The Issue Should Petitioner's application for variance from the standards for onsite sewage treatment and disposal systems be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, through its local health units, is the agency in the State of Florida responsible for permitting or granting variances from permitting standards set forth in Chapter 64E-6, Florida Administrative Code, for Onsite Sewage Treatment and Disposal Systems (OSTDS). Sometime around 1970, Petitioner purchased a mobile home park (Park) in Winter Haven, Florida. The Park presently contains 68 spaces for mobile homes, all of which are occupied. The Park is situated due south of Lake Shipp. There are two canals running approximately east and west through the interior of the Park. Another canal borders the Park on the north side. Included with the purchase of the Park was a Sewage Treatment System (STS) which is permitted and regulated by the Department of Environmental Protection and is presently operating at its maximum capacity serving the 68 mobile homes located in the Park. Sometime around 1980, Petitioner purchased a parcel of land (Property) immediately north of, and across a canal (this is the canal that borders the north side of the Park) from, the Park. The Property borders a basin to Lake Shipp. The Property is zoned for mobile home usage and such is the purpose for which Petitioner purchased the Property. Petitioner has designed the Property such that it will accommodate three mobile home lots (Lots numbered 69, 70, and 71) which Petitioner intends to operate as part of the Park. Initially, Petitioner requested approval of the Department of Environmental Protection to connect the new lots to the existing STS. However, since the existing STS was already at capacity, the Department of Environmental Protection denied Petitioner's request to connect the additional three lots to that system. However, the Department of Environmental protection advised Petitioner that it would have no objection to the installation of septic tanks approved by the Department of Health to serve the additional lots. Subsequently, Petitioner proceeded to obtain the necessary approvals from the local governing authorities and a permit from the Department for the installation of septic tanks on the Property. Petitioner was successful in obtaining the necessary approvals from the local governing authorities but was not successful in obtaining a permit for the installation of septic tanks on the Property from the Department. By letter dated July 16, 1997, the Polk County Health Department denied Petitioner's Application for Onsite Sewage Treatment Disposal System Permit for the following reason: "Domestic sewage flow exceeds 10,000 gallons per day." The denial letter also advised Petitioner that she could request a variance through the Variance Review Board or request an administrative hearing pursuant to Chapter 120, Florida Statutes, on the Department's denial of her application for a permit to install septic tanks on the Property. Petitioner elected to file an application for a variance from Section 381.0065(3)(b), Florida Statutes, with the Variance Review Board. By letter dated August 7, 1997, the Department denied Petitioner's application for variance for the following reasons: The Variance Review and Advisory Committee for the Onsite Sewage Treatment and Disposal Program has recommended disapproval of your application for variance in the case of the above reference property. The granting of variances from established standards is for relieving hardships where it can be clearly shown that the public's health will not be impaired and where pollution of groundwater or surface water will not result, where no reasonable alternative exists, and where the hardship was not intentionally caused by the action of the applicant. The advisory committee's recommendation was based on the failure of the information provided to satisfy the committee that the hardship was not caused intentionally by the action of the applicant, no reasonable alternative exists for the treatment of the sewage, or the discharge from the system will not adversely affect the health of the public. I concur with the advisory committee's recommendation and hereby deny your variance request. Subsequently, Petitioner requested and was granted a formal hearing pursuant to Chapter 120, Florida Statutes, on the denial of Petitioner's application for a variance. The Petitioner intends to locate the OSTDS on the Property. The tank and drain field for the OSTDS will be located approximately 125 feet from the basin. The City of Winter Haven's Sewage System is not available to the Property. The Park's existing STS does not have adequate capacity to accept the sewage that will be generated by the Property. There is no publicly-owned or investor-owned sewage system capable of being connected to the plumbing of the Property. Petitioner testified that the estimated cost of increasing the capacity of the Park's Sewage System to accommodate service to the three additional lots was $30,000.00 - $40,000.00. However, Petitioner presented no evidence as to how the estimate was determined. The projected daily domestic sewage flow from the Property is less than 1,500 gallons per acre per day. The Property contains 1.78 acres and there will be less than four lots per acre. In a letter dated October 17, 1997, from W. R. Cover, a professional engineer with Cover Engineering, Inc., Mr. Cover expresses the following opinion: The location of these proposed mobile homes is such that a septic system will not cause adverse effects or impacts on the environment or public health. The unit will be located so as not to significantly degrade groundwater or surface waters. There is no reasonable alternative for the treatment of the sewage in view of the fact that it would be an additional financial burden to attempt to connect these units to the existing sewage treatment plant Mr. Cover did not testify at the hearing. However, the letter was received as evidence without objection from the Department. Petitioner has failed to present sufficient evidence to show that: (a) no reasonable alternative exists for the treatment of the sewage, and (b) the discharge from the Onsite Sewage Treatment and Disposal System will not adversely affect the health of the applicant or the public or significantly degrade groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order denying Petitioner's application for variance from the requirements of Section 381.0065, Florida Statutes and Chapter 64E-6, Florida Administrative Code. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Robert J. Antonello, Esquire Antonello, Fegers and Cea Post Office Box 7692 Winter Haven, Florida 33883-7692 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-0293
The Issue Whether the objections of the City of Pembroke Pines and the Green Meadows Civic Association to South Broward Utility, Inc.'s, proposal to extend its water and sewer service area should be sustained.
