tank construction permit from the City of Coral Gables" (that was needed before any on-site work could begin).2 In an attempt to find out from Respondent what was the cause of the delay, Mr. de Blank started a "calling campaign," but Respondent neither answered the telephone when Mr. de Blank called nor returned Mr. de Blank's calls. On October 19, 2003, Mr. de Blank sent the following letter to Respondent (by certified United States Mail, return receipt requested): Re: 453 Blue Road, Coral Gables I need a firm commitment when you will start and finish septic tank at above address. If you cannot perform the work, then I will need a refund of the deposit given to your firm. Please call to discuss. The end of the month was fast approaching, and Respondent had neither contacted Mr. de Blank nor begun the Septic System Contract on-site work. After paying a visit to Coral Gables City Hall and learning that Respondent had still not even "pull[ed] a septic tank construction permit from the City of Coral Gables," Mr. De Blank found another septic tank contractor, Westland Septic Tank Corp., to do the installation work for MLC that Respondent was contractually obligated to perform. MLC paid Westland $4,400.00 to do the work. Westland completed the job some time prior to November 4, 2003. The work passed all of the necessary inspections. Upon learning that MLC had contracted with Westland, Respondent sent Mr. de Blank a letter complaining that Mr. de Blank had not given Respondent an adequate opportunity to meet his obligations under the Septic System Contract. In the letter, Respondent offered to return only $500.00 of the $2,300 down payment he had received from Pro Gold. Mr. de Blank subsequently informed Respondent that this was not satisfactory and that he wanted the "full deposit back." He added that if he did not get it, he would "go to court." Not having received any portion of the "deposit back," Mr. de Blank, acting on behalf of MLC, in mid-November 2003, filed suit against Respondent in Miami-Dade County Court. On May 14, 2004, a Final Judgment was entered in Miami-Dade County Court Case No. 0313813 in favor of MLC and against Respondent "in the amount of $1,675.00 plus court costs in the amount of $121.00." As of the date of the final hearing in this case, Respondent had not made any payments to MLC. In view of the foregoing, it is found that Respondent abandoned for 30 consecutive days, without any apparent good cause, a project in which he was under contractual obligation to complete; and his failure to go forward with the project, combined with his failure to return any of the deposit he had received, caused monetary harm to a party to whom he was contractually obligated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by fining him $500.00 and suspending his registration for 90 days. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of February, 2005.
The Issue Whether, and to what extent, Magnolia Valley Services, Inc., should be allowed to increase its water and sewer service rates.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: I. The Application By application filed on August 14, 1980, APPLICANT sought authority to increase its water and sewer rates, on an interim and permanent basis, in amounts sufficient to produce $60,847 in annual gross water revenues, and $100,768 in sewer revenues. By Order No. 9571 dated September 30, 1980, the COMMISSION authorized an interim sewer revenue increase, under bond, of $8,205, and denied an interim increase in water revenues. The COMMISSION has approved APPLICANT's use of a test year ending December 31, 1979. At hearing, the APPLICANT amended its application by reducing its requested water revenues to $50,287, and increasing requested sewer revenues to $101,522. (Testimony of Gregg, Prehearing Statement; P-4.) II. Depreciation Rate Depreciation is a method of allocating the cost of fixed assets to their estimated useful life. As an above-the-line operating expense, it affects a utility's net operating income; by its impact on accumulated depreciation of plant-in-service and accumulated amortization of contributions-in-aid-of- construction, it also effects calculation of rate base. (Testimony of Walker, Gregg; P-3, R-1.) The COMMISSION has promulgated no rules as guidelines which establish generally, or in particular, the useful life of utility assets or the method by which their depreciation should be calculated. In practice, however, it has allowed utilities to apply a straight-line 2.5 percent depreciation rate and a 40-year useful life to all depreciable assets. Any deviation from this 2.5 percent across-the-board rate must be justified by the utility. (Testimony of Heiker.) Here, the APPLICANT proposes depreciation rates which vary according to the estimated useful life of the plant or equipment involved. In contends that its shorter estimates of useful life of specific assets reflect reality and actual experience more accurately than an across-the-board 40-year life standard. For example, rate meters are routinely replaced on a 20-year basis and lack of reserve capacity and changing voltages have substantially reduced the expected life of electrical motors and equipment. The APPLICANT's estimates of useful life were established by the opinion of a utility consultant and engineer whose qualifications went unchallenged by the COMMISSION; no competent evidence was offered to discredit or rebut his conclusions. The COMMISSION's engineer candidly admitted that depreciation "is really a nebulous thing," (Tr. 64) and declined to assert that the APPLICANT's depreciation schedules were erroneous. (Tr. 69.) The COMMISSION disputed the APPLICANT's depreciation schedules by referring to an unpublished 