Findings Of Fact Respondent owns and operates a waste water treatment facility at Polynesian Village Mobile Home Park, owns the land at this village, leases these lots to mobile home owners, and provides them with waste water treatment. He was last issued an operating permit on January 18, 1983, by Petitioner. Respondent posted an Operational Bond (Exhibit 2) in the amount of $7,500 with Northwestern National Insurance Company as surety to faithfully operate the treatment facility and comply with all Rules and Regulations of the Petitioner. Englewood Water District, petitioner, was established by special act of the Florida Legislature in Chapter 59-931, Florida Statutes, and is given authority in Section 4 thereof to regulate use of sewers, fix rates, enjoin or otherwise prevent violations of the act or any regulation adopted by Petitioner pursuant to the act, and to promulgate regulations to carry out the provisions of the act. Pursuant to this authority, Petitioner promulgated Waste Water Treatment Facilities Design, Construction and Operation Regulations dated June 19, 1980, and revised April 28, 1983. During an inspection of Respondent's waste water treatment facility on October 17, 1983, leaching was observed at both the north and south drain fields with effluent from the system rising to the surface. Samples of this effluent when tested showed a fecal coliform count of 2800/100 ml. The basic level of disinfectant shall result in not more than 200 fecal coliform values per 100 ml of effluent sample (Rule 17-6.060(1)(b)3a, F.A.C.). Following this test, Notice of Violation (Exhibit 4) was served on Respondent. No action was taken by Respondent to correct this condition and on January 6, 1984, a Citation (Exhibit 5) was issued to Respondent scheduling a hearing for January 26, 1984. Following the issuance of that Citation frequent inspections of the facility were conducted by employees of Respondent to ascertain if steps were being taken by Respondent to correct the deficiencies. Additionally, inspections were made by inspectors from Sarasota County Pollution Control. Inspections were conducted January 9, 16, 17, 18, 20, 23, and 31; February 1, 8, 13, 14, 16, 21, 24, 25, 26, 27, 28, and 29; and March 2, 5, 8, and 9, 1984. These inspections revealed what appears to be a "blow-out" in the south drain field where effluent bubbles to the surface and flows onto the adjacent streets and propert (Exhibits 9 and 11). Effluent tested from this source had fecal coliform counts as high as 9440/100 ml. During one of these inspections effluent from the treatment plant was being discharged directly onto the road to a drainage ditch adjacent to the plant (Exhibit 8). The coliform count of a sample taken from this ditch was 13500/100 ml. Respondent was issued a second Citation on March 2, 1984, and this hearing was held on the violations alleged in that Citation, to wit: creating a public nuisance and leaching from drain field. Respondent contends that he is dealing with the Sarasota County Engineer to correct the problems and, after failing in his attempt to get the county to provide drainage from his property, he is now in the process of installing drain pipes. Respondent contends that the natural drainage of surface waters from his land to adjacent land was stopped by development on the adjacent land and the heavy rains this winter has saturated his land and inhibited percolation in the drain fields. Accordingly, the effluent from his plant could not be absorbed by the drain field. Respondent also contends that the drain field worked fine for several years before the drainage problem arose and believes it will again work well when the drainage situation is corrected.
The Issue Whether Petitioner was wrongfully denied general permits to construct an extension to a public water supply distribution system and to construct a waste water treatment system at a camp being constructed by Petitioner.
Findings Of Fact On December 11, 1991, the Department of Environmental Regulation (DER), Ft. Myers office, received applications from the Orange Blossom Baptist Association, Petitioner, submitted by its project engineer, for general permits to install an extension to provide water to, and construct a waste water treatment facility for, a camp being built by Petitioner. These applications were reviewed by the Respondent, and on January 2, 1992, James Oni telephoned Petitioner's engineer to tell him the applications were incomplete and additional information was required. Some of this additional information was submitted by Petitioner on January 7, 1992, but the word "vertical" was left out of the application to indicate what the 18 inch separation of the water and sewer lines represented; no pump out was provided for the lift station; the flotation formula as submitted contained a typographical error where an "s" was substituted for a "5", leaving the calculation of storage capacity of the system indeterminable; the lift station was only 4.5 feet deep and should normally be 10 feet; the configuration of the sump to insure solids would settle to the bottom was not provided, nor was the amount of concrete to be used to obtain this configuration shown; and the type of equipment to be used was not clearly shown. In summary, when submitted the application was not technically correct, and it remained technically incorrect after the additional information was submitted by the applicant. General permits are required to be processed by DER within 30 days of their receipt, and if not denied within that 30 day period they must be approved regardless of their compliance with the statutes and regulations.
Recommendation It is recommended that a Final Order be entered denying Orange Blossom Baptist Association general permits to install a waste water treatment facility and to construct an extension to a public water supply distribution system in Highlands County, Florida. ORDERED this 6th day of May, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1992. COPIES FURNISHED: William N. Clark, P.E. 233 E. Park Avenue Lake Wales, FL 33853 Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in this case essentially are whether the Respondent, the Department of Environmental Regulation (DER), should reimburse Anthony F. Kopp, Owner, La Casa Del Sol, for the difference between the cost to him of the DER's remedy for the EDB contamination of the drinking water supply at La Casa Del Sol and the remedy that is least costly to the Petitioner, together with the cost of a new irrigation system, engineering and attorney fees, and other incidental costs to the Petitioner.