Findings Of Fact South Broward Utility, Inc. (South Broward), is a corporation engaged in the business of providing water and wastewater service to the public in Broward County, Florida. That business is subject to regulation by the Florida Public Service Commission (PSC). South Broward's water and wastewater treatment facilities are located in the Town of Davie, and it currently provides water and sewer services to residents of that municipality. Included within the area of the Town of Davie currently served by South Broward are the lands bordered on the north by Sterling Road, the south by Sheridan Street, and the west by Dykes Road (S.W. 160th Avenue). On February 4, 11, and 18, 1989, South Broward published a notice of extension in the Florida Lauderdale News/Sun-Sentinel, a daily newspaper of general circulation published in Broward County, Florida, in accordance with Rule 25-30.030(2), Florida Administrative Code. The notice provided that South Broward would file an application with the PSC pursuant to Section 367.061, Florida Statutes, to amend its certificates of public convenience and necessity to allow South Broward to provide water and sewer service to the east half of Section 5, Township 51 South, Range 40 East, Broward County, Florida. Such area may commonly be described as those lands lying immediately west of Dykes Road to S.W. 166th Avenue, and from Stirling Road on the north to Sheridan Street on the south. On February 24, 1989, South Broward mailed a copy of the aforementioned notice to all local, county and state governmental agencies and all other persons required by Section 367.041(4), Florida Statutes, and Rule 25-30.030(2), Florida Administrative Code. Objections to the notice were filed with the PSC by the City of Pembroke Pines (Pembroke Pines) and the Green Meadows Civic Association (Green Meadows). In its objection, Pembroke Pines contended that it had invested over 30 million dollars to expand its municipal water and sewer service west to the Conversation Area from Sheridan Street on the north to Pembroke Road on the south, that this expansion project was anticipated to provide water and sewer service for its existing municipal boundaries as well as the area proposed to be served by South Broward, that it was preparing an annexation report for the proposed area, and that if South Broward's application were approved it would be precluded from servicing its own residents should annexation occur. At hearing, the proof demonstrated that Pembroke Pines had expanded its municipal water and sewer service such that its water and wastewater treatment plants and related facilities have adequate present capacity to meet the current and anticipated future water and wastewater needs in the disputed service area. The Pembroke Pines water lines are currently located on the south side of Sheridan Street, which street forms the southerly boundary of the disputed service area. Its wastewater treatment lines are, however, located approximately one and one-half miles south of Sheridan Street and would require several months and considerable expense to extend them to the disputed service area. Notably, however, no proof was offered that Pembroke Pines had any current intention to annex the disputed service area, or that it had otherwise evidenced any intent to, or taken any action to, provide service to the area. Green Meadows is an association of residents of this area of unincorporated Broward County, some of whom reside within the service area in dispute. The gravamen of Green Meadows' objection is its concern that sewer lines for a centralized sewer system would leak into its member's ground water supply, and that the increase in population density caused by a centralized water and sewer system would adversely affect the area's ecosystem. Neither Green Meadows nor Pembroke Pines contended, however, that the subject extension of service would violate any land use plan, zoning ordinance or other state or local law, and no credible proof was offered that, if built consistent with existent law, the sewer lines would adversely impact the ground water supply or ecosystem. Until recently, all of the lands lying in the disputed service area were located in unincorporated Broward County. However, in September 1988 a parcel of approximately 15 acres which abutted Dykes Road was annexed into the Town of Davie, and in May 1989 a parcel of approximately 80 acres, which abutted the previously annexed parcel on the east, Sterling Road on the north, and S.W. 166th Avenue on the west, was annexed into the Town of Davie. These lands comprise approximately 30 percent of the lands within the disputed service area, and it is the desire of the Town of Davie that water and sewer service to such lands be provided by South Broward. To date, South Broward has entered into a developer's agreement with the owner of the 80-acre parcel to provide such services, and is in the process of executing such an agreement with the owner of the 15-acre parcel. Pembroke Pines does not object to South Broward's expansion into these areas. As to the remaining acreage within the proposed service area, the owners of the vast majority of those lands have expressed a preference for South Broward to provide water and sewer service to their properties, and South Broward has expressed its desire and ability to provide such services. South Broward's water plant has an existing capacity of 500,000 gallons per day (GPD), and has sufficient capacity to address the current need for water service in the proposed area. Upon completion of its current expansion, which is anticipated in October 1989, South Broward's water plant will have a capacity of 1,250,000 GPD, and adequate capacity to address any future demand for water service in the proposed area. South Broward's wastewater treatment plant, with a capacity of 500,000 GPD, currently has sufficient capacity to satisfy the present and future demand for such services in the proposed area. An expansion of that plant is expected to be in service by 1991, which will double the plant's capacity and provide additional capacity. Currently, South Broward has water and sewer lines adequate to serve the proposed area in place, and located under Dykes Road at the eastern edge of the service area. Such lines are adequate to meet all present and anticipated future needs for such service in the area, and the water lines are adequate to provide fire protection to the area. South Broward has the present financial, managerial, operational, and technical ability to provide the present and anticipated needs for water and wastewater service in the proposed area, and the public interest will be best served by the extension of South Broward's water and wastewater systems to that area. Such expansion will not be in competition with or a duplication of any other system in the area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the objections filed by Pembroke Pines and Green Meadows be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1988. APPENDIX The proposed findings of fact filed by South Broward are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 3. Addressed in paragraph 4. Addressed in paragraph 5. 5-10. Addressed in paragraph 9. 11-14. Addressed in paragraphs 10-13. 15 & 16. Addressed in paragraphs 6 and 7. Addressed in paragraph 13. To the extent pertinent, addressed in paragraph 8. Addressed in paragraph 8. 20 & 21. Addressed in paragraph 13. The proposed findings of fact filed by the PSC are addressed as follows: 1 & 2. Addressed in paragraph 3. Addressed in paragraph 9. Addressed in paragraph 3, and paragraphs 2 and 3 of the conclusions of law. Addressed in paragraph 8. 6-12. Addressed in paragraphs 9-13. Addressed in paragraph 7. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 12. COPIES FURNISHED: Mitchell S. Kraft, Esquire Josias & Goren, P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 32308 Deborah Simone, President Green Meadows Civic Association 5831 S.W. 162nd Avenue Fort Lauderdale, Florida 33331 James L. Ade, Esquire Martin, Ade, Birchfiled & Mickler, P.A. 3000 Independent Square Post Office Box 59 Jacksonville, Florida 32201 Randy Frier, Esquire Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 Mr. Steve Tribble, Director Records and Reporting Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 David Swafford, Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870 Susan Clark General Counsel Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870
The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
The Issue Whether Betmar Utilities, Inc.'s application for an expansion of territory under its water and wastewater certificates in Pasco County should be approved by the Public Service Commission.
