The Issue The issue in these consolidated cases is whether the agency should grant variances from Rule 10D-6, F.A.C. regarding construction of on-site sewage disposal systems on the lots in question.
Findings Of Fact Jerry Gagliardi is the developer and engineer for an 8-lot subdivision on Merritt Island, Brevard County, Florida. Mr. Gagliardi is a self-employed civil and mechanical engineer. The small subdivision has a long, narrow configuration, extending west to east. It is bounded on the north by an existing drainage ditch and a large tract of undisturbed wetlands. Its south boundary is a finger canal, and its east boundary is Pelican Creek. With the exception of the wetlands, most of the property in the area is already developed. There are no residences built yet on the eight lots. Hook-up to an existing sanitary sewer system is available within one- quarter mile of the subdivision. The entire area, with several finger canals, is served by the sanitary sewer system. Mr. Gagliardi planned to install on-site disposal systems (septic tanks) in the subdivision. When his plan was rejected he applied for variances for lots 1 and 2 in July 1992, stating economic hardship as the basis for the request. The applications were reviewed by Gregory D. Wright, Supervisor for Brevard County Consumer Health Services and his staff. Several site visits were made and a site evaluation was completed. Mr. Wright recommended denial of the variance because the sanitary sewer system is available; the soils (mostly sand and shell) are unsuitable for on- site disposal systems; and the area, virtually surrounded by water, is environmentally very sensitive. Mr. Wright is also concerned that a variance for the two lots will establish a precedent for variances on the remaining lots in the subdivision. Mr. Wright also observed that there is an existing irrigation well on a neighboring lot within thirty feet of the proposed septic tank on lot #1. This well does not appear on Mr. Gagliardi's plans. The Department of Health and Rehabilitative Services Review Group for Individual Sewage Disposal concurred with the local agency's recommendation after consideration of Mr. Gagliardi's hardship argument. The request was not considered to be a minor deviation from the minimum requirements of the law and regulations. For approximately three years Jerry Gagliardi has been providing information on his development plans to the local county staff. He has become extremely frustrated with the process. However, he has still failed to produce the evidence which he must have to justify the variances he is seeking. At the hearing, Mr. Gagliardi claimed that hook-up to the existing sanitary sewer system is impossible because there is insufficient elevation for gravity feed and there is not enough room on Banana River Drive for another sewer line easement. He did not submit evidence to support that claim and it is unclear whether he has made that claim to the local staff for their verification. He has consistently claimed that hook-up to the existing system is prohibitively expensive. He has estimated that the cost of installing hook-up to the existing system would be $52,642 for the entire subdivision, or $6580.25 per lot. He has estimated that installation of aerobic on-site septic systems would cost $28,000.00 or $3500 per lot. This estimate does not include the cost of culverting the ditch along the north boundary of the property. The culvert may be necessary to meet the water body set-back requirements and, assuming that a permit would be granted for its construction, the culvert would substantially increase the cost of the septic tank project. As recently as three weeks prior to hearing, Mr. Gagliardi provided information to the staff that the value of the lots in the subdivision is $60,000.00 each, for lots #1 through #6; and $115,000.00 and $120,000.00, for lots #7 and #8, respectively. At hearing he repudiated that information as being based on three year old appraisals. He now asserts that the value of the lots is closer to $40,000.00 each. Petitioner's exhibit #2 is a cover letter dated January 4, 1993, to Mr. Gagliardi from the Brevard County Property Appraiser. Attached to the letter are four property management print-outs reflecting the value of two lots as $35,000.00, and two others as $65,000.00. The record does not reflect which lots those are in the subdivision and there is no explanation for the inflated values provided to the staff after the printouts were received. It is impossible from the confused and conflicting evidence provided at hearing to determine that the petitioners are entitled to a variance.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final orders denying Petitioners applications for variances. DONE AND RECOMMENDED this 11th day of May, 1993, in Tallahassee, Florida. MARY CLARK 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 11th day of May, 1993. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Jerry Gagliardi, Agent for Phil Sperli and Gail Bobzein Post Office Box 541061 Merritt Island, Florida 32954 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The property upon which Petitioner seeks a variance from the normal requirements for attaining a permit to install an on-site sewage disposal system is found in Leon County, Florida. Specifically, it is located at Lot 4, Block A, Killearn Lakes Unit I. The relative position of this lot in the subdivision is depicted within Petitioner's Exhibit 1 and Respondent's Exhibit 2 admitted into evidence. Respondent's Exhibits 3 through 5 are photographs of the site. Petitioner intends to construct a 1,200 square foot residence. As the photographs depict, some preparation has commenced to the extent of lot clearing and other site work where the home would be constructed. Killearn Lakes Unit I is a pre-1972 subdivision. When the development commenced, it was anticipated that a community sewer system would be utilized, as contemplated by the plans submitted in April, 1971. Subsequently, some lots within the Killearn Lakes Unit I were allowed to be developed with the use of on-site sewage disposal systems, namely septic tanks. There are 150 lots in that category. In 1979, with the advent of certain rules under Chapter 10D-6, Florida Administrative Code, the development was allowed to proceed on the basis of four septic tanks per acre. Over time, Killearn Lakes Unit I experienced a history of failures with on-site sewage disposal systems. The failures were promoted by problems with the "sheet flow" drainage system and its patterns of dispersion of storm water runoff, problems of soil permeability and abnormally high wet season water tables, referred to as perched water tables. This resulted in sewage backing up into homes and flowing out onto the ground in the yards of the residences, into streets and onto adjacent neighbors' lots. The problems experienced were widespread within the Killearn Lakes Unit I. This seepage of raw sewage presented a health hazard, as it would on any occasion. Among the residences confronted with this dilemma was Lot 5, Block X, adjacent to the subject lot. Persons residing in that home had to undertake alternative means of on-site sewage disposal to have that system function properly. This included relocation of the apparatus, mounding, use of an aerobic system, and use of pumps to insure that the waste being disposed did not back up into the conveniences within the home. Witnesses who appeared at the hearing described the series of corrections in some detail. Those witnesses included a former owner of that residence and others who had a technical understanding of the problems in that system. The problems in Killearn Lakes Unit I related to on-site sewage disposal systems became so extreme that the Leon County Commission declared a moratorium on the installation of on-site septic tanks in that development. This occurred in 1987. In order to better understand the problems in the Killearn Lakes subdivision, to include Killearn Lakes Unit I, a study was commissioned. That report is referred to as Killearn Lake Waste Water Disposal Study of June, 1987. A copy of the report is found as Respondent's Exhibit 6 admitted into evidence. It was prepared for the Leon County Board of County Commissioners and prepared by the Leon County Public Health Unit with the assistance of the Leon County Department of Public Works, Leon County Building Department, Ochlockonee River Soil and Water Conservation District, Northwest Florida Water Management District, Tallahassee-Leon County Planning Department, Florida Department of Health and Rehabilitative Services, and Florida Department of Environmental Regulation. Some of the highlights of that report concerned the observation that the septic tank systems do not work adequately and that the more systems that are placed the greater the problems. It noted that the nature of the drainage system in this area is a contributing factor to the failures. The soil's poor permeability, relating to the Dothan series of soils in the area which have slow permeability, contributed to the problem. Perched water tables were found above the expected levels for the wet season water tables. They also presented a problem, as did excessive slopes in some areas. In particular, it was noted that 80% of the lots sampled in Killearn Lakes Unit I had severe limitations on the use of on-site sewage disposal systems. Ninety-three per cent of the