Findings Of Fact The Petitioner, Anthony F. Kopp, is the owner of La Casa Del Sol (La Casa), a 40-acre development at 1255 U.S. Highway 27 North, Davenport, Florida. La Casa is divided into 309 mobile home lots, a clubhouse and five acres of common green space. In January, 1987, the Petitioner received a permit for construction of a water supply system for both drinking water and irrigation needs at La Casa. The construction permit was granted with the proviso that, when La Casa's population reached 350, a second backup drinking water well, six inches in diameter at 410 feet, with a casing to 366 feet, and an auxiliary power source would have to be installed. It would cost La Casa approximately $65,000 to install the backup well and auxiliary power source. La Casa did not reach a population of 350 until January, 1991. The St. Johns River Water Management District permitted the construction of the backup well, but the well never was constructed, and the construction permit now has expired. The auxiliary power source also was not installed. The main water supply system for La Casa was installed during the summer of 1987. It included a well and a system of lines for carrying water to each of the 309 lots. It also included hose bibs (faucets) at each lot so that the water also could be used for irrigation at each lot. The system also supplied water for irrigation of the common green space. Although all of the lots at La Casa were connected to the water supply system in the manner described, not all the lots had homes on them. During the summer of 1989, only about 175 of the lots had homes on them; by January, 1991, 198 lots had homes on them. Although not all of the lots were occupied, the entire water supply system was permitted, and no additional permits were required to provide water to the lots. However, when La Casa's population reached 350, the backup well and auxiliary power source would have to be installed under the permit conditions. In about May, 1988, DER tests showed that the La Casa water supply system was contaminated with ethylene dibromide (EDB) at levels in excess of the maximum allowable for drinking water. In October, 1988, the Petitioner completed and filed a Grant Application for EDB Clean-Up Funds. As part of the application, the Petitioner agreed that DER could: arrange for the purchase and installation of appropriate filters and inhibitors; provide a new well; or arrange for the connection of [the Petitioner's] well to an existing public supply system, whichever is more cost-effective as determined by the Department of Environmental Regulation. DER contracted with Continental Water Systems to provide a temporary carbon filter system for La Casa's water supply system to remove the EDB and supply uncontaminated drinking water to the development, pending a permanent solution to the EDB contamination. The temporary filter system was designed to provide 100 gallons per minute of water, which should have been adequate for drinking water needs at La Casa. However, water pressure problems arose due to algal growth and the use of the system for irrigation purposes in addition to the drinking water purposes for which it was designed. DER is a member of the Ground Water Task Force, which met biweekly or monthly to discuss, among other things, potable wells contaminated with EDB. Other member agencies are the Department of Heath and Rehabilitative Services, the Department of Agriculture and Consumer Services, the Department of Transportation and the Department of Community Affairs. The Task Force discussed the La Casa contamination problem and agreed that the possibility of having La Casa connected to an existing water supply should be explored. DER began negotiating both with Polk County and with Haines City for a water line connection. Connection with the Polk County line would have been more expensive, and Polk County was not particularly interested in extending its line. Negotiations continued with Haines City. Negotiations with Haines City progressed to the point that DER was able to present for consideration by the Task Force cost figures for a permanent filter system at La Casa, with ten years of projected cost of operation and maintenance, as compared to the cost of extending the Haines City line. The Task Force agreed with DER that extending the Haines City line north to La Casa and connecting La Casa to it was the most cost-effective use of state funds to remedy the EDB problem at La Casa, particularly in view of other EDB-related drinking water supply problems in the area and anticipated future drinking water supply problems in the area. The Petitioner was not invited to participate in the negotiations with Polk County and Haines City and did not participate in them. Nor was the Petitioner invited to participate in either the DER or the Task Force decision- making process, and the Petitioner did not participate in those processes, either. However, the Petitioner, through his engineering consultant, was made aware in early 1989 that DER was exploring options to have La Casa connected to an existing water supply. DER paid approximately $400,000 for the Haines City water line extension and La Casa connection. This included $90,000 for Haines City impact fees to cover the 175 then existing mobile homes at La Casa (DER actually paid $450 per unit for 200 units), as well as the plumbing contractor fees for connecting La Casa to the extended city water line. It also includes the cost of installing a water meter at La Casa. The ten-year cost to the DER to solve just the La Casa drinking water problem using an EDB filter system would have been less than the cost to the DER of extending the Haines City line and connecting La Casa to it. But the evidence is clear that, in the long run, and taking into consideration other EDB-related drinking water supply problems in the area, and anticipated future drinking water supply problems in the area, the most cost-effective use of state funds to remedy the problem was to extend the Haines City line and connect La Casa to it. (Even the Petitioner's expert witness agreed that the Haines City extension and connection was the most cost-effective use of state funds to remedy the area's EDB problem.) DER advised the Petitioner of its agreement with Haines City in approximately May or June, 1989. By letter dated July 27, 1989, DER explained to the Petitioner the details of the agreement, specifically what DER would pay and what DER would not pay. By the fall of 1989, the Petitioner knew that work was beginning. At the time, the extension of the Haines City line and connection to La Casa was projected for completion in January, 1990, but there were delays, and the city water supply was not ready to be connected to La Casa until August, 1990. By this time, a dispute had arisen between the Petitioner and DER as to the cost to the Petitioner of connecting to the city water, and actual connection was further delayed. Finally, by letter dated October 11, 1990, DER gave the Petitioner an ultimatum: either be connected to the city water supply; or forfeit any state contribution to the cost of remedying the EDB contamination of the Petitioner's water supply. Faced with the prospect of having to open the winter peak season without any drinking water, the Petitioner agreed, under protest, to be connected to the city water supply, and initiated formal administrative proceedings to challenge DER's intended decision to limit the extent to which the DER would cover the Petitioner's costs. There was evidence that the plumbing contractor hired by DER may have caused damage to the landscaping and one mobile home that has not yet been repaired. However, DER acknowledged its responsibility for the damage and intends to have the plumbing contractor repair the damage. There also was evidence that the Petitioner received a bill from Haines City for the installation of a water meter at La Casa. But the evidence also was that DER may already have paid the bill. In any event, DER acknowledges its responsibility for the cost of the water meter as part of the cost of connecting La Casa to the extended city water line. Although DER had the Haines City water line extended in response to the Petitioner's Grant Application for EDB Clean-Up Funds, two commercial properties south of La Casa were connected because of EDB contamination, and the line also was extended north of La Casa in preparation to address anticipated future EDB contamination problems. Under the DER's response to the Petitioner's Grant Application, each additional mobile home unit over 200 connected to the city water supply will require the payment of a $450 impact fee. In addition, Haines City will charge monthly water fees of $1.80 1/ per 1000 gallons for the use of water at La Casa, with a $1,000 minimum charge per month. 2/ Based on current occupancy of 200 lots, the Petitioner estimates water fees of $42,000 per year, figured at approximately $5,000 per month for six peak months (based on a recent peak season monthly bill) and $2,000 per month for six off-peak months. However, it is not clear whether some of that estimated usage includes irrigation. If, in order to save gallonage fees, the Petitioner puts in a separate irrigation system supplied by its well, it will have to put in a separate distribution system since the current system is being used to bring city water to the lots. This would cost approximately $90,000. The Petitioner has paid approximately $2,100 in engineering fees to assess the problem with the temporary filter and to propose solutions, to estimate the cost of installing a separate irrigation system, and to estimate the cost to the Petitioner of connecting to the Haines City water supply. There was no evidence as to the reasonableness of those fees. The Petitioner also has paid approximately $4,500 in attorney fees to negotiate with the DER for payment of a larger portion of the Petitioner's cost of connecting to the Haines City water supply. There was no evidence as to the reasonableness of the attorney fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing the Amended Petition for Formal Hearing in this case. RECOMMENDED this 14th day of March, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991.