1973 staff memorandum retained at the agency's offices and not produced at hearing. That memorandum purportedly adopted 1973 depreciation rates developed by the American Water Works Association. Upon motion of APPLICANT, testimony concerning the contents of that memorandum was subsequently stricken. The COMMISSION engineer also testified that he was unfamiliar, even generally, with how the American Water Works Association's depreciation rates were derived. In light of the quality of the evidence presented of record, the APPLICANT's depreciation rates (including estimated useful life) are accepted as persuasive. (Testimony of Heiker, Gregg; P-1, P-3.) III. Attrition Allowance The APPLICANT seeks to include in operating expenses an attrition allowance of $1,992 for water and $8,161 for sewer operations based on alleged attrition it experienced between 1975 and 1979. It defines attrition as increased annual expenses which cannot be recovered at the time they are incurred. The COMMISSION opposes the requested attrition allowance on the grounds that: (1) the attrition study performed by the APPLICANT is unreliable, and (2) that the recent enactment of Section 367.081(4), Florida Statutes (Supp. 1980), which allows the passing through of certain increased expenses to customers, eliminates the need for a special attrition allowance. (Testimony of Gregg, Walker; P-2.) The COMMISSION's position is well taken. First, a major portion of the cost increases experienced by the APPLICANT in the past will be able to be passed through to its customers pursuant to Section 367.081, Florida Statutes (Supp. 1980). 2/ Those costs include increased power costs and ad valorem taxes. The APPLICANT responds that Section 367.081(4), supra, will not enable it to fully recover increasing expenses when they occur because rates may be adjusted, based on increased operating costs, not more than twice a year. Section 367.081(4)(e), supra. However, this new law should be implemented before it is pronounced inadequate to fulfill its purpose. Experience may show that major costs increase sporadically, or at predictable cycles, which facilitate carefully timed rate increases under Section 367.081(4), and that two such increases a year may prove fully adequate. (Testimony of Gregg, Walker; P- 2, R-1.) Secondly, the attrition study (P-2) submitted by the APPLICANT does not reasonably justify, or provide a reliable basis for projecting an attrition rate into the future. The 1975-1979 historical cost increases have not occurred at a constant rate. The 1979 increase in water operation costs was less than one- half of the average increase experienced between 1975 and 1979; in sewer operations, the 1979 cost increases were less than one-third of the four-year average. Moreover, a major factor in increased sewer costs was the 1978 conversion to a spray irrigation, total retention, sewage treatment system. Since this system meets the 1983 federal Clean Water Act standard of no- discharge, it is unlikely that increased operational costs relating to treatment changes will continue to occur. In short, the 1975-1979 historical cost increases of APPLICANT have been sporadic and do not support an assumption that they will continue to occur at the same rate. To include an attrition allowance based on such an assumption would be unwarranted. (Testimony of Gregg, Walker; P-2, R-1.) IV. Allowance of an Undocumented Operating Charge The APPLICANT proposed a $600 sewer expense item which was opposed by the COMMISSION because of lack of documentation. In response, the APPLICANT submitted--immediately prior to hearing--a cancelled check in the amount of $1,000. The discrepancy between the two amounts remains unexplained. Such action falls short of providing adequate documentation, and the proposed $600 sewer expense item must therefore be rejected. See, 25-10.77, FAC. V. Elements of Ratemaking and Applicant's Gross Revenue Requirements The parties agree: (1) that 14.5 percent is a fair and reasonable rate of return on rate base and reflects the actual cost of capital to APPLICANT; that the new rates should be designed in accordance with the base facility design concept, and that the quality of APPLICANT's water and sewer service is satisfactory. The remaining elements of ratemaking--rate base and net operating income--are not in dispute, and are depicted below: 3/ RATE BASE Test Year Ended 12/31/79 Water Sewer Plant in Service Accumulated $269,887 $511,200 Depreciation $(37,384) 4/ $(54,685) Net Plant $232,503 $456,515 Contributions in Aid of Construction (179,251) (360,055) Accumulated Amortization 22,421 Net Contributions in Aid of 4/ 41,231 4/ Construction (156,830) (318,824) Working Capital 3,515 7,082 TOTAL $ 79,188 $144,773 OPERATING STATEMENT Test Year Ended 12/31/79 Water Sewer Operating Revenues $53,300 $72,608 Operating Expenses: Operations 25,552 45,353 Depreciation 3,848 5/ 4,876 5/ Maintenance 2,572 6/ 11,306 6/ Amortization 1,439 Taxes Other Than Income 4,654 7/ 8,338 7/ TOTAL Operating Expenses $36,626 $71,312 Net Operating Income$16,674 $ 1,296 By applying a 14.5 percent rate of return against a rate base Of $79,188 for water and $144,773 for sewer, it is concluded that the APPLICANT should be allowed an opportunity to earn a return, or net operating income of $11,482 for water and $20,992 for sewer. Annual gross revenues of $48,108 (water) and $92,304 (sewer) are required to produce such a return--resulting in a net annual reduction of water revenues of $5,192 and a net increase of $19,696 in sewer revenues. VI. Interruption of Service Treatment Without Advance Notice Although the overall quality of its service has been adequate, infra, the APPLICANT has unnecessarily inconvenienced customers by interrupting water service without advance notice. These interruptions were planned in advance and not made on an emergency basis. The APPLICANT failed to adequately explain or excuse its failure to give timely notice. (Testimony of Pepper.