lots sampled in Block X received excess runoff from other lots and roads at higher elevations. It was noted that French or curtain drains alone would not significantly reduce perched water table complications because of the low permeability of the soils. It was reported that the overall housing density of Killearn Lakes is not particularly high, but the individual lots are small, approximately 1/4 acre in size. This, taken together with the fact that the "sheet flow" concept of storm water management contemplates that the runoff will cascade across the terrain conforming to its contours, means that some small lots will be inundated. This uncontrolled runoff contributes to septic tank problems in that the tanks fail when the soils around them become saturated. The report notes that if there was a different designed drainage system, the impact on septic tanks would be less. The report notes that if something is not done to modify storm water runoff, drainage problems will persist. Consequently, septic tank failures will continue to occur. Concerning the water tables, the soil testing, which was done in Killearn Lakes Unit I, in which the predominant soil is Dothan type, demonstrated that the borings which located mottling of the soils at the expected level of the wet season water table were inaccurate. These indicators did not correspond to reality in that the true water tables were found 12-20 inches above the expected level of the average high water, as seen in the mottling. This phenomenon was revealed in 42% of the lots evaluated which had Dothan soils. The report recommended, among other measures, that no new sewage disposal system permits be issued in Killearn Lakes Unit I until a storm water system had been constructed and demonstration made that the system would collect storm water and thereby lower the perched water table on specific lots under review. The ultimate response to the question of permits for on-site sewage disposal systems in Killearn Lakes Unit I was spoken to in a Resolution of July 14, 1987 entered by the Leon County Board of County Commissioners. A copy of the resolution may be found as Respondent's Exhibit 1 admitted into evidence. It was resolved that the permits for on-site septic disposal systems be reviewed by the Leon County Public Health Unit on a case-by-case basis in accordance with criteria announced at Chapter 10D-6, Florida Administrative Code. This effectively lifted the moratorium. The subject request for installation of an on-site sewage disposal system was reviewed in keeping with the policy decision set forth in the resolution. Respondent's Exhibit 6 admitted into evidence includes a copy of a survey made by the Homeowners' Association for Killearn Lakes, also admitted as Petitioner's Exhibit 1. As part of the study commissioned by the Leon County Board of County Commissioners, it has some relevance in portraying the dimensions of the problem. Those dimensions are better understood by resort to the color scheme which is found in Petitioner's Exhibit 1. It depicts the problem lots in red color, those lots without problems in green color, and the lots upon which no report was made in orange color, as well as vacant lots, to include the subject lot, which have no color scheme. This latter category indicates no participation in the survey. The door-to-door personal survey conducted by Rod Moeller and testified about at hearing does not diminish the impression of the seriousness of the problem with on-site sewage disposal system failures in Killearn Lakes Unit I, which the 1987 study by the Leon County Board of County Commissioners identified. This survey by Mr. Moeller was in a limited area, more specifically related to the portion of Killearn Lakes Unit I nearby the subject lot. The findings of the 1987 study commissioned by the Leon County Board of County Commissioners are accepted as accurate. Eanix Poole, Administrator of Environmental Health for the State Health Office testified at the hearing. He pointed out that the failure rate in the subdivision under question for on-site sewage disposal systems is 25%, as contrasted with the statewide rate of less than 1/2%. He identified the fact that those failures relate to backups within the home and seepage onto the ground. He verified that these events constitute health problems, especially given the number of failures. He sees the lot in question here as being particularly vulnerable to problems given the drainage patterns and its location at the bottom of two hills. The lot in question receives runoff from the two adjacent lots as well. Mr. Poole sees the subject lot as more vulnerable in the wet season and does not believe that any alternatives that are available for placement of the system on the site would sufficiently alleviate the potential failure of the system to make it a successful arrangement. What he sees is a lot in the path of a natural drainage of tremendous quantities of storm water runoff, coupled with poor soil conditions related to soil absorption or permeability in an area where on-site sewage disposal systems have failed. He remarks that dry soils are needed to treat the sewage and that treatment cannot take place in a saturated soil environment. The effects of seepage of the sewage, according to Mr. Poole, is one which can degrade ground water. Mr. Poole is also concerned that the installation of the proposed on-site sewage disposal system above ground will have an adverse impact on the adjacent lots, one of which has already experienced problems. That refers to Lot 5, Block X. These observations by Mr. Poole, as reported, are accepted. Raymond Collins, an environmental administrator with the Respondent's health program office, also testified at the hearing. He is intimately aware of the problems in Killearn Lakes Unit I. Those problems began to occur in the winter of 1986 and continued into 1987. This related to problems with toilets and the seepage of effluent which was running onto people's property and into the streets. He notes a similar failure rate in Killearn Lakes Unit I to that observed by Mr. Peel when contrasted with the experience statewide. In the aforementioned period he received calls and reports from homeowners concerning system failures. In effect what was happening was that the on-site drain fields in Killearn Lakes Unit I would not accept more input and the raw sewage would bubble up and leach out onto the ground. He personally observed a dozen sites which had failures. He was responsible for the coordination of the July, 1987 study which has been mentioned. As a result of that study one of the steps which he took was to advise that staff investigating the permit application requests should elevate the estimation of the wet season water table by 12-20 inches. Mr. Collins agrees with the recommendation of the individual who was assigned to evaluate the application for permission to install an on-site sewage disposal system at the subject lot, who recommended that the application be turned down. Mr. Collins' description of the experience at Lot 5, Block X, related to his knowledge that the initial system had been replaced with an aerobic system, which also proved to be an inadequate on-site sewage disposal system. In 1988, he went to the home of the person living on that lot, and the aerobic system was not working. There was a light rain on that day, and there were problems in the drain-field area. When a soil boring was made to a depth of two feet effluent poured out. The perched water table had risen to a point in the bottom of the drain field, such that when a hole was punched, it provided a conduit for pressure to be relieved. The drain field that was experiencing this problem was not the original drain field. It was a replacement drain field. The drain field being observed was in the front of the lot, right below the ground. The suggestion to alleviate the problem was to move the drain field to the side of the yard and elevate it and install a series of small-diameter pipes. A pump was also needed to move effluent into the drain field, thus, avoiding a backup of the system into the home. He is unaware of any recent failures in the system at Lot 5, Block X. Mr. Collins emphasized the need for soil to remain unsaturated to provide effective treatment and that 24 inches of unsaturated soil is the minimum amount which would be acceptable. Mr. Collins commented about the nature of the subject lot and the fact that other lots drain through it. Mr. Collins commented that the design of the proposed septic tank does not assure success in the treatment of the waste disposed. Unlike the expert of the Petitioner, Mr. Peel, the problem is not that solids are blocking up the system. It is the failure of the soils to accept the volume of water which is being released from the chambers of the septic tank into the drain field. Mr. Collins does not believe that the use of water-saving appliances in addition to the limited size of the home to be built on the subject lot, installation of an aerobic system, and installation of an above-ground system, as proposed, would be successful and not pose a health risk from system failure. The problems would continue to be drainage patterns and poor soils. His remarks, as reported, are accepted as accurate. Terese A. Hegg, Environmental Specialist I with the Respondent's Leon County Public Health Unit, reviewed the application for variance to install the on-site