The Issue The issue is whether the Department of Environmental Protection should issue Environmental Resource Permit No. 50- 0269698-002.
Findings Of Fact Parties Mr. Tsolkas is a resident of Lake Worth, which is in southeastern Palm Beach County. He is the co-chair of the PBCEC, and he uses the Dupuis and J.W. Corbett Wildlife Management Areas (WMAs) for various recreational and “peace of mind” activities. He is concerned that the proposed pipeline will adversely impact his enjoyment of the WMAs.6 PBCEC is an organization comprised of environmental groups and individuals that are concerned about the environment and quality of life in Palm Beach County. PBCEC has undertaken public outreach, protests, and other advocacy efforts targeting the West Coast Energy Center (WCEC) that will be served by the proposed pipeline. No evidence was presented regarding PBCEC’s membership numbers. Mr. Shulz is a resident of Hope Sound, which is on the eastern coast of Martin County. He is a member of the PBCEC, and he uses the Dupuis and J.W. Corbett WMAs for various recreational activities. He is concerned that the proposed pipeline will adversely impact his enjoyment of the WMAs. He also has concerns regarding the safety of the proposed pipeline. Ms. Larson in a resident of the Loxahatchee area in western Palm Beach County. She uses the Dupuis and J.W. Corbett WMAs for various recreational activities, and she is concerned that the proposed pipeline will adversely impact her enjoyment of the WMAs. She also has concerns regarding the safety of the proposed pipeline. Bonnie Brooks and Danny Brooks were not present at the final hearing, and the record contains no evidence about these Petitioners. Gulfstream is a joint venture owned by Spectra Energy Corporation and the Williams Companies and is in the business of transporting natural gas through pipelines. Gulfstream is a Delaware limited liability company with its principle office in Tampa. The Department is the state agency responsible for regulating construction activities in surface waters and wetlands under the ERP program in conjunction with the water management districts. The Department is responsible for taking final agency action on the proposed permit at issue in this case. The Proposed Pipeline (1) Generally The proposed pipeline is a 34.26-mile, 30-inch diameter natural gas pipeline. The proposed pipeline starts in western Martin County, slightly northwest of Indiantown, and ends in western Palm Beach County at the site of the WCEC being constructed by Florida Power and Light Company (FPL), just north of Twenty Mile Bend. The proposed pipeline is the third phase a pipeline that runs from natural gas supply areas on the coasts of Alabama and Mississippi across the Gulf of Mexico into central and southern Florida. The entire pipeline is 691 miles long, with approximately 240 miles in Florida. The first phase of the pipeline began operating in May 2002, and the second phase began operating in February 2005. The pipeline currently transports approximately 1.1 billion cubic feet per day of natural gas into Florida. The proposed pipeline begins at the existing Gulfstream Station 712, which is referred to as milepost (MP) 0.00. It runs in a southerly direction along the east side of the L-65 Canal, crossing the St. Lucie Canal (at MP 6.34) and continuing to the Martin/Palm Beach county line (at MP 8.50); then runs east to a point west of the Dupuis WMA (at MP 10.20) and runs south along the western boundary of the Dupuis WMA adjacent to an existing power line right-of-way; then turns southeast (at MP 12.14) and runs on the east side of the L-8 Canal; and then turns due south (at MP 30.08) and runs in an existing FPL transmission line right-of-way to its terminus on the WCEC site (at MP 34.26). Gulfstream acquired a non-exclusive pipeline easement from the South Florida Water Management District (SFWMD), which authorizes it to install the proposed pipeline within the L-8 and L-65 canal rights-of-way. The agreement limits the width of the permanent easement to 20 feet, but it provides for 95-foot wide temporary construction easements along the pipeline route. The agreement requires the proposed pipeline to be installed at least three feet below the surface. The proposed pipeline crosses 121 artificial water bodies. It does not cross any natural water bodies. Only three of the crossed water bodies –- the L-8 Canal, the L-65 Canal, and the St. Lucie Canal -- are navigable. The pipeline crosses the L-65 Canal once (at MP 0.11); the St. Lucie Canal once (at MP 6.34); and the L-8 Canal three times (at MP 12.31, MP 13.28 and MP 29.72). The other crossed water bodies are agricultural ditches. The active land uses along the pipeline route are primarily agricultural in nature, consisting of sugar cane fields and sod farms. The passive land uses include the Dupuis and J.W. Corbett WMAs, which are state-owned conservation areas. There is an existing mining operation adjacent to the pipeline route in the vicinity of MP 32.80. The mining company, Palm Beach Aggregates (PBA), uses blasting to produce limestone aggregate and sand. The PBA property line is approximately 290 feet from the proposed pipeline at its closest point, but the actual blasting is as much as “500 feet to thousands of feet away” from the proposed pipeline. The route of the proposed pipeline was revised in August 2007 at the request of the SFWMD and FPL. The initial pipeline route was along the west sides of the L-65 and L-8 Canals. SFWMD requested that the route be shifted to the east side of the canals in order to accommodate potential future canal expansion. The initial pipeline route was along the eastern edge of the FPL transmission line right-of-way. FPL requested that the route be shifted to the center of the right-of-way in order to accommodate future expansion of the transmission line facilities. The revised pipeline route has fewer impacts than the initial route. For example, the initial route had 224 water body crossings, and two wetland crossings, whereas the revised route has only 121 water body crossings, and no wetland crossings. Gulfstream submitted extensive documentation in support of the revised pipeline route. After reviewing that documentation, the Department gave notice of its intent to issue the proposed permit for the revised pipeline route. Notice of the Department’s decision was published in newspapers of general circulation -- the Stuart News in Martin County and in the Palm Beach Post in Palm Beach County -- on or about October 17, 2007. (2) Design and Construction Methods Federal law prescribes minimum pipeline design criteria, including standards for pipe wall thickness and the testing of pipeline welds. Gulfstream took a “compliance plus” approach in the design of the proposed pipeline by going “above and beyond” the minimum requirements in federal law in several respects. First, the pipe used in the proposed pipeline will meet or exceed the wall thickness requirements in federal law. Thicker-walled pipe will used in areas where there is a potential for external forces to affect the pipe, such as under road crossings and in the areas adjacent to PBA’s blasting operations. Second, Gulfstream will x-ray 100 percent of the welded joints on the proposed pipeline, which far exceeds the requirement in federal law that 10 percent of the welds be inspected. Third, Gulfstream will hydrostatically test the proposed pipeline for leaks after construction is complete and before the pipeline is put into operation. Hydrostatic testing involves filling the pipeline with water under pressure higher than the pressure under which the pipeline will operate. A drop in pressure during the test is an indication of a leak in the pipeline, which will be fixed before the pipeline is put into operation. Fourth, Gulfstream will coat the entire proposed pipeline with an anti-corrosive substance -– fusion bond epoxy - – and the pipeline will also be induced with a small DC current in a process known as cathodic protection. These measures will significantly reduce, if not eliminate potential corrosion on the proposed pipeline. Gulfstream will use four construction methods to cross the water bodies within the pipeline route: the isolation plate open cut method; the sheet pile wet open cut method; the horizontal directional drill (HDD) method; and the conventional bore method. The isolation plate open cut method will be used at each minor and intermediate water body crossing, except for those associated with the HDD method. The isolation plate open cut method involves the installation of steel plates upstream and downstream of the proposed crossing. The area between the plates is pumped out so that it is essentially dry. A trench is dug in the dry area and the pipeline is placed in the trench. The trench is then backfilled and stabilized with at least five feet of cover, and then the plates are removed and the water flows back into the area. The sheet pile wet open cut method is similar to the isolation plate open cut method, except that it allows water to continue to flow in the center of the water body during installation of the pipe. This method will be used for the crossing of the L-65 Canal, the second and third crossings of the L-8 Canal, and the crossings of the forebays along the L-8 Canal. Turbidity curtains or sediment barrier baffle systems will be installed upstream and downstream of the areas where the isolation plate open cut and the sheet pile wet open cut methods are used in order to control turbidity. The HDD method will be used to cross the St. Lucie Canal and the Couse Midden archaeological site, as well as at the first crossing of the L-8 Canal. The HDD method involves the boring of a horizontal tunnel along a pre-determined path under the surface feature to be avoided and then pulling a pre-fabricated section of pipe through the tunnel. The pipe installed using this method will be 35 to 40 feet below the surface feature to be avoided. The conventional bore method will be used to cross the railroad track and adjacent agricultural ditch at MP 8.46, as well as the wetland at MP 16.65. The conventional bore method involves the excavation of bore pits on both sides of the feature to be crossed. A tunnel is bored under the feature and then a section of pipe is pulled through the tunnel. The pipe installed using this method will be 10 feet under the railroad track, which is greater than the depth required by federal law, and will be at least five feet under the wetland. Environmental Issues (1) Wetlands and Vegetation The proposed pipeline will not adversely impact the current condition or relative functions of any wetlands. All of the wetlands within the proposed pipeline route have been avoided. The proposed pipeline will be installed under one jurisdictional wetland (at MP 16.65) using the conventional bore method described above. That wetland is a disturbed, low- quality wetland within the actively managed L-8 Canal right-of- way. It is routinely mowed and provides no significant water quality function or habitat value. Gulfstream will install erosion control devices in areas where the pipeline construction corridor abuts wetlands. The erosion control devices will be in place and functional prior to commencement of earth disturbance. Gulfstream will utilize reinforced sediment barriers in lieu of standard sediment barriers, and increased buffers are proposed in areas where construction abuts wetlands on the Dupuis and J.W. Corbett WMAs. The proposed pipeline will not adversely impact listed plant species. No listed plant species were observed or are likely to occur within the proposed pipeline route, which consists of disturbed rights-of-way and agricultural areas. Vegetated areas that are disturbed during the installation of the proposed pipeline will be re-vegetated immediately after construction is complete. Impacts to these areas will be minor and temporary. The disturbed areas will be re-vegetated with herbaceous cover such as bahia grass, common bermuda grass, or annual ryegrass. The areas will be monitored for two growing seasons to determine the success of the revegetation. The proposed pipeline route includes exotic and nuisance plant species, including Brazilian pepper, cogon grass, water hyacinth, and water lettuce. The installation of the proposed pipeline has the potential to spread exotic and nuisance species if appropriate precautions are not taken during construction. Gulfstream has developed, and will implement an Exotic, Nuisance, and Invasive Plant Management Plan to minimize the potential for spreading exotic and nuisance species. The plan requires, among other things, environmental training of construction personnel and “routine monitoring during all phases of construction, clean up, and restoration.” The plan also includes procedures for onsite disposal of exotic and nuisance species disturbed during construction and the cleaning of vehicles and equipment to ensure that exotic and nuisance species are not inadvertently transported to uncolonized areas. The proposed permit includes a specific condition that requires Gulfstream to monitor and maintain the proposed pipeline route –- a total of 214.85 acres -– free of exotic and nuisance species for a period of five years after construction of the pipeline is complete. The easement agreement between Gulfstream and SFWMD requires Gulfstream to relocate approximately 158 native cabbage palm trees within the construction corridor to “suitable locations within the west right of way of L-8 within the Palm Beach County Department of Environmental Resources Management wildlife corridor.” (2) Dupuis and J.W. Corbett WMAs The proposed pipeline route runs along the western boundary of the Dupuis WMA for approximately seven miles (between MP 13.30 and MP 20.18), and it runs along the western boundary of the J.W. Corbett WMA for approximately 9.5 miles (between MP 20.18 and MP 29.70). The revised pipeline route puts the pipeline closer to the boundaries of the WMAs than did the initial pipeline route because the route was moved from the west side of the canals to the east side of the canals. The Fish and Wildlife Conservation Commission (FWCC) manages the Dupuis and J.W. Corbett WMAs. The WMAs, which include extensive wetlands and virtually no development, are used for a variety of public recreation purposes. The proposed pipeline crosses approximately 3.67 acres of the J.W. Corbett WMA. This land, although technically within the boundaries of WMA, is subject to an easement for the L-8 Canal and has been actively managed by SFWMD for canal purposes for at least the past 55 years. Gulfstream is in the process of acquiring approximately 3.75 acres of privately-held land within the boundaries of the J.W. Corbett WMA that it will donate to the State in accordance with the “linear facility policy”7 as mitigation for the crossing of the J.W. Corbett WMA. The parcel that Gulfstream is in the process of acquiring contains oak trees, pine trees, and cypress trees. It also contains the last Indian mound within the