Findings Of Fact Betmar Utilities, Inc. is a private utility company who owns and holds Florida Public Service Commission Certificates Number 137W and No. 98S. These certificates grant Betmar the right to operate a water and wastewater system in a specified territory within an unincorporated area of Pasco County. Betmar seeks an extension of its certified territory into the areas immediately to the north and south in an unincorporated area of the county. There is, or will be in the near future, a need for water and wastewater services in the proposed amended territory. An Application for Amendment of Territory was filed with the Commission to allow Betmar to service the area on November 13, 1989. When Betmar noticed the City of its pending application, an objection was filed to the proposed expansion. The objection specifically relates to the property on the south side of Geiger Road, which extends 330 feet south of the roadway, and adjoins the City's boundaries. Although the City does not currently provide services to this locale, it does own water and sewer lines on the northern side of Geiger Road in the Silver Oaks area. Other water and sewer lines in the City's system extend below the south side of Geiger Road at the far eastern portion of the area for which Betmar is seeking the extension of territory. In an interlocal agreement between the City and the County dated February 9, 1988, these governmental entities established designated service areas for water and wastewater services in this particular area of the county. The purpose of the agreement was to promote the economic delivery of services to citizens in the area, and to provide for the necessary long-range planning inherent in the provision of these services. Prior to the agreement, the County was authorized to provide the services to the areas for which an extension is sought by Betmar. The service area boundaries delineated in the agreement were to be periodically reviewed in conjunction with the review of each party's respective comprehensive plans. Pursuant to this agreement, the City and County determined that the City's Service Area Boundry would include the area south of Geiger Road that abuts Betmar's current service area. The City and the County each relied upon this interlocal agreement in the creation of their respective comprehensive plans. However, no additional action has been taken by the City to service the area. The City is not actually operating within the disputed area for a number of reasons. First of all, the City has adopted an ordinance which requires annexation of contiguous property as a condition of receiving its water and sewer services. The disputed portion of the proposed amended territory is not within the city limits and has not been annexed. Secondly, the City is not prepared to build utility lines to service the disputed proposed amended territory until the new bypass road along Geiger Road is built, and the proper right-of-way is obtained. At that time, the City would like to extend the Silver Oaks line under Geiger Road to the south, and the line along the eastern side of the disputed portion of territory to the west. These anticipated expansions correlate with the City's Service Area Boundry in the interlocal agreement which remains unchanged between the City and the County. A proposed service date was not provided by the City at the formal hearing. The City seeks to control land use and development of property along the Geiger Road corridor though its ability to provide or withhold utility services. Betmar also has water and sewer lines abutting or located on all properties described in its application for extension, including the area in controversy. These lines are currently active due to Betmar's water and sewer system which is in the center of the area targeted for expansion. Both Betmar and the City have the technical and financial ability to provide water and wastewater services in the proposed amended territory. Betmar has a tariff approved by the Commission which allows it to charge 110% of the cost of the extension of service from its existing lines to any property seeking service. Owners of property abutting Geiger Road have contacted Betmar about the possibility of providing service. A formal request for service has been made by Jake Developers for service in that area. Betmar's sewage collection facilities abutting the Geiger Road property are gravity lines. The City's sewage collection facilities in close proximity to the area are force mains. Betmar does not charge impact fees for connection into its system. The City charges a water impact fee of $350.00 and a sewer impact fee of $1,278.00 for connection into its system. Betmar anticipates a reduction in water and sewer rates if the extension is approved. Betmar presented no evidence about plans for further financial investment which would enable the utility to provide service in the area for which the extension has been requested because Betmar believes further investment is unnecessary. Betmar has an agreement with the County that states the County will provide bulk wastewater treatment to Betmar for the purpose of offering centralized wastewater services from the County's Southeast Subregional Wastewater Treatment Plant for a twenty-five year term. The County has placed a possible qualification on the term of years in the agreement by inserting the following clause: ... its first responsibility is to the customers inside its own service limits and that it reserves the right to act in the best interest of those customers in all circumstances. The agreement between the County and Betmar has not been approved by the Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Commission should deny Betmar's application for an amendment to its certified territory in Pasco County as the applicant has failed to provide that it will be allowed the continued use of the County's Southeast Subregional Wastewater Treatment Plant for the twenty-five year term set forth in the agreement presented at hearing. DONE and ENTERED this 16th day of July, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 16th day of July 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #1. 3. Accepted. See HO #3. 4. Accepted. See HO #11. 5. Accepted. See HO #4. 6. Accepted. See HO #9. 7. Accepted. See HO #11. 8. Accepted. See HO #13. 9. Accepted. See HO #14. 10. Accepted. See HO #9. 11. Accepted. See HO #9. 12. Accepted. See HO #11. 13. Accepted. Rejected. Improper legal conclusion. Accepted. See HO #5. Accepted. See HO #8. Accepted. See HO #14. Accepted. See HO #14. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #15. Accepted. See HO #15. Accepted. See HO #16. Rejected. Improper legal conclusion. See HO #17. Accepted. See Preliminary Statement. Respondent's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted that an interlocal agreement between City and county existed. See HO #5. The rest of the paragraph is rejected as legal argument. Intervenor's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #12. 3. Accepted. See HO #12. 4. Accepted. See HO #3. 5. Accepted. See HO #11. 6. Accepted. See HO #4. 7. Accepted. See HO #12. 8. Accepted. See HO #9. 9. Accepted. See HO #9. 10. Accepted. See HO #9. 11. Accepted. See HO #5. COPIES FURNISHED: Scott L. Knox, Esquire 28870 U.S. Highway 19 North Suite 230 Clearwater, Florida 34621 Thomas P. McAlvanah, Esquire 37818 Highway 54 West Zephyrhills, Florida 34248 Robert J. Pierson, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0863 David Swafford, Executive Director Florida Public Service Commission 106 Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0850 Steve Tribble, Director Records and Recording Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399 Susan Clark, General Counsel Florida Public Service Commission 212 Fletcher Building 101 East Gaines Street Tallahassee, Florida
Findings Of Fact Fallschase is a special taxing district which was created by the Board of County Commissioners of Leon County, Florida, in Leon County Ordinance No. 75-6. The district contains approximately 620 acres and is located in the area of the intersection of U.S. Highway 90 and Buck Lake Road in Leon County, Florida. The Intervenors are corporations which are seeking to develop the Fallschase area into a residential community. Through its permit application, Fallschase is seeking authority to construct a 167,000 gallon per day sewage treatment plant which would serve the proposed development. The plant would be of the extended aeration type with tertiary filters. Effluent from the plant would be discharged into a Percolation pond system. The City of Tallahassee operates a sanitary sewer system which serves areas within the city limits, as well as many unincorporated areas of Leon County. Service is provided to the unincorporated areas of the county in accordance with a contract between the City and Leon County which was executed in 1973. No election has been conducted within Leon County to authorize the contract. The County has terminated the contract, but the termination will not be effective until November 12, 1980. The City's sanitary sewer system is a regional system in that it serves a broad area not limited by the political boundaries of the City. The City's system has operated under temporary permits issued by the Department for a number of years because it does not meet the Department's requirements for tertiary sewage treatment. The City's regional sewage treatment system is capable of providing service to Fallschase. A 10-inch sewage pipe known as the "Belle Meade" Line runs adjacent to Fallschase. If a pumping station were constructed, sewage from Fallschase could be pumped into the Belle Meade Line and eventually into the City's primary sewage lines for treatment at one of the City's treatment facilities. In accordance with its statutory responsibilities, the Department has adopted Rule 17-4.26, Florida Administrative Code, which relates to permit requirements for sewage works. As filed with the office of the Secretary of State, the rule provided as follows: No person shall operate, maintain, construct, alter, modify, or expand any sewage collection system, sewage disposal system or sewage treatment facilities without a current and valid permit from the Department, pursuant to the Provision of Chapter 17-6, Florida Administrative Code. The Department shall deny an appli- cation for a permit and refuse to issue a permit unless the sewage collection, treatment and disposal system will pro- vide adequate and effective treatment in accordance with the rules and regu- lations of the Department and unless the system will operate as part of a regional system if one exists or be capable of tying into a regional system should one be established. Applications for a permit under this section shall be in accordance with Part I, Chapter 17-4, Florida Administrative Code. (e.s.) As filed with the Secretary of State, the rule included a clear policy choice in favor of regionalization of sewage treatment systems. In accordance with its responsibilities, the office of the Secretary of State published the rule in the Florida Administrative Code. When the rule was published in the Code, the portion of the rule which is underlined in the above quote was omitted. The rule as published in the Code thus did not include a clear statement requiring regionalization, and does not make sense. This erroneous version of the rule has been published in the Florida Administrative Code for more than five years, and the error has been compounded in that the Department has utilized the Florida Administrative Code version of the rule in its official handouts. A citizen requesting a current copy of Rule 17-4.26 from the Department, or from the Secretary of State's office, would receive the erroneous rule. The error has been further compounded because the Department subsequently adopted a policy of evaluating applications for sewage treatment proposals without regard to whether hookups to a regional system were possible. This policy has been applied by the Department for at least three years