05-002979 Troy And Tracey Lee vs. Department Of Environmental Protection And Palm Beach County Water Utilities Department Status: Closed Recommended Order on Tuesday, October 18, 2005.

Summary: Palm Beach County`s application for a domestic wastewater collection/transmission system to serve the Scripps Project is approved; the pipe material used met technical specifications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TROY AND TRACEY LEE; JOSEPH )

ACQUAOTTA AND LISA GABLER; )

ANTHONY AND VERONICA DALY; )

MICHAEL D'ORDINE AND ANN E. )

HAWKINS; LISA LANDER; and )

INDIAN TRAIL IMPROVEMENT )

DISTRICT, )

)

Petitioners, ) Case Nos. 05 - 2979

) 05 - 2980

vs. ) 05 - 2981

) 05 - 2982

PALM BEACH COUNTY and ) 05 - 2983

DEPARTMENT OF ENVIRONMENTAL ) 05 - 2984

PROTECTION, )

)

Respondents. )

____________ ____________________)

RECOMMENDED ORDER

Pursuant to notice, these matters were heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on September

13, 14, and 15, 2005, in West Palm Beach, Flo rida.

APPEARANCES

For Petitioners: Michael D'Ordine

(Case No. 05 - 2982) Ann E. Hawkins

4474 140th Avenue North

Royal Palm Beach, Florida 33411 - 8464

For Petitioner: Lisa Lander

(Case No. 05 - 2983) 13881 40th Street North

Royal Palm Beach, Florida 33411 - 8491

For Petitioner: Anthony D. Lehman, Esquire

(Case No. 05 - 2984) Hunton & Williams, LLP

Bank of America Plaza, Suite 4100

600 Peachtree Street, Northeast

Atlanta, Georgia 30308 - 2216

William D. Preston, Esquire

William D. Preston, P.A.

4832 - A Kerry Forrest Parkway

Tallahassee, Florida 32308 - 2272

For Respondent: Francine M. Ffolkes, Esquire

(Department) Justin G. Wolfe, Esquire

Department of Environmental Protect ion

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Edward P. de la Parte, Jr., Esquire

(County) de la Parte & Gilb ert, P.A.

Post Office Box 2350

Tampa, Florida 33601 - 2350

Amy Taylor Petrick, Esquire

Palm Beach County Attorney's Office

301 North Oli ve Avenue, Suite 601

West Palm Beach, Florida 33401 - 4705

STATEMENT OF 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 Cou nty should be

approved.

PRELIMINARY STATEMENT

On May 12, 2005, Respondent, Department of Environmental

Protection (Department), issued its Notice of Permit Issuance

(Notice), which proposed to issue Permit No. 0048923 - 017 - DWC

(Permit) to Respondent, Palm B each County (County),

authorizing the construction of a domestic wastewater

collection/transmission system. The Permit allows the

construction of a wastewater collection and transmission

system to serve the Palm Beach County Research Village

(Village), wh ich will be home of the Scripps Florida

Biomedical Research Institution and Campus (Scripps Project)

in an unincorporated area of the County.

On August 15, 2005, Petitioners, Troy and Tracey Lee,

Joseph Acquaotta and Lisa Gabler, Anthony and Veronica Dal y,

Michael D'Ordine and Ann E. Hawkins, and Lisa Lander, who

reside in the area where the transmission line will be

constructed, filed with the Department five identical,

untitled papers challenging the proposed agency action. These

papers were treated as formal petitions and were forwarded by

the Department to the Division of Administrative Hearings

(DOAH) on August 18, 2005, with a request that an

administrative law judge be assigned to conduct a hearing.

The Petitions have been assigned DOAH Case Nos. 05 - 2979

through 05 - 2983. On August 15, 2005, Petitioner, Indian Trail

Improvement District (ITID), also filed with the Department a

Petition for Formal Administrative Hearing (Petition)

challenging the same proposed agency action. That Petition

was forwa rded to DOAH on August 18, 2005, and has been

assigned DOAH Case No. 05 - 2984. By Order dated August 23,

2005, all cases were consolidated.

On August 22, 2005, the Department filed a Motion for

Summary Hearing Pursuant to Section 403.973(15)(b), F.S.

(Mo tion). The Motion was later joined in by the County. That

statute requires in part that "summary proceedings must be

conducted within 30 days after a party files the motion for

summary hearing, regardless of whether the parties agree to

the summary proce eding." Because the project qualifies for an

expedited hearing, the Motion was granted and the cases were

scheduled for a final hearing on September 13 - 15, 2005, in

West Palm Beach, Florida.

