STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

vs. ) CASE NO. 79-497

)

KOAN SEPTIC TANK, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Deland, Florida, on September 10 and 13, 1979, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Robert M. Eisenberg, Esquire

District IV Counsel Department of HRS Post Office Box 2417F

Jacksonville, Florida 32231

For Respondent: Craig James, Esquire

Post Office Drawer DD Deland, Florida 32720

ISSUE PRESENTED

Whether Respondent's permit for disposal of septic tank sludge should be revoked, as set forth in letter of the Volusia County Health Department, dated February 15, 1979.

This case was originally set for hearing on June 21, 1979, pursuant to Notice of Hearing, dated March 30, 1979. On June 20, Respondent Philip G. Koan orally advised the Hearing Officer that he wished to withdraw his request for hearing. He was advised by the Hearing Officer to submit a written withdrawal of the petition and that the scheduled hearing would be cancelled pending receipt. On June 21, Respondent orally advised the Hearing Officer that he had changed his mind after reflection and now desired that the hearing be rescheduled. Since no written withdrawal of the petition or voluntary dismissal had been filed, the case was renoticed for hearing to be held on September 10, 1979. At the commencement of the hearing on that date, Petitioner moved to dismiss the case for lack of jurisdiction claiming that the petition had been dismissed by Respondent by his oral communication to the Hearing Officer on June

1. The motion was denied because the proceeding had never been formally terminated by action of the Respondent or the Hearing Officer.

   FINDINGS OF FACT

   
   

   1. On October 5, 1978, Respondent Koan Septic Tank, Inc., Deland, Florida, submitted an application to the Volusia County Health Department for a permit to operate a septic tank cleaning service and temporary privy service. The application reflected the equipment which the applicant intended to use for the operation. Petitioner's application form contained a block entitled "Method and Place of Disposal." The applicant inserted the words "Smith Farm and Greens Dairy Grove" on the form. On November 7, 1978, Larry Herman, a sanitation aide for the County Health Department, performed an inspection of Respondent's facilities and equipment, and prepared a report on a mimeographed form headed "Septic Tanks and Privy Pump Truck Inspection." This form had a block entitled "Method and Place of Disposal." The inspector entered the words "Smith Farm - Greens Diary (sic), dumped & tilled." Although Herman testified that he had made no special inquiry at the time of his inspection as to the intended method of sludge disposal, he was aware that Respondent's customary method at its Smith Farm location was to "bury" the sludge into the ground by spreading and mechanical tilling. However, he recalled having conversations with Respondent's owner, Philip G. Koan, concerning disposal of sludge by the action of worms, prior to and after his inspection. On the other hand, both Koan and another officer of the corporation testified that Koan advised Herman at the time of the latter's inspection that the worm method of disposal would be used at the Greens Dairy location and that he expressed no objections. It is found that Herman was advised of Respondent's proposed method of disposal at the time of the inspection; however, he was not authorized to approve or issue permits. (Testimony of Herman, Gnann, Koan, Page, Petitioner's Exhibits 1-2)

      
      

   2. On November 7, 1978, the Volusia County Health Department issued a permit authorizing Respondent to operate its establishment. The permit reflected an expiration date of September 30, 1979, and provided that violation of any applicable health law would revoke the permit. No conditions were attached to the permit, nor did it indicate any required method of sludge disposal. (Testimony of Page, Petitioner's Exhibit 3)

      
      

   3. Respondent has been in the business of manufacturing, installing and servicing septic tanks for approximately eighteen years. In addition, Koan conducted a business involving the sale of worms. In the fall of 1978, he had approximately 12,000 pounds worms on hand. He had conducted various experiments at his business premises utilizing worms to dispose of manure and septic tank sludge. He found that the worms would eat the sludge material and excrete the same, resulting in worm "castings" or material which resembles potting soil with no residual odor. He had also placed worms in clogged septic tank drain fields and found that they later became unclogged, thus resulting in his conclusion that worms had disposed of the septic tank material in the tank. He further discovered that odors associated with septic tank sludge dissipated in a very short time when worms were present in the material, and observed that one pound of worms would "digest" or dispose of one pound of sludge in approximately twenty-four hours. Therefore, prior to receiving the county permit, he deposited the 12,000 pounds of worms in a trench located at the Greens Dairy location. After receiving the permit, Respondent dumped septic tank sludge in the trench approximately three times a week. The trench was about four feet wide, one foot deep, and 200 feet long. A screen was placed over the top of the ditch. However, it did not prevent access to files. (Testimony of Koan, Warnock, Petitioner's Exhibits 8-9)