sewage disposal system. She was familiar with the history of problems in Killearn Lakes Unit I before undertaking this assignment and has made more than 50 evaluations in that development. She observed that the "sheet flow" drainage of storm water does not provide reasonable management because it does not drain normally. She is aware that the wet season water table is as much as 20 inches above the normal indicators, as seen through mottling. Her analysis of this site is under the auspices of those requirements announced in Chapter 10D-6.044, Florida Administrative Code, having in mind that the subdivision plat was made before 1972. This includes an examination of the soil characteristics, history of flooding, and water table evaluations. At this site, she noted the poor permeability of the soil. She did soil borings to confirm the nature of the soils and to identify the water table. She took into account the abnormal perched water table that is above what the mottling would indicate as being the wet season water table. Ms. Hegg is concerned that the system on the adjacent lot, which is now functioning adequately, would not function adequately if the subject system was installed. She noted that the drainage pattern from the neighboring lots was toward the subject lot and that water would come from the left and the right lots adjacent to this lot, corresponding to Lots 5 and 3 as you face them. The drainage pattern would then proceed beyond Lot 4 and into a green area. In making her assessment of this application, she was aware of the problems with the on-site sewage disposal system at Lot 5, Block X. The appearance of saturated soil in the entire length of the boring and standing water on the lot is an indication of problems with percolation. The effluent will flow out and onto the ground if these soils are saturated. From her observations and based upon the history of Killearn Lakes Unit I and its failures regarding on-site sewage disposal systems, Ms. Hegg does not believe that the proposed system would successfully address sewage treatment and would promote a risk of on-site sewage disposal system failures for adjacent lots. Ms. Hegg acknowledged that the storm water flows could be diverted; however, she points out that the subsurface water cannot be diverted. Her account of this site and the acceptability of the request for variance as reported is accepted as accurate. Given the soil conditions and the wet season water table expected at this site, the proposed system will not present an adequate unsaturated soil depth for treatment of the sewage and untreated sewage may be expected to seep or leach out onto the ground. On May 22, 1990, Mr. Collins had written to Dr. Richard G. Hunter, Assistant Health Officer for Environmental Health, recommending the denial of the variance request. A copy of that correspondence may be found as Respondent's Exhibit 7 admitted into evidence. It details reasons which are similar to those described in this Recommended Order. As a consequence, even though the Advisory Review Variance Board had looked with favor upon the request for variance, that variance was denied by action of Dr. Hunter on May 30, 1990, which relied upon the insights of Mr. Collins, as described in his May 22, 1990 correspondence. A copy of the letter of denial may be found as Respondent's Exhibit 8 admitted into evidence. The purpose of this hearing was not to examine whether Respondent had abused its discretion in denying the variance. The reason for the hearing was to allow the parties to present their points in an adversarial setting, which allowed each party to explain its viewpoint anew. That was done, and the analysis provided by this recommended order ensued. In deciding the facts, these representations have been made with due regard to the remarks of James Earl Peel, an expert in the design of on-site sewage disposal systems, who had on his staff, Gary L. Wood, P.E. His methods in analyzing the issue of the suitability of the installation of an on-site sewage disposal system at the subject site do not coincide with the methods contemplated in Chapter 10D-6, Florida Administrative Code, which controls. This is especially significant in his approaches to soil characteristics and location of the wet season water table. As noted above, his belief that the problem is one of distribution of solids from the septic tank into the drain field overlooks the more significant problem of water volume discharge from the septic tank into the drain field. In fact, Mr. Peel indicated that he is unfamiliar with the requirements of septic tank design, as described in Chapter 10D-6, Florida Administrative Code. On balance, Mr. Peel's reports, in Petitioner's Exhibits 3 and 4 admitted into evidence and his in-hearing testimony, do not persuade that the system he recommends can be successfully operated at the subject site. His presentation and the overall presentation of Petitioner do not create a reasonable expectation that the system will not fail and create health hazards for the residents of Lot 4, Block X, and others in the vicinity. It is recognized that this lot owner faces a hardship that was not caused by Petitioner. It is also recognized that, pursuant to the stipulation of the parties, there is no intention by any entity to install a community system of sewage disposal. It is further recognized that there are no alternative methods that would seem to be successful in addressing the problem of the treatment of the sewage, as related in the previous findings. On the other hand, the discharge that could be expected from this subject system would bring about a condition in which the effluent presented a health risk to this applicant and other members of the public and has the potential to significantly degrade the ground or surface waters, although this latter circumstance has not been documented on other occasions and was not found to exist in the July, 1987 study commissioned by the Leon County Board of County Commissioners. In that report, it was specifically found that the surface water had not been compromised by the on-site sewage disposal system failures described in the overall report.
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 Petitioner's request for variance from permit requirements and permission to install an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I. DONE AND ENTERED this 20th day of November, 1990, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS, 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 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4456 The following discussion is given concerning the proposed facts of the parties: In the discussion of the testimony of Mr. Poole, the relevant portions of that testimony are reflected in the facts found in this recommended order. Under the heading of testimony said to be attributable to Ms. Hegg, at paragraph 1, while it is recognized that a system might be installed that might not call for diversion of storm water onto adjacent neighbors' properties, the problem on site would remain and would be sufficient reason to reject the application. Moreover, it is not clear that it is the intention to install a system that would divert storm water from adjacent properties. Paragraph 2 under this heading is rejected in its notion that storm water would not have an influence on the proposed system. Paragraph 3 is rejected. Paragraphs 4 and 5 do not lead to the conclusion that sufficient unsaturated soils would be available for the treatment of disposed sewage during the wet season, nor does the representation at paragraph 6. Paragraph 7 under that heading is contrary to facts found. The paragraphs under the reference to James Earl Peel, in those five paragraphs, while accurately portraying the opinion of Mr. Peel and Mr. Wood, does not lead to the conclusion that the application should be granted. Under the heading "Rod Moeller" in the first paragraph, the information provided at hearing and under weather reports does not satisfactorily establish what the rainfall circumstance may have been at the subject property 72 hours before January 24, 1990, as referred to in paragraph 1, nor can it be said that the rain experienced in the overall area contemplated by the attached weather report to the argument by Petitioner was a 25-year storm event. The comment at paragraph 3 under this category that the on-site sewage disposal systems in neighboring lots are functioning fine since modifications in the advent of hurricane "Kate" is contrary to facts found. Under the heading "Ray Collins" in paragraph 1, this proposed fact has no relevance in that the question is the appropriate function within Killearn Lakes Unit I, not at an undisclosed site away from that area. Respondent's Facts These facts are subordinate to facts found. Copies furnished to: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rod Moeller, Authorized Representative Mallard Cove Construction 14261 Buckhorn Road Tallahassee, FL 32312 John L. Pearce, Esquire HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A Tallahassee, FL 32399-2949
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to a permit permitting installation of an on-site sewage disposal system (OSDS) on his property located in Dixie County, Florida, in the vicinity of the Suwannee River and whether he is entitled to seek a variance from the statutes and rules concerning permitting of such systems.