At the beginning of the final hearing, the undersigned

granted the Department's and County's ore tenus motion in

limine to exclude the introduction of evidence regarding

certain real estate disputes between ITID and the County on

the ground that those disputes should be adjudicated by the

circuit court.

At the final hearing, the Department presented the

testimony of Robert E. Heilman, a professional engineer,

Pretreatment Coordinator, and accepted as an expert; Timothy

W. Powell, a professional engineer, Wastewater Permitting

Supervisor, and accepted as an expert; and Michael W.

Bechtold, a professional engineer, Senior Permitter, and

accepted as an expert. Also, it offered Department Exhibits

1 - 3, and 7, which were received in evidence. The County

presented the testimony of Robert Walker, a professional

engineer, Ex ecutive Director of UniBell PVC Pipe Association,

and accepted as an expert; Brian A. Shields, a professional

engineer, Director of Engineering of the Water Utilities

Department, and accepted as an expert; Leisha Pica, a

professional engineer, Deputy Direc tor of the Water Utilities

Department, and accepted as an expert; and Bevin A. Beaudet, a

professional engineer, director of the Water Utilities

Department, and accepted as an expert. Also, it offered

County Exhibits 1 - 21, 23, 36, 39, 92, 93, 107, 122, 12 4 - 127,

129, 142 - 145, 151A and B, 152, and 153, which were received in

evidence.

Petitioners in Case Nos. 05 - 2979 and 05 - 2981 did not

appear at the final hearing. One of the Petitioners in Case

No. 05 - 2980, Joseph Acquaotta (but not Lisa Gabler, who also

signed the Petition), appeared as a witness on the final day

of the hearing. Petitioners in Case No. 05 - 2982, Michael

D'Ordine and Ann E. Hawkins, testified on their own behalf.

Petitioner in Case No. 05 - 2983, Lisa Lander, testified on her

own behalf an d presented the testimony of Alexandria Larson,

who resides in the area. Also, she offered Lander Exhibits 1,

2, 3A - W, and 4 - 6, which were received in evidence.

ITID presented the testimony of Christopher Karch, a

professional engineer and vice - presiden t of its Board of

Supervisors; and David L. Farabee, a professional engineer and

accepted as an expert. Also, it offered ITID Exhibits 1 and

2, which were received in evidence.

Finally, official recognition has been taken of the

following matters: a co py of an Order denying ITID's Renewed

Motion for Temporary Injunction in Case No.

502005CA000965XXXXMB, Indian Trail Improvement District v.

Palm Beach County (Cir. Ct., 15th Jud. Cir.); the Recommended

and Final Orders issued in DOAH Case No. 04 - 4492GM; t he

Recommended Order issued in DOAH Case Nos. 04 - 4336GM, 04 -

4337GM, and 04 - 4650GM; and the Recommended Standards for

Wastewater Facilities (1997 Edition), more commonly referred

to as the Ten State Standards.

The Transcript of the hearing (five volumes) was filed on

September 19, 2005. By agreement of the parties, proposed

findings of fact and conclusions of law were due on September

29, 2005. Filings were timely made by Lander and D'Ordine

(jointly), ITID, the County, and the Department, and they have

been considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Parties

1. The County is a political subdivision of the State of

Flori da 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.

2. ITID is an indep endent 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, ow ned by ITID.

3. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann

E. 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, whil e 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. 0 5 - 2979), Lisa Gabler (Case No. 05 -

2980), and Anthony and Veronica Daly (Case No. 05 - 2982) did

not appear at the final hearing.

4. 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

B. Background

5. On December 15, 2004, the County filed its

application wi th 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 appr oximately 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).

6. A primary purpose of the Project is to provide water

and wastewater servi ce 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 intercon nects with

existing facilities.

7. 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 t he County's Southern Regional Plant. Ultimately, the flow

from the Scripps Project will be one or two million gallons

per day.

8. The Transmission Line is the only way that wastewater

can be handled at the Scripps Project. A preliminary analysis

by th e 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.

9. 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 mi les 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 ser vice area

is located just southeast of the Village) to transport

wastewater through the Transmission Line.

10. 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.

11. 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 u sed 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 ha s

given reasonable assurance that adequate transmission,

treatment, and disposal is available in accordance with

Department standards. See Fla. Admin. Code R. 62 - 604.700.

12. On August 15, 2005, Petitions challenging the

issuance of the Permit were fil ed 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 reli ability 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 Trans mission 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.

13. 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 th at 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 e asements 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.