      
      

   4. On December 12, 978, the owner of a skating rink adjacent to Respondent's Green Dairy property complained to the County Health Department

      concerning the presence of odors and flies at her establishment which had been the subject of customer complaints. A county sanitarian inspected the sludge operation on that date and found that there was some odor and a few flies in the immediate vicinity, but no fly larvae was observed. The ditch was full of sludge at the time. Some spillage has occurred in the driveway on the property. The location is approximately two to three hundred feet from the rear of the skating rink. A further inspection by the county Director of the Environmental Health Section was made on December 27. As a result, he wrote Respondent on December 28 that, although the inspection showed that flies and odors were minimal at the time, he could foresee an escalation of the same during certain periods, together with increased complaints from local businessmen. The letter further stated that the use of septic tank sludge for enriching a "worm bed" was in violation of Chapter 10D6.29, Florida Administrative Code, and Chapter 386 Florida Statutes, and was a sanitary nuisance which must be abated. A further complaint in January, 1979, followed by another county inspection revealed essentially the same conditions that existed at the time of the prior inspection, and prompted a second letter from the Environmental Health Section director to Respondent on January 31, 1979, wherein he was advised to cease dumping septic tank sludge at the Greens Dairy location within fourteen days and commence using the county sanitary landfill for such purposes. As a result of this letter, Respondent stopped dumping at the location on or about February 2. On February 15, another county letter was sent to Respondent which advised that its permit for disposal of septic tank sludge was revoked, subject to a request for hearing, as being in violation of Chapter 10D6.29(1) and (3)(c), Florida Administrative Code, and Chapter 386.041(1)(e), Florida Statutes. The stated grounds for proposed revocation were that Respondent was employing an unsatisfactory and unacceptable method and place for disposal of waste, and was maintaining a condition capable of breeding flies, mosquitoes and other insects capable of transmitting diseases. The letter further stated that Respondent was not tilling the sludge as had been stated on the permit application and that the potential for breeding flies was evident due to concentration and lack of covering with soil. (Testimony of Tyndall, Van Ulzer, Page, Camp, Koan, Petitioner's Exhibits 4-7)

      
      

   5. During the approximate three-month period from November 1978 through January 1979 when Respondent was dumping sludge, a strong and distinctive odor and an unusually large number of flies were experienced on the skating rink premises nearby. After the dumping stopped in early February, both problems disappeared. However, other odors incident to the presence of hogs and chickens at farms in the area also produced a noxious odor in and around the skating rink. The odor produced by the dumping of sludge dissipates rapidly after dumping. The absence of fly larvae in and around the ditch shows that flies were not breeding there during the period of dumping operations, but does not rule out the potential for such breeding in the future. (Testimony of Munshower, Tyndall, Coffin, Branton, Tontone, Warnock, Hunt, Stipulation)

      
      

   6. The Volusia County Health Department issues permits involving the disposal of sludge only when a treatment method of burial, incineration, or sanitary landfill is used in the operation, as prescribed by Respondent's Rule 10D-6.29, Florida Administrative Code. However, long-standing policy permits disposal by mechanical tilling of the sludge into soil as a "modified" method of burial. This method cuts the sludge with a disc and harrow and mixes it into the soil to a depth of approximately four inches. It also produces a temporary odor when the sludge is first spread on the soil. The county has no policies concerning the use of worms to dispose of sludge and does not consider it to be an acceptable method of disposal. The County Health Department has not

      conducted any scientific tests to determine the presence of pathogens in soil which has been mechanically tilled with sludge. (Testimony of Page)

      
      