J.W. Corbett WMA that is not already in public ownership. Gulfstream will install reinforced sediment barriers and increase buffers adjacent to the wetlands on the WMAs in order to prevent impacts to those areas during construction. The proposed pipeline will not have any direct or indirect impact on the Dupuis WMA. The proposed pipeline’s only impact on the J.W. Corbett WMA is the direct impact to the 3.67 acres of the WMA that the pipeline will cross. This impact is negligible in light of the size of the J.W. Corbett WMA -– approximately 60,000 acres –- and in light of the fact that the portion of the J.W. Corbett WMA that is being crossed is disturbed land that has been actively used for canal purposes for over 55 years. Moreover, this impact will be mitigated in accordance with the “linear facility policy.” Any adverse impacts to the aesthetic qualities of the Dupuis and J.W. Corbett WMAs will be temporary in nature during construction. Once construction is complete, the pipeline will not be visible from the surface. (3) Wildlife The proposed pipeline route consists of disturbed agricultural areas and canal and utility rights-of-way, which are low quality habitat for listed species and other wildlife. The proposed permit is not likey to have any adverse impact on wildlife, including listed species, or their habitat. Gulfstream conducted extensive wildlife surveys during the ERP application process. The survey corridor “extended beyond 150 feet to either side of the pipeline centerline for a minimum survey width of 300 feet,” and also included the temporary work space areas, contractor yards, and aboveground facilities associated with the pipeline. The listed species whose potential habitat includes the pipeline corridor are the wood stork, the Southeastern American kestrel, the crested caracara, the bald eagle, and the gopher tortoise and its commensal species. The wood stork uses areas within and along the proposed pipeline corridor for resting, but not nesting or foraging. Southeastern American kestrel and crested caracara habitat exists adjacent to the first four miles of the proposed pipeline corridor. There is no habitat within the pipeline corridor itself, and no kestrels or caracaras were observed in the adjacent habitat. The nearest bald eagle nest is approximately 2,550 feet from the proposed pipeline route, which is well beyond the 660-foot regulatory protection zone. The nest is within a heavily wooded area of the Dupuis WMA and is not visible from the pipeline route. A total of 18 gopher tortoise burrows were observed within the proposed pipeline route. The burrows are located along the berm of the L-65 Canal between MP 0.04 and MP 1.44. Relocation is FWCC’s preferred method for avoiding impacts to gopher tortoises that inhabit a construction area. The gopher tortoises are moved to another area during construction, but they are free to return to the area from which they were relocated after construction is completed. In December 2007, FWCC issued a permit (No. WR07530a) that allows Gulfstream to capture and relocate up to 18 gopher tortoises. The permit also allows Gulfstream to capture and relocate commensal species, such as the indigo snake, Florida mouse, and gopher frog. The FWCC permit addresses the listed species’ concerns raised by James Schuette, the FWCC employee who provided comments to the Department on the ERP application and who testified at the final hearing in Petitioner’s case-in-chief.8 Gulfstream successfully used gopher tortoise relocation during construction of the first two phases of the pipeline project. Gulfstream will conduct pre-construction surveys to ensure that no listed species have moved into the proposed pipeline route. Qualified environmental inspectors will be on- site on a daily basis during construction to look for listed species and to monitor compliance with the FWCC permit. (4) Water Quality The proposed pipeline will have no permanent adverse impacts on water quality. The construction of the pipeline may have minor temporary impacts on water quality through increased turbidity in the water bodies crossed by the proposed pipeline. Gulfstream will use turbidity curtains and other barriers to control turbidity and minimize impacts to water quality, and it is required to closely monitor water quality during construction. The proposed permit establishes a turbidity standard - - 29 Nephelometric Turbidity Units (NTUs) above background –- that must be maintained outside of the 150 meter “mixing zone” established by the permit.9 The turbidity levels within the “mixing zone” may exceed the 29 NTU standard during construction. The construction methods and turbidity controls used by Gulfstream during construction will ensure that the turbidity standards in the proposed permit are met. These methods were successful in controlling turbidity during the construction of the first two phases of the pipeline. Gulfstream will also undertake other measures to minimize potential water quality impacts. For example, silt fences and hay bales will be used between spoil piles and water bodies, and disturbed areas will be immediately vegetated to limit the potential for sedimentation from erosion. (5) Archeological and Historic Sites Gulfstream conducted extensive cultural resource assessment surveys as part of the ERP application process. The surveys were conducted in a 300-to-400-foot-wide corridor around the centerline of the entire pipeline route. The purpose of the surveys was to identify “historical resources” and “archaeological resources” in the vicinity of the proposed pipeline. Historical resources include structures and buildings at or on the ground surface. Archaeological resources are partial or totaled buried cultural resources. Two historical resources were identified in the surveys: the St. Lucie Canal and the Bryant Sugar Mill. The proposed pipeline will cross the St. Lucie Canal, and the land in the vicinity of the Bryant Sugar Mill will be used for parking and temporary storage of pipes. The proposed pipeline will have no adverse impact on these historical sites. The proposed pipeline will be installed under the St. Lucie Canal using the HDD method; and there will be no parking or material storage within 25 feet of the Bryant Sugar Mill buildings, which themselves will not be used. Two archaeological resources were identified in the surveys: the Couse Midden and a site known as JR-1 that is associated with the Belle Glade archaeological period. The sites were described as “basically, trash, refuse areas, possible habitation sites.” The proposed pipeline will have no adverse impact on these archaeological sites. The proposed pipeline will be installed approximately 40 feet under the Couse Midden site using the HDD method, and the JR-1 site will be entirely avoided. The Division of Historical Resources -- the state agency responsible for evaluating the potential impacts of construction projects on cultural resources -– concurred with the assessment of Gulfstream’s consultant that the proposed pipeline “will have no adverse affect on any cultural resources listed or eligible for listing in the [National Register of Historic Places].” Gulfstream has developed, and will implement an Unanticipated Finds Plan that includes detailed procedures to be followed in the event that previously unreported and unanticipated historic properties or human remains are found during construction. Among other things, the plan requires construction work in the area of the find to be stopped immediately and not restarted until clearance is granted by the environmental manager and archaeological consultant. Additionally, as noted above, Gulfstream is in the process of acquiring a 3.75-acre parcel within the J.W. Corbett WMA that contains an Indian mound and that will be donated to the State. (6) Other Issues The proposed pipeline will have no adverse impact on fishing or other recreational activities in the water bodies within the pipeline route. The agricultural ditches are Class IV waters that are not suitable for fishing or recreational activities. The proposed pipeline will be installed under the St. Lucie Canal, the L-8 Canal, and the L-65 Canal, which are the only water bodies that could support fishing or recreational activities. Any impacts on fishing or recreational activities in the canals will be minor and temporary impacts during construction. The proposed pipeline will not have any impact on marine productivity because the water bodies within the proposed pipeline route are freshwater, not marine or estuary. The proposed pipeline will have no permanent adverse impact on navigation. The only navigable waters crossed by the proposed pipeline are the St. Lucie Canal, the L-8 Canal, and the L-65 Canal, and the proposed pipeline will be installed under the canal bottoms. There will be minor temporary impacts on the navigability of the L-8 and L-65 Canals because those canals will effectively be blocked while the pipeline is installed under those canals using the sheet pile wet open cut method. The impacts will last no more than 48 hours, which is the maximum amount of time that it will take to complete the crossings. The proposed pipeline will not cause harmful erosion. The vegetation on the banks of the water bodies will not be removed until the time of pipe installation, and the area will be immediately re-vegetated after construction. Other erosion control measures will also be implemented, as reflected in the Upland Erosion Control, Revegetation, and Maintenance Plan included as part of the ERP application. The proposed pipeline will not cause harmful shoaling. The agriculture ditches are not flowing water bodies so they are not subject to shoaling, and the construction in the L-8 and L- 65 Canals will occur during the drier months when there is low flow in the canals. After construction is complete, the proposed pipeline will not impede the flow of water so as to cause shoaling because it will be buried under the bottom of the canal. Gulfstream has developed, and will implement a Spill Prevention, Control, and Countermeasure Plan in order to reduce the chance for accidental spills during construction. The plan also includes procedures to be followed in the event of a spill. The easement agreement between Gulfstream and SFWMD requires Gulfstream to pay any additional cost that SFWMD incurs in the installation, repair, or replacement of culverts within the proposed pipeline route as a result of the pipeline being located above an existing or future culvert. The agreement also requires Gulfstream, at its expense, to promptly repair and restore any damage to berms, levees, or other SFWMD improvements that is caused by the construction or operation of the proposed pipeline. The proposed pipeline will not have any material secondary impacts on wetlands or water resources. To the extent that the WCEC project can be considered to be a secondary impact of the proposed pipeline, its impacts on wetlands and water resources were considered as part of the certification proceeding for that project under the Power Plant Siting Act.10 The Department did not specifically evaluate whether the proposed pipeline will impact the Comprehensive Everglades Restoration Project (CERP). Its failure to do so is not unreasonable or inappropriate because the proposed pipeline is not located within the Everglades National Park or Loxahatchee National Refuge areas, and no concerns related to CERP were brought to the Department’s attention by the agencies that provided comments on the ERP application. Moreover, the commenting agencies included SWFMD, which is actively involved in CERP and upon whose property the proposed pipeline will be located. Petitioners expressed concerns regarding the impact of the proposed pipeline on the Everglades and CERP. However, they did not present any persuasive evidence in support of these concerns. The proposed permit includes a specific condition that prohibits Gulfstream from installing the proposed pipeline on property that it does not own without prior written approval of the property owner. This condition may prohibit the installation of the pipeline across the J.W. Corbett WMA unless Gulfstream obtains the approval of the Board of Trustees of the Internal Improvement Trust Fund under the “linear facility policy.” Safety Concerns Petitioners expressed concerns regarding the safety of the proposed pipeline and the potential adverse impacts to the environment and the public if the pipeline were to explode. There is a potential for significant damage if the proposed pipeline were to explode. It is impossible to eliminate all risk of the pipeline exploding. The risk of an explosion has been minimized to the greatest extent practicable through the measures described above that reduce the risk of leaks in the proposed pipeline through corrosion or damage from external forces. The pipe wall thickness was increased in areas adjacent to PBA’s blasting operations even though the conservative blast mitigation analysis prepared by Gulfstream's expert shows that the normal pipe wall thickness is more than adequate to withstand the vibrations caused by PBA’s current permitted and reasonably foreseeable blasting operations. The location of the pipeline -- underground and in existing canal and utility rights-of-way -- also serves to minimize the risk of accidental damage to the pipeline from construction and development activities and hurricanes or other natural disasters. Pressure, temperature, and flow in the proposed pipeline will be continuously monitored at a 24-hour control center, and the pipeline right-of-way will be visually inspected at least once every two weeks. The proposed pipeline includes “test leads” approximately every mile that are used to assess the cathodic protection on the pipeline. The proposed pipeline includes two valves (at MP 0.00 and MP 14.87) that can be used to shut off the flow in the pipeline if necessary. The “valve setting” at MP 14.87 is the only above-ground component of the proposed pipeline other than the valve settings at the start and end of the pipeline. The area around the valve setting will be enclosed by an eight-foot- high fence and covered with gravel. The location of the proposed pipeline will be marked at line-of-sight-intervals and at other key points. The markers will clearly indicate the presence of the pipeline and provide contact information in case of emergency or in the event of excavation in the area of the pipeline by a third party. Gulfstream has procedures in place to respond to any emergency that may arise in the operation of the pipeline, as required by federal law. Gulfstream meets face-to-face with local emergency responders on at least an annual basis to discuss emergency response procedures. It also engages in public education and outreach efforts to address potential concerns regarding the safety of the pipeline.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order approving ERP No. 50-0269698-002. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of February, 2008.