in accordance with verbal and written instructions of the Department's then Secretary, Jay Landers. Additional language was later added to Rule 17-4.26 as follows: Except for regional treatment plants, as designated by approved metropolitan or basin plans, all permits for treat- ment plants shall be valid only until connection, according to an approved plan, can be made to regional facilities. Such connection shall be made within ninety (90) days of the scheduled date for connection as provided in the approved plan. This provision has no applicability to the City's treatment system because the City's system has never been approved as the metropolitan or basin clan by the Department. The City has contended that the sewage treatment plant proposed by Fallschase would result in violations of the Department's standards for nitrates in the groundwater in the area of the plant. Nitrates would be a constituent of the effluent which would be discharged from the proposed sewage treatment plant into percolation ponds. The engineer who has designed the proposed plant estimated that total nitrogen discharged into the percolation ponds would be approximately 20 milligrams per liter, or parts per million (p.p.m.). In extended aeration plants such as that proposed by Fallschase, a substantial portion of the nitrogen would be in the form of nitrates. The 20 p.p.m. estimate is high. The experience generally in north Florida has been that nitrogen concentrations would not exceed 10 p.p.m. in the effluent discharged into percolation ponds. Once the effluent is discharged into the ponds, a certain amount of nitrogen is removed during the settling process. As the effluent percolates through the subsoils into the groundwater, further nitrogen is removed. Estimates of nitrogen removal through these processes range from a low of 25 percent to a high of 75 percent. The groundwater below the proposed plant is classified as Class 1-B groundwater under the Department's rules. It is very unlikely that effluent reaching the groundwater would contain as much as 10 p.p.m. nitrates. Even if it did, mixing with the groundwater would cause an almost immediate dilution of nitrogen concentrations so that concentrations in the groundwater as high as 10 p.p.m. would be unlikely in the extreme. Many sewage treatment plants operate within the Department's northwestern region, which extends from Pensacola to Tallahassee. The Department monitors these plants. A violation of the Department's nitrate standards has never been observed in the region. Indeed, in the entire State of Florida, nitrate violations have been detected only in certain areas of Dade County. Testimony was presented by the City to the effect that chemical processes in percolation ponds can cause very drastic nitrate concentrations when the funds are intermittently flooded and drained. Such concentrations have been observed at one of the City's treatment plants. The City`s plant, however, is of a different sort than that proposed by Fallschase. The City's plant produces concentrations of nitrogen in ammonia compounds and utilizes intermittent drying and flooding of the percolation ponds as a part of its operation. Ammonia compounds will not be a major constituent of effluent placed in the Fallschase percolation ponds; and, furthermore, the ponds will not be intermittently flooded and drained in the manner that would cause such concentrations to develop. In its Notice of Intent to Issue the proposed permit, the Department indicated that sludge produced through the proposed treatment facility should be disposed of by hauling to a plant operated by the City. The City has indicated that it will not make its plant available for such disposal, and cotends that accordingly Fallschase has given no reasonable assurances that the sludge will be disposed of properly. The contention is without merit. Many alternatives exist for disposal of sludge. Fallschase has adequate area available to it for construction of sludge drying pits. Sludge can be hauled to many potential locations. Specific issues respecting sludge disposal can be addressed in the operating permit which would not be issued by the Department until it is established that the proposed plant can operate within the Department's rules and regulations. The soils which lie below the proposed percolation ponds are not of a highly permeable sort. To aid in the percolation of effluent through the ground into the groundwater, Fallschase proposes to construct two-foot diameter holes in the bottom of the percolation ponds. The holes would extend from 18 to 25 feet below the bottom of the percolation ponds. The holes would be filled with sand, and alternatingly coarse layers of gravel. The City has contended that these holes would constitute wells, and that they therefore would need to be permitted by the Department. This contention is without merit. These structures could fit loosely within the definition of a well, but their function is merely to aid in the percolation of effluent through the subsoils. They are not designed to inject effluent directly into the groundwater. These structures would constitute wells to the same extent that any drain field would constitute a well.
Findings Of Fact By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2). After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor). The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor). The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront). Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor). In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick). There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil. The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3). Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling) The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront) The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor). There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6). The parties stipulated prior to the hearing to the following: The project complies with local zoning laws; and The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses. DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301. SHARYN SMITH Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 George G. Collins, Jr., Esquire Post Office Box 3686 Vero Beach, Florida 32960 Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue for consideration in this case concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit authorizing the installation of an OSDS on property which they own near the Suwannee River in Dixie County, Florida, in accordance with the permitting requirements of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners are the owners of certain real property located in Dixie County, Florida, in the proximity of the Suwannee River. The property is described as Lot 38, Highpoint Suwannee Riverfront Estates. The lot in question is 82 feet by 141 feet in size and was purchased in April, 1988 for approximately $5000.00. The lot, and the subdivision it is in, was platted in 1983. On February 21, 1990, the Petitioners made application for an on-site sewage disposal system ("OSDS") permit, seeking to install such a system on this lot in order to be able to construct a vacation cottage on the lot The proposed cottage would contain one bedroom and would have a heated and cooled area of approximately 500 square feet. Upon reviewing the application, the, Respondent informed the Petitioners that they would need to have a surveyor establish the elevation of their lot, and particularly the site of the proposed OSDS installation, as well as to establish, through contact with the Suwannee River Water Management District, the ten-year flood elevation for the property. Accordingly, the Petitioners obtained a survey by `Mr. Herbert Raker, a registered land surveyor of Cross City, Florida. That survey shows a benchmark elevation of 13.09 feet above mean sea level ("MSL") That benchmark elevation is six inches above the actual grade surface of the lot so that the elevation at the proposed OSDS installation site is 12.59 feet above MSL. The ten-year flood elevation for the property is 15 feet above MSL, as established by data from the Suwannee River Water Management District contained in a report which is in evidence as Respondent's Exhibit 1. That flood elevation data was submitted to the Respondent by the Petitioners with the application for the OSDS permit. The property in question is located within the ten- year flood plain of the Suwannee River, and it is also located within the regulatory floodway of the River. On April 24, 1990, after advising the Petitioners of the denial of the OSDS permit application, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding rather than file an informal variance application before the Respondent's own Variance Board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D- 6.47(6), Florida Administrative Code, because the subject property was located within the ten-year flood plain of the Suwannee River and because of the Respondent's interpretation of the affect of the Governor's Executive Order 90- 14, which adopted by reference the Suwannee River Task Force recommendation that all such systems be prohibited within the ten-year flood plain. The Respondent thus declined to exercise its discretion, accorded it in the statute and rule cited hereinbelow, to entertain and consider a variance application. Finally, it is established that the lot in question is not subject to frequent flooding; but because the surface grade is beneath the ten-year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten-year flood elevation. In other respects, the property is a amenable to the installation of an effective OSDS because the wet season water table is 48 inches beneath the surface grade and would be more than 24 inches beneath the proposed drain field. The normal water table is approximately 60 inches beneath the surface grade. Appropriate limited soils are present beneath the first six inches of soil below the surface and consist of fine sand, light brown and brown fine sand, down to 60 inches, which is appropriate for effective subterranean treatment and disposal of sewage effluent. The Petitioners established a definite hardship on their part by the fact that they have paid a substantial sum for the lot and are now unable to develop it unless they receive entitlement to an OSDS or some reasonable alternative. In that regard, no sufficient proof of truly effective, reasonable alternatives was established by the Petitioners. However, they did establish that an anaerobic septic tank and drain field disposal system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria which break down and treat sewage at a faster, more effective rate than does the normal anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal subterranean and anaerobic septic tank and drain field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially, an external electric motor and pump to force air into the system. This is disadvantageous in that, if the equipment suffers a breakdown, then treatment and appropriate disposal of the effluent stops. The untreated sewage can then rise to the surface of the property or otherwise pollute ground or surface waters and potentially cause a public health hazard. Thus, such systems would require inspection periodically to insure that they are in adequate working order because if the mechanical system malfunctions, the system will continue to put effluent through its drain field without adequate treatment. In this circumstance, the occupants of the dwelling served by the system might not notice for long periods of time that it is inoperative because the system will continue to dispose of effluent, but just of an untreated nature. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that such an aerobic system works properly at all times was not established in this record, however. Consequently, the Petitioners failed to establish that reasonable alternatives to the proposed conventional system exist and what they might consist of.