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Magnolia Valley Services, Inc., be authorized to file new rates structured on the base facility charge concept and designed to generate gross annual revenues of $48,108 for water operations and $92,304 for sewer operations, based on the average number of customers served during the test year. It is further RECOMMENDED that the utility be directed to strictly comply in the future with Section 25-10.56, Florida Administrative Code, by giving advance notice of service interruptions which are not emergency in nature. DONE AND ORDERED this 1st day of April, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 April, 1981.
The Issue The issues for determination are whether and the extent to which the properly proposed corridor (the FPL Corridor) for the St. Johns-Pellicer-Pringle 230-kV transmission line (the SJPP Line) complies with the criteria in Section 403.529(4)(a)-(e), Florida Statutes (2005)1, and whether Florida Power & Light's (FPL's) application for corridor certification should be approved in whole, with modifications or conditions, or denied.
Findings Of Fact Based upon all of the evidence the following findings of fact are determined: Parties The TLSA establishes FPL and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs (DCA), St. Johns River Water Management District (SJRWMD), St. Johns County, and the City of Palm Coast. See § 403.527(4), Fla. Stat. The Application Project Description Generally, an electrical transmission line's purpose is to transport large amounts of electricity from a generating facility to one or more substations. At the substation, the electricity can be either increased or reduced in voltage through transformers and other electrical equipment for further safe and practical transportation, or distribution directly to customers. FPL is seeking certification of a corridor between the existing St. Johns substation and the proposed Pringle substation within which it will ultimately construct the SJPP Line on a narrow right-of-way (ROW). Once all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the typical width of the 15 to 60-foot ROW. The service area for the proposed SJPP Line (the Project Service Area) is St. Johns County and Flagler County. The SJPP Line will follow Interstate 95 (I-95) in a north-south direction and will connect to the proposed intermediate Deerwood, Vermont, Anastasia, and Pellicer substations. The Project Service Area includes an area of increasing load and customer base in the area south of St. Johns and north of Pringle substations and to the west of the existing Bunnell- St. Johns 115-kV transmission line. The three objectives of the SJPP Line project are: (1) to address the need, as confirmed by the PSC, to serve FPL's increasing load and customer base in the area south of St. Johns and north of Pringle substations in a reliable manner; (2) to provide additional transmission reinforcement to the existing 115-kV transmission line between the Bunnell and St. Johns substations; and (3) to efficiently and effectively integrate and serve new distribution substations that are needed to serve projected load growth within Flagler and St. Johns Counties. The primary path for the SJPP transmission line bringing electricity into the Project Service Area will be aligned within or adjacent to existing linear features, such as existing road, transmission line and railroad ROWs. The only exception is a distance of less than half a mile in length between the proposed Vermont substation in the St. Augustine Industrial Park and I-95, where the corridor largely follows property lines. The primary path for the SJPP transmission line bringing electricity into the Project Service Area will be aligned within or adjacent to existing linear features, such as existing road, transmission line, and railroad ROWs. The only exception is a distance of less than half a mile in length between the proposed Vermont substation in the St. Augustine Industrial Park and I-95, where the corridor largely follows the property line. Need for the SJPP Line The PSC determined a new 230-kV transmission line between the St. Johns substation and the proposed Pringle substation is needed, taking into account the need for electric system reliability and integrity in northeast Florida and the need to provide abundant, low-cost electrical energy to assure the economic well-being of the citizens of the State, particularly those in northeast Florida. The PSC noted that FPL's planning studies indicate this additional transmission capacity will be needed by December 2008 to alleviate potential overloads and low voltage conditions that could result from a single contingency event. Without the addition of this transmission capability by 2008, the PSC found that up to 8,300 electric customers could experience service interruptions. The PSC recognized that the Siting Board will make the final corridor selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the SJPP Line will be a single- circuit unguyed concrete pole structure, 90 feet above grade in height, with the conductors framed in a vertical configuration. Each of the three conductors is anticipated to be a 1,431 thousand circular mils, aluminum conductor, steel reinforced alumoweld core. There will also be a smaller overhead ground wire to provide shielding and lightning protection for the conductors and provide communications capability. The maximum current rating for the line will be 1,905 amperes. In