The Issue Is Petitioner guilty of violations of Rule 64E-6.022(1)(p), Florida Administrative Code, improper installation or repair of on-site sewage disposal system, and Rule 64E-6.022(1)(l), Florida Administrative Code, gross negligence and incompetence which causes monetary harm to a customer as charged in the Citation for Violation dated April 4, 2000, and if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Pursuant to Section 381.0065, Florida Statutes, the Department has the authority and jurisdiction to regulate the construction, installation, modification, abandonment or repair of on-site sewage treatment and disposal systems (used interchangeably with "septic tank" or "drainfield" throughout this Recommended Order). Septic tank repairs may be made only by individuals who have qualified with and are licensed by the Department and subject to the standards of ethics and competence established by Department rules. See, Section 489.553(3), Florida Statutes (1999). At all times material to this action, Petitioner has been registered with the Department as a septic tank contractor and serves as Vice President of Sales for Allstate Septic Tank Company (Allstate). Allstate is owned by Jack Dunn (Dunn). Petitioner has been employed by Allstate since 1982. At the time Petitioner commenced her employment with Allstate, the company was owned by an individual who sold the business to Dunn in 1995. From 1982 to 1995 when Dunn acquired the business, Petitioner worked as Allstate's office manager. Dunn, not Petitioner, has final authority over how Allstate's work is performed and what accommodations, if any, will be made with dissatisfied customers or with regulatory authorities. At all times material to this case, Cheryl and Kelly Sadar (Owners) owned and resided in a home at 1770 SW 30th Place, Ft. Lauderdale. Like the other homes in this neighborhood, Owners' property relied upon an on-site drainage and sewage system. The drainfield at the Owners' property had been replaced in 1988 and had operated without problem until December 1998. In December 1998, Cheryl Sadar called Allstate and asked the Company to "check out" odors coming from the grass lawn on Owners' property. Pursuant to that request, Petitioner and Dunn visited the Owners' property. In January, 1999, Allstate pumped the Owners' septic tank and told Mrs. Sadar that if the pumping did not work, it would be necessary to replace the existing drainfield. Pumping did not work and in March 1999, the Owners authorized Allstate to replace the existing drainfield with a new drainfield system. Petitioner and Dunn differ from the Owners in their testimony regarding what, if any, requirements Allstate sought to impose upon the Owners in order to assure that the drainfield to be installed by Allstate would work properly, and what, if any, limits the Owners placed upon Allstate's ability to exercise professional judgment as to where the drainfield should be installed. For example, Petitioner claims that Owners forbade Allstate the use of the eastern border of Owners' property because they wanted to store a boat there. Department witnesses deny that Owners ever sought to impose such a restriction. The parties also disagree as to the significance of certain restrictions which the parties agree were in fact imposed. For instance, there is no dispute that Owners were unwilling to cut down a favorite oak tree, despite Allstate's recommendation that they do so. But the parties differ in their recollection of what, if anything, was said to Owners about the impact of that decision upon Petitioner's ability to deliver a working drainfield. The factual disputes regarding limitations allegedly placed upon Petitioner by Owners are resolved in favor of the Department. Having considered the demeanor of the witnesses during their testimony, together with all of the facts and circumstances surrounding the dealings of the witnesses, the undersigned concludes that Owners placed no restrictions upon Allstate in the performance of its contract, save the requirement that the favorite oak tree be left standing. In that instance, the undersigned concludes that the Owners testified truthfully that Allstate informed them that the new drainfield may need to be replaced as soon as a decade after its installation if the oak tree remained, and Owners accepted that particular risk. There was undisputed testimony that other homes in the Owners' neighborhood have drainfields adjacent to mature oak trees, and that proximity has never been known to cause a drainfield failure within months of installation. It is not believable that Owners allowed Allstate to install a drainfield with knowledge that Allstate expected the system to fail within months if the oak tree was not removed. Similarly, there was no evidence, save for the testimony of Petitioner and Dunn, that Owners ever owned a boat, or had plans to buy one. Indeed, Gerald Timmons, who replaced the failed Allstate drainfield with a system which was operating without problems through the date of the hearing, testified that Owners made no attempt to restrict the location of the drainfield, and that he in fact installed his system over the eastern border of the property where Petitioner claimed Owners had denied access. By contract dated March 1, 1999 (Composite Exhibit 17, "the contract"). Allstate undertook to provide a new drainfield to Owners for the price of $2,300.00. Pursuant to the contract, Petitioner undertook to provide the Department with information required to secure necessary Department permits. In the permit application, Petitioner misrepresented the condition of the ground below the drainfield as having suitable soil conditions for the proposed work. In fact, the opposite was true. The presence of the pre-existing drainfield rendered the site unsuitable and indeed, doomed to fail. The site evaluation provided by Petitioner represented an adequate amount of sand in the drainfield area and an observed water table depth of 48 inches below the existing grade. Unrebutted expert testimony demonstrates that these representations could not possibly have been true, due to the presence of the pre-existing drainfield which Petitioner failed to excavate prior to installing a new system directly on top of the pre-existing drainfield. Petitioner testified that she personally probed five feet down the center of the area where the Allstate drainfield was to be placed but found no sign of the pre-existing drainfield which was there. This testimony is belied by the more credible the testimony of the Department's experts, who agreed that if Petitioner's account of her probe were accurate, the pre-existing drainfield would necessarily have been discovered. Petitioner's permit application inaccurately represented the amount of available space for the installation of a drainfield as being limited to 375 square feet. In fact, the owners' property would accommodate a 523 square foot drainfield. The separation between the bottom of the Allstate drainfield system and the water table depth required for the competent installation of a drainfield was not met by Petitioner. The parties expended a great deal of time establishing the hard feelings between Owners and Allstate and between Department officials and Allstate, particularly its owner Dunn. Witnesses aligned with both sides testified at length to various incidents of boorish behavior by Allstate employees and by the Owners. Similarly, there appears to be a history of distrust between at least some Department officials and Dunn, which was exacerbated between November 1999 and March 2000, when the efforts by the Department to mediate the dispute between Allstate and Owners were unsuccessful. Unquestionably, relations between Allstate and Owners deteriorated rapidly upon the failure of the drainfield, but the various exchanges of angry words and the Department's unsuccessful effort to persuade Allstate to partially compensate Owners have no relevance to the question of whether Petitioner did or did not commit the violations alleged in the Administrative Complaint, and have not been considered by the undersigned in resolving those issues. In this case, Allstate did not provide Owners with a written guarantee of its work, and there is no legal requirement that it do so. Neither did Allstate provide Owners with any written disclaimers or instructions for using the system or warnings that certain types of activities would cause the system to fail. Allstate company policy permits the installation of drainfield systems even in cases where Allstate believes the system is not likely to work. The Petitioner's installation was completed in March 1999 and Owners paid Allstate the $2,300.00 contract price. Beginning in the fall of 1999, Owners began to experience problems with the Petitioner's drainfield. Owners contacted Allstate, which rejected Owners' request that it take corrective action. Owners also contacted the Department, which made efforts to mediate between Owners and Allstate. The evidence is inconclusive as to why the Department's mediation efforts failed. At one point, Allstate seemed agreeable to making a partial refund to Owners, but later Dunn changed his mind. However, Allstate and Petitioner have always asserted that the failure of the drainfield was entirely the fault of the Owners. Indeed, throughout the history of Allstate's dealings with Owners, throughout the final hearing and in Petitioner's proposed Recommended Order, Petitioner has offered a variety of theories as to why her work failed. One suggestion was that the use of a lawnmower contributed to the drainfield's failure. Petitioner also insisted that Owners used too much water, causing hydraulic overload and precipitating the failure of Petitioner's system. Petitioner asserts that Owners' water usage increased by 8.85 percent from March 1999 when Petitioner's system was installed to November 1999, when the system began to fail. And in its Proposed Recommended Order, Petitioner asks for the first time that the undersigned take judicial notice that on October 19, 1999, Hurricane Irene "swept through the Fort Lauderdale area", leaving substantial rainfall-related damage in its wake; however, no evidence was offered linking the rains of Hurricane Irene to Owners' drainfield failure. The unanimous weight of expert opinion, save that of Allstate's owner Dunn, is that the various theories advanced by Petitioner as reasons for the failure of her work--singly or in combination--are insufficient to explain the sequence of events at the Owners' property as it relates to the problems they experienced with the Allstate drainfield system. By March 2000, it was clear that the Allstate-installed drainfield had failed. Jerry's Septic Tank Service and its owner, Gerald Timmons, were engaged by the Owners to evaluate the situation and make necessary repairs. A repair permit was issued to Jerry's by Department on March 13, 2000, and work was commenced. Almost immediately it became apparent that an old drainfield was located immediately beneath the Petitioner's drainfield. Jerry Timmons immediately called Owners to notify them of this finding. Owners, in turn, called Department official Jay Morgenstern to advise of Timmons' discovery. Allstate was also informed of the discovery of the preexisting drainfield. Petitioner and Dunn each conversed with Jerry Timmons about the pre-existing drainfield adjacent to the Allstate drainfield. At all times after Allstate was notified of the failure of its system, Allstate and Petitioner continued to maintain that the failure was the fault of the Owners, not Allstate, and that the preexisting drainfield either was not there in March 1999 or was not discoverable by Allstate. Morgenstern personally conducted an inspection and verified Timmons' finding that old drainfield material was clearly visible. Thereafter, the Department issued the Citation for Violation. The services provided by Petitioner in March 1999, constitute an improper and incomplete repair and installation. The improper, incomplete services provided by Petitioner in March 1999, resulted in Owners being required to expend $2,800.00 for the services of Jerry's Septic Tank to excavate the pre-existing drainfield, along with the defective Allstate system, and to provide a functioning septic tank system, in addition to the $2,300.00 previously paid to Allstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Petitioner guilty of the unlawful conduct alleged in the Administrative Complaint and disciplining her therefor by fining her in the total amount of $1,000.00. DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2000. COPIES FURNISHED: Judith C. Elfont, Esquire Department of Health 2421-A Southwest Sixth Avenue Fort Lauderdale, Florida 33315-2613 William E. Stacey, Jr., Esquire 320 Southeast 9th Street Post Office Box 460053 Fort Lauderdale, Florida 33346 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A-02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the objections of the City of Pembroke Pines and the Green Meadows Civic Association to South Broward Utility, Inc.'s, proposal to extend its water and sewer service area should be sustained.