Findings Of Fact The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered denying the Petitioner's application for an OSDS permit, without prejudice to the applicant applying for and seeking a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above, and without prejudice to applying for and pursuing an OSDS permit application should the applicant, at a later time, be able to demonstrate that alternative methods of treatment and disposal of the sewage effluent at issue can feasibly be performed, within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE and ENTERED this 21st 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. 90-2487 PETITIONER'S PROPOSED FINDINGS-OF FACT Accepted. Accepted. 5-14. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT 1-7. 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 John K. McPherson, Esquire 22 South Main Street Gainesville, FL 32601 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609 =================================================================
Findings Of Fact The Petitioner is a utility regulated by the Commission that is in the business of acquiring and operating water and sewer systems in Florida, principally in Central Florida. It now operates 39 systems, of which at least 30 water systems and 5 sewer systems are located in Orange, Lake and Seminole counties. In this case, the utility serves 547 water customers and 528 sewer customers in a subdivision known as University Shores. Southern commenced operating these systems in June, 1978, purchased them from University Shores Utilities, Inc. in September, 1978, and applied to the Commission for a transfer, which application was approved November 1, 1978, by Order 8550. The rates for service by these systems were granted by Order 6822 on August 6, 1975. Notwithstanding customer complaints of the quality of the water service (smell, taste, excess chlorine, sediment and no-noticed interruptions), the systems are in compliance with governmental standards. No customer complaints had been made to regulatory agencies, and the utility had handled only five for 1979 and to date in 1980. Due to a large increase in number of customers, a year end, rather than average, test year is appropriate; and the facilities are used and useful. Petitioner's rate bases are computed as follows: WATER SEWER Year end test year plant $526,737 $957,176 Construction Work in Progress 2,500 -0- Acquisition adjustment (net of amortization) (41,490) (78,300) Accumulated depreciation (67,172) (128,393) CIAC (net of amortization) (186,470) (489,438) Working Capital 5,476 6,386 Income tax lag (2,951) (4,225) $236,630 $263,214 The following capital structure and rate of return is that agreed to by the Petitioner and Respondent prior to intervention by the customers: WEIGHTED TYPE AMOUNT RATIO COST COST Common Stock $1,882,055 60.44 14.0 percent 8.46 Long Term Debt 1,037,372 33.31 8.89 2.96 Cost Free 194,768 6.25 0 0 TOTAL $3,114,195 100.00 11.42 percent The above rate bases and rate of return provide an authorized constructed net operating income from water service of $22,523 and from sewer service of $30,059. Although the return on water service is only 9.52, the revenue is limited to that in the application. This results in the following constructed statement of operations for year ended June 30, 1979: WATER SEWER Operating Revenue $94,550 $117,814 Operating Expense Operation 41,853 49,838 Maintenance 1,950 1,244 Depreciation 5,964 7,451 Amortization (860) (1,598) Taxes, other than income 8,363 9,726 Income taxes 14,757 21,124 TOTAL $ 72,027 $ 87,785 Net Operating Income $ 22,523 $ 30,059 Rate Base $236,630 $263,214 Rate of Return 9.52 11.42 percent It is noted that the above revenue requirement is more than the interim authorized revenue of $68,841 for water and $81,720 for sewer. The staff proposed that the rate structure should be changed from the present block structure for water and flat rate for sewer to a base facility charge for both water and sewer. This concept is appropriate since it serves to conserve water and insures that each customer pays his fair share of the costs of providing service. No evidence opposing this type rate structure was presented.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Southern States Utilities, Inc., University Shores Division, be granted and that the utility he authorized to file new tariffs to be approved by the Florida Public Service Commission that would have provided for the test year ending June 30, 1979 annual gross revenues of $94,550 for water service and $117,814 for sewer service. It is further RECOMMENDED that the refund bend be returned to utility. DONE and ORDERED this 25th day of November, 1980, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: R. M. C. Rose, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 William H. Harrold, Esquire Florida Public Service Commission 101 East Gaines Street - Fletcher Bldg. Tallahassee, Florida 32301 Jack Shreve, Esquire Stephen C. Burgess, Esquire Benjamin H. Dickens, Jr., Esquire Office of Public Counsel Holland Building - Room 4 Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street - Fletcher Bldg. Tallahassee, Florida 32301 Robert T. Mann, Chairman Public Service Commission 101 East Gaines Street - Fletcher Bldg. Tallahassee, Florida 32301
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 Should Respondent be fined $500.00 for initiating repairs to an on-site sewage treatment and disposal system before obtaining a permit?