Findings Of Fact Unit No. 2 is certified to be a nuclear facility situated on 300 acres of a 1132 acre site previously cleared and filled on Hutchinson Island in St. Lucie County, Florida. The site is presently occupied by Unit No. 1, also a nuclear facility. Hutchinson Island is a typical but highly developed coastal barrier island of the Florida Atlantic Coast. The site prior to development was predominantly flat and water covered, with dense vegetation typical of coastal mangrove swamp. On the Eastern side of the island, the land rises slightly in a dune to approximately 15 feet above mean low water. The cooling system for Unit No. 2 is essentially the same as that for Unit No. 1. It is proposed that the existing intake and discharge canals, present on the 300 acre tract for Unit No. 1, will be utilized by Unit No. 2. As originally planned and presently certified, the discharge structure for cooling water from Unit No. 2 consists of an open discharge canal, excavated to elevation - 17 feet. This canal is 28 feet wide at the bottom, with a slope of to 3. The open discharge canal extends from the plant approximately 2200 feet to a point 400 feet west of the existing shoreline. From there, a 12 foot diameter concrete conduit, for each unit, is buried beneath the ground and carries the discharged water under the beach and ocean floor out to the ocean discharge structures. The conduit for Unit No. 2 will extend approximately 2800 feet from the shoreline. The Unit No. 2 ocean discharge structure consists of a multiport diffuser containing 48 ports. Each port will be 1.5 feet in diameter, spaced 22.5 feet between centers and oriented to discharge horizontally. The jets will be mounted in an alternating manner on either side of a 1,060 foot manifold. Ocean depth at the discharge point will be approximately - 35 to - 40 feet mean low water. Exit velocity of the discharged water from each port will be approximately 13 feet per second. The effects on the environment which would occur from construction of the discharge conduit with the multi-port diffuser originally planned for Unit No. 2 were thoroughly studied and were the subject of extensive testimony at the 1975 certification hearing. Paragraphs 11, 44, 46, 50, 53, 54, 55 and 64 of the Findings of Fact contained in the October 8, 1975 Recommended Order, discuss and summarize the studies and testimony. On January 11, 1980, Florida Power & Light Company filed and served on all parties a "Petition for Modification of Terms of Certification" pursuant to Section 403.516(3), Florida Statutes. The petition requests a modification to the certification previously issued to reflect proposed design modifications to the cooling water discharge system which are necessary to account for design head losses resulting from the final multi-port diffuser design and to allow a margin for greater than anticipated marine fouling effects. The petition filed by Florida Power & Light Company seeks to modify the original design from that described in paragraph 6 of the Recommended Order entered October 8, 1975 by widening the distance which the open discharge canal extends along the shoreline, increasing the size and length of the conduit, and increasing the number of ports in the diffuser. On January 28, 1980, pursuant to Sections 120.57 and 403.615(3), Florida Statutes, and proper notice published in the local newspapers and served on all parties, a formal hearing was held at the St. Lucie County Library, 124 North Indian River Drive, Fort Pierce, Florida. At the hearing, Florida Power & Light Company presented three (3) witnesses who testified in support of the Petition for Modification of Terms of Certification. These witnesses, Clifford Kent, James O'Hara, and J. Ross Wilcox, described the need for, and the effects of the proposed modifications. Their testimony demonstrated that the proposed modification will result in improved availability of St. Lucie Unit No. 2, and will not result in a significant environmental impact or effect to the public that was not previously considered in the certification proceedings. Florida Power & Light Company also introduced into the record documentary evidence reflecting that it has applied for and been granted the following permits and approvals for this project: U.S. Army Corps of Engineers Construction Permit No. 79K-1019 issued January 7, 1980, and State of Florida, Board of Trustees of the Internal Improvement Trust Fund (Department of Natural Resources) Easement No. 25624 (2670-56)A, St. Lucie County, approved January 8, 1980. The testimony and evidence were not opposed or contradicted by testimony or evidence of any other party. At the hearing on the petition to modify, the Department of Environmental Regulation presented evidence indicating that the effects anticipated from construction of the modified discharge system would increase turbidity in the ocean during construction in the immediate area of the excavation. Adequate control structures are to be used however. The construction of the canal extension would remove approximately two acres of impounded mangrove habitat. To mitigate this loss, Florida power & Light Company proposes to breach the dike on the northern mangrove area to allow approximately 50 acres of mangrove to function more normally with the Indian River estuary. The environmental effects from operation of the revised Unit No. discharge system will be approximately the same as the original proposal. The Department of Environmental Regulation has recommended that the proposed modification be certified subject to the following additional conditions: That the dike around the mangrove area north of the discharge canal be opened up to Big Mud Creek by breaching the dike in three (3) places. Each breach in the dike shall be a minimum of ten feet (10') wide at the bottom and the bottom elevation of the breach shall not be higher than one foot below mean sea level (- 1 MSL) or deeper than - 3 MSL. That the Department of Natural Resources, Bureau of Beaches and Shores be allowed to inspect the dune once restored. Florida Power and Light Company has agreed to the imposition of the proposed conditions. The Conservation Alliance of St. Lucie County has stated that its experts have concluded that the anticipated effects on the environment from the proposed modification will not be dramatically different from those which have previously occurred. Accordingly, the Alliance does not oppose this petition to modify.
The Issue Whether, on January 14, 1997, the Department of Health (Department or DOH), approved an alternative drainfield system for Plastic Tubing Industries, Inc. (PTI), consisting of a 9- pipe system on an equivalency of one linear foot of PTI's system to two square feet of mineral aggregate or one linear foot of PTI's system to three square feet of mineral aggregate.
Findings Of Fact The Parties Petitioner, Plastic Tubing Industries, Inc. (PTI), formerly Plastic Tubing, Inc., was originally formed in Florida in 1974. PTI manufactures plastic drain pipe and the fittings that accompany such pipe. Many of its products and processes are patented. In conjunction with its business, PTI has developed several alternative drainfield systems that utilize plastic tubing or corrugated pipe in lieu of a standard subsurface system made with mineral aggregate for septic tank drainfields. An alternative drainfield system substitutes pipe, or other materials, for aggregate (gravel or rock) used in traditional systems. Before installation in the State of Florida, PTI was required to obtain approval for its alternative drainfield system from the Department. See Fla. Admin. Code R. 10D-6.049, effective January 3, 1995, amended November 19, 1997, and February 3, 1999; and replaced with Fla. Admin. Code R. 64E- 6.009. The Department was, at all times relevant to this administrative proceeding, the state agency authorized to approve the use of alternative systems (to standard subsurface systems) in the State of Florida. Approvals of alternative systems were based on the Department's analysis of, in part, plans prepared by an engineer registered in the State of Florida and submitted by applicants. See Rule 10D-6.049.1 Septic Tanks and Drainfields "Alternative system" means "any approved onsite sewage treatment and disposal system used in lieu of, including modifications to, a standard subsurface system." Rule 10D- 6.042(3). "Standard subsurface drain field system" means "an onsite sewage system and disposal system drain field consisting of a distribution box or header pipe in a drain trench or absorption bed with all portions of the drain field side walls installed below the elevation of undisturbed native soil (see Figure 3)." Rule 10D-6.042(45). The primary purpose of any on-site septic tank system, and ultimately, the septic tank drainfield, is the storage and dispersal of wastewater until the soil can accept it. In other words, a drainfield is a transmission device that takes water and other liquids from a septic tank to the ground. Liquids leave the septic tank into the drainfield which is designed to store the liquid before letting it flow into the ground or soil. Mineral aggregate provides a conducive medium to spread and temporarily store the effluent. Storage capacity refers to the amount of effluent coming out of a septic tank that will be stored in the aggregate or aggregate alternative, here the pipes, until the ground will accept the effluent. Filtrative surface area refers to the openings (in the pipe or aggregate) that allow the water/effluent to leave the storage area and enter the soil. In the case of mineral aggregate, the openings between the aggregate provide an exit for the water/effluent into the soil. With respect to PTI's pipe product, the water leaves the holes in the pipes and travels through voids created from the ridges and valleys of the pipes and enters the soil. An alternative system is evaluated by how the alternative system compares in function (storage capacity and filtrative surface area) to mineral aggregate. In November 1998, the Department defined "reduction" for the first time to mean any change in the actual bottom area size of the drainfield or a change in the footprint of a drainfield. For example, if a product system is 33-inches wide, it would have a reduction because it is less than 36 inches wide. Prior to November 1998, reduction referred to a reduction in linear feet, rather than total trench area or footprint. Thus, if 80 feet of an alternative product could function as well as a 100-foot trench of aggregate, a reduction of 20 feet would occur. PTI did not ask for a reduction in drainfield linear footage, and in particular, regarding the 9-pipe system. The Approval Process On or about April 21, 1995, PTI submitted a letter to the Department which apparently requested approval "to utilize both the 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems." (Petitioner Exhibit 2.) This letter is not part of the final hearing record, but is reflected in the Department's May 24, 1995 letter from Paul Booher, P.E., to Fred Atchley, on behalf of PTI.2 (The quoted language is from the May 24, 1995 letter.) In the May 24, 1995, letter, the Department requested PTI to provide additional information to assist the Department in its evaluation of PTI's request. In part, the Department stated that there are three mechanisms that affect the performance of the infiltrative surface, i.e., chemical, biological, and physical, and that "[b]iological, and perhaps other physical (soil size) considerations, affect the performance of drainfield systems." By letter dated July 7, 1995, PTI's engineer, John E. Garlanger, Ph.D., P.E., a principal with Ardaman & Associates, Inc., provided PTI, to the attention of Mr. Atchley, a letter/report which responded to the Department letter of May 24, 1995. Dr. Garlanger stated in part: "As requested, Ardaman & Associates, Inc. has prepared cross-sectional drawings showing the dimensions associated with the installation of a 9- pipe and 13-pipe Rockless Drain Field System (PTI System) in both mound trench and subsurface trench drain field system." In addition to the letter/report, Dr. Garlanger provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. (Joint Exhibit 1.) The July 7, 1995, drawing depicts the 9-pipe system and 13-pipe system. The 9-pipe system consists of nine four- inch diameter corrugated polyethylene pipes. Four pipes are placed on top of five pipes and one of the four pipes is a distribution pipe. The nine pipes are bundled together, are 8.63 inches in height and 23.25 inches in width, and depicted within a two-foot wide trench. Note 4 of 6 on the drawing indicated that the "ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10 % DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES." (The same drawing also illustrates the 13-pipe system with six pipes placed on top of seven pipes and bundled. The 13-pipe system is 8.63 inches in height and 32.375 inches in width and depicted within a three-foot wide trench. Note 4 is also referenced. (Joint Exhibit 1.)) Dr. Garlanger provided six notes to the July 7, 1995 drawing, as follows: 1.) STORAGE VOLUME BENEATH BOTTOM OF 0.75- INCH DIAMETER PERFORATIONS IN DISTRIBUTION PIPE FOR 9-PIPE SYSTEM IS GREATER THAN 1180 in3/ft (5.1 gal/ft) [1190 in3/ft (5.2 gal/ft)] AND FOR 13-PIPE SYSTEM IS GREATER THAN 1690 in3/ft (7.3 gal/ft) [1710 in3/ft (7.4 gal/ft)]. THIS COMPARES WITH A STORAGE VOLUME OF 660 in3/ft (2.8 gal/FT) FOR CONVENTIONAL 2-FOOT WIDE AGGREGATE-FILLED TRENCH AND 1000 in3/ft (4.3 gal/ft) FOR A CONVENTIONAL 3-FOOT WIDE AGGREGATE-FILLED TRENCH. 