some locations, electric distribution lines and communication cables may also be attached to the structures beneath the conductors. In some locations, such as along FPL's St. Johns-Tocoi transmission line right-of-way and along Tocoi Road, a double- circuit configuration, with or without distribution underbuild, may be used. The span length between structures will typically vary between 250 and 750 feet, depending on site-specific conditions, ROW widths, and other design considerations. Both pole height and span length may vary to accommodate such things as locating poles to coincide with property boundaries or existing collocated utility facility poles, to avoid or minimize wetland impacts, to cross other utility lines, and to facilitate wide crossings of water bodies and roadways. Where the transmission line turns large angles or crosses other major linear facilities, the structures may be guyed or anchored to support the differential tension. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be about 14 feet, with a 2-to-1 side slope, and a minimum elevation of 6 inches over mean or seasonal high water. Structure pads will have variable sizes, depending on site specific requirements, but will be of sufficient size to provide access to structure locations for the large construction equipment. Access roads and structure pads will not be paved. Culverts will be installed beneath access roads and structure pads with spacing, diameter, and length to maintain preconstruction flows. The design of the SJPP Line complies with good engineering practices. The SJPP Line will be designed in compliance with all applicable design codes, including the National Electrical Safety Code (NESC), the Department's regulations on electric and magnetic fields, the DOT Utility Accommodation Manual, the St. Johns County and City of Palm Coast noise ordinances, and standards of the American Society of Civil Engineers (ASCE), the Institute of Electrical and Electronics Engineers, American Society of Testing Materials, American National Standards Institute, and American Concrete Institute, as well as FPL's own design standards. The Project assures the citizens of Florida that operation safeguards are technically sufficient for their welfare and protection. Transmission Line Construction Surveying the ROW to facilitate acquisition of the necessary property interests is a first step towards construction. After property rights for the ROW have been acquired, the initial phase of construction is to clear the ROW. Since nearly the entire length of the FPL Corridor is collocated with existing roads and utility facilities, the need for acquisition of private property and the need for clearing have been minimized. Clearing will consist mainly of tree trimming and the removal of trees that exceed or are capable of exceeding 14 feet in height. In wetlands, trees capable of exceeding 14 feet in height that could come in conflict with the line will be removed by hand-clearing or use of very low ground pressure equipment. Low-growing herbaceous vegetation will not be cleared from wetlands. After the ROW is cleared, any necessary access roads and structure pads will be constructed. Typically, access roads and pads are only required in wet and low areas. This enables all subsequent construction activity in those wet areas to remain on the newly constructed access road and pad. The next phases of construction involve the physical transmission line construction. Initially, materials are brought to the jobsite. Next, holes are augered at each pole location and the poles are then erected using cranes or other heavy equipment. The hole is then backfilled with suitable fill. Typically, the pole is embedded into the ground approximately 16 to 20 feet. After the poles are set, the poles are framed, that is, the insulators and hardware are installed on the pole. Then through a wire pulling operation the conductors and overhead ground wires are installed. The conductors are then properly sagged and tensioned to provide the proper vertical clearances. Next, the conductors are "lipped in" to the insulator assemblies. The final stage of construction is ROW clean-up. During all stages of construction, FPL will maintain traffic on any adjacent county, state, or federal roadways in compliance with applicable DOT and St. Johns County regulations. Throughout construction, sedimentation management techniques, such as the use of silt screens and hay bales, will be employed as necessary to minimize potential impacts from erosion and sedimentation. While each phase of construction will typically take only 1 to 7 days in an area, the entire SJPP Line construction process will last approximately 13 months. Methodology for Choosing FPL Corridor On project initiation, FPL management instructed its multi-disciplinary corridor selection team to identify, if it could, a corridor for the SJPP Line that connects the St. Johns and Pringle substations and allows connections to the proposed intermediate substations. Corridor Selection and Public Involvement FPL established a multi-disciplinary team to identify and evaluate routing alternatives within the Project Study Area. This multi-disciplinary team was comprised of a transmission line engineer, a land use planner, and an ecologist. FPL's multi-disciplinary team gathered data on siting opportunities and constraints within the study area and identified 45 line segments which could be assembled into approximately 630 alternate routes for the SJPP Line. FPL also engaged in an extensive public participation program to gather input for its route evaluation study. This public participation program included an open house, mass mailings, a community survey, a toll-free