Recommendation Having considered the foregoing findings of Fact, Conclusions of Law, the evidence of record, the carndor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioners' application for an OSDS permit. DONE AND ENTERED this 21st day of December, 1990, in Tallahassee, Leon County, Florida P. MICHAEL RUFF 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 December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3112 The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-9. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Betsy K. Lanier, pro se P.O. Box 238 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
The Issue Whether, and to what extent, petitioner should be authorized to increase the water and sewer rates it charges its customers.
Findings Of Fact I. The Utility and its Application The Utility, a wholly owned subsidiary of Gulfstream Land and Development Corporation, owns and operates water and sewer systems serving residents of "Jacaranda Community," a development located within the city limits of Plantation, Florida. The Utility's water treatment plant uses a lime- softening process; its sewage treatment plant uses a contact stabilization mode. During the test year ending September 30, 1980, the Utility supplied water service to an average of 3,162 residential, 662 general service, and 14 private fire-line customers; during the same period it supplied sewer service to an average of 3,162 residential and 276 general service customers. By its February 5, 1981, application, the Utility alleged that it was authorized a rate of return of 9.87 percent, yet during the test year it earned only a 7.20 percent rate of return on its water rate base, and a 6.58 percent return on its sewer rate base. It proposed new rates which would generate $1,271,841 in water operating revenues and $1,381,401 in sewer operating revenues--constituting a rate of return of not less than 12.42 percent. (Testimony of Fabelo; Petitioner's application dated January 30, 1981, R-4.) II. The Elements of Rate-Making In setting utility rates, the Commission must determine: (1) rate base; 2/ (2) the cost of providing the service, including debt interest, working capital, maintenance, depreciation, tax, and operating expenses; (3) a fair return on the rate base; and (4) the quality of service provided. If the Utility is providing service of acceptable quality, it is entitled to rates which will produce revenues sufficient to cover its reasonable costs of operation and allow it an opportunity to earn a fair return on its rate base. There are three major issues in this case: two involve the determination of rate base and the other involves whether several Utility expenditures should be expensed or capitalized. These issues are addressed below with the the appropriate rate-making element. Rate Base The two issues involving rate base are: (1) what portion of the Utility's sewer treatment plant is used and useful in the public service; and what method should be used to calculate working capital allowance. Used and Useful Plant A public utility is entitled to a return only on Utility property which is "used and useful in the public service." 3/ At hearing, the Utility contended that 100 percent of its sewage treatment plant was used and useful; the Commission contended that the correct figure was 76 percent. 4/ The Utility's contention is accepted as more credible because it is based on a professional engineering analysis of actual wastewater flows through the sewage treatment plant during the test year and eight months thereafter. In contrast, the Commission's contention is based on application of a formula which relates total rated capacity of a plant to the number of Equivalent Residential Connections 5/ ("ERCs") it is capable of serving. Here, actual must prevail over theoretical fact. The Utility's sewage treatment plant has a rated capacity of 2.5 million gallons per day ("MGD"). During the test year, average daily flows, calculated monthly, fluctuated between 63.6 percent and 75.2 percent of the rated capacity; the average three-day peak flow, calculated monthly, ranged from 73.2 percent to 86.4 percent of capacity; and one-day peak flows ranged from 74.4 percent to 87.2 percent of capacity. During the eight months following the test year, sewage flow steadily increased. The greatest flow was during February, a relatively dry month; average daily flow was 2.20 MGD, 88 percent of rated capacity; the average three-day peak flow was 98.8 percent of capacity; and the peak flow day was 100.4 percent of capacity. If, on that peak flow day, the plant had only 76 percent of its present capacity, sewage would have overflowed the plant. The parties agree 6/ that a margin of reserve or allowance for growth of approximately 24 percent should be used in calculating the Utility's used and useful plant; they also agree that the Utility's future growth in ERCs is expected to range from 700 to 800 ERCs a year. The Commission argues that the 24 percent growth allowance should be added to average ERCs during the test year, and not to actual February, 1981, flows. This argument is unpersuasive. The test year period is a tool for predicting conditions which will exist during the period in which the new rates will be effective; rates are set prospectively, for the future--not the past. Thus, rates must take into account known changes and conditions occurring subsequent to the test year in order to accurately reflect conditions expected for the future. Here, the Utility's actual sewage flows indicate that 100 percent of its existing plant is used and useful and necessary to satisfy the immediate and anticipated future needs of its customers. In an attempt to rebut or overcome the effect of the sewage plant's actual flow conditions, the Commission contends that the sewage system is experiencing ground water infiltration of sufficient magnitude to cast doubt on the use of total flow figures. However, the infiltration does not exceed the amount which is ordinarily planned for in constructing sewage treatment plants. Infiltration which will continue to take place--despite the Utility's best efforts to ameliorate it--cannot be separated from the wastewater stream. Since the plant must be capable of handling the combined flow, including infiltration, total flow figures must be considered. The Commission also contends that the system is not 100 percent used and useful because it can serve more connections. This contention is inconsistent with the acknowledged requirement that a sewage treatment plant must be capable of accepting increased sewage flows reasonably anticipated in the near future. That is the purpose of including an allowance for growth in the used and useful calculation. Lastly, the Commission contends that the Utility's failure to consult with Department of Environmental Regulation officials about future plant expansion is inconsistent with its 100 percent used and useful claim. But the Utility, recognizing its present limits and future needs, has actively pursued an interlocal agreement which will allow it to pump approximately 700,000 GPD to Broward County's regional sewage facility. The agreement is in its final stages and approval is eminent. (Testimony of Ring, Farina, Walden; P-1, p-2, R-1.) Cash Working Capital Allowance Cash working capital is the amount of investors' supplied cash needed to operate a utility during the interval between rendition of service and receipt of payment from the customers. By including it in rate base, a utility is allowed to earn a return on this portion of its investment. A utility's working capital requirements may be calculated by using: a standardized formula; (2) the utility's balance sheet; or (3) a lead-lag study. Until June, 1981, the Commission routinely used the formula approach; working capital was calculated by multiplying 12.5 percent (equivalent to one- eighth of a year) times the utility's annual adjusted operations and maintenance expenses. This method is also facilitated by Commission Rule 25- 10.176(2)(a)2.g., Florida Administrative Code which requires that water and sewer rate adjustment applications include a schedule showing: g. Allowance for working capital (1/8 of annual operations and maintenance expenses for the test year.) Id. In this case--consistent with the Commission's rule and custom--the Utility seeks a working capital allowance derived by using the standard Commission formula. However, the Commission seeks to use, instead, the balance sheet approach--an approach which it contends is more precise than the standard formula and results in a closer correlation between the Utility's rate base and its capital structure. The Commission's contention is accepted as persuasive. Under the balance sheet method, working capital allowance is the difference between a utility's current assets and current liabilities. Thus, the working capital component of rate