C. Petitioners' Objections

a . Domestic wastewater and pretreatment

14. 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.

15. 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 har mful wastes are rendered harmless before

discharge. For example, the utility has the authority to

immediately shut water off if a harmful discharge is

occurring.

16. Both the County and the City have pretreatment

programs approved by the Department. T he 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 Eas t Central Regional Facility

was approved in 1980.

17. 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.

b. Transmission Line Design

18. The Transmission Line was designed in accordance

with the technical standards and criteria for wastewater

transmis sion 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.

19. The Transmission Line also meets the design

standards promulgated by the America Water Works As sociation

(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.

20. 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.

c. The Use of PVC Pipe

21. 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 se lected have

a pressure rating sufficient to handle anticipated pressures

in wastewater transmission lines.

22. 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 dia meter 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 t ypically

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

line s 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; theref ore, the Director of the Water Utilities

Department has waived that requirement.

23. 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 Departmen t's

requirements. The Department has permitted many miles of

similar PVC force mains in South Florida, and none have

failed.

24. 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, su ch 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.

25. 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 als o 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 wh ether the pipe would fail. In his opinion, this means

the Department did not have reasonable assurance for the

project.

26. The County consulted with the Unibell PVC Pipe

Association (Unibell) in the planning of this project.

Unibell is a trade associa tion 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.

27. Mr. Walker explained the different standards that

apply to PVC pi pe. 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. T he 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.

28. Mr. Farabee expressed some concern that the PVC pipe

would be more prone to breakage t han 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 pres sure, 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 dept h to which the Transmission Line

pipe will be buried.

29. 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 tu rning 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.

d. Testing the Installation

30. The anticipated pressures in t he 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. A lso, 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.

31. During the hearing, ITID asserted tha t 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 f or

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 le ast 1,000 hours.

32. 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 te sting program is incorrect.

33. 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.

e. Compaction

34. The County has stringent backfilling and compaction

requirements, w hich 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 St ate 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.

35. Mr. Farabee contended, h owever, 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.

36. 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 roadw ay,

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 Dep artment 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.

f. The Sufficiency of the Application

37. Whe n 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 wil l 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.

38. 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 bef ore 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.

39. ITID maintains that all of the technical

specifications for the project must be included in the

application, and because no s eparate 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 c omply 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

s pecify 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 specificatio ns 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.

40. 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 sinc e

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.

g. Impacts on Public and Private Drinking Water Wells

41. 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 th e 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 f eet 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 pro perty."

42. 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.

h. Minimum Separation Distances

43. The County has complied with all applicable pipe

separation requirements in the installation of the

Transmission Line. More specifically, it is not closer than

si x 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 - 55 5.314(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

44. 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 insta lled 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

45. 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 velocit ies. (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 ou t 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 wi ll 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 scrape s the

sides of the pipe as it is pushed through the line. This

protocol will be sufficient to keep the Line clean.

46. 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.

47. 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 accumu late solids that will cause

undesirable impacts while flow is less than two feet per

second.

D. Other Requirements

48. The construction and operation of the Transmission

Line will not result in the release or disposal of sewage or

residuals without provid ing 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 w ill 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.

49. Finally, c oncerns 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 Dep artment represented that

the County would cooperate with the individual property owners

to assure that these concerns are fully addressed.

E. Reasonable Assurance

50. The County has provided the Department with

reasonable assurance, based on plans, test r esults,

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.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties pursuant

to Sections 120.569 and 120.57(1), Florida Statutes.

52. Because Troy and Tracey Lee (Case No. 05 - 2979), Lisa

Gabler (Case No. 05 - 2980), and Anthony and Veronica D aly (Case

No. 05 - 2983) did not appear at the final hearing and did not

submit any proof in support of the allegations in their

respective Petitions, their Petitions should be dismissed for

lack of standing. See , e.g. , Agrico Chemical Co. v. Dept. of

Envir . Reg. et al. , 406 So. 2d 478, 482 (Fla. 2nd DCA 1981);

§ 120.57(1), Fla. Stat. All parties agree that the remaining

Petitioners have standing to bring this action.

53. As the applicant, the County has the ultimate burden

of showing entitlement to th e Permit. To do so, it must

provide the Department with reasonable assurance that the

proposed activity will not "discharge, emit, or cause

pollution in contravention of Department standards or rules."

Fla. Admin. Code R. 62 - 4.070(1). Reasonable assuran ce

contemplates only a "substantial likelihood" that the project

will be successfully implemented, Metropolitan Dade County v.