telephone number and an e-mail address, a website, and meetings with regulatory agencies, community associations, homeowner groups, and individual homeowners and property owners. The public participation program provided substantive input to the route evaluation study in terms of study area boundary, siting opportunities and constraints in the area, identification of route segments to be evaluated, and weights to be assigned to the route evaluation criteria. FPL's multi-disciplinary team evaluated the 630 routes quantitatively, using 11 weighted factors, and then evaluated in more detail, using both quantitative and qualitative criteria, a few distinct routes identified from among the highest-ranking routes. Through this process, FPL's multi-disciplinary team was able to identify a route of the FPL Corridor that, on balance, is the most appropriate considering environmental, land use, engineering, and cost considerations. Once the preferred alignment was identified, the multi-disciplinary team delineated the boundaries or width of the FPL Corridor to provide flexibility for locating the eventual ROW within that corridor. Agencies' Review of FPL's Application and Resulting Determinations State, regional, and local agencies with regulatory authority over the project reviewed FPL's Application and submitted to the Department a report as to the impact of the proposed SJPP Line on matters within the agency's jurisdiction, as required by Section 403.526(2), Florida Statutes. The Department then compiled these reports and made a recommendation that the SJPP Line be granted approval subject to appropriate conditions. Stipulations Entered Into by Parties All agency parties filed stipulations with FPL in which these parties and FPL agreed to the Conditions of Certification for the SJPP line and the entry into the record of the pre-filed written testimony and exhibits of FPL's witnesses. Detailed Description of the FPL Corridor Almost the entire length of the FPL Corridor is collocated with existing linear features, such as roads and transmission lines. This collocation will minimize impacts of the new SJPP Line. The width of the FPL Corridor varies along the route to provide flexibility within the corridor to minimize or avoid impacts to such areas as existing developments and large wetland areas. From the St. Johns Substation to the Deerwood Substation The SJPP line will exit the existing St. Johns substation at SR 207 near Lightsey Boulevard and utilize the existing 110-foot-wide St. Johns-Tocoi 230-kV ROW. The FPL Corridor will be collocated within this existing ROW north and west until the intersection with I-95. Along the existing ROW and in the vicinity of the St. Johns substation, the land use is residential or vacant. At I-95, the preferred corridor will follow the eastern ROW line of the highway south to the intersection with Tocoi Road. The corridor in this stretch is 500 feet wide. Within the corridor in this stretch, the land use is vacant. There is some residential development outside the corridor to the east. At the I-95/Tocoi Road intersection, the FPL Corridor is expanded in all four quadrants following property lines to allow FPL flexibility in traversing the short distance to Deerwood substation and crossing I-95 to proceed south from Deerwood. The FPL Corridor follows Tocoi Road to enter and exit the proposed Deerwood substation, encompassing 100 feet or less in width on both the north and south sides of the road. The line will be built either on the south or north side of the road. A FPL distribution line currently exists on the south side of Tocoi Road. From the Deerwood Substation to the Vermont Substation The FPL Corridor will leave the Tocoi Road alignment at the I-95 intersection. The FPL Corridor then follows the western ROW edge of I-95 south to the FEC Railroad, where the corridor turns to the southwest for a short distance. In this section, the corridor is 500 feet wide. At the north end of the St. Augustine Industrial Park, the corridor follows property lines to the access road (Deerpark Boulevard) into the industrial park. The corridor is 200 feet wide in this section. From the north end of the access road, the FPL Corridor follows the east edge of the road south to the Vermont substation site, is 100 feet wide in this section, and includes an existing FPL distribution line. From the Vermont Substation to the Anastasia Substation The FPL Corridor exits the Vermont substation heading northeast toward I-95. In this area, the corridor will be of variable width and will include both sides of State Road 207 (SR 207). An existing 115-kV FPL transmission line already occupies the north side of the SR 207, and a distribution line is located on the south side. An existing FPL distribution line traverses north-south in this area and is also included in the corridor. In the area between the Vermont substation and I-95, the corridor is north and east of existing residential subdivisions. The corridor between the Vermont substation and I-95 is widened to allow flexibility in accommodating a number of land use and engineering considerations. These considerations include the crossing of SR 207, the existing transmission line and distribution lines, existing residential development south of SR 207, existing commercial development north of SR 207, and a large borrow pond west of I-95. The corridor will reach I-95 south of SR 207, at which point it will then follow I-95's western boundary southward. The corridor is 500 feet wide in this area where it parallels I-95 south to SR 206. The predominant land use in the area between the Vermont and Anastasia substations is silviculture. From the Anastasia Substation to the Pellicer Substation At the intersection