Findings Of Fact Respondent is engaged in the septic tank contracting business as a contractor licensed under Chapter 489, Part III, Florida Statutes. He does business as "Alpha." In association with his business Respondent provided services to residents at 224 North Orange Avenue, Orange City, Florida. This was related to a failed on-site sewage treatment and disposal system at that residence. To assist in providing repair service to the residence in Orange City, Florida, Respondent engaged Andy Trapp. Mr. Trapp's business is to assist septic tank contractors in obtaining necessary permits to perform septic tank contracting services. Mr. Trapp's occupation includes field work involving soil testing, measurements, and completion of necessary paperwork to assist the septic tank contractor in obtaining necessary permits. As permitting agency, usually Petitioner would accept applications submitted by Mr. Trapp in relation to the application for a permit to repair on-site sewage treatment and disposal systems, in that Mr. Trapp is recognized by Petitioner as being sufficiently qualified to submit information in support of an application for permit. On March 27, 1998, Mr. Trapp submitted an application for a permit to repair the on-site sewage treatment and disposal system at the Orange City, Florida, address, to include supporting information concerning the results of soil testing. That application was accompanied by the necessary fee to obtain a permit. The application was delivered to Petitioner's Daytona Beach, Florida, office as a matter of convenience to Mr. Trapp. Mr. Trapp realized that the actual processing of the permit application would be conducted by Petitioner's Deland, Florida, office. In that connection, Mr. Trapp realized that the application that he had submitted to the Daytona Beach office would be forwarded by interoffice transmittal to the Deland office, which would cause a delay in the processing of the application. In his experience Mr. Trapp has filed applications with the Daytona Beach office to be subsequently transmitted to the New Smyrna Beach office of the Petitioner, which ordinarily can be done late on the same day that the application was presented or by the next day. James McRae is an environmental supervisor for the Volusia Health Department, Environmental Health Office in Deland, Florida. It is his office that had ultimate responsibility for considering, and if appropriate, issuing a permit allowing Respondent to conduct necessary repairs of the failed on-site sewage treatment and disposal system at the Orange City, Florida address. Mr. McRae confirmed that the permit application, as submitted by Mr. Trapp for the repairs, had been received by the Deland office on March 30, 1998. In addition, the accompanying $57.00 fee had been transferred from the Daytona Beach office to the Deland office, as was customary, the custom being that the funds in support of an application would ultimately be received in the office from which the application would be processed and a permit number assigned, as applicable. Upon receipt of the application in the Deland office, a receipt was generated. Information concerning the permit application was placed in the computer. Assessment of the application was assigned to William Vander Lugt, Environmental Specialists II, who is part of the field staff for the Petitioner's Deland office. Beyond Mr. Vander Lugt's assignment to consider the application for the permit for the Orange City, Florida project, it was expected that he would do any necessary field work involving an inspection and any necessary soil analysis. If satisfied that the site was appropriate to effect repairs to the failed on-site sewage treatment and disposal system, Mr. Vander Lugt would issue a permit subject to approval by Mr. McRae. Mr. McRae identified that the usual turn around time for issuing permits is two to three days, assuming that the permit was applied for at Petitioner's office which would be responsible for assessing the application. In this instance the permit had been applied for at another office which delayed consideration of the permit application by the Deland office. The permit was approved on April 2, 1998, within three days of its receipt by the Deland office. Before the permit was issued, Respondent, through his employees, had commenced the repairs at the Orange City, Florida, address. The commencement of repairs was verified by an on-site inspection performed by Mr. Vander Lugt, on March 31, 1998. Although the supporting information presented by Mr. Trapp was in order and the fee had been paid, and there was no indication that any other problems existed which would prohibit the repairs from being conducted, Respondent was premature in commencing the work before the permit issued, and was unjustified in that choice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be issued which imposes a $500.00 fine against Respondent for initiating a repair of an on-site sewage treatment and disposal system without first obtaining a permit to do the work. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 24th day of September, 1998. COPIES FURNISHED: Charlene Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael J. Jedware Post Office Box 390073 Deltona, Florida 32739-0073 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact Cooper City Utilities, Inc. provides water and sewer service to its customers in Broward County, Florida, under the jurisdiction of the Commission pursuant to Chapter 367, Florida Statutes. The company was incorporated in 1973. All of the outstanding stock of the utility was owned by Moses Hornstein until his death on October 28, 1979, when ownership thereof became vested in the estate of Moses Hornstein, deceased. The personal representatives of this estate are Gertrude Hornstein, S. Lawrence Hornstein, and Judith A. Goldman. Gertrude Hornstein serves as president of Cooper City Utilities, Paul B. Anton as vice president, and Lawrence Lukin as secretary. Quality of Service At the hearing, a representative of the Broward County Health Department testified concerning the quality of service. Although some customer complaints had been received, there are no outstanding citations against Cooper City Utilities, Inc., and the quality of the utility's service will be improved when its new lime-softening plant, under construction, is completed in approximately August, 1980. The investigation by the Commission's staff engineer did not reveal any outstanding citations against either the water or sewer treatment facilities. Accordingly, on the basis of the entire record, the evidence supports a finding that the utility is in compliance with all state standards, and that the quality of its water and sewer service is satisfactory. Rate Base and Operating Statement Between the time in July when public hearings commenced, and September 24 when the hearings concluded, the utility abandoned its position on several matters which had been in dispute, leaving only two controverted subjects for resolution. These two remaining areas of disagreement are, (1) the cost of money [because of a pending petition for approval of additional financing (Docket No. 800562-WS)], and (2) the expense for an additional field laborer hired subsequent to the test year, which the utility seeks to have included as a pro forma expense. Based on the stipulation of the parties, the following schedule sets forth the rate base of Cooker City Utilities (Exhibit 15): Water Sewer Utility plant in service $2,331,137 $3,723,347 Plant held for future use (47,989) (166,375) Accumulated depreciation (286,651) (460,297) CIAC (net of amortization) (1,322,487) (2,302,707) Working capital allowance 51,083 37,680 Rate Base $ 725,093 831,648 Based on the stipulation of parties, prior to any consideration of the allowance of any expense for the laborer hired subsequent to the test year, the following schedule sets forth the utility's operating statement (Exhibit 15): Water Sewer Operating Revenues $ 368,562 $ 489,886 Operating Expenses: Operation 346,916 232,406 Maintenance 61,750 69,030 Depreciation 22,447 25,543 Amortization -0- -0- Taxes other than income 55,853 75,043 Other expenses -0- -0- Income taxes -0- -0- Total Operating Expenses $ 486,566 $ 402,022 Operating Income (Loss) $ (118,404) 87,864 5. On the matter of allowance of sufficient revenue to cover the cost of one additional laborer hired after the test year, the estimated annual expense is approximately $7,240. However, to the extent that this employee was hired due to an increase in the number of customers subsequent to the test year, or due to plant capacity not used and useful, it is not a proper pro forma adjustment. Without an affirmative showing that the laborer was necessary during the test year for existing customers, the adjustment should be disallowed, and there is insufficient evidence in this record to support such a finding. On the issue of cost of money, during the test year the utility's capital structure was composed of one hundred percent debt at a stated cost of ten percent. In Docket No. 800562-WS the company seeks Commission authority to borrow an additional sum of $450,000, and it plans to amend this application to include authority to borrow $400,000 more in order to make refunds to customers in compliance with a Commission order which was upheld in Cooper City Utilities, Inc. v. Mann (Fla. Sup. Ct. Case No. 58,047, September 12, 1980). However, the utility's proposed debt has not yet been approved by the Commission, and will not be incurred until some time in the future, if approved. In these circumstances, it is not appropriate