Coscan Florida, Inc. et al. , 609 So. 2d 644, 649 (Fla. 3d DCA

1992), and not an absolute guarantee. McCormick et al. v.

City of Jacksonville et al. , DOAH Case No. 88 - 2283, 1989 WL

224961 *8 (DOAH Oct. 16, 1989, DER Jan. 22, 1989).

54. The minimum design and operation and maintenance

standards for domestic wastewater collection/transmission

systems are found in Florida Administra tive Code Chapter 62 -

604. The specific technical standards that apply to the

Project are found in Florida Administrative Code Rule 62 -

604.300, while the design and performance considerations are

found in Florida Administrative Code Rule 62 - 604.400.

55. By a preponderance of the evidence, the County has

established that it meets all relevant criteria for issuance

of the Permit. More specifically, and in the context of the

objections raised by Petitioners, it is concluded that the

County has given reason able assurance that the Transmission

Line is designed in accordance with Florida Administrative

Code Rule 62 - 604.300, which contains the general technical

guidance for projects such as this; that it will be

constructed in accordance with the Department's r ules and the

Permit Conditions; that the subaqueous crossing of the M - canal

will meet the Department's criteria; that the Transmission

Line will be at least one hundred feet from all public

drinking wells; that in those instances where the Transmission

Lin e is within seventy - five feet of private drinking wells the

County will provide an equivalent level of reliability and

public health protection through the use of mechanical

restrained joints; that the County's plan for flushing the

Transmission Line is ad equate; that the required separation

distances have been maintained; that the application and

supporting data, as further clarified and explained at final

hearing, are sufficient to show that there is a substantial

likelihood that the Project will be succe ssfully implemented;

and that the Transmission Line will be located within rights -

of - way,

property owned by the County, or easements, as contemplated by

Florida Administrative Code Rule 62 - 604.400(1)(b).

56. As to the property issues that have arisen b etween

ITID and the County, including the issue of whether the County

may place the Transmission Line in easements owned by ITID

without an ITID permit, neither the Department nor the

undersigned have jurisdiction to adjudicate those claims.

See , e.g. , Mi ller v. Dept. of Envir. Reg. , 504 So. 2d 1325,

1327 (Fla. 1st DCA 1987); Safe Harbor Enterprises, Inc. v.

Robbie's Safe Harbor Marine Enterprises, Inc. et al. , DOAH

Case No. 98 - 3695, 1999 WL 33116615 *3 (DOAH Jan. 29, 1999, DEP

March 12, 1999); Hageman et al. v. Dept. of Envir. Prot. et

al. , DOAH Case No. 94 - 6794, 1995 WL 812077 *6 (DOAH July 7,

1995, DEP Aug. 21, 1995).

57. Because reasonable assurance has been given by the

County that Department standards and rules will not be

contravened, and there is a substantial likelihood that the

project will be successfully implemented, the Permit should be

issued.

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 o f 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.

ENDNOTE

1/ All references are to Florida Statutes (2004).

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3000 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Lisa Lander

13881 40th Street North

Royal Palm Beach, Florida 33411 - 8491

Troy and Tracy Lee

13881 40th Lane North

Royal Palm Beach, Florida 33411 - 8404

Joseph Acquaotta and Lisa Gabler

13882 60th Street North

Royal Palm Beach, Florida 33411 - 8379

Anthon y and Veronica Daly

4796 140th Avenue North

Royal Palm Beach, Florida 33411 - 8118

Michael D'Ordine and Ann E. Hawkins

4474 140th Avenue North

Royal Palm Beach, Florida 33411 - 8464

Anthony D. Lehman, Esquire

Hunton & Williams, LLP

Bank of America Plaza, S uite 4100

600 Peachtree Street, Northeast

Atlanta, Georgia 30308 - 2216

William D. Preston, Esquire

William D. Preston, P.A.

4832 - A Kerry Forrest Parkway

Tallahassee, Florida 32308 - 2272

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3000 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Amy Taylor Petrick, Esquire

Palm Beach County Attorney's Office

301 North Olive Avenue, Suite 601

West Palm Beach, Florida 33401 - 4705

Edward de la Parte, Jr., Esquire

De la Par te & Gilbert, P.A.

Post Office Box 2350

Tampa, Florida 33601 - 2350

Gregory M. Munson, General Counsel

Department of Environmental Protection

3000 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

All parties have the right to submit written exceptions within

two calendar days of the date of this Recommended Order and

written responses to exceptions within two calendar days from

the filing of exceptions. Any exceptions to this Recommended

Order should be filed with the agency that will render a final

order in this matter.