2.) TOTAL AVAILABLE STORAGE VOLUME WITHIN 9-PIPE SYSTEM IS 1985 in3/ft (8.6 gal/ft) [2070 in3/ft (8.9 gal/ft)] AND WITHIN 13-PIPE SYSTEM IS 2910 in3/ft (12.6 gal/ft) [2980 in3/ft (12.9 gal/ft)]. THIS COMPARES WITH A TOTAL STORAGE VOLUME OF 1185 in3/ft (5.13 gal/ft) [1200 in3/ft (5.2 gal/ft)] FOR 2-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM AND 1790 in3/ft (7.75 gal/ft) [1800 in3/ft (7.8 gal/ft)] FOR A 3-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM. 3.) THE BOTTOM AREA AVAILABLE FOR FILTRATION IS GREATER THAN 160 in2/ft FOR THE 9-PIPE SYSTEM AND GREATER THAN 220 in2/ft FOR THE 13-PIPE SYSTEM. COMPARABLE BOTTOM AREAS FOR AGGREGATE SYSTEMS ARE 100 in2/ft FOR A 2- FOOT TRENCH AND 150 in2/ft FOR A 3-FOOT TRENCH. 4.) ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10% DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES. 5.) PERFORATIONS [IN DISTRIBUTION PIPE] ARE SPACED 4" ON CENTER. PERFORATION AREA IS 2.65 in2/LINEAL FOOT. 6.) EITHER OF THE UPPER PIPES IN THE DISTRIBUTION PIPE BUNDLE MAY BE USED FOR THE DISTRIBUTION PIPE. THE LOWER PIPE SHALL NOT BE USED FOR THE DISTRIBUTION PIPE. [THE DISTRIBUTION PIPE SHALL BE MARKED WITH A REFERENCE LINE TO ORIENT THE PERFORATIONS. THE DISTRIBUTION PIPE SHALL BE COUPLED BETWEEN EACH BUNDLE TO PROVIDE A CONTINUOUS LENGTH OF PIPE.] (The language appearing in brackets appears in the revised drawing, Joint Exhibit 2, submitted by PTI with Dr. Garlanger's December 8, 1996, letter, DOH Exhibit 4.) In his July 7, 1995 letter to PTI, Dr. Garlanger, in responding to Mr. Booher's letter of May 24, 1995, stated in part: Explain how the pipe bundles fulfill the requirement for a 12-inch deep drain field? Paragraph 10D-6.056(3)(e) requires the mineral aggregate material have a total depth of at least 12 inches and that the distribution pipe have a minimum of six inches of aggregate under the pipe. The purpose of the aggregate is to provide a highly conductive medium to spread and temporarily store the wastewater above the infiltrative surface between loading cycles. Twelve inches of mineral aggregate in a 2- foot wide trench can store approximately 5.25 gallons of wastewater per foot. Deducting the dead storage below the perforations in the distribution pipe, the total available storage in a conventional 2- foot wide trench drain is 5.13 gallons per foot and in a conventional 3-foot wide trench is 7.75 gallons per foot. The height of the 9-pipe and 13-pipe systems is 8.360 inches. The distance from the bottom of the trench to the bottom of the perforations in the distribution pipe is 4.836 inches. The total available water storage in a 9-pipe system after deducting the dead storage is 8.60 gallons per foot and in a 13-pipe system after making the same deduction is 12.58 gallons per foot. In both cases, the total available storage is greater for the PTI system. [See Note 2 above.] Note that the total available water storage capacity below the bottom of the perforations in the distribution pipe is also greater for the PTI System than for the aggregate system: 5.1 gal/ft for the 9-pipe system compared to 2.8 gal/ft for a conventional 2-foot wide trench and 7.3 gal/ft for the 13-pipe system compared to 4.3 gal/ft for the conventional 3-foot wide trench. [See Note 1 above.] Because the thickness of aggregate below the pipe is less than the minimum requirement of 6 inches, we are concerned about the distribution of the effluent over the infiltrative surface, especially since the sidewalls are such an integral part of the operation of the system. The hydraulic conductivity of both the aggregate system and the bundled pipe system is several orders of magnitude higher than that of the in situ sand that underlies the drain field. In both cases, but certainly for the PTI System, water flowing out of the perforations in the distribution pipe can spread out evenly across the infiltrative surface. The depth to which the water rises above the infiltrative surface depends primarily on the inflow rate and the hydraulic conductivity of the organic mat that forms on the bottom of the trench. Because of the differences in porosity between the two systems, the water increases in depth faster in the aggregate system than in the PIT System. However, the ultimate depth of water for a given inflow rate will be roughly the same for both systems, i.e., when inflow equals outflow. The only difference between the two systems is in the volume of water that is stored in the trench during each loading period; the PTI System stores more. There should be no significant difference in the effect of the sidewalls on the infiltrative capacity of the two systems. The effect of increasing sidewall seepage on the overall hydraulic performance of a drain field system is not large. For a 2-foot wide trench, increasing the sidewall seepage by raising the water depth from 5 to 6 inches increases the peak infiltration rate by less than 7 percent. The corresponding increase for a 3-foot wide trench is less than 5 percent. State the area per lineal foot of bundle that constitutes the infiltrative surface. The surface area at the bottom of the trench that is available for filtration of suspended solids in the effluent is greater than 160 in2/lineal foot for the 9-pipe system and greater than 220 in2/lineal foot for the 13-pipe system. This compares with 100 in2/lineal foot for a 2-foot wide aggregate-filled trench and 150 in2/lineal foot for a 3-foot wide aggregate-filled trench. [See Note 3 above.] (The underlined portions are inquiries made by Mr. Booher. The language in brackets refers to the "Notes" mentioned above.) DOH Exhibit 3 is a copy of Dr. Garlanger's July 7, 1995, letter, which also contains Mr. Booher's comments of August 14, 1995. It is noted that Dr. Garlanger discusses the calculations which appear in Notes 1, 2, and 3, in that portion of Dr. Garlanger's letter/report recited above. Mr. Booher also made notations on the July 7, 1995, drawing, with respect to, among other things, the Notes. Material here, beside Note 3, Mr. Booher wrote "Gravel Shadow? @ .35% open." (Joint Exhibit 1.) Mr. Booher also noted on Dr. Garlanger's July 7, 1995, letter/report "disagree" and other notations with respect to Dr. Garlanger's explanation under the subject discussed in Note 3 above, and under the heading "State the area per lineal foot of bundle that constitutes the infiltrative surface." (Emphasis in original.) (See Finding of Fact 16, p. 13.) On October 15, 1996, Mr. Booher requested additional information from Mr. Atchley, as follows: Per our conference call yesterday please provide the following for approval of the rockless pipe drainfield: A written request. Drawings showing the distribution and void pipe locations. Indicate the pipe bundle configurations. If you intend to use the notes on drawing 95-104 titled "Installation guidelines-Multi-pipe rockless drainfield system" please fully include and explain the calculations, including drawings with the areas calculated shown by shading. Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined, percent used for pipe shadowing and how determined. If the distribution pipes are of different material than the void pipe please so indicate. Reference the applicable ASTM standard for all materials. Below item 6, the following handwritten note (by Mr. Booher) appears: "Fred-Don't get optomistic [sic]-we are attempting to define 'gravel equivalent.'" (Joint Exhibit 5.) In response to Mr. Booher's October 15, 1996, request for additional information, on December 8, 1996, Dr. Garlanger provided a two-page letter, and Attachment 1 to Mr. Atchley. Attachment 1 provided "Calculations for Storage Volumes and Infiltration Areas for Multi-Pipe Rockless System and Conventional Gravel Drain." Material here, Attachment 1 contained a summary of Dr. Garlanger's conclusions (and the actual calculations) comparing PTI's multi-pipe system, 9-pipe and 13-pipe, to 24 and 36-inch wide gravel-filled trenches, regarding three parameters: storage volume below holes in the distribution pipe; filtration area; and total storage volume in the system. The specific calculations and illustrations are provided, including "area and volume calculations," in Attachment 1 on pages 1-10. (DOH Exhibit 4 and Joint Exhibit 4.) Dr. Garlanger also provided comparison calculations responding to item 4 in Mr. Booher's October 15, 1996 letter (see Finding of Fact 18) as follows: Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined. The comparison calculations are presented in Attachment 1. The gravel porosity was calculated based on a typical dry density for loosely placed FDOT No. 57 stone of 110 pcf and a specific gravity for limestone of 2.8, resulting in a calculated porosity of approximately 35 percent. For a conventional gravel-filled trench, the area available for filtration was calculated as the total area of the gravel times porosity, i.e., the percent assumed for gravel shadowing was 100-35=65 percent. For the multi- pipe rockless drain, the contact between the bottom of each pipe and the ground surface was taken as 2 inches per lineal inch of pipe which provides sufficient bearing area to support the overburden pressure. Computation of equivalent storage in the gravel assumed a minimum of 6 inches of No. 57 stone beneath the invert of the pipe and a distance of 0.83 inches from the invert of the pipe to the bottom of the drain holes. (Emphasis added.) (Mr. Booher's request is underlined before Dr. Garlanger's response.) Dr. Garlanger also provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. This drawing reflects general revisions of October 11, 1995, and December 6, 1996, to the original drawing dated July 7, 1995, which accompanied Dr. Garlanger's July 7, 1995, letter to Mr. Atchley. See Findings of Fact 14-15. Six "Notes" were presented in the December 6, 1996, drawing revisions, with some changes made to Notes 1, 2, 5, and 6 which do not appear to be material. See Finding of Fact 15. No changes are made to Notes 3 and 4. Material here, Note 3 pertains to "the bottom area available for filtration" and Dr. Garlanger's calculations showing the 9-pipe system comparing more favorably (equal to or greater) to a 24 and 36-inch (two and three feet wide, respectively) wide aggregate (gravel) trench without any changes in response to Mr. Booher's August 14, 1995, comments and October 15, 1996, request for additional "comparison calculation" and explanation regarding "gravel shadowing." (Notes 1-3 are derived from the calculations appearing in Attachment 1, pages 1-9.) Dr. Garlanger's submissions indicated that one linear foot of the 9-pipe system is equal to or greater than three square feet of gravel. Also, the representation that the 9-pipe system fits within a 24-inch trench does not relate to equivalency. See Finding of Fact 36. Dr. Garlanger's December 8, 1996, letter, with Attachment 1, and the revised drawing, were forwarded to Mr. Booher with a cover letter from Mr. Atchley, dated December 11, 1996. Mr. Atchley stated in his letter: Enclosed are the drawings and calculations you requested. The "numbers" add up favorably. I look forward to your response and anticipated approval based on this information. Please notice the difference in volume (total capacity), porosity and filtrative surface area. Based on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time. We do ask that the bed installation constraint be removed from our acceptance letter. There seems to be more and more bed type installations even though the FAC 10D-6 clearly states that a trench system is the preferred method. Consequently, we will be requiring that certified installers of our systems employ a method of back filling that will insure against collapse of any part of the system. This method would also have to provide within reason, a guaranty against operating any equipment onto the drain field area until sufficient cover has been established. After 10 to 12 inches of cover has been established we ask them to mark the bed area with stakes and flagging to serve as a warning to other sub-contractors such as the sod installers and the finished grade tractor operator. If there are any questions please call me at (407) 298-5121. (On January 13, 1997, Mr. Atchley also sent Mr. Booher a similar letter, but also included some additional data regarding 1996 sales, including but not limited to average system size per square foot, the number of active installers, installations per month.) On January 14, 1997, Mr. Booher issued the following approval letter to Mr. Atchley: Dear Mr. Atchley: We have reviewed the engineering drawings dated 07/07/95 with revision 2 dated 12/06/96 and data prepared and sealed by Ardaman & Associates dated December 8, 1996, and received in this office on December 16, 1996. Your request for alternative drainfield system approval letters dated December 11, 1996, and January 13, 1997, have also been reviewed. The PTI nine pipe bundle and PTI thirteen pipe bundle Multi-Pipe Rockless Drainfield Systems are hereby approved for use in the State of Florida. We have concerns about the total effective sidewall contact surface area, especially when systems are installed with no fall. We also have concerns regarding the structural integrity of the pipe bundle systems when used in large bed applications. Nevertheless, approval is granted based on the design and recommendations submitted by your professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations. Except as herein noted, all systems shall be installed in accordance with sections 381.0065-381.0067 Florida Statutes, and all rules in Chapter 10D-6, Florida Administrative Code (FAC). All installations shall be sized and installed meeting all rules in Rule 10D-6, FAC and shall also meet the following conditions: All licensed septic tank contractors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. Both the 9 and 13 pipe bundle systems can be installed in subsurface, filled, or mound trench or bed systems. In bed systems the maximum centerline to centerline spacing of the distribution pipe shall be 36 inches. The distribution piping may be used to house low pressure distribution networks. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or any other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer or the registered septic tank contractor if an engineer didn't design the system is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions please call us at (904) 488-4070. (Emphasis added.) This letter was accompanied by a facsimile sheet which indicated, in part, that the Department intended to "notify the 67 counties within the week." On January 29, 1997, Mr. Booher authored an Interoffice Memorandum which was issued from John Heber, Chief, On-Site Sewage Program, Mr. Booher's supervisor at the time, to the County Health Department Director/Administrator. (Joint Exhibit 11.) This Interoffice Memorandum provided in part: The PTI 9 pipe and 13 pipe "Multi- Purpose Rockless Drainfield Systems" have both been given alternative systems approval for use in Florida. The systems are to be installed in accordance with drawing file number 95- 104 dated 07/07/95, revision 2 dated 12/06/96, copy attached. Except as hereby noted, systems shall be installed in accordance with sections 381.0065 - 381.0067, Florida Statutes, and all rules in Chapter 10D- 6, Florida Administrative Code (FAC). The following conditions apply: The 9 pipe system shall be rated at 1 linear foot equals 2 square feet of drainfield area. The 13 pipe system shall be rated at 1 linear foot equals 3 square feet of drainfield area. The 9 pipe and 13 pipe bundle systems may be installed in subsurface, filled or mounded trench or bed applications. Dosing will be acceptable when used to overcome a gravity situation. Pressurized systems shall be designed and installed in accordance with Chapter 10D-6, Florida Administrative Code. Please be reminded that certain pressurized dosing systems must be designed by engineers registered in the State of Florida. For designs requiring the use of smaller diameter pipe (either screw joint or glue joint), the 9 pipe and 13 pipe systems distribution pipe shall house the pressurized pipe system. All licensed septic tank contactors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or an other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer (or the registered septic tank contractor if an engineer does not design the system) is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions, please call me or Paul Booher, P.E., at (904) 488-4070, or SC 278-4070. (Emphasis in original.) On March 13, 1998, the Department issued a document entitled "Onsite Sewage Treatment and Disposal Systems Alternative Drainfield Products." This document describes several product names including PTI's product as follows: "PTI 'NPRDS' 9 ea.- 2-tier 13 ea.-2-tier." The engineer of record is listed as Ardaman and Associates, and the type of permit issued is referred to as "Alternative Status" along the same line as "PTI 'MPRDS"" and "No reduction in area" along the line "9 ea.-2 tier." Mr. Everson may have seen this chart prior to seeing the November 27, 2000, chart mentioned below. But, the mention of no reduction would have been consistent with his understanding that reduction referred to a reduction in linear feet and PTI did not request a reduction in linear feet. On November 27, 2000, an employee of the Department prepared a similar chart which included a description of product names and included the same PTI product. However, under the heading "Type of Permit Issued and Sizing Criteria," the following language appears: PRODUCT NAME DESCRIPTION SUBMISSION DATE APPROVAL DATE CPHU NOTIFICATION DATE ENGINEER OF RECORD TYPE OF PERMIT ISSUED and SIZING CRITERIA *** *** *** *** *** *** PTI "MPRDS" 9 ea.-2 tier 12/06/96 12/14/96 01/15/97 Ardaman and Associates 1 linear foot of product = 2 sq ft of mineral aggregate 13 ea.-2 tier 1 linear foot of product = 3 sq ft of mineral aggregate On February 26, 2001, the Department issued a similar chart which contained the same information regarding PTI as the November 27, 2000, chart, which appears above. All of the charts were designed to provide guidance to the local health departments regarding the alternative drainfield systems approved in the State of Florida and the ratings, e.g., equivalency, assigned to each. See Findings of Fact 26-28. The November 27, 2000, and February 26, 2001, charts described PTI's 9-pipe system approved by the Department on a one-to-two square foot equivalency to mineral aggregate. In late 2000, while working with a Department representative on an industry presentation, Mr. Everson, vice president of PTI, discovered the November 27, 2000, chart mentioned above. Mr. Everson believed this representation to be incorrect and reported it to Michael Maroschak, the president of PTI. Discussions transpired between representatives of PTI and the Department. Ultimately, the Department implicitly decided that the Department had approved PTI's 9-pipe system, consistent with these charts. On March 18, 2003, the Department advised PTI in writing that it "stands by its previous decisions on the matter." PTI then filed its Petition challenging this agency action. Resolution of the Controversy PTI has developed various pipe configurations to serve as alternative drainfield systems. PTI requested the Department to approve its 9-pipe and 13-pipe bundle Multi-Pipe Rockless Drainfield Systems in or around April of 1995. The 9-pipe system is the subject of this proceeding. As early as May 1995, the Department understood that PTI requested approval to utilize both PTI's 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems. Over the course of over a year and a half, in support of its approval request and in response to questions posed by the Department, PTI, by and through Dr. Garlanger, PTI's registered Professional Engineer, submitted an engineering drawing (signed and sealed), as revised, and specific specifications and calculations to indicate that one linear foot of the 9-pipe system compared favorably, on paper, with a conventional three-foot wide, 12-inch deep (three square feet) aggregate system. The Department raised questions regarding PTI's proposal to which PTI, and specifically Dr. Garlanger, responded. During the approval process, the Department raised issues related to "gravel shadowing" and Dr. Garlanger's calculations regarding the "bottom area available for filtration." See, e.g., (DOH Exhibit 3, p. 2; Joint Exhibit 1.) Dr. Garlanger responded to these inquiries. See, e.g., (DOH Exhibits 3 and 4; Joint Exhibits 1 and 2.) Dr. Garlanger has been a registered Professional Engineer in the State of Florida since 1974 and has served as vice-president for Ardaman & Associates and chief engineer since 1975. He was accepted as an expert in the areas of hydrology, hydro-geology, and geotechnical engineering. Dr. Garlanger prepared and signed and sealed the engineering drawings and all comparative data submitted by PTI with its approval request. Dr. Garlanger's engineering drawings, including the "Notes" as revised, and calculations indicated favorable (equal to or greater than) comparisons of one linear foot of PTI's 9- pipe system with two and three square feet of aggregate (gravel). The fact that the 9-pipe system fits within a 24-inch or two-foot wide trench does not affect its equivalency to three square feet of aggregate (gravel) with respect to the three parameters in Notes 1-3 and in the calculations referred to in Attachment 1. See Finding of Fact 22. During the final hearing, the Department, consistent with written comments made during the approval process, suggested that the "gravel shadowing" or "a shadowing technique" that occurs with alternative systems to compare their infiltrative surface area (bottom area available for filtration) to aggregate, has never been used by the Department "as an evaluator." Mr. Booher3 explained that this technique "reduces the size of the actual area, the length times the width of the drain field [sic], by a cross sectional area of interrupting gravel, saying the actual absorption area is reduced as a result of the gravel that is sitting on the infiltrative surface and reduces the total area, absorptive area, to about one-third of the actual total area. And that's what [he] disagree[s] with." Mr. Booher also stated that he would not approve a 9- pipe system at a three square-foot equivalent because of biological loading. He explained his position in some detail. In the May 24, 1995, letter to PTI, the Department stated that it was "interested in verifying that the drainfield environment will support aerobic treatment over the long term." This question expressed the Department's concern regarding "biological loading and problems that can develop. Dr. Garlanger responded to this inquiry and his explanation was accepted by Mr. Booher "because everyone claims it." See (DOH Exhibit 3; Petitioner Exhibit 2, p. 3.) The Department also contended that it did not approve PTI's request because PTI did not ask for a "reduction." Mr. Booher explained during the final hearing that Dr. Garlanger's drawings (Joint Exhibits 1 and 2) referred to "the 9-inch pipe and the 24-inch trench and the 13-inch pipe and the 36-inch trench because that note 4 says that if you put them in accordance with this document, then you will be a full 24-inch, 9-inch, 24-inch equivalent and 36-inch, 13-pipe equivalent" and that he "needed to restrict [his] review to no reduction in area." Mr. Booher also commented on Note 3, for which he disagreed during the approval process. It did not matter to Mr. Booher that Dr. Garlanger used "the shadow masking technique because [PTI] was not asking for any reduction." He considered Note 3 as "just more information, as opposed to an evaluation for determination of the sizing." In other words, according to Mr. Booher, the Department's approval letter of January 14, 1997, did not address the idea of using the 9-pipe system in a 36-inch trench" because PTI "asked for no reduction." 4 The Department's position is also based, in part, on Mr. Atchley's cover letters of December 11, 1996, and January 13, 1997, in which Mr. Atchley, referring to Dr. Garlanger's drawings and calculations, that "[b]ased on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time." The weight of the evidence indicates that the reference to the "40%" pertains to the 13-pipe system, which would have been a large reduction, and not the 9-pipe system. The 9-pipe system qualified for only a minimal reduction which was not requested. Also, PTI did not request a reduction in linear feet. There is a conflict in the evidence regarding what PTI requested. Mr. Atchley opines that PTI did not request approval of the 9-pipe system such that one linear foot of product is equivalent to three square feet of aggregate. Mr. Booher agrees and also opines that the Department did not approve this configuration. Mr. Everson takes the opposite view as does Dr. Garlanger. The conflict is resolved in PTI's favor. While Mr. Booher's comments appearing of record, regarding PTI's request for approval and the Department's approval, and which were explained more fully during the final hearing, are credible, the fact remains that the Department granted approval "based on the design and recommendations submitted by [PTI's] professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations." (Joint Exhibit 6.) The Department did not take exception in its approval letter, as it did during the final hearing, to PTI's submissions by Dr. Garlanger, PTI's professional engineer.5 Dr. Garlanger's submissions and his explanation of his submissions are credible. The weight of the evidence indicates that PTI requested approval for and the Department approved PTI's 9-pipe system on an equivalency of one linear foot of product to three square feet of mineral aggregate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order concluding that Plastic Tubing Industries, Inc.'s 9-pipe bundle Multi-Pipe Rockless Drainfield System, such that one linear foot of PTI's 9-pipe system is equivalent to three square feet of mineral aggregate, is approved for use in the State of Florida. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 11th day of December, 2003.