Findings Of Fact South Broward Utility, Inc. (South Broward), is a corporation engaged in the business of providing water and wastewater service to the public in Broward County, Florida. That business is subject to regulation by the Florida Public Service Commission (PSC). South Broward's water and wastewater treatment facilities are located in the Town of Davie, and it currently provides water and sewer services to residents of that municipality. Included within the area of the Town of Davie currently served by South Broward are the lands bordered on the north by Sterling Road, the south by Sheridan Street, and the west by Dykes Road (S.W. 160th Avenue). On February 4, 11, and 18, 1989, South Broward published a notice of extension in the Florida Lauderdale News/Sun-Sentinel, a daily newspaper of general circulation published in Broward County, Florida, in accordance with Rule 25-30.030(2), Florida Administrative Code. The notice provided that South Broward would file an application with the PSC pursuant to Section 367.061, Florida Statutes, to amend its certificates of public convenience and necessity to allow South Broward to provide water and sewer service to the east half of Section 5, Township 51 South, Range 40 East, Broward County, Florida. Such area may commonly be described as those lands lying immediately west of Dykes Road to S.W. 166th Avenue, and from Stirling Road on the north to Sheridan Street on the south. On February 24, 1989, South Broward mailed a copy of the aforementioned notice to all local, county and state governmental agencies and all other persons required by Section 367.041(4), Florida Statutes, and Rule 25-30.030(2), Florida Administrative Code. Objections to the notice were filed with the PSC by the City of Pembroke Pines (Pembroke Pines) and the Green Meadows Civic Association (Green Meadows). In its objection, Pembroke Pines contended that it had invested over 30 million dollars to expand its municipal water and sewer service west to the Conversation Area from Sheridan Street on the north to Pembroke Road on the south, that this expansion project was anticipated to provide water and sewer service for its existing municipal boundaries as well as the area proposed to be served by South Broward, that it was preparing an annexation report for the proposed area, and that if South Broward's application were approved it would be precluded from servicing its own residents should annexation occur. At hearing, the proof demonstrated that Pembroke Pines had expanded its municipal water and sewer service such that its water and wastewater treatment plants and related facilities have adequate present capacity to meet the current and anticipated future water and wastewater needs in the disputed service area. The Pembroke Pines water lines are currently located on the south side of Sheridan Street, which street forms the southerly boundary of the disputed service area. Its wastewater treatment lines are, however, located approximately one and one-half miles south of Sheridan Street and would require several months and considerable expense to extend them to the disputed service area. Notably, however, no proof was offered that Pembroke Pines had any current intention to annex the disputed service area, or that it had otherwise evidenced any intent to, or taken any action to, provide service to the area. Green Meadows is an association of residents of this area of unincorporated Broward County, some of whom reside within the service area in dispute. The gravamen of Green Meadows' objection is its concern that sewer lines for a centralized sewer system would leak into its member's ground water supply, and that the increase in population density caused by a centralized water and sewer system would adversely affect the area's ecosystem. Neither Green Meadows nor Pembroke Pines contended, however, that the subject extension of service would violate any land use plan, zoning ordinance or other state or local law, and no credible proof was offered that, if built consistent with existent law, the sewer lines would adversely impact the ground water supply or ecosystem. Until recently, all of the lands lying in the disputed service area were located in unincorporated Broward County. However, in September 1988 a parcel of approximately 15 acres which abutted Dykes Road was annexed into the Town of Davie, and in May 1989 a parcel of approximately 80 acres, which abutted the previously annexed parcel on the east, Sterling Road on the north, and S.W. 166th Avenue on the west, was annexed into the Town of Davie. These lands comprise approximately 30 percent of the lands within the disputed service area, and it is the desire of the Town of Davie that water and sewer service to such lands be provided by South Broward. To date, South Broward has entered into a developer's agreement with the owner of the 80-acre parcel to provide such services, and is in the process of executing such an agreement with the owner of the 15-acre parcel. Pembroke Pines does not object to South Broward's expansion into these areas. As to the remaining acreage within the proposed service area, the owners of the vast majority of those lands have expressed a preference for South Broward to provide water and sewer service to their properties, and South Broward has expressed its desire and ability to provide such services. South Broward's water plant has an existing capacity of 500,000 gallons per day (GPD), and has sufficient capacity to address the current need for water service in the proposed area. Upon completion of its current expansion, which is anticipated in October 1989, South Broward's water plant will have a capacity of 1,250,000 GPD, and adequate capacity to address any future demand for water service in the proposed area. South Broward's wastewater treatment plant, with a capacity of 500,000 GPD, currently has sufficient capacity to satisfy the present and future demand for such services in the proposed area. An expansion of that plant is expected to be in service by 1991, which will double the plant's capacity and provide additional capacity. Currently, South Broward has water and sewer lines adequate to serve the proposed area in place, and located under Dykes Road at the eastern edge of the service area. Such lines are adequate to meet all present and anticipated future needs for such service in the area, and the water lines are adequate to provide fire protection to the area. South Broward has the present financial, managerial, operational, and technical ability to provide the present and anticipated needs for water and wastewater service in the proposed area, and the public interest will be best served by the extension of South Broward's water and wastewater systems to that area. Such expansion will not be in competition with or a duplication of any other system in the area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the objections filed by Pembroke Pines and Green Meadows be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1988. APPENDIX The proposed findings of fact filed by South Broward are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 3. Addressed in paragraph 4. Addressed in paragraph 5. 5-10. Addressed in paragraph 9. 11-14. Addressed in paragraphs 10-13. 15 & 16. Addressed in paragraphs 6 and 7. Addressed in paragraph 13. To the extent pertinent, addressed in paragraph 8. Addressed in paragraph 8. 20 & 21. Addressed in paragraph 13. The proposed findings of fact filed by the PSC are addressed as follows: 1 & 2. Addressed in paragraph 3. Addressed in paragraph 9. Addressed in paragraph 3, and paragraphs 2 and 3 of the conclusions of law. Addressed in paragraph 8. 6-12. Addressed in paragraphs 9-13. Addressed in paragraph 7. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 12. COPIES FURNISHED: Mitchell S. Kraft, Esquire Josias & Goren, P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 32308 Deborah Simone, President Green Meadows Civic Association 5831 S.W. 162nd Avenue Fort Lauderdale, Florida 33331 James L. Ade, Esquire Martin, Ade, Birchfiled & Mickler, P.A. 3000 Independent Square Post Office Box 59 Jacksonville, Florida 32201 Randy Frier, Esquire Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 Mr. Steve Tribble, Director Records and Reporting Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 David Swafford, Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870 Susan Clark General Counsel Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