base is derived, by simple adjustments, from a utility's balance sheet; it originates in the balance sheet's capital structure, just as do the other components of rate base. In comparison, the formula approach originates from a utility's income statement, i.e., one-eighth of its annual operating and maintenance expenses. The one-eighth factor equates to a 45-day lag--a period of time assumed to cover the lapse between the rendering of service and payment by the customer. But this assumption, while generally useful, may not accurately depict the working capital requirement of a given utility. In this case, the balance sheet approach is a more precise method for determining the Utility's working capital requirements. The Utility poses two objections to calculating working capital allowance by the balance sheet method: (1) it deviates from the Commission's prior practice in water and sewer rate cases, and (2) it may result in a negative allowance when a utility has insufficient cash to pay its current bills; thus a utility in greatest need of working capital would receive the least allowance. As to the objection that the balance sheet method represents a departure from past practice, the Commission has flexibility to expand, refine, and alter its policy through individual case decisions provided its action is explained and justified by record evidence. 7/ The Commission has not, by rule, limited that flexibility. Rule 25-10.176(2)(a)2.g. only requires applicants for rate adjustments to show their working capital requirements by applying the formula method; it does not preclude the Commission or utilities from using an alternative method more suitable to the facts of a given case. For example, it is generally recognized that, if a lead-lag study is conducted, it will prevail over the formula method. The Utility's second objection (that a cash-poor utility receives a lesser working capital allowance), is based on a hypothetical case and has no application to the facts here; the Utility has sufficient current assets and the balance sheet method results in a positive working capital allowance. This finding in favor of the balance sheet method is based on the evidence presented; its effect is thus necessarily limited to this case. Should the Commission--in future cases--advocate the balance sheet method, as opposed to the formula method, it must again explain and justify its position, insofar as possible, by conventional proof. 8/ Unless its policy is adopted by rule, an agency must repeatedly establish and defend it. 9/ The other components of the Utility's rate base, as adjusted, are not in dispute. Water and sewer rate base are therefore $3,369,160 and $4,099,887, respectively, and are depicted below: RATE BASE Test Year Ending September 30, 1900 Water Sewer Utility Plant in Service $5,919,833 $9,210,212 Utility Plant Held for Future Use (145,384) (644,429) Construction Work in Progress 265,300 -0- Accumulated Depreciation (616,835) (954,300) Contributions in Aid of Construction--Net (2,293,690) (3,579,118) Working Capital Allowance 39,936 59,522 Materials and Supplies -0- -0- TOTAL $3,369,160 $4,099,887 (Testimony of Davis, Asmus; P-6, R-2, R-3.) Net Operating Income The Commission opposes several operation, maintenance, and depreciation expenses which the Utility proposes to include in the test year statement of operations. The Hardy Gross Analysis The Hardy Cross Analysis is a computer analysis of the entire water distribution system. It indicates loss of pressure, balances water flows, and determines residual pressure at the end points of the system. It is a useful and necessary informational tool in designing additions to water distribution systems: it allows the designer to properly size new pipes added to the system. Growth, such as that experienced by the Utility, requires that such an analysis be updated at least once a year. The parties do not dispute the value of such an analysis, its cost, or the necessity for its actual updating. They dispute only who should bear the cost: the existing rate-payers or the developers which require and benefit from the continued expansion of the water system. It is concluded that the recurring cost of updating the Hardy Cross Analysis should be borne by developers, and, indirectly, the future customers who are the primary beneficiaries of the annual updating; without the growth associated with new developments, the annual updating of the Hardy Gross Analysis would be unnecessary. It would be unfair to require existing customers to pay for services--through higher rates--which they do not require and from which they receive no significant benefit. (Testimony of Farina, Walden.) Review of City of Plantation Utility Standards In 1969, the City of Plantation, where the Utility's water and sewer systems are located, enacted an ordinance containing detailed technical standards governing the construction of water and sewer systems. Historical experience has indicated that the standards incorporated in the ordinance require annual review, and periodic revision; the Utility's participation in that process is reasonably necessary to its continued efficient operation. A necessary expense of $1,000 should be allowed and charged as an operation expense to each system--water and sewer. (Testimony of Farina.) Diesel Fuel On June 16, 1980--during the last quarter of the test year--the Utility installed two auxiliary power units which utilize diesel fuel. Since the two power units were not in service during the entire test year, the Utility seeks to annualize the cost of the diesel fuel consumed during the 3 1/2-month period and include it as a recurring operating expense. 10/ The Commission opposes annualizing the fuel costs on the ground that sufficient documentation was not presented by the Utility to justify the actual consumption of fuel by the power units and establish that such consumption represented normal operation of the Utility, i.e., that it is reasonably expected that such annual consumption will repeatedly occur in the future. The Commission's contention is accepted as persuasive. The Utility has the burden of supporting its claimed expenses with adequate documentation. 11/ Here, no evidence was presented to establish the actual periods of operation of the auxiliary generators or the conditions under which they were used; nor were rated consumption of fuel figures supplied. The alternate treatment suggested by the Commission--amortize initial diesel fuel fill-up cost over three years, placing one-third of it in expense and adding the other two-thirds to materials and supplies 12/ --is a reasonable method of treating the fuel expenditures. (Testimony of Davis, Walden, Asmus; R-2, R-3.) Amortization of Legal Expense Relating to Proposed CIAC Rules The Utility contends that the Commission is contemplating further CIAC 13/ rule making thus necessitating the expenditure of recurring legal expenses in the total amount of $778. However, although the Commission is now considering the adoption of CIAC rules, recurring revisions in the future are not reasonably expected. In the last ten years, the Commission has had one rule docket pertaining to CIAC rule making. Amortization of this expense is therefore unjustified. (Testimony of Davis.) Adjustment for Increased Chemical Costs Because of escalating costs of chemicals, the Utility proposes to adjust the water and sewer chemicals account by applying June, 1981, prices to the quantity of chemicals consumed during the test year. The Commission opposes the proposed adjustment, contending that the Utility's new lime-feeding equipment will result in lower lime costs. The Utility's adjustments 14/ are accepted as credible; since a new Zeolite treatment plant will soon be coming on-line, it is reasonably expected that lime requirements, associated with the water-softening process, will--if anything--increase. (Testimony of Farina, Davis, Asmus; R-6.) Maintenance Expenses: Amortization of Post Test-Year Gearbox Repairs The Utility proposes to include in sewer maintenance expense amortization of the cost of a gearbox repair incurred subsequent to the test year. The Commission proposes to amortize--for three to five years--all major repairs incurred during the test year. The Utility has not amortized such extraordinary repairs during each of the last five years; it contends that such historical amortization is necessary to arrive at a representative figure for extraordinary repair on an on-going basis, that the Commission cannot begin--for the first time--to amortize such repairs during the test year. The Utility proposes to simply adjust sewer maintenance expense by $3,386--an admittedly rough estimate. The Utility's accountant admits: It would be a lot more exact to go back five years and apply it [amortization of extraordinary repairs] down the line. . .but that's very time-consuming. (Tr. 192.) It is undisputed that the Utility--to properly account for extraordinary maintenance repairs--should amortize such expenses through the expected life of the repairs. The Utility has not done so to repairs incurred during the last five years. The substitution of an "estimate" of expected future repair costs for a preferable and more exact accounting method is unacceptable and should be rejected. (Testimony of Davis, Asmus.) Depreciation Expense The finding, infra, paragraph A(1) that the Utility's sewer plant is 100 percent used and useful necessarily requires an adjustment to the Commission's proposed depreciation expense. The adjustment increases depreciation, for sewer operations, by $11,897. (Testimony of Asmus; R-6.) The net operating income which a utility should be allowed the opportunity to earn is reached by multiplying rate base by a fair rate of return. 