The Issue The issue to be determined is whether Respondents, Anthony Crescenzo and Johns by John II, Inc. (collectively, Respondents), violated Florida Administrative Code Rule 64E-6.022(1)(g), (k), (l)2., and (p), and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the standards for onsite sewage treatment and disposal systems (OSTDS), pursuant to chapters 381 and 489, Florida Statutes, and Florida Administrative Code Chapter 64E-6. Respondent Anthony Crescenzo is a resident of the State of Florida and holds DOH registration number SR0061541, to provide septic tank contracting services in Florida. Mr. Crescenzo owns and operates Johns by John II, Inc. (Johns by John), a Florida corporation located at 6252 Commercial Way, Weeki Wachee, Hernando County, Florida. Johns by John is authorized by the Department to provide septic tank services under Business Authorization number SA0041171. Johns by John provides OSTDS services pursuant to rules adopted by the Department and under the license, registration, and direction of Anthony Crescenzo. Winston and Dianne Wescott reside at 2245 Ring Road in Spring Hill, Florida, and have done so for approximately 19 years. Sometime in April 2014, Mr. Wescott noticed a depression and some saturated soil in his yard, near his septic tank. Mr. Wescott was concerned because of prior sink hole activity. After some telephone calls and an inspection by the insurance adjuster, Mr. Winston called Johns by John. On or about Saturday, June 7, 2014, a worker from Johns by John came to the residence and pumped out the drainfield. At that time, waste was coming out of the ground but was not backing up into the home. After the pump-out was complete, Mr. Wescott showed the technician the depressed area, and an exposed area that revealed that the outlet pipe to the septic system’s distribution box (D-box) was defective. The area had been exposed by either the insurance adjuster or the homeowner before the technician arrived. The technician telephoned Mr. Crescenzo, who advised that he would come out the following Monday or Tuesday to inspect the system and see what additional repairs were necessary. Mr. Wescott paid $205.72 for the pump-out of the drainfield. On Wednesday, June 11, 2014, Mr. Crescenzo met with Mr. Wescott to assess what repairs were necessary. When he arrived, the homeowner had already dug around the area, leaving the tank and the D-box at least partially exposed. Mr. Crescenzo advised that a new drainfield might be necessary, but did not state that it was absolutely required. He also explained that the repair would require a permit, and that they would do what they could to repair, as opposed to replace, the existing system. Mr. Crescenzo also explained that because of the need to obtain a permit, it might be four to six weeks before the job was completed. Mr. Crescenzo prepared, and Mr. Wescott signed, a Work Order/Proposed Drainfield Estimate form. Under “Job Description,” the following handwritten notation was provided: D-box collapsed down [illegible] point may have to replace entire system $2,500-$3,500. System will need to go in the front due to site conditions 4 bedroom house deposit required $1,000. The preprinted text on the form provided the following statements in bold-faced type: * NOT RESPONSIBLE FOR SPRINKLERS, WIRES, BROKEN PIPES, YARD, SOD OR DRIVEWAY DAMAGEDeposits are non-refundable. The form also provided for a 10-year warranty of any work performed. Although the language of the form is not clear, Mr. Crescenzo testified credibly that the warranty was applicable to repairs of the existing system as well as to replacement of the system. While the maximum the homeowner might have to pay is clearly indicated on the form, the costs of a repair short of replacement is not listed. Mr. Crescenzo testified that a $1,000 deposit is required for any job requiring a permit, as the permit itself is $300, and that he told the homeowner that he would not know the extent of the repair needed until he started the work. Mr. Wescott signed the estimate. Despite the language on the estimate that a new drainfield may be needed, Mr. Wescott understood that his drainfield would be replaced. While he admits signing it, he did not recall seeing the statement that deposits are non-refundable, notwithstanding that it is printed in bold type. His understanding appears to be based, in part, on a discussion between Mr. Wescott and Mr. Crescenzo about the continued vitality of the D-box. Mr. Wescott understood Mr. Crescenzo to say that the life of the septic system was approximately 19 years (the age of his home), and that if the drainfield was not replaced, the Wescotts would in all likelihood be calling him back in a matter of months to replace it because it was nearing the end of its expected life-span. He also understood Mr. Crescenzo to say that the D-box was obsolete and would not be replaced when the drainfield was replaced. Mr. Crescenzo, on the other hand, testified that he always maintained that they would try to repair the existing drainfield but may have to replace it. In the event that the system was replaced, D-boxes are no longer used and the existing one would not be replaced. Mr. Crescenzo denied stating that the life of a drainfield is 19 years, stating that drainfields do not have a standard life expectancy.1/ Mr. Crescenzo also emphasized that the work performed, whether a repair to the existing drainfield or a replacement, was subject to a 10-year warranty, thus making any statement that the company would just have to come back in a few months nonsensical. Mr. Crescenzo’s testimony is credited. Mr. Crescenzo applied for a permit on June 18, 2014, which costs $300. The permit application was to repair or replace the distribution box, not to replace the drainfield, and noted that the D-Box had collapsed. Mr. Crescenzo stated on the application that it may be possible to fix the D-Box and remove roots. The permit was issued for OSTDS repair on June 20, 2014. According to Stephen Kataro, an engineer for the septic tank program for Hernando County who approved the application and inspected the repair, the permit gave the option to replace the drainfield if necessary, based upon what was found during the repair. This approval is consistent with Department policy. On approximately July 3, 2014, Jeremiah Blake, a technician for Johns by John, went to the Wescott home to work on the septic system. Mr. Blake drove a Johns by John truck equipped with the standard equipment to install a drainfield. When he arrived at the home, the system was already uncovered. Mr. Blake discussed the repairs with Mr. Wescott, stating that he could do the drainfield or fix the D-Box. He determined that replacement of the outlet pipe leading to the D-Box addressed the problem, and that there was no need to replace the drainfield, as all drains were taking water. Mr. Blake completed the repair and used Mr. Wescott’s garden hose with a jet-spray nozzle to spray inside the D-Box and clean out the lines. There is an alternative repair method referred to as “jetting” that requires a separate permit that Respondents did not obtain. Jetting requires specialized equipment that Respondents do not own. The unrebutted testimony of both Mr. Wescott and Mr. Blake is that Mr. Blake used a simple garden hose to clear the lines. He is familiar with what the Department refers to as jetting, but has never operated jetting equipment. He uses the term “jetting” because it is an easier way to describe what he does with a simple garden hose to clear the D-Box of sand. When Mr. Blake replaced the pipe leading to the D-Box, he broke sprinkler lines in the area. Sprinkler lines are often, if not always, damaged in OSTDS repairs. Respondents had arranged the day before for a timed inspection, for which they paid an additional fee. The purpose of a timed inspection is to be able to complete the job and have it inspected as soon as it is finished. Mr. Kataro came out to the property at approximately 9:00 a.m., inspected the work performed, determined that it met permit requirements to restore function, and approved it.2/ Mr. Kataro left the site before Mr. Blake covered the system, consistent with standard practice. While Mr. Wescott was present when Mr. Kataro arrived to inspect the work, there was no testimony to indicate Mr. Wescott advised the inspector that he was unhappy with the scope of work performed. Mr. Blake had a backhoe on the premises for use in covering the area. He testified that he covered the system, including the broken sprinkler pipes, and that he always does so and then notifies the homeowner about the need to fix the sprinkler pipes. Both Mr. Blake and Mr. Wescott testified that Mr. Wescott asked Mr. Blake to remove some sod for him nearby, and paid him cash for doing so. According to Mr. Blake, Mr. Wescott seemed satisfied at this point. It seems inconceivable that Mr. Wescott would be willing to pay additional funds for Mr. Blake to remove sod if he had not covered the system he was supposed to cover and if he was unhappy with the work (or lack of work) performed, and yet not say anything to Mr. Blake about covering the completed repair. Mr. Wescott expected that since the drainfield was not replaced, he would receive some portion of the $1,000 he paid back. Had he realized that the repair would cost that much, he would have gotten estimates from other contractors. He viewed replacing the drainfield as preventative maintenance. Based on this belief, after Mr. Blake left the premises, Mr. Wescott called Mr. Crescenzo and asked about a refund. He did not complain, however, about the system not being covered. Mr. Crescenzo informed him that there would be no refund, as the work order clearly indicates that deposits are non-refundable. The Wescotts called the Johns by John office to get an itemized receipt for insurance purposes. There was some delay in receiving a receipt, so they went to the office to obtain it in person. Initially, they were given a receipt stating that the D- box had been replaced. When they questioned this and told the person working in the office that the D-box had not been replaced, she made some phone calls to verify the work performed. The office worker