of SR 206 and I-95, the corridor is again widened variably to include the properties on the northwest and southwest quadrants of the interchange to provide flexibility in finalizing the Anastasia substation plans and providing ingress and egress to that substation. The FPL Corridor will exit the Anastasia substation and follow the western boundary of I-95 southward. The corridor is 500 feet wide in this stretch with the exception of the location of a rest area on the west side of I-95, approximately 2.5 miles south of Anastasia substation. The corridor is of variable width around the rest area, but generally 1,000 feet wide to allow flexibility in traversing either the front or rear of the rest area. In this area, the predominant land use is silviculture. Where I-95 intersects the FEC Railroad north of County Road 204 (CR 204), the FPL Corridor turns and follows the railroad southward. The corridor is located along the east side of the railroad and is 500 feet wide. North of CR 204, the corridor is expanded along the road to allow ingress to the Pellicer substation site located south of CR 204 and east of the railroad. Land uses in this area are primarily silviculture. From the Pellicer Substation to the Pringle Substation The FPL Corridor includes the entire Pellicer site, which is already owned by FPL, along the east side of the FEC Railroad south to Pellicer Creek. The corridor in this area crosses lands owned or proposed to be purchased by the SJRWMD for conservation purposes for approximately one mile. From Pellicer Creek south to the Pringle substation, the corridor will follow the east side of the railroad bed and will be variable in width, generally 150 to 300 feet wide. At the Pringle substation site, which is already owned by FPL, the corridor includes the entire substation site. The FPL Corridor for the stretch south of Pellicer Creek falls in a currently undeveloped portion of the Palm Coast Park Development of Regional Impact (DRI) within the City of Palm Coast's jurisdiction. The development order for the Palm Coast Park DRI provides for an easement for the SJPP transmission line within the FPL Corridor. Compliance With Section 403.529(4) Criteria Ensure Electric Power System Reliability and Integrity The PSC found that there are regional transmission system limitations in St. Johns and Flagler Counties. By 2008, the existing 115kV transmission network between the Bunnell substation in Flagler County and the St. Johns substation in St. Johns County will not have sufficient capacity to provide reliable electric service to the existing and proposed substations in the area. The SJPP Line would be built to alleviate potential overloads and low voltage conditions from a single contingency event, which occurs when a single element such as a generator, transmission circuit or transformer is eliminated from the system. If the SJPP Line is not built, service interruptions affecting up to 8,300 customers could occur. In addition, the PSC found that the FPL North Region (extending from Indian River County to Nassau County) has grown by a compound annual average growth rate of 3.7 percent over the past five years. The SJPP Line is also needed to serve the increasing load and customer base in the area. Operation of the SJPP Line would be consistent with the North American Electric Reliability Council and Florida Reliability Coordinating Council transmission system standards. FPL has a responsibility to provide safe and reliable service to its customers. See § 366.03, Fla. Stat. The provision of reliable electric service is important to FPL and its customers. In the past, FPL has demonstrated the ability to plan a reliable electric system consistent with the NESC and ASCE standards. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion The PSC recognized that FPL's planning studies indicate that the SJPP Line is needed by December 2008 to alleviate potential overloads and low voltage conditions from a single contingency event. Location of the SJPP Line on the FPL Corridor would meet the electrical energy needs of the state in a timely fashion. Comply with the Nonprocedural Requirements of Agencies Construction, operation, and maintenance of the SJPP Line in the FPL Corridor will comply with applicable non- procedural requirements of agencies. The Department has concluded that the project as proposed will comply with all applicable Department statutes, rules, policies, and procedures. Be Consistent with Applicable Local Government Comprehensive Plans The Department has concluded that the SJPP Line as proposed would produce a minimal adverse impact on the environment and public health, safety, and welfare without unduly conflicting with local statutes and local comprehensive plans. After certification of this project, FPL will acquire the necessary property interests in a ROW within the certified corridor for placement of the SJPP Line. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(5), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the SJPP Line are not applicable to this project. To the extent the comprehensive plans of the local governments crossed by the SJPP Line include provisions applicable to non-development activities, the proposed transmission line in the FPL Corridor would be consistent with them. The City of Palm Coast Comprehensive Plan is essentially silent on transmission lines as a land use, which is consistent with such lines being excepted from the definition of "development" regulated by the Plan. Policy A.1.8.3 of the St. Johns County Comprehensive Plan provides that "future utility facilities shall be located to promote the efficient provision of services, minimize the cost of construction and maintenance, and minimize the impact on the natural environment." Because of the thoroughness of the corridor selection process and criteria, and the appropriateness of the corridor from a land use perspective, the proposed SJPP Line is consistent with that policy. No variances or exemptions from applicable state or local standards or ordinances are needed for the project. Implementation of Legislative Intent in Section 403.521 The Need for the SJPP Line as a Means of Providing Abundant Low-Cost Electrical Energy The PSC determined that the SJPP Line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. In the need proceeding, the PSC considered two alternatives, including transmission modifications to the existing 115-kV system. The PSC accepted FPL's rejection of the two alternatives "due to economics and concerns with the ability to serve additional future customers west of the I-95/US-1 corridor." The PSC found that the proposed transmission line would "assure the economic well-being of the citizens of the state by serving projected new electric load in the region, and improving the region's electric reliability by minimizing the region's exposure to single contingency events." The PSC has determined that the estimated cost of the Project is reasonable, and that the SJPP Line will assure the economic well-being of the citizens of the state by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events. Impact Upon the Public The SJPP Line is appropriate from a land use perspective because this type of transmission line currently exists in all types of land uses in Florida, including residential, commercial, industrial, agricultural, and vacant land. The SJPP Line takes advantage of the opportunity to be collocated with other transmission lines, roadways, and railroad ROWs for almost the entire distance. By following these existing linear features, the FPL Corridor conforms to existing and future development patterns, and minimizes intrusion into residential areas and conservation lands. As a result, the proposed SJPP Line is in proximity to relatively few residences and only one crossing of lands either purchased or proposed for purchase under federal, state, or local land acquisition programs. Further, by collocating with other public and utility ROWs, the amount of land that will be required for the SJPP line is less than if it were not collocated. The FPL Corridor minimizes impacts to existing homes by following a route where there is very little residential development and where planned residential development is very low density. The SJPP Line as proposed will comply with all applicable non-procedural standards, including the noise ordinances of St. Johns County and the City of Palm Coast, and the standards adopted by the Department limiting the electric and magnetic fields associated with transmission lines. Impact Upon the Environment The SJPP Line Project as proposed will have minimal environmental impact. Construction of the SJPP Line within the FPL Corridor will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The FPL Corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its collocation with existing linear facilities for almost its entire length. The current condition and relative value of function of the habitat in the FPL Corridor is minimal from a wildlife ecology and protected species perspective. Great care was taken in routing the FPL Corridor to avoid or minimize proximity of the corridor to known listed species locations, including routing inputs from wildlife agencies such as the Florida Fish and Wildlife Conservation Commission (FFWCC) and the U.S. Fish and Wildlife Service. Further, due to the presence of existing linear features along much of the route, clearing of additional natural habitats and potential wetland impacts will be minimized. Construction of the SJPP Line within the FPL Corridor will not cause a significant adverse impact to the current condition and relative value of functions of the vegetative communities within the FPL Corridor. First, nearly the entire length of the FPL Corridor allows placement of the transmission line within or adjacent to existing linear features to take advantage of previous disturbances to vegetation. FPL will also minimize impacts to forested wetland vegetation through the use of restrictive clearing practices during both construction and maintenance. In the forested wetland portions of the ROW, FPL will only take out trees and shrubs that have an expected mature height greater than 14 feet and "danger trees," which are trees that could fall into the conductors and cause an outage. In these areas, vegetation will be removed by hand, usually with chain saws, or with low-ground-pressure shear or rotary machines to reduce soil compaction and damage to ground cover. The removal of vegetation in forested wetlands will not affect the vegetative root mat or soil surface conditions. The non- forested wetlands should not require any clearing. There will be some filling in wetlands associated with the placement of pole pads and access roads. However, FPL will minimize impacts on wetlands vegetation through a careful alignment of the ROW and the varying of span distances between poles. FPL will also install an appropriate number and size of culverts to properly maintain existing wetland hydroperiods along areas of fill in wetlands. Also, any unavoidable wetland impacts associated with the project will be mitigated in accordance with the Conditions of Certification. FPL has agreed to avoid the removal of listed plant species on public lands and waters, wherever practicable. When removal is necessary on public lands/waters, FPL will consult with the Department, FFWCC, and the Department of Agriculture and Consumer