Findings Of Fact The Petitioner, Responsible Growth Management, Inc., is a not-for- profit corporation conceived and organized for the purpose of monitoring local governments within the geographic boundaries of Lee County for compliance with the requirements of the Florida Growth Management Act. Its members are residents of Lee County. Some of its members obtain their potable water from sources protected by Lee County Ordinance No. 89-30, as amended by Ordinance 90- 40 and 90-46, collectively referred to as the Wellfield Protection Ordinance (WPO). Other members obtain their potable water from sources the Petitioner contends are not protected by the WPO. The Petitioner contends that, for several reasons, the WPO is not consistent with the Lee County comprehensive plan. The Lee Plan Goal 41 of the Lee County comprehensive plan (the Lee Plan) provides in pertinent part: GOAL 41: GROUNDWATER. To protect the county's groundwater supplies from those activites having the potential for depleting or degrading those supplies. OBJECTIVE 41.1: WELLFIELD PROTECTION. By 1990 the county shall adopt a wellfield protection ordinance to provide regulations protecting the quality of water flowing into potable water wellfields. POLICY 41.1.1: The proposed wellfield protection ordinance shall be based on reliable technical data to ensure that adequate protection is provided. POLICY 41.1.2: The wellfield protection ordinance shall be amended whenever better technical data is developed and whenever additional potable wellfields are proposed. POLICY 41.1.3: The staff hydrogeologist shall review and comment on all development applications near public utility potable water wellfields, with particular attention to proposed land uses within a 10-year travel time from the well- heads. Goal 85 of the Lee Plan provides: GOAL 85: WATER QUALITY AND WASTEWATER. To ensure that water quality is maintained or improved for the protection of the environ- ment and people of Lee County. OBJECTIVE 85.1: Maintain high water quality, meeting or ex- ceeding state and federal water quality standards. POLICY 85.1.1: Sources of water pollution shall be identi- fied, controlled, and eliminated wherever feasible. POLICY 85.1.2: New development and additions to existing development shall not degrade surface and ground water quality. POLICY 85.1.3: The design, construction, and maintenance of artifical drainage systems shall provide for retention or detention areas and vegetated swale systems that minimize nutrient loading and pollution of freshwater and estuarine systems. POLICY 85.1.4: Developments which have the potential of lower- ing existing water quality below state and federal water quality standards shall provide standardized appropriate monitoring data. POLICY 85.1.5: New developments shall demonstrate compliance with all applicable federal, state, and local water quality standards. POLICY 85.1.6: No garbage or untreated sewage shall be dis- charged into coastal and interior surface waters. POLICY 85.1.7: The county shall initiate a wellfield protec- tion program to prevent the contamination of shallow wells by pollutant generating develop- ment including surface water runoff (see Goal 41). POLICY 85.1.8: Valid permits and inspection shall be required prior and subsequent to drilling operations for wells, elevator shafts, foundation holes, and test borings. POLICY 85.1.9: The county shall participate in a program to plug improperly constructed wells which are detrimental to ground water resources. Goal 87 of the Lee Plan provides in pertinent part: GOAL 87: WATER RESOURCES. To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability. OBJECTIVE 87.1: WATER SUPPLIES. Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems. POLICY 87.1.1: Natural water system features which are essen- tial for retention, detention, purification, runoff, recharge, and maintenence of stream flows and groundwater levels shall be iden- tified, protected, and managed. POLICY 87.1.2: The county shall recognize and encourage water and wastewater management, provided that such management does not exceed the natural assimi- lative capacity of the environment or appli- cable health standards. Appropriate water and wastewater management includes, but is not limited to, groundwater and aquifer recharge, spray or drip irrigation, gray-water systems, agricultural production, and other recycling techniques. POLICY 87.1.3: Freshwater resources shall be managed in order to maintain adequate freshwater supplies during dry periods and to conserve water. POLICY 87.1.4: Development designs shall provide for maintain- ing surface water flows, groundwater levels, and lake levels at or above existing conditions. POLICY 87.1.5: The county shall cooperate with the United States Geological Survey, South Florida Water Management District, and state agencies to develop an area-wide water resources plan emphasizing planning and management of water resources on the basis of drainage basins; and addressing the needs of the existing and potential built environment, natural hydro- logic system requirements, and freshwater flow impacts on estuarine systems. POLICY 87.1.6: The county shall continue to support a moni- toring program of existing baseline conditions of water resources. POLICY 87.1.7: The county shall cooperate fully with emer- gency water conservation measures of the South Florida Water Management District. The WPO Lee County Ordinance 89-30 provides for potable water wellfield protection. It establishes wellfield protection zones and sets out a protection zone map: showing the location on the ground of the outer limits of protection zones for present public utility potable water supply wells and wellfields which are permitted to pump 1,000,000 gallons of water per day or more. The Florida Cities-Waterway Estates Wellfield shall not be included within the protections established by this ordinance or depicted on the Protection Zone Maps. Chapter 10 of the ordinance is a "sunset provision" confirming that the ordinance was adopted "for the purpose of providing interim protection to existing potable water wellfields which are permitted to pump one million gallons of water or more per day" and explaining: The County is engaged in the creation of a Raw Water Management Authority to insure the protection of the public potable water supply. Potable water wellfields make up a portion of the available public potable water supply. In adopting this ordinace, the Board has taken the first step toward creating such an author- ity and providing an overall program for the protection of the public water supply. The wellfield protection ordinance is conceived as a part of that program. In order to insure that the wellfield protec- tion efforts of the County are incorporated into any overall program to protect the public potable water supply this ordinance shall expire and be of no further force and effect as to any acts occurring on or after September 1, 1991. The data and analysis supporting the Lee Plan clearly was based on the assumption of a 1 MGD threshhold. 5/ Section 4.05 of the Ordinance provides: Certain existing or proposed public and quasi-public land uses and activities may be declared exempt from the provisions of this Ordinance by the Board of County Commission- ers. This exemption shall be granted only upon a finding made by the Board in a public meeting that the existing or proposed land use or activity serves a public need which overrides the intent and purpose of this Ordinance and that it would be economically impractical or scientifically impossible for the land use or activity to comply with the requirements of this Ordinance or be relo- cated to an area outside of the protection zones established by this Ordinance. When declaring such an exemption, the Board of County Commissioners shall limit it to the extent necessary to enable the existing or proposed public or quasi-public land use or activity in question to be conducted within a protection zone while still serving the intent and prupose of this Ordinance to the extent which is economically practical and scientifi- cally possible. The Board may attach any con- ditions to the grant of any exemption that it deems appropriate. Section 3.01 of the Ordinance states: Four types of Protection Zone[s] have been established using scientific criteria relating to the physical characteristics of the water supply aquifer and the transport gradients caused by either natural forces or induced pumpage of the wellfields (see Appendix A)." The transport times