prepared a new receipt while speaking to someone, presumably Jeremiah Blake, on the phone. The new receipt stated, “connected tank to distribution box. Leveled D-Box to drainfield. Jetted drainfield lines.” The change in the description appears to have occurred more because the person working in the office misunderstood the scope of work performed, rather than any nefarious intent to defraud. Further, the reference to jetting was consistent with both Mr. Blake and Mr. Crescenzo’s shorthand notation for cleaning the line with the garden hose, as opposed to the alternative repair method requiring additional permitting. As noted in paragraph 16, the sprinkler lines were broken during the repairs. Mr. Wescott replaced the broken pipes, and placed bricks underneath them to hold them in place. He was still unhappy about not having a new drainfield in place, and felt that he had been defrauded. On August 4, 2014, Mr. Wescott filed a complaint with Albert Gray, the Environmental Manager at the Department. At the very end of his two-page letter, Mr. Wescott stated that the broken irrigation pipes have been repaired and the hole is still wide open with the tank cover exposed. The Department does not regulate the prices to be charged for repairs or installation of new systems: that is between the contractor and the homeowner. There is more involved to complete the job than the time that the workman is on the premises actually performing the repair. For example, in addition to the cost of the permit application, additional time is necessary to perform a site evaluation and soil test. Whether or not the drainfield must be replaced, the materials must be available to install should it be necessary, as well as the skilled workman and equipment (truck, backhoe, etc.). Further, it is clear that, had Respondents installed a new drainfield, the cost would have been much higher than what the Wescotts actually paid, not only to pay for the drainfield, but also to replace a large section of sod and a larger portion of the sprinkler system. Regardless of whether a new drainfield is installed, contractors are required to cover the OSTDS when they work on it. As a result of the Wescott’s complaint, Inspector Kataro went back out to the Wescott home to inspect the site. He found that the D-Box was lying open and exposed, with no earth covering the system. He took pictures of the area, which were admitted into evidence as Petitioner’s Exhibits J and K. The pictures show two exposed sprinkler pipes, supported at one end by bricks. One picture shows a bucket positioned over the distribution box, while the other shows the box sealed but not covered. Mr. Kataro testified that the pictures look similar to what he saw when he inspected the property after the repair was completed in July 2014. However, he could not say whether the sprinkler system pipes were broken before, or whether the bricks supporting the pipes were there previously. The testimony is clear that, after the job was inspected, Mr. Wescott made repairs to the sprinkler system that would require the area to be uncovered and Mr. Wescott acknowledged that he placed the bricks under the sprinkler pipes. Mr. Kataro recalled that Mr. Blake had a backhoe on the premises at the time of repair, but Mr. Kataro left the site before the area would have been covered. There is credible testimony that Mr. Blake covered the area and credible testimony that he did not. Other evidence presented is more consistent with a finding that the area was covered, at least minimally. The equipment for covering the area was by all accounts on site, and Mr. Blake used that equipment to remove sod for Mr. Wescott. It makes little sense for him to use the equipment to remove the sod but not use it for covering the D-Box and surrounding area. Moreover, had Mr. Blake covered the area, it would have to be uncovered to fix the sprinkler pipes. The Department did not prove by clear and convincing evidence that Mr. Blake, as an agent of Respondents, failed to cover the D-box. Respondent Crescenzo happened to be at the Department on August 14, 2014, picking up permits when he learned of the complaint from Mr. Wescott. He was very upset about the complaint and immediately wrote a response while still at the Department. In his response, he denied stating that the drain field would definitely be replaced, and emphasized that by repairing the pipe leading to the D-Box the homeowner saved a substantial amount of money, including not only the cost of installing the drain field, but the re-sodding of his yard and more substantial repair of his sprinkler system. Although clearly unhappy about the complaint, Respondent Crescenzo stated, “If the homeowner wants the system just replaced they should have said that at the time of the job. Or we could still do it if they insist for the original agreed price.” Mr. Wescott has not elected to accept Respondents’ offer. In his response, Crescenzo also referred to “jetting,” but used it in the same informal manner as Mr. Blake. His informal reference did not change the unrebutted testimony regarding the scope of work performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of May, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2015.
The Issue The issue in this case is whether the Department of Agriculture and Consumer Services (Department) acted in an arbitrary or capricious manner in rejecting all bids due to the vagueness of an addendum to bid specifications, and rebidding a contract for the installation and replacement of EDB water filters.
Findings Of Fact In September, 1986, Global submitted a bid to the Department for the installation and exchange of EDB water filters. The three lowest bidders, including Global, were disqualified. This bid was designated DOF-ADM-13. On or about November 14, 1986, the Department issued new bid specifications, and an invitation to bid designated DOF-ADM-29. Bidders were required to prequalify, but in other respects these specifications were essentially the same as the previous bid, DOF-ADM-13. The deadline for prequalification was December 2, 1986. Prior to the prequalification deadline, Global contacted the Department's contract manager, John Folks, and sought a change in the following prequalification requirement: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) Global did not have NWQA level V certified installers, and therefore, could not qualify under this provision. However, they did have Class I plumber's licenses, the highest designation in North Carolina, the company's headquarters. James Tate, Global's Vice President, testified that a Class I plumber's license is the same as a master plumber in Florida. The Department's contract manager approved and issued an addendum which constituted an amended bid specification on November 20, 1986, to permit a Class I plumber's license or equivalent, as follows: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification or a class one plumber's license or equivalent and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) On December 3, 1986, Folks determined that Global was qualified to bid. Global submitted its bid on DOF-ADM-29 in a timely manner, and upon opening of all bids on December 15, 1986, was determined to be the lowest qualified bidder. Global was informed on December 15, 1986, that it was the winning bidder. However, on December 19, 1986, the Department posted its tabulation on bid DOF-ADM-29 which rejected all bids "due to ambiguities in specifications and prequalifying requirements." The specific reason for this rejection was that upon review of the addendum by the Department's General Counsel at the time, Robert Chastain, it was determined that the addendum was vague and ambiguous. Specifically, Chastain and Folks concluded that the reference to Class I plumber's license was ambiguous since such a designation does not exist in Florida, and it was unclear whether such licensure in another state would allow a plumber to work in the four Florida counties affected by this bid. This ambiguity in the addendum had been brought to the Department's attention by a competing bidder, Continental Water Systems, Inc., after bids had been opened on December 15, 1986, through a threatened bid protest. In rejecting all bids, the Department was attempting to avoid a protest either by Continental, if the award was made to Global, or by Global, if the award was made to Continental. The Department was reasonably concerned with the creation of a health emergency if the purchase of EDB filters was delayed through the filing of a bid protest. It sought to avoid any such delay by rejecting all bids and rebidding this contract as DOF-ADM-41 which contained the following redrafted specification: All vendors must provide in writing proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a National Water Quality Association (NWQA) CWD-V certification or are a certified master plumber in the State of Florida and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers or are a certified plumber in accordance with county regulations and requirements in the State of Florida. (Emphasis Supplied.) The redraft of the prequalification specification in DOF-ADM-41 corrected the ambiguities created by the November 20, 1986, addendum to DOF-ADM- 29, as to both management and staff. Global's notice of protest of the Department's decision to reject all bids was timely filed on December 23, 1986, as acknowledged-by the Department's then General Counsel, pursuant to Rule 13A-1.006(3), Florida Administrative Code, which is presumed valid. On January 23, 1987, the Commissioner of Agriculture issued a Declaration of Emergency in order to be able to proceed with the rebid, DOF-ADM- 41, despite Global's protest of the rejection of all bids in DOF-ADM-29. This Declaration of Emergency was upheld in Global Water Conditioning v. Department of Agriculture, 521 So.2d 126 (Fla. 1st DCA 1987). The contract in DOF-ADM-41 was awarded in February, 1987, to Continental. The contract for the installation and exchange of EDB water filters is an on going project, and, with the exception of the prequalification changes referenced above, the specifications for bids D0F-ADM-13, 29 and 41 were essentially the same.