15/ Operating expense and taxes (income and gross receipts tax) are then added to net operating income to calculate gross revenue requirements. In this case, the Utility's net operating income should be $414,743 from water operations and $504,696 from sewer operations. Before gross revenue requirements can be determined, operating expense and taxes should be recalculated consistent with the above findings; such recalculation should be conducted by the Commission, verified by the Utility, and included as part of the Commission's final order entered in this proceeding. Rate Structure, Allocation, and Rate Design The Utility's present rates are structured in accordance with what is commonly referred to as the base facility rate design. The purpose of this design is to require customers to pay their pro rata share of the Utility's cost of providing the service. It is objectively determined and results in an equitable and consistent distribution of the costs involved. Both parties agree that the new rates should also be structured in accordance with the base facility rate design. However, the new rates should eliminate the present 25 percent rate differential between commercial and residential rates--a differential that has not been justified and which the Utility no longer seeks to impose. Motorola, Inc., a large industrial customer of the Utility, requested more favorable rate treatment because of the large volume of water it consumes. However, insufficient cost of service information was submitted to justify a "volume discount." A cost of service study is necessary to accurately allocate costs of service among customer classes. (Testimony of Fabulo, Asmus; R-4.) Quality of Service Several customers complained that the Utility's water had offensive color and taste. Eight complaints were filed with the Broward County Health Department during 1980. However, the preponderance of evidence establishes that the Utility's water and sewer systems are in compliance with local and state standards. Neither system is under any citation or enforcement action instituted by a regulatory agency. The quality of the water and sewer service provided is, therefore, determined to be satisfactory. (Testimony of Farina, Walden; P-11)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Utility be authorized to file rate tariffs consistent with the provisions of this Recommended Order. DONE AND RECOMMENDED this 21st day of August, 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 21st day of August, 1981.
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to a variance for installation of an on-site sewage disposal system ("OSDS") for property located near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as Lot 4, Wonderland Subdivision. The property is approximately 60 by 150 feet in size and was purchased in 1982 for a price of $9,000.00. It is presently appraised at $11,000.00; however, if an OSDS could be permitted and installed, the property would appraise for approximately $22,000.00. The lot was platted in 1957. On October 19, 1989, the Petitioner made an application for a variance from the OSDS permit requirements for the property. The application form indicated, and the Petitioner intends, that this would be a new system for a single-family residence. The residence would contain two bedrooms and would produce approximately 250 gallons per day of sewage flow. The Petitioner desires to construct a residence on the property to have a pleasant place to live and is suffering a hardship because of the investment which he has made in the property, which is of no use to him if he cannot obtain the subject permit or variance and install the OSDS so that he can construct his residence. Alternatively, he is unable to sell the property readily without the ability to obtain an OSDS permit or variance for the property. At the behest of the Respondent in the permit application or variance application process, the Petitioner obtained a survey of the property by a registered land surveyor (see Petitioner's Exhibit No. 2 in evidence). That survey resulted in a benchmark elevation being established of 12 feet above mean sea level ("MSL"). The site of the proposed OSDS installation is 11.71 feet above MSL. The ten-year flood plain elevation for this property is 16 feet above MSL, as verified by records of the Suwannee River Water Management District in evidence without objection. The property is also located within the regulatory floodway of the Suwannee River. Although the Petitioner acknowledged in a general way that he would be amenable to consideration of various alternative types of systems involving piping of sewage effluent to an appropriate upland disposal and treatment area, the use of chemical toilets or other appropriate non-discharge types of treatment and disposal systems, no concrete evidence was adduced from the Petitioner to establish that such are or are not reasonable alternatives to the conventional subterranean septic tank and drainfield type of disposal system with which the variance application is concerned. Consequently, the Petitioner's proof does not establish that no reasonable alternatives exist in order to secure the grant of a variance nor did the Petitioner's proof establish that the type of system proposed would not pollute the ground or surface waters or pose a threat to public health in terms of the standard subterranean OSDS or any alternative systems which the Petitioner might theoretically employ, including the types mentioned above. The Petitioner's proof simply did not establish that installation of a standard subterranean OSDS would only pose a minor deviation from the permitting statute and rules cited herein nor did the Petitioner establish that no reasonable alternatives exist to the establishment of a standard OSDS, as that relates to the substantiality of the hardship which the Petitioner is experiencing in not getting the OSDS originally requested permitted; and the Petitioner did not establish that any system proposed would not pose a threat to public health or pollute ground or surface waters. In summary, the Petitioner did not establish that a sufficient hardship is experienced, because reasonable alternatives have not adequately been explored and considered by the Petitioner nor made a part of the subject of Petitioner's proof nor has the Petitioner established that a grant of a variance would involve only a minor deviation from the permitting statute and rules standards because it has not been proven that the public health nor the ground or surface waters would not be adversely affected. Finally, because the property is located in the regulatory floodway of the Suwannee River, under Rule 10D- 6.047(6), Florida Administrative Code, before a mounded or filled OSDS could be permitted and installed, which is one alternative under consideration, a registered professional engineer must certify that the mounding of the system and installation of fill in the regulatory floodway area would not cause elevation of the "base flood" of the Suwannee River. No such engineering evidence or testimony has been adduced iii this proceeding; therefore, such an alternative system cannot herein be recommended for approval.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for a variance from the statutory and regulatory requirements for an OSDS permit. DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 11th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3111 Respondent' Proposed Findings of Fact: All of Respondent's proposed findings of fact are accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Marilou Clark Suwannee Plantation Realty Rt. 3, Box 73 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (HRS) should grant the Petitioner's applications, filed under F.A.C. Rule 10D-6.045, for variances from the F.A.C. Rule 10D-6.046(1)(c) requirement that on-site treatment and disposal systems (OSTDS's) be placed no closer than 200 feet from public drinking water wells serving a facility with a sewage flow of more than 2,000 gallons per day (gpd).