to take the cost of new debt into consideration in determining cost of capital in this rate case. The evidence in the record supports a ten percent cost of capital. The earned rate of return for the water system is a negative 16.33 percent. The earned rate of return for the sewer system is 10.57 percent. Therefore, the utility's water rates should be increased, and its sewer rates should be decreased, to achieve an overall ten percent rate of return. Accordingly, the annual revenue requirement for the water system is $564,370, which amounts to an annual revenue increase of $195,808. The annual revenue requirement for the sewer system is $485,067, which amounts to an annual revenue decrease of $4,819. Rate Structure The present rates of Cooper City Utilities are structured in the conventional manner, consisting of a minimum gallonage charge and a one-step excess rate over the minimum. The utility proposes. rates with the same basic structure, but with changes in the minimum charge and the minimum gallonage allowance. However, the Commission has consistently taken the position that any rate that requires customers to pay for a minimum number of gallons, whether used or not, is discriminatory. Invariably, a base facilities type of rate structure has been required to be implemented in these circumstances. Under the base facilities charge, each customer pays a pro-rata share of the related facilities cost necessary to provide service, and in addition, pays only the cost of providing the service actually consumed under the gallonage charge. The evidence in this record supports the implementation of the base facilities charge form of rate structure. Under its tariff, Cooper City Utilities is authorized to charge guaranteed revenues in an amount equal to the minimum rate for water service and the applicable rate for sewer service for each equivalent residential connection to be served for a period of one calendar year in advance. Under the base facilities charge type of rate structure, the utility should be authorized to collect guaranteed revenues solely in the amount of the base facilities charge.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is RECOMMENDED that the application of Cooper City Utilities, Inc., 3201 Griffin Road, Suite 106, Fort Lauderdale, Florida, 33312, be granted for the water system and denied for the sewer system, and that the utility be authorized to file revised tariff pages, containing rates designed to produce annual gross revenues of $564,370 for its water system and $485,067 for its sewer system. It is further RECOMMENDED that the utility be required to implement a base facility charge type of rate structure. It is further RECOMMENDED that the utility be required to make appropriate refunds to its sewer customers in amounts to be approved by the Commission. It is further RECOMMENDED that the rate-refunding bond filed in this docket be maintained until the utility has accomplished the refunds indicated above. THIS RECOMMENDED ORDER entered on this 18th day of November, 1980, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980. COPIES FURNISHED: Andrew T. Lavin, Esquire Post Office Box 650 Hollywood, Florida 33022 Sam Spector, Esquire Post Office Box 82 Tallahassee, Florida 32302 James L. Ade and William A. Van Nortwick, Esquires Post Office Box 59 Jacksonville, Florida 32201 John W. McWhirter, Jr., Esquire Post Office Box 2150 Tampa, Florida 33601 Alan F. Ruf, Esquire 2801 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William H. Harrold, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION In re: Application of Cooper City DOCKET NO. 800415-WS (CR) Utilities, Inc. for a rate increase ORDER NO. 9699 to its water and sewer customers in DOAH CASE NO. 80-1188 Broward County, Florida. ISSUED: 12-16-80 / The following Commissioners participated in the disposition of this matter: WILLIAM T. MAYO GERALD L. GUNTER JOSEPH P. CRESSE JOHN R. MARKS, III Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held public hearings in this matter on July 16 and 17, and on September 23 and 24, 1980, in Cooper City, Florida. The Division of Administrative Hearings assigned Case No. 80-1188 to the above-noted docket. APPEARANCES: Andrew T. Lavin, Esquire Post Office Box 650 Hollywood, Florida 33022 and Sam Spector, Esquire Post Office Box 82 Tallahassee, Florida 32302 for the Petitioner, Cooper City Utilities, Inc. James L. Ade and William A. Van Nortwick, Esquires Post Office Box 59 Jacksonville, Florida 32201 for PCH Corporation Intervenor in opposition. John W. McWhirter, Jr., Esquire Post Office Box 2150 Tampa, Florida 33601 and Alan F. Ruf, Esquire 2801 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 for the City of Cooper City, Florida, Intervenor in opposition. William H. Harrold, Esquire Florida Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 for the Respondent, Florida Public Service Commission and the public generally. The Hearing Officer's Recommended Order was entered on November 18, 1980. The time for filing exceptions thereto has expired and no exceptions have been filed. After considering all the evidence in the record, we now enter our order.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.
Findings Of Fact Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities. DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Patricia C. Ellis, City Attorney City of Opa Locka 777 Sharazad Boulevard Opa Locka, Florida 33054 Francine M. Ffolkes Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact The permit Applicant and Co-Respondent, Florida Medical Facilities, Inc. is the owner and developer of a 60-acre tract of land upon which it has constructed a hospital and will construct various attendant laboratories, medical offices and the like. Additionally, the Applicant is the owner of approximately five acres of land adjacent to its original 60-acre site which lies on Morningside Drive in Englewood, Sarasota County, Florida. The Applicant proposes to construct and operate the wastewater treatment plant on that 5-acre parcel. The Applicant proposes to construct an extended aeration wastewater treatment plant and effluent disposal drain field system which will accommodate and dispose of all wastewater effluent on the site by the absorption bed, land application method. The proposed sewage treatment plant will have an average daily design flow capacity of 50,000 gallons per day. The anticipated peak flow of the treatment plant will be 60,000 gallons per day. The plant will generate and dispose of approximately 900 gallons of waste sludge on a daily basis. The facility would employ dual drain fields, use of which would be rotated on a weekly basis. The proposed average hydraulic loading rate would be 3.21 inches per day or two gallons per day, per square foot of drain field. The proposed facility will serve a 100-bed community hospital, assorted medical offices, a diagnostic laboratory and a 75-bed nursing home. The permit applicant has agreed and stipulated that chemical, nuclear and other hazardous and noxious waste materials, blood, body parts, medicines, and drugs will not be introduced into the sewage treatment system plant or drain fields. The Applicant (FMF) originally proposed to dispose of sewage effluent emanating from its hospital and other facilities by transmission of it through force-mains to existing public wastewater systems, one of which is in Charlotte County and the other in Sarasota County. After exploring these possibilities, these alternatives proved to be either too expensive or to involve transmission of effluent over too great a distance to make these options feasible. Sarasota County has a local pollution control program approved by the DER, pursuant to Section 403.182, Florida Statutes. Under this program the Sarasota Environmental Service Department reviews domestic wastewater treatment facility permit applications pending before the DER and makes recommendations on their disposition. The county's ordinance concerning such facilities is equivalent to the DER standards, except in some respects it is stricter Mr. Russell Klier of the county environmental services department established that the proposed project as planned and designed, will comply with county ordinances regarding wastewater treatment plants. Indeed, it was established through Mr. Klier's testimony, that the proposed project has more redundancy and reliability safeguards than any other such project presently operating in Sarasota County. The proposed sewage treatment plant and disposal system is designed to attain the secondary level of treatment required by Chapter 17-6.060, Florida Administrative Code. The effluent disposal system will provide for disposal of effluent in an absorption field system as envisioned by Chapter 17-6.040(4)(M), Florida Administrative Code and the Department's "Land Application Manual," incorporated by reference in that rule. The system, as proposed, will have the additional safeguards required by the "Land Application Manual" in order to attain "Class I reliability." The hospital, which is the initial facility to be constructed on the 60-acre site, is largely completed, and is being served by a temporary "package" sewage treatment plant until the permit application is resolved. The package sewage treatment plant, as well as the proposed plant and drain field land application system will only serve the medical center complex. All on-site stormwater and surface water run-off from both the 60-acre original medical center site, as well as the 5- acre proposed sewage treatment plant and disposal site, will be managed by directing stormwater and surface water run-off