associated with the Pro- tection Zones are designed so as to allow adequate time to carry out mitigating proce- dures to prevent wellfield contamination in the event of spillage of any Regulated Substance. Section 3.01.A. establishes and defines Protection Zone 1 as: "All land situated between the well(s) and the water table aquifer 6-month travel time zone demarcation." Section 3.01.B. establishes and defines Protection Zone 2 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table aquifer 1-year travel time zone demarcation. Lower Tamiami 1-year travel time zone demarcation. Sandstone 1-year travel time zone demarcation. Section 3.01.C. establishes and defines Protection Zone 3 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table 1-year travel time zone demar- cation and the water table aquifer 5-year travel time zone demarcation. Sandstone aquifer 1-year travel time zone demarcation and the Sandstone aquifer 5-year travel time zone demarcation. Lower Tamiami 1-year travel time zone demarcation and the Lower Tamiami 5-year travel time zone demarcation. Section 3.01.D. establishes and defines Protection Zone 4 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table 5-year travel time zone demar- cation and the water table 10-year travel time zone demarcation. Sandstone 5-year travel time zone demarca- tion and the Sandstone 10-year travel time zone demarcation. Lower Tamiami 5-year travel time zone demar- cation and the Lower Tamiami 10-year travel time zone demarcation. Section 3.02.B. of the Ordinance provides essentially that, where the location of property and buildings is within more than one protection zone, the most restrictive protective zone applies. Section 4.04 of the Ordinance prohibits liquid waste and solid waste disposal in Protection Zones 1, 2, and 3. In those zones, it also prohibits wastewater effluent disposal, except for public access reuse of reclaimed water and land application (under the conditions set forth and as defined in Chapter 17-610, Part III, F.A.C.). As for the exception, it provides: "Where public access reuse is permitted the chloride content shall be no greater than 500 mg/l." In Protection Zones 1 and 2, it also prohibits "the use handling, production, or storage of Regulated Substances [defined in Section 4.03 of the Ordinance] associated with land uses or activities regulated by this Ordinance in quantities greater than those set forth in Section 4.02.A." and "[e]arth mining within a five hundred foot (500') radius of an existing wellhead." The only prohibition in Protection Zone 4 is against "any activity regulated by this ordinance which stores, handles, uses, or produces any Regulated Substance, in quantities greater than those set forth in Section 4.02.A., which does not obtain a valid operation permit as set forth in Section 6.02." Thus, the Ordinance does not by its terms prohibit landfills, sludge disposal or rapid rate percolation ponds in Zone 4. Section 4.03 of the Ordinance, entitled "Regulated Hazardous or Toxic Substances," defines regulated substances in part in terms of federal and state regulations that are referenced, but not reproduced, in the ordinance. Section 4.02 of the Ordinance provides that it applies only to a particular land use or activity, whether that land use or activity is classified as a residential or commercial use, when either the aggregate sum of all quantities of any one Regulated Substance, or the aggregate sum of all Regulated Substances, on a given parcel or in a certain building exceeds one hundred and ten (110) gallons if the substance is liquid, or one thousand, one hundred and ten (1,110) pounds if said substance is solid. It also provides that the Ordinance applies to all storage facilities for petroleum products which are not regulated by Section 376.317, Florida Statutes, or Chapter 17-61, Florida Administrative Code. Section 4.04 of the Ordinance also provides that, within the protection zones: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." Under Section 4.04 of the Ordinance, "partially treated sewage from residential septic tank systems" are not regulated in any of the protection zones. Section 4.05.B.5. of the Ordinance provides an: Exemption for Retail Sales Activities. Retail sales establishments that store and handle Regulated Substances for resale in their original unopened containers shall be exempt from the prohibition in Sub-Sections 4.04.A.1. and 2. provided that those estab- lishments obtain an Operating Permit pursuant to Section 6.02. No operating permit is re- quired in Protection Zones 3 and 4. Other Relevant Facts The WPO's Coverage. The support documentation in support of the Lee Plan was based on the assumption of a 1 MGD threshhold. The evidence as a whole does not suggest that was it contemplated at any time prior to adoption that the Lee Plan would require a wellfield protection ordinance that protects all potable water wellfields. 6/ Although the documentation in support of the Lee Plan focuses on wellfields permitted to pump 1 MGD or more and serves an indication that the Lee Plan does not require all potable wellfields to be covered by a protection ordinance, nothing in the Lee Plan or the supporting documentation establishes a clear intention to require the same protections for all wellfields permitted to pump 1 MGD or more. The focus of the WPO is on the protection of wellfields from contamination from the ground surface. Two wellfields permitted to pump more than 1 MGD are not covered by those protections. They pump from deep aquifers. The confining layers above those aquifers protect them from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into those aquifers be properly grouted so as to prevent contamination from the ground surface. As a result, they are adequately protected. 7/ The Florida Cities-Waterway Estates wellfield pumps from both the surficial aquifer and from a deeper aquifer known as the mid-Hawthorn. The confining layers above the mid-Hawthorn aquifer protect it from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into the mid-Hawthorn be properly grouted so as to prevent contamination from the ground surface. As for the wells pumping from the surficial aquifer, no party presented evidence on which findings of fact can be made on the issue whether it is fairly debatable to exclude the Florida Cities- Waterways wellfield from the WPO's protections against contamination from the ground surface. There was no evidence on which a finding can be made as to why they were excluded from the greater protections the WPO affords to other wellfields permitted to pump 1 MGD or more. 8/ The evidence was that 90% to 95% of Lee County's potable water supply is either covered by the WPO, with its 1 MGD threshhold and exclusion of the Florida Cities-Waterway Estates wellfield, or pumps from deep aquifers that do not need the WPO's protections from contamination from the ground surface. The Department of Environmental Regulation's so-called G regulations adopted in 1986 utilize a 100,000 gallon a day threshhold for coverage. This threshhold was selected to coincide with the jurisdiction of, and to extend coverage to all wells requiring a permit from, Florida's water management districts. The G-I regulations were successfully challenged and still are not in effect. The federal Environmental Protection Agency recently has criticized the G Although it is written in general terms to leave open the possibility of other similar applications, the evidence reflects that the primary purpose of the Section 4.05 exemption for "certain existing or proposed public and quasi- public land uses and activities" is to acknowledge and permit consideration to be given to the practical impact of possible future expansion of the regional airport located in Lee County. Since there are wellfields in the vicinity that possibly could be impacted by such an expansion, the exemption acknowledges that it might be more sensible, feasible, practical and economical to replace the wellfields than to move the regional airport. If this happens and, on a case- by-case basis, the County utililizes the exemption provision, it may be necessary to phase out the wellfields and to allow some degradation of parts of the wellfield, subject to close monitoring pending complete replacement of the wellfields. Alleged Inadequate Regulation of Pollution Sources. Rock and sand mine operations, which are prohibited within 500' of a wellhead, create open, water-filled holes in the ground. As the Petitioner