Services to determine the appropriate steps to minimize, mitigate, or otherwise appropriately address potential project related impacts to listed plant species. FPL's commitment to avoid, minimize and/or mitigate potential impacts to listed plant species within public lands and waters will promote the conservation of endangered and threatened plant species populations and their habitats. The SJPP Line Project will comply with all applicable state, regional, and local non-procedural regulations, including the wetland regulatory standards applicable to such projects. Balance of Need versus Impacts The SJPP Line would effect a reasonable balance between the need for a transmission line as a means for providing abundant low cost energy and the impact upon the public and the environment resulting from the location of the transmission line corridor and the construction and maintenance of the transmission line. Conditions of Certification The design, construction, and operation of the SJPP Line as proposed in the FPL Corridor will comply with the conditions of certification set forth in Department Exhibit 1. The conditions of certification establish a post- certification review process through which the final right-of- way, access road, and structure locations will be reviewed by agencies with regulatory authority over the project for the purpose of monitoring for compliance with the conditions of certification. While the FPL Corridor has few homes in close proximity to it and very limited wetland crossings, FPL has agreed to conditions of certification that further minimize land use and environmental impacts. For example, FPL has agreed that to the extent practicable it will locate its ROW to avoid the taking of homes, to collocate the ROW within or adjacent to existing ROWs, and to vary the length of the span between poles as appropriate to eliminate or reduce wetland impacts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPL's St. Johns-Pellicer-Pringle 230-kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 1. DONE AND ENTERED this 6th day of March, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 6th day of March, 2006.
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 18th day of October, 2005.
The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
Findings Of Fact David F. Ramsey, Respondent, is a registered professional engineer holding registration No. 15307 and a registered land surveyor holding registration No. 2545 and at all times relevant hereto he was so registered. In April 1974 Respondent was President and qualifying professional engineer for Ramsey and Associates, Inc. , the engineering firm retained to prepare plans and specifications for a mobile home park known as Heritage Village. Approved financing for this project was near expiration date and the plans had not been approved by Indian River County officials. Before the plans for the sewage treatment plant and percolation pond associated therewith could he approved, a subsoil percolation test was required. On April 24, 1974, Respondent, in company with Larry Brown, General Manager of Brown Testing Laboratory, a wholly owned subsidiary of Ramsey and Associates, Inc., proceeded to the site of the Heritage Village project. There five test holes were dug to obtain subsoil conditions and prepare Subdivision Analysis Form (Exhibit l) for submission to Indian River County so the plans could be approved. No hole was dug deeper than 3.2 feet. Brown testified only a posthole digger was available for digging while Respondent recalled a hand auger also being available. Since Brown did the digging, his memory may be the better. During the procedure, Respondent took notes as the holes were excavated. Hardpan was found 2-1/2 to 3 feet below the surface, but the thickness of this hardpan was not ascertained. No water was put in the holes to ascertain the percolation rate for the subsoil. After the testing was completed, Respondent and Brown retired to the Holiday Inn for lunch where Respondent prepared page 4 of Exhibit 1, which is titled "Survey of Subsoil Conditions". Thereon for the 5 holes reported he included the percolation time for water in the test holes to drop one inch. These figures were estimated by Respondent based upon the type of soil observed in the holes. These figures were certified by Respondent to be representative of existing subsoil conditions at the time the test was made. It is this certification, which was submitted to Indian River County to get the plans approved, which forms the basis for the charge here under consideration. While Respondent was under investigation, and after being fully advised of his rights, he told an investigator that he had estimated the percolation rates because no water was available in the vicinity and submission of the subsoil report was urgent due to the financing deadline. In his defense, Respondent did not deny the percolation figures submitted on Exhibit 1 were estimates rather than the measurements they purported to be, but contended that the percolation rates and subsoil conditions shown on Exhibit 1 accurately represent conditions as they existed. Evidence to support this position was included in the tests conducted and reported in Exhibit 3. Standard procedure for taking percolation tests is to fill the hole with water and observe the time it takes the water level to drop three inches. It is also standard to dig a 6-foot deep hole. Here it was testified that hardpan prevented the hole depth from exceeding 3.2 feet. However, when a proper test was made shortly before the hearing, no difficulty was encountered getting to a depth of 6 feet using a hand auger. It is difficult to dig deeper than about 3 feet with a posthole digger.