to holding ponds to be constructed and maintained on the original 60-acre site. Steven Houghton was accepted as an expert engineering witness. It was thus established that the system as designed will meet all water quality parameters regulated and enforced by the DER and Sarasota County in terms of the quality of the effluent generated by the plant and disposal system for disposal by land application. In this connection, he established that no nuclear, infectious, toxic or noxious waste will be processed by the system or introduced into the system nothing other than domestic-type sewage will be treated, processed and disposed of by the proposed system. Mr. Houghton acknowledged that the project will be located in an historically flood-prone vicinity, but that will not affect the quality or effectiveness of the operation of the plant nor the safe disposal of the resulting effluent. In that regard, the Applicant will place fill at the drain field site so as to provide a more effective soil percolation condition than that presently existing in the soils at the drain field site. Additionally, the Applicant will provide a sewage storage tank to provide extra reliability and avoidance of pollution caused by sewage overflows in the event of any excessive sewage flows into the plant, and as a safeguard against disposing of insufficiently treated effluent during periods of high rain and high surface or ground water conditions. Additionally, the system will be constructed and operated with sufficient redundancy of electrical and mechanical components so as to provide auxiliary capacity throughout the system, allowing it to operate efficiently 24 hours a day and to continue to provide treatment and disposal of the effluent in accordance with secondary treatment and Class I reliability standards, even during periods of mechanical or electrical outages. Petitioner Mary Wagoner owns and resides on acreage generally south and adjacent to the proposed project site. Mrs. Wagoner uses a potable water well in the shallow aquifer with a depth of approximately 35 feet. Mrs. Wagoner's well has recently been tested and at this time provides good, safe, potable water which she uses both for drinking, cooking, domestic usage, as well as water for her livestock. Mrs. Wagoner's well is less than 500 feet from the proposed "wetted area" of the drain field land application disposal site. Mr. Edward Snipes was accepted and testified as an expert witness in the areas of engineering and wastewater engineering on behalf of the Department. He corroborated Mr. Houghton's testimony in establishing that the project would meet the Department's standards for water quality and Class I reliability in large part. It was shown that the project will not likely have harmful effects on the Petitioners' water wells. Mr. Snipes established that the Department's "Land Application Manual" embodied in Rule 17-6.04(4)(Q), Florida Administrative Code requires a buffer zone of only 100 feet, instead of 500C feet, from the wetted area of the sewage effluent disposal site, due to the type of system and level of treatment proposed. That is, the system would provide secondary treatment, with additional safety measures incorporated in the design and operation so as to achieve Class I reliability. This Class I reliability standard includes a sufficiently high rate of disinfection so as to allow unrestricted public access to the site, and thus would meet the most stringent Class I reliability standards extant in Rule 17- 6.040(4)(M), Florida Administrative Code. This permits a reduced buffer zone between the wetted area of the drain field and any adjacent, shallow-water wells. Thus, the buffer zone would, in the case of this plant, be allowably reduced from 500 feet to 100 feet. In only one respect, was any doubt cast by Petitioner's testimony and evidence on the showing of reasonable assurances that all Department water quality and wastewater treatment standards will be met. That doubt concerns the distance from the bottom of the drain field to the water table elevation at the drain field site, as that relates to the ability of the system to continue to treat and dispose of effluent within appropriate standards in this admittedly flood-prone area, as that problem would in turn relate to potential contamination of ground water in the area, especially in times of high rainfall and high ground water levels. In that connection, Petitioner Wagoner offered Herman Weinberg as an expert witness in civil engineering and he was accepted. Mr. Weinberg acknowledged that he was not a soil engineer and acknowledged that the Department or its witnesses were more knowledgeable about wastewater regulation, treatment and disposal methods than he. He opined, however, that the plant may not be able to reach Class I reliability due to its location in a flood-prone area. He fears that insufficient soil testing and water quality testing had been done prior to the filing of the permit application. and prior to the ultimate construction of the project, if that is to be the case. Section 17-6.040(4) (M), Florida Administrative Code, adopts by reference the United States Environmental Protection Agency design criteria for mechanical, electrical and fluid system and component reliability manual. That manual sets forth certain minimum standards for Class I reliability sewage treatment and disposal plants and systems. In this regard, the rule in that manual establishes that wastewater treatment works include holding ponds and basins and other structures of the disposal system. It provides that all treatment works, structures, as well as electrical and mechanical equipment, shall be protected from physical damage by flooding of a magnitude occurring on the average of once in a hundred years, the so- called "100-year flood." In this connection, it was established through witness Weinberg's testimony as well as that of Mr. Houghton, the Applicant/Respondent's witness, that the 100-year flood plan elevation on and around the subject site is 12 feet above mean sea level. The top of the proposed drain field would be located at 12.33 feet elevation. The bottom of the drain field would be at 10.33 feet elevation. The water table level established by witness Houghton as a result of his survey and calculations, is at 8.33 feet elevation. The Department of Environmental Regulation, in its "Land Application Manual," which provides criteria for sewage plant and disposal system construction and operation, requires a 36-inch minimum separation between the bottom of a drain field and the design water table level. Thus, the legally operative Class I reliability standards, incorporated in the above-referenced rule and manuals, and which the Applicant and the Department agree is the level of reliability required, given the conditions and the proximity of Petitioner's well, can only be met if the drain field disposal system is at this required elevation of 36 inches above the design water table level. Affirmative, reasonable assurances that this safeguard will be incorporated in the subject system are necessary in view of the fact that Petitioner Wagoner's potable water well is clearly less than 500 feet from the wetted area of the drain field site. In this connection, the Applicant/Respondent has proposed placing fill soil of a suitable type for adequate percolation and land application treatment of the effluent on the drain field site, however, it has not been established that this will be done to such an extent as to raise the elevation of the drain field sufficiently so that the bottom of the drain field is a minimum of 36 inches above the design water table. The installation of an adequate depth of fill soil of a suitable percolation characteristic must therefore be a condition on the issuance of the permit. Further, in that regard, the Applicant/Respondent's soil test and calculation of tile ground water level or "design water table," occurred in January and February of 1985, at a time when the southwest region of Florida was in a drought or dry condition, such that the water level or ground water table at normal rainfall conditions would likely be at a higher elevation. Thus, a grant of this permit must be conditioned upon the installation of sufficient, appropriate quality fill soil to ensure that the minimum 36-inch separation between the drain field bottom and the water table is maintained during normal water table or rainfall conditions. If this measure is not taken, given the 2-foot separation between the drain field, as designed, and the water table, the oxygen transferring capacity of the soil beneath the drain field may not be sufficient to satisfy the oxygen demand required for consistently adequate treatment and safe disposal of the sewage effluent. Additionally, in this same context, Chapter 1 of the DER Land Application Manual at Section 1.3, requires that sufficient storage capacity exist on-site to ensure retention of sewage effluent during conditions which preclude land application, such as high ground water conditions or flooding conditions. This capacity should be equivalent to three days maximum daily flow at the design capacity of the plant, or in this case, 180,000 gallons. Although the Applicant, by its plans and specifications in evidence, has assured that a sewage effluent storage tank will be constructed and operated, it has failed to establish that sufficient storage capacity will be incorporated to assure the retention of 180,000 gallons of effluent. Any grant of the permit application should be conditioned upon such an assurance. Finally, in connection with the above-mentioned condition