correctly points out, mining operations can thereby create direct conduits that can lead contaminants to underlying aquifers. But there is evidence in the record to justify the WPO's treatment of rock and sand mines on several bases: first, these mines are regulated on a case-by-case basis through a permitting process; second, mines that have been permitted are relatively shallow and reach into, but do not penetrate, the layer confining the aquifers in the vicinity of the mines that are sources of potable water; third, the County has required as a condition of these permits that the pits be prohibited from serving as storm water retention ponds in the future so as to prevent contaminants from gaining entry to the potential conduit; and, finally, the evidence provides assurances that, even if contaminants somehow find their way into the pits, their concentrations would be low enough that sufficient "head" to penetrate the confining layers would not be generated. The WPO does not prohibit "zones of discharge." A "zone of discharge" is a deliberate decision on the part of a regulatory agency to utilize a limited part of the groundwater as part of the process of diluting contaminants. There was some expert testimony that, in a general and theoretical or academic sense, the concept of a "zone of discharge" is inconsistent with wellfield protection. They are not permitted in DER's G The WPO permits landfills, sludge disposal and rapid rate infiltration ponds in Protection Zone 4 (delineated by the ten-year travel time). The evidence was that landfills, at least, are subject to Department of Environmental Regulation (DER) and other regulation and permitting requirements that would provide adequate wellfield protection. There was no evidence or argument presented by any party to clarify how the other activities--sludge disposal and rapid rate infiltration ponds--are regulated. The Petitioner's evidence in general did not address the existence or absence of regulations (both County and other regulatory agencies) pertaining to the various activities of which it complains to rule out the possibility that they might meet the objectives and policies of the Lee Plan. The WPO does not contain its own stormwater regulations. Instead, it provides: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." The Petitioner offered, as evidence in support of its position that the DER and SFWMD stormwater regulations are inadequate, expert testimony to the effect that the DER and SFWMD regulations are "performance standards," not "directed to groundwater monitoring, and it's not quality impact related." A "performance standard" requires certain things to be done with stormwater in the expectation that groundwater contamination would be eliminated or minimized. The Petitioner's witnesses related that DER decided that "protection of public water supply has to be protected to above and beyond a performance standard" and opted for specific water quality criteria in its G-I groundwater. But nothing in the Lee Plan requires utilization of the G-I rule approach, and the Petitioner's expert did not opine that failure to do so would render the WPO inconsistent with the Lee Plan. The Section 4.05.B.5 retail sales exemption presents a risk of contamination of a wellfield, but the risk is low. In all likelihood, it would take a fire or some other similar catastrophe for the possibility of actual harm to a wellfield to materialize from the small risk involved. Other County Measures Relevant to the WPO. The County has several programs, other than the WPO, and in addition to the Raw Water Management Authority mentioned in the WPO, 9/ that impact wellfield protection. It has a program to encourage (and in some cases require) the reduction and elimination of the use of septic tanks and package sewage plants. It is building a new sewer district. It has taken over the from DER the function of inspecting the installation of underground storage tanks and the remediation (clean up and repair) of tanks storing liquid petroleum products in an attempt to do the job better. There also was evidence that the County has restricted density in potential future wellfield locations and their recharge areas to one unit per ten acres. (The Petitioner's own witness testified that, other than an outright ban on septic tanks, density reduction is the only way to address the problem of septic tanks.
The Issue Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?
Findings Of Fact Eight to ten miles south of Melbourne Beach and 8.3 miles north of Sebastian Inlet, Gar-Con plans to develop a parcel of land stretching west from the Atlantic Ocean, across Highway A1A, to the Indian River. Gar-Con expects to build a motel and residential complex complete with tennis courts, parking garage, water treatment plant and the sewage treatment facility for which a construction permit is sought in these proceedings. The sewage treatment plant would be built on a site 480 feet west of Highway A1A and 90 feet south of Gar-Con's northern property line, at an elevation of 11 or 12 feet above mean sea level. Ocean Way Water and Sewer Association, Inc. is to be organized as a nonprofit corporation to own and operate the wastewater treatment facility. The Public Service Commission, through the director of its water and sewer treatment, has taken the position that the proposed "sewer system will fall within the exemption described in Section 367.022(7), Florida Statutes." DER's Composite Exhibit A. PACKAGE PLANT PROPOSED The facility Gar-Con proposes is designed to treat 100,000 gallons of sewage daily, which is the estimated "total flow" (T. 75) the sanitary engineer who designed the system anticipates from the development. Sewage generated by the development would flow to the plant, through a bar rack designed to remove rags and other large objects, and into aeration tanks where, over a 24 hour period, interaction with air and a biological mass would supply oxygen and cause the formation of biological floccules. The flocculant sewage would then move to a clarifier hopper. During its five hour stay there, solids which were not earlier segregated as the sewage moved over a weir into the clarifier, would be precipitated and removed. The clear, residual liquid would be pumped through one of two sand filters (each of which would also have granular activated carbon and be capable of filtering 100,000 gallons daily) into one of two chlorine contact chambers where a gas chlorinator would introduce chlorine for an hour. Under ordinary circumstances, the chlorinated effluent would then be pumped into one of two soakage trenches. The soakage trenches, each designed for use every other week, are to be gravel-filled ditches covered over first with felt paper, then with compacted fill. The gravel would lie at least one foot beneath the surface of the ground in a space ten feet wide and three feet deep stretching the 940 foot length of each soakage trench. Punctured like sieves, two six-inch PVC pipes would run through the gravel, sweating effluent from their pores. There is also a plan to dig a percolation pond or grassed swale five feet deep, 120 feet long and 80 feet wide near the wastewater treatment plant, which could serve as a receptacle for effluent, in case of "a 1:10 year storm or when the filters are down and/or if soakage trenches would need repair." Gar- Con's Exhibit 2-A. It would hold about 100,000 gallons. The solids caught by the weir, those extracted in the clarifying process, and those recovered from backwashing the filters would serve as catalyst for the aeration process as needed. Excess sludge, about 3,000 pounds monthly, would undergo "aerobic digestion," before being removed to Brevard County's Central Disposal Facility on Adamson Road, for disposal there. Gar- Con's Exhibit No. 7. Primary and secondary drinking water standards would be met by the effluent as it left the plant (although the engineer who designed the system would not drink the effluent himself), except that, from time to time, nitrate concentrations might reach 12 milligrams per liter, and except in the "event that a homeowner might put some type of [inorganic toxic or carcinogenic] material into the sewer system." (T. 86) The biological oxygen demand (BOD) would be ten milligrams per liter; suspended solids would probably amount to about five milligrams per liter; pH would probably be slightly under seven; nitrates would average approximately eight milligrams per liter but would "peak out at certain times during