Recommendation Based on the foregoing, it is recommended that the Department enter a Final Order dismissing Global's protest to the rejection of all bids in DOF-ADM-29. DONE AND ENTERED this 26th day of July, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 26th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2642 BID Rulings on Global's Proposed Findings of Fact: This is not a proposed finding of fact, but a restatement of the issue in this case. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. 6-7. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 6. Rejected as irrelevant to the issue of whether the Department acted arbitrarily in rejecting all bids due to vagueness of the specifications. 10-16. Adopted in Findings of Fact 7 and 8. Rejected in Findings of Fact 8, 9, and 10. Rejected as cumulative. Adopted in Finding of Fact 13. Adopted in Finding of Fact 11. 21-22. Adopted in Finding of Fact 12. 23-26. Rejected as not based on competent substantial evidence in the record, and as irrelevant. Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 2. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative. Adopted in. Finding of Fact 5. Adopted in Finding of Fact 6. 9-12. Adopted in Findings of Fact 7 and 8. 13-17. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 11. 20-23. Adopted in Findings of Fact 9 and 10. 24-26. Rejected as irrelevant to the issue of whether the Department acted arbitrarily or capriciously in rejecting all bids due to ambiguities in the specifications. 27-28. Adopted in Finding of Fact 12. 29. Rejected as not based on competent substantial evidence, and as irrelevant. COPIES FURNISHED: James C. Barth, Esquire 433 North Magnolia Drive Tallahassee, Florida 32308 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory E. Horne, General Counsel Clinton H. Coulter, Esquire Mayo Building, Room 515 Tallahassee, Florida 32399-0800
Findings Of Fact Air Comfort Services, Inc. (ACS) was a subcontractor on state construction project No. BR-729, an extension of the Administrative Support Service Complex on the campus of the University of West Florida at Pensacola. The general contractor on the project was Samuel R. Sharpe, Inc. (Sharpe) Petitioner spent 248 hours on this job as an employee of ACS, between September 13, 1978, and January 24, 1979. After petitioner submitted his affidavit, Jack C. Coons, an administrator employed by the Department of General Services, directed Harrel Bolden, the project manager, to withhold $2,530.30 from the general contractor, pending resolution of the dispute between petitioner and ACS. ACS was also a subcontractor on state construction project No. BR-725, the Educational Research and Development Center at the University of West Florida. The general contractor on this project was Greenhut Construction Company, Inc. (Greenhut). Petitioner spent 176 hours on this job as an employee of ACS, between October 4, 1978, and November 22, 1978. After petitioner filed his affidavit, Jack C. Coons directed Harrel Bolden to withhold $590.24 from the general contractor, pending resolution of the dispute between petitioner and ACS. Petitioner is a certified welder. On the Sharpe job, he worked with other welders and pipefitters, putting in water lines. On November 26, 1978, the excavations for the pipes were first dug. Petitioner himself spent about five hours using a shovel to dig for pipes. Petitioner, who is not a certified pipe fitter, helped fit pipe together, and welded the joints, once everything was in place. In all, there were some 79 four inch pipe joints and 111 two inch pipe joints on the Sharp job water lines. Petitioner also helped a plumber put in other plumbing lines and assisted with the installation of piping for the air conditioning system. He silver soldered the copper pipe joints, and put in cast iron pipe for rain leaders. Petitioner performed similar tasks on the Greenhut job, including welding joints on about 1,020 feet of pipe with 1 1/2" and 2" diameters laid in double random lengths, and welding at least 8 joints of pipe with a four inch diameter. A welder can weld 20 four inch pipe joints or 30 two inch pipe joints in an eight hour day. Petitioner was initially paid at the rate of $6.00 per hour. Beginning in January of 1979, he was paid at the rate of $6.76 per hour. He was paid at the higher rate for 60 of the 248 hours he worked on the Sharpe job. Both the Greenhut and Sharpe jobs involved contracts in excess of $5,000.00.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner be paid $1,825.25. That Greenhut be paid nothing. That Sharpe be paid $1,295.29. DONE and ENTERED this 28th day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. Donald A. Lowery 7706 Gadsden Street Pensacola, Florida 32506 Sharpe, Inc. Post Office Box 107 Pensacola, Florida 32591 Greenhut Construction Co., Inc. Post Office Box 12603 Pensacola, Florida 32576 Lucian H. Morgan 5503 East Shore Drive Pensacola, Florida Mr. Luther Moore Department of Labor and Employment Security Room 205, Ashley Building 1321 Executive Center Drive East Tallahassee, Florida 32301 Air Comfort Services, Inc. 315 South A Street Pensacola, Florida
The Issue The issue in this case is whether Petitioner failed to obtain a permit for abandoning an on-site sewage treatment and disposal system septic tank, and failed to notify Respondent so that Respondent could inspect the system prior to abandonment, in violation of Section 386.0065, Florida Statutes (1997), and, if so, whether Petitioner should pay a $500 fine. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for issuing citations under Chapter 386 and is the licensing authority for Petitioner. The Osceola County Health Department (the "Department") is an agency of Respondent. All Pro Services ("All Pro") practices septic tank contracting in Osceola, Orange, and Seminole counties. All Pro is a Florida corporation wholly-owned by Mr. Wayne H. Crotty. Mr. Crotty is licensed in the state as a septic contractor pursuant to Chapter 386. Mr. Crotty has been in the septic tank business for over 25 years. He has extensive experience in septic tank repair and contracting. Mr. Crotty also has had experience in the rule-making process conducted by Respondent pursuant to Florida Administrative Code Chapter 10D-6. He has participated in various committees and held offices in the Florida Septic Tank Association. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) In the summer of 1996, Petitioner submitted an application to the Department for a repair permit. Petitioner sought to install a standard drainfield utilizing gravity fall from the existing septic tank of a mobile home owner who used the mobile home facility as a day-care center. The existing drainfield was antiquated, clogged, and had ceased disposing effluent properly. Petitioner made arrangements for the day-care center to refrain from using water or sewage for a period of hours so that the drainfield could be repaired. The application came to the attention of Mr. Thomas Franklin Wolf, Director of the Department's Environmental Health Section. Mr. Wolf did not accept the site evaluation in the application. He chose to perform his own evaluation of the repair site. When Mr. Wolf performed a site evaluation, he placed the seasonal high water table two inches higher than the high water table stated by Petitioner in the application for a repair permit. As a result, Mr. Wolf issued the permit at an elevation that would have required either the use of a pump system or elevated plumbing lines in the existing septic tank to meet the higher elevation deemed necessary by Mr. Wolf. The higher elevation established in the permit could be accommodated in either of two ways. The plumbing underneath the mobile home, along with the septic tank, could be raised. Alternatively, a new pump, and other equipment meeting the requirements of Chapter 10D-6, could be installed. The repair permit issued by Mr. Wolf contemplated the use of a new pump chamber complete with alarm. Pumps fail, are problematic, and are expensive. A conventional gravity-fed drainfield line is preferable, whenever feasible, to the use of a pump chamber system and is less expensive. Petitioner determined that the plumbing and septic tank could be elevated to meet the higher elevation requirements thereby avoiding the need for a pump system and its increased cost. This lower-cost alternative satisfied the requirements of Chapter 10D-6 for a septic tank drainfield. Based on past experience, Mr. Crotty believed he could obtain the Department's approval of this alternative to the pump chamber requirements of the permit. The Department had no objection to an alternative that achieved the higher elevation requirement with a gravity-fed system. One risk associated with Petitioner's alternative was that the existing septic tank might not withstand the rigors of being excavated and raised and could break during the repair process. After conferring with the homeowner about the matter, Petitioner proceeded to elevate the existing plumbing lines and septic tank. Petitioner began excavation and removed the lid from the existing septic tank. Petitioner then determined that it would not be feasible to lift the tank up and reinstall it at the higher elevation due to the age and style of the tank. Petitioner determined that the best way to proceed was to abandon the old tank and to install a new tank at the higher elevation. Petitioner replaced the existing septic tank without obtaining a separate abandonment permit. Petitioner did not need a separate abandonment permit. The repair permit was inclusive of the abandonment of the existing tank. In a previous repair effort for another customer, Petitioner broke the existing septic tank while attempting to elevate the tank to a higher location. The prior incident led to a disagreement between Petitioner and the Department over whether a separate abandonment permit was required for replacing a tank in the course of a repair. Petitioner wrote a certified letter to the Department and Department's counsel memorializing an understanding reached during discussions with Department representatives. Any requirement for a separate abandonment permit in the course of a repair was tabled pending further review by the state health office in Tallahassee. The letter further stated Petitioner's understanding that under Chapter 10D-65, the replacement of an existing tank was provided for through a repair permit, and that no separate abandonment permit is necessary for an abandonment which occurs in conjunction with a repair effort. The letter was received by Mr. Wolf on behalf of the Department. In response, the Department specifically informed Petitioner that the replacement of an existing tank is provided for through the repair permit. Mr. Wolf never retracted this position in his dealings with Petitioner. At about the same time, the state health office, through its acting Health Officer for Environmental Health, issued an interoffice memorandum advising every district administrator in the state that a separate abandonment permit is not required when an existing tank is abandoned during repair. The interoffice memorandum stated, in relevant part: This addresses permitting procedures when a septic tank is abandoned in conjunction with a system repair. Since the repair and tank abandonment inspections can be conducted at the same time, a separate permit and fee is not required if a tank is abandoned in conjunction with a repair permit. The repair permit should specify the abandonment requirements from s. 10D-6.053, F.A.C., and the requirements to have the abandonment inspected. If an additional inspection visit is required for either the repair or abandonment, the unit should charge the $25.00 re-inspection fee. Respondent's memorandum served as the Department's official interpretation of its rules relating to abandonment procedures. The memorandum made a separate abandonment permit unnecessary because the repair permit "is inclusive of the abandonment if the abandonment is necessary." The repair permit in this case suffices as an abandonment permit. Petitioner relied upon the representations of Mr. Wolf personally as well as the Department memorandum of February 18, 1996. Based upon Department policy, Petitioner was not required to amend its permit application to seek specific approval for abandonment of the existing tank, because the tank was being abandoned in conjunction with a repair permit. Petitioner pumped out, ruptured, and demolished the old septic tank with the exception of the inlet end wall and the sidewall closest to the tank. Petitioner left intact the latter portions of the old septic tank for inspection purposes and for stabilization. Petitioner placed the lids and the broken pieces of concrete from the tank alongside the new septic tank that was installed. Mr. Crotty requested an inspection by the Department. Inspector Garner arrived on the scene with a standard probe. The probe is a tool useful for inspecting on-site sewage disposal systems. Mr. Crotty informed Mr. Garner that Petitioner had abandoned the old tank and replaced it with a new one. Mr. Crotty took Mr. Garner over to the site and specifically pointed out the remaining sidewall of the old tank and the lids piled up on-site and remaining from the old tank. Mr. Garner inspected the repairs and satisfied himself that Petitioner had installed a new septic tank in the place of the old tank and had done it in a way that would allow gravity feeding to the new drainfield. The repairs dispensed with the need for a pump and were accomplished at a lower cost to the customer. After the inspection on August 13, 1998, and a subsequent review on August 14, Inspector Garner approved the installation by Petitioner. The approval specifically approved the use of a gravity-fed line rather than the use of the pump contemplated in the permit. The approval constituted the "construction final" approval for the septic system that was repaired. Rule 10D-6 does not specify when the inspection for an abandonment of a septic tank in conjunction with a repair is to occur. Nor does it say anything about requesting an inspection before the tank is filled with sand or other suitable material and covered. It was Inspector Garner's practice, and the unwritten policy of the Department, to conduct inspections of damaged septic tanks at the same time the Department inspected repair constructions. The practice of the Department in such an inspection was to inspect the abandoned tank after it had been pumped and the bottom ruptured, but before a new tank was installed. According to Department practice, the inspection of an abandonment in conjunction with a repair must determine that the tank had been pumped and that the bottom of the tank had been opened or ruptured or collapsed to prevent the tank from retaining water. The inspection can only occur after the tank has been pumped out, opened, ruptured or collapsed. Inspector Garner arrived for the inspection after abandonment of the old tank. Mr. Garner does not dispute that Petitioner abandoned the old tank, but maintains that the abandonment was accomplished without proper notification to the Department. Mr. Garner approved the construction, but recorded x- marks on the approval form adjacent to a box for abandonments and next to "tank pumped" and "tank flushed and filled." Mr. Garner also recorded on the form under "explanation of violations" a notation that the old septic tank "was abandoned without any inspection of [sic] verification." The promulgated rules of the Department and Respondent do not require an inspection before an abandoned tank is filled with sand, or other suitable material, and covered. It was the Department's unwritten policy, evidenced by its practice, to insist that inspection of the abandoned septic tank occurred before the tank is actually crushed. The promulgated rules of Seminole and Orange counties do not require inspection prior to abandonment of an existing tank. The unwritten policies of Seminole and Orange counties deviate from those of the Department. The Seminole County Health Department ("Seminole") also received the Department's interpretive memorandum regarding abandonment of septic tanks in conjunction with repairs. Seminole concluded that abandonment inspections should be conducted simultaneously with the final inspection for repairs. At that point, the old septic tank is already ruptured and filled with sand. Seminole adopted the practice of inspecting abandoned septic systems with a probe to verify the pump-out and the rupturing of the old tank. It is the same type probe used by Mr. Garner and the Department. The probe allows a department employee to verify all of the requirements of Rule 10D-6.053 for abandonment. The Orange County Health Department ("Orange County") also received the interpretive memorandum concerning abandonment of septic tanks in the course of repair procedures. By the time the memo was received, however, it was already the practice of Orange County not to require a separate abandonment permit for an abandonment as part of a repair. In Orange County, inspectors permitted abandonment inspections to occur at the point where the tank was already collapsed and covered with sand. The inspection was accomplished with the use of a probe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the allegations against it and dismissing the citations. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 November, 1998. COPIES FURNISHED: Marya Reynolds Latson Marion County Health Department Post Office Box 2408 Ocala, Florida 34478-2408 Stephen D. Milbrath, Esquire Allen, Dyer, Doppelt, Milbrath and Gilchrist, P.A. Post Office Box 3791 Orlando, Florida 32802-3791 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Kenneth W. Barron for a septic tank be DENIED; however, applicant should be given thirty days from date of the final order in which to raise the tank to a height consistent with the construction permit. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.