concerning installation of sufficient, appropriate soil filling to allow for a minimum 36-inch amount of unsaturated soil beneath the drain field, that addition of fill should also be of a sufficient type and amount to ensure that the Applicant's proposed rotation or "resting" of drain fields for 7-day periods will be adequate to ensure that the subject amount of soil is unsaturated before re-use of either of the two drain fields. There should be incorporated in these conditions, upon a grant of the permit, the requirement that the Department monitor construction of the proposed facility to ensure that the above conditions are adequately met, in view of the low-lying terrain at the drain field site and the flood-prone condition of that locality. Petitioner Mary Nygaard testified on behalf of herself and her husband, Lyle A. Nygaard. Mrs. Nygaard complains of feared pollution of her shallow-water potable well which she maintains is within 500 feet of the drain field and sewage plant site. Mr. Nygeard established that the well is 187.1 feet from the Petitioner's southern property boundary, but acknowledged that no survey has been done delineating the distance to the proposed wetted area of the drain field. It was not otherwise proven how far the Nygaard's potable well is from the wetted area of the proposed drain field where the effluent will be disposed of. Various easements and roadways lie between the Nygaard's well and the wetted area of the proposed drain field site with indeterminate dimensions, thus it was not proven what distance exists between the Nygaard's well and the drain field site other than that it exceeds 187.1 feet.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Florida Medical Facilities for a permit authorizing construction of an extended aeration, wastewater treatment plant and disposal system to serve only the Englewood Hospital and Medical Center project in Englewood, Sarasota County, Florida, referenced above be GRANTED, provided that the above-delineated conditions upon a grant of the permit are complied with. DONE and ENTERED this 30th of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, 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 30th day of January, 1986. COPIES FURNISHED: Lyle and Mary E. Nygnard 740 Morningside Drive Englewood, Florida 33533 Harlan Domber, Esquire ISPHORDING, PAYNE, KORP and MUIRHEAD, P.A. 333 West Miami Avenue Venice, Florida 33595 James H. Burgess, Jr., Esquire SYPRETT, MESHAD, RESNICK and LIEF, P.A. Post Office Box 1238 Sarasota, Florida 33578 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following specific rulings are made on the proposed findings of fact submitted by the parties to the extent that the proposals actually constitute proposed findings of fact as opposed to recitations of testimony and evidence, conclusions and arguments of law. APPLICANT/RESPONDENT'S PROPOSED FINDINGS OF FACT Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 7 constitutes a conclusion of law. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 11 constitutes in part a conclusion of law. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Accepted, but this proposed finding of fact is unnecessary and immaterial to a resolution of the material issues presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. RESPONDENT/DEPARTMENT OF ENVIRONMENTAL REGULATION'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted as modified by the Findings of Fact and Conclusions of Law in the Recommended Order concerning the conditions which must be met before the permit should be granted as that relates to Class I reliability standards and the "buffer zone" issue. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the necessity of the installation of a minimum 36-inch adequate soil percolation zone and adequate sewage effluent storage capacity. Accepted in part, but rejected to the extent that this proposed finding of fact maintains that the nature of Mrs. Wagoner's well has been impossible to obtain due to her refusal to allow inspection. Indeed, Mrs. Wagoner adduced competent evidence of the water quality in her well. Accepted in part, but modified by the Findings of Fact in the Recommended Order concerning the additional conditions that should be placed upon the permit related to its location in a flood-prone area, and related to the distance between the bottom of the drain field and the high water table. Accepted. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the conditions referenced above which must be met for Class I reliability and for avoidance of harmful effect on Petitioner's water well. Accepted. Accepted. Accepted.. Accepted, but modified by the Findings of Fact in the Recommended Order concerning additional conditions referenced above which must be met concerning Class I reliability and protection of water quality in Petitioner's-well. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as constituting merely a discussion of testimony. Accepted. Accepted. Accepted. Accepted, but this proposed finding is irrelevant to a resolution of the material issues presented. Accepted. Rejected as merely being a recitation of testimony. Accepted. PETITIONER WAGONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, except to the extent that it indicates the applicant will situate the facility in a manner so as not to be accessible to the general public. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as constituting a discussion and conclusion of law. 13 and 14. Rejected. These two proposed findings in reality constitute discussion and conclusions of law. 15 and 16. Rejected. These two proposed findings in reality constitute discussion and conclusions of law. They are rejected for the additional reason that portions of those two paragraphs that constitute proposed findings of fact do not comport with the competent, substantial, credible evidence and testimony presented. 17 through 31. These proposed findings are rejected as constituting conclusions of law and, to the extent that they embody proposed findings of fact, are not supported by the competent, substantial, credible evidence and testimony presented. The evidence and testimony shows that reasonable assurances (except as to the permit conditions recommended) have been provided that all pertinent regulatory criteria have been or will be met. The EPA Manual criteria referenced in these proposed findings of fact (17-31) are not mandatory, whereas those in Subsection (4)(q) of the above-referenced rule are mandatory and have been reasonably assured by the applicant to be met subject to the conditions recommended on a grant of the permit by the Hearing Officer. Accepted, except to the extent that the applicant is reputed not to have provided data to substantiate the estimated design water table. The applicant's proof of the water table elevation was un-refuted. Accepted as to the first sentence, the remaining portion of that proposed finding of fact is irrelevant and unnecessary to a disposition of the material issues presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Accepted to the extent that the conditions recommended to be attached to a grant of the permit envision assurance being provided before a grant of the permit that the issue raised by proposed finding No. 39 is satisfied. Accepted. Accepted as to its second sentence, the first sentence in that proposed finding is rejected as not comporting with the competent, substantial, credible testimony and evidence presented, and as being unnecessary to a resolution of the material issues presented. Accepted. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. 47. Rejected as constituting a conclusion of law. 48. Rejected as constituting a conclusion of law. 49. Rejected as constituting a conclusion of law. 50. Rejected as constituting a conclusion of law. 51. Rejected as constituting a conclusion of law. 52. Rejected as constituting a conclusion of law. 53. Rejected as constituting a conclusion of law. 54. Accepted. 55. Rejected as constituting a conclusion of law. 56. Rejected as constituting a conclusion of law. 57. Rejected as constituting a conclusion of law. 58. Rejected as constituting a conclusion of law. 59. Rejected as constituting a conclusion of law. 60. Rejected as constituting a conclusion of law. 61. Rejected as constituting a conclusion of law. 62. Rejected as constituting a conclusion of law. 63. Rejected as constituting a conclusion of law. 64. Rejected as constituting a conclusion of law. 65. Rejected as constituting a conclusion of law. 66. Rejected as constituting a conclusion of law. 67. Rejected as constituting a conclusion of law. 68. Rejected as constituting a conclusion of law. 69. Rejected as constituting a conclusion of law and for the additional reason that the last sentence is a proposed finding of fact not supported by competent, substantial credible evidence and testimony presented. Rejected as constituting a conclusion of law and for the further reason that the proposed finding of fact is not supported by competent, substantial, credible testimony and evidence presented. Rejected in part as constituting a conclusion of law and accepted to the extent that reasonable assurances concerning the effect of the water table elevation discussed in the Recommended Order have not been provided and such assurance should be a condition on a grant of the permit. The remainder of that proposed finding of fact is not supported by the competent, substantial, credible evidence presented and is irrelevant. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Accepted. Accepted. Accepted. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.