Findings Of Fact The Petitioner, Joseph DiGerlando, owns three lots (1, 2 and 26) in the San Remo subdivision in Hillsborough County, which was platted in 1977. There is a public water well located between lots 1, 2 and 26. The well serves the entire San Remo subdivision, a 55-lot residential development having a total sewage flow much greater than 2,000 gallons per day (gpd) (although the sewage flow from homes built on lots 1, 2 and 26 can be expected to total no more than approximately 1350 gpd.) There is no way for the Petitioner to construct an on-site sewage treatment disposal system (OSTDS) on each of the three lots so that no part of any OSTDS will be closer than 200 feet from the San Remo well, measured horizontally across the ground surface to the well head. Measuring horizontally across the ground surface to the well head: an OSTDS on lot 1 could be placed no farther than 156 feet from the well; an OSTDS on lot 2 could be placed no farther than 184 feet from the well; according to drawings in the Petitioners' application, an OSTDS on lot 26 could be placed no farther than approximately 185 feet from the well. (Although lot 26 is larger than the others, it is contiguous to a surface water body, and the required setback from the surface water body decreases the area available for siting an OSTDS on the lot. The evidence was not clear exactly how far an OSTDS on lot 26 would be from the San Remo well.) HRS concedes: (1) that requiring 200-foot setbacks from the San Remo well will place the Petitioner under a hardship that was not caused intentionally by his own actions; and (2) that no reasonable alternative exists for the treatment of sewage on his lots 1, 2 and 26. (It is not clear how or why HRS determined that utilization of a joint OSTDS to serve all three lots through the imposition of cross-easements on the lots would not be a reasonable alternative to at least one or two of the variance applications.) The San Remo well, which is 400 feet deep, has a steel casing from the surface of the well to 100 feet below the ground surface. The steel casing prevents the entry of ground water into the well above the bottom of the casing. If the distances between the proposed OSTDS's and the San Remo well were measured diagonally, through the ground, from the proposed OSTDS's to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 185 feet from the well; the proposed OSTDS on lot 2 would be 209 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (The evidence was not clear exactly how much farther.) In fact, due to the draw-down effect of the well, the path groundwater would travel from the proposed OSTDS's to the bottom of the steel casing of the San Remo well would curve upward somewhat from, and be somewhat longer than, the diagonal line running directly between those two points. (The evidence is not clear exactly how much longer the curved path would be.) If the distances between the proposed OSTDS's and the San Remo well were measured first horizontally across the ground surface to the well head and then vertically down to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 253 feet from the well; the proposed OSTDS on lot 2 would be 281 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (Since the bottom of the OSTDS's will be three feet below the ground surface, the vertical component of the measurement is only 97 feet instead of the full 100 feet between the well head and the bottom of the casing.) When applying the HRS rules on distances required between OSTDS's and existing public water wells, HRS measures from the OSTDS horizontally across the ground surface to the well. The evidence was that HRS's method of measurement is consistent both with the methods used by the federal EPA and with the scientific data on which the technical advisory board based the distances in the HRS rules. The Petitioner's expert witness testified that there is a 17-foot thick layer of sand and clay between 53 and 70 feet below the ground surface in the vicinity of the San Remo well and that the sand and clay layer would prevent contamination from the OSTDS's from reaching the bottom of the steel casing of the well. (He also testified that is a white lime rock layer between 70 and 90 feet below the ground surface and inferred that the white lime rock layer would add some degree of protection.) The opinions of the Petitioner's expert are accepted. Petitioner's expert is a civil, sanitary and environmental engineer, not a geologist or hydrogeologist; however, his experience is in the area of wastewater treatment and disposal is extensive. Meanwhile, HRS presented no competent evidence whatsoever to contradict the Petitioner's expert. The Petitioner proposes to use Norweco Singulair Bio-Kinetic Waste Water Treatment Systems. These systems treat waste better than a standard septic tank system. Instead of the single septic tank, they have three distinct chambers: first, a retreatment chamber; second, an aeration chamber to reduce biological oxygen demand (BOD) and total dissolved solids (TDS); and, finally, a clarification or filter chamber that further reduces BOD and TDS. With the proposed systems, BOD and TDS will be reduced to approximately a fourth of the BOD and TDS levels that would enter the drainfield from a septic tank system. In addition, unlike in a septic tank system, the proposed systems utilize chlorine tablets in conjunction with the clarification chamber to kill bacteria and viruses. It is found that the evidence presented in this case, taken as a whole (and in particular in the absence of any competent evidence to contradict the credible opinions of the Petitioner's expert) was sufficient to prove that the proposed OSTDS's would not adversely affect the health of members of the public. Except for a fleeting reference in its Proposed Recommended Order, HRS has not taken the position that the Petitioner's proposed OSTDS's will significantly degrade the groundwater or surface waters. The reference in the Proposed Recommended Order would seem to reflect that HRS's concern about the impact of the Petitioner's proposed OSTDS's on groundwater quality is limited to its public health concerns.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order granting the Petitioner's applications for variances, on the condition that the Petitioner utilizes the proposed Norweco Singulair Bio- Kinetic Waste Water Treatment Systems. RECOMMENDED this 30th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6483 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-6. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as to "significantly degrade the groundwater or surface waters"; HRS did not make this an issue, except with respect to public health concerns. Otherwise, accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. However, accepted that HRS presented no evidence sufficient to support a finding on the issue. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994). Accepted but subordinate and unnecessary. Rejected as to "relevant criteria"; not proven and as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-7. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as contrary to facts found and as contrary to the greater weight of the evidence. (As found, HRS did not contend that the Petitioner's OSTDS's would "significantly degrade the groundwater or surface waters." HRS only raised this issue with respect to public health concerns.) 10.-12. Accepted but subordinate and unnecessary. (These were hearsay statements that were not sufficient to support findings as to the matters asserted. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994).) COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 W. Dr. Martin Luther King, Jr., Boulevard Tampa, Florida 33614 Nelson D. Blank, Esquire Trenam, Kemker, Scharf, Barkin Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 E. Kennedy Boulevard Tampa, Florida 33601-1102 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