the year, for maybe extended periods up to two months, at twelve milligrams per liter," (T. 80); and there would be a chlorine residual after 60 minutes of two milligrams per liter. AMBIENT WATERS There would be no direct discharge to the Atlantic Ocean, Indian River or any other body of surface water, nor would any indirect effect on surface waters be measurable. No body of surface water lies within 500 feet of the site proposed for the plant and soakage trenches. Potable groundwater underlies the site; the groundwater table slopes toward the Atlantic Ocean, 9.5 to 12.5 feet below ground. "[D]uring the traditional rainy season," Gar-Con's Exhibit 2B, Attachment, p.3, the groundwater may rise to within seven feet of the surface. The PVC pipes in the soakage trenches are to be placed two and a half feet deep. As effluent percolated through the sandy soil, there would be "mounding" of the groundwater underneath the soakage trenches, and dispersal in all directions. Surface flow is to be diverted from the soakace trenches so that only rainwater falling directly on them would percolate down through the gravel beds. Taking soil characteristics into account, and assuming a "water table depth" of 20 feet, an engineer retained by Gar-Con predicted that "the maximum expected groundwater rises beneath the east and west trenches are 2.4 and 2.1 feet, respectively under a loading of 100,000 gpd for a period of 7 days." Gar-Con's Exhibit No. 3. The water table depth, "the height, the top of the groundwater from the first restrictive layer," (T. 172), is probably more like 40 feet than 20, which accounts in part for the "conservatism" of the mounding predictions. Under very severe weather conditions (a 100 year storm), groundwater would rise as high as the bottom of the trenches making them unavailable to receive effluent, but the effluent would not be forced above ground. In a 100 year flood, water would be expected to rise to seven feet above mean sea level. Under such conditions, people could be expected to evacuate the area. In a 25 year storm, the system could be expected to continue to function. Groundwater to the north and east of the proposed site was sampled, and the samples were analyzed. The water to the north had 380 milligrams of chlorides per liter and the water to the east had 450 milligrams of chlorides per liter. As it left the proposed treatment plant, the effluent would contain approximately 150 milligrams of chlorides per liter. SOUND AND LIGHT Lights like those used as street lights are to be installed at four places in the wastewater treatment plant. A timer, which can be overridden, would turn the lights on at dusk and off at eleven o'clock at night. The lights would illuminate the plant adequately. Pumps would move sewage to and through the proposed plant. Most of the pump motors would be submerged and unable to be heard. Two electric blowers, a flow meter and a totalizer would also have electrical motors. The blowers and the blower motors are to be equipped with insulated fiberglass covers and the blowers would also have intake and double outlet silencers. Four feet from the plant the noise of the motors would be comparable to that of a home air conditioning unit. At the nearest residence the noise level would scarcely exceed background noise. At hearing, Gar-Con revised its application and agreed to install an emergency generator which would also be encased in insulated housing and is to be equipped with a muffler. AEROSOL AND ODOR Unless the proposed plant loses electric power for 24 hours or longer, no offensive odors would emanate from it. The bar rack and weirs would be regularly hosed down. Against the possibility of a power failure, Gar-Con agreed at hearing to install permanently an emergency generator with sufficient capacity to keep both the wastewater treatment plant and the water treatment plant it plans to build operable. No aerosol drift is foreseen. The surface of the liquid In the aeration tanks would be 1.4 feet below the top of the rim. Walkways four feet wide along the inside perimeters of the aeration holding tanks would prevent dispersal of most of aerosol. A decorative hedge around the treatment plant, which would eventually be 15 feet high, is a final fail-safe. WELLS To the north are two shallow wells within 500 feet of the site proposed for the wastewater treatment plant. Both wells belong to Kel Fox, who wrote Gar-Con that he had no objection to their proposed wastewater treatment facility in light of Gar-Con's agreement to furnish drinking water to existing facilities on his property and reimburse him expenses incurred in disconnecting the two shallow wells. Gar-Con's Exhibit 2E. There is a deep well within 500 feet to the south. DER and Gar-Con have entered into the following stipulation, dated September 2, 1983: Existing Wells. Prior to the operation of its waste water treatment plant, Gar-Con will offer to supply drinking water at a reasonable cost to owners of property on which are located operational or approved shallow drinking water wells that are within 500 feet of Gar-Con's land application site. Gar-Con will make this offer to all such owners known to it prior to the operation of its plant. Gar-Con will further offer to provide reasonable compensation to such owners to disconnect their shallow wells. Gar-Con will endeavor to arrange for provision of drinking water to these owners and the disconnection of those wells prior to the operation of its plant. Future Wells. Should nearby individual (non-corporate) property owners propose to construct shallow drinking wells located within 500 feet of Gar-Con's land application site after Gar-Con begins operation of its waste water treatment plant, Gar-Con also will offer to supply them with drinking water at a reasonable cost and to provide reasonable compensation to them to disconnect those wells. However, Gar-Con shall have no obligation to make any such offer to owners of future wells if sampling of monitoring wells located at or near its external property line indicates that the groundwater meets the primary drinking water standards and, after July 1, 1985, the secondary drinking water standards listed in Florida Administrative Code Rule 17-22.104. Gar-Con agrees to record a master notice of restriction barring future owners of lots within the Ocean Way development, which are owned by Car-Con at the time of permit issuance, from installing shallow drinking water wells on such property or otherwise using the shallow aquifer beneath their property as a source for irrigation or for potable water, so long as use of the proposed sewage disposal system continues, and the Department has not found that this restriction is unnecessary. This restriction, which shall be a covenant running with the land, further shall require future owners to purchase water from Gar-Con or any successor owner of the development's water system if Gar-Con or the successor provides water service. These restrictions also shall be contained in all other appropriate documents of title. In addition, Gar-Con plans to create a non-profit water and sewer association to own and control the development's water and sewer system. Gar-Con will include in the Articles of Incorporation of this association a requirement that all property owners served by the system must be members of the Association. Gar-Con is entitled to a zone of discharge extending to its current property line with the exception that the zone of discharge shall not include the area contained within a 100' radius of Gar-Cons's proposed water supply wells. DER Staff concurs that the above conditions, in conjunction with the sewage treatment and disposal system and the groundwater monitoring program proposed by the applicant, to meet the requirements of Chapter 17-4, F.A.C. will provide reasonable assurance that existing and future off-site and on-site property owners will be protected from any adverse effects that might result from the operation of the proposed sewage treatment disposal system. Petitioner's Exhibit No. 10. There are to be a half dozen monitoring wells to allow sampling of the groundwater at strategic points in the shallow aquifer. NATURAL RESOURCES Turtles nest in the general vicinity but off the site of the proposed project. Construction and operation of the proposed waste water treatment facility would have no impact on the turtles apart from making it possible for more people to live closer to where they nest.
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