   7. When sludge is placed over a "worm bed" and has settled, the material begins moving as the worms eat the sludge. The residue of the digestive process is sold as a soil conditioner which meets State Department of Agriculture requirements and which contains plant nutrients. Earth worms multiply rapidly when feeding on sludge. Respondent had approximately 50,000 pounds of worms in its trench when it ceased operations in February 1979. This method of sludge disposal has not been accepted generally by health authorities as a recognized and acceptable procedure. (Testimony of Koan, Warnock, Hunt, Tontone, Nemeyer, supplemented by Respondent's Exhibit 1)

      
      

      CONCLUSIONS OF LAW

      
      

   8. Petitioner proposes to revoke Respondent's permit to remove and dispose of septic tank sludge for the reasons that it uses an unacceptable method of such disposal and that such method has the potential to cause a health hazard by the breeding of disease carrying or transmitting insects.

      
      

   9. Although Chapter 381, Florida Statutes, dealing with Petitioner's responsibilities and authority in protecting the public health does not specifically address the question of the issuance and revocation of such permits as the one in question, Section 381.031(1)(g) provides that the Petitioner has the duty to adopt rules relating to the prevention and control of public health nuisances and the disposal of excreta, sewage or other wastes.

      
      

   10. Petitioner's Rule 10D-6.29(2), Florida Administrative Coe, prohibits the clearing or removal of the contents of septic tanks by anyone engaged in septic tank cleaning service without a written permit obtained annually from a local office, and further provides that such a permit may be suspended, revoked or denied by Petitioner for failure to comply with requirements of Chapter 10D-

1. Paragraph (3) of that rule provides that applications for such permits should show that the applicant has satisfactory and adequate equipment to conduct his business and that such equipment must be inspected and approved by Petitioner's local office. It further provides that the applicant must submit "satisfactory and acceptable method and place for disposal of waste." Paragraph

   (1) states that sludge from septic tanks shall be disposed of by a treatment method approved by the Petitioner or by "burial, incineration, sanitary landfill when approved by local offices of the department."

   
   

   1. Petitioner also cites Section 386.041(1)(c), F.S., as ground for revocation of the permit by alleging that placing sludge in the ground without a soil cover creates a sanitary nuisance. However, Chapter 386, which provides for abatement of such nuisances, contemplates the institution of injunctive or criminal proceedings to deal with such a problem and is not directly related to nor does it constitute a ground for revocation of a septic tank cleaning service permit under Chapter 10D-6, F.A.C.

      
      

   2. The basic question for consideration in this proceeding is whether or not Respondent's method of sludge disposal properly falls within the definition of "burial" as an acceptable method of waste disposal. Respondent claims that its worms "till" the sludge into the soil in a much more efficient method than Petitioner's approved method of "modified burial" by mechanical tilling. However, Respondent does not challenge the Petitioner's long-standing policy as to the latter approved method of waste disposal nor is it directly in issue here.

   3. Petitioner's regulations do not set forth a definition of the word "burial," but the common meaning of the word is to deposit something in the ground and cover with soil. Petitioner permits the method of mechanical tilling under the theory that such cutting and discing of sludge works it into the soil to a depth of several inches. This, of course, is not a true "burial," but is considered sufficient by Petitioner, particularly in rural areas. Petitioner, however, does not see fit to extend its liberal interpretation of its rule to include Respondent's unusual and apparently new method of waste disposal. The evidence submitted by Respondent to support its view primarily was based on observation of the action of worms in ingesting and excreting the sludge material. No scientific studies were shown to establish the precise manner in which the worms "processed" the sludge material, the time periods for the process to take place, nor whether the residue of the process is harmless from a sanitary standpoint. In the absence of such evidence, it is concluded that the worm method has not been shown to constitute an acceptable kind of "burial," as authorized by the rule. Respondent was therefore in violation of Rule 10D- 6.29(1) by disposing of sludge in a manner other than burial, incineration, sanitary landfill, or other treatment method approved by Petitioner. Revocation of Respondent's permit is authorized, but since it has discontinued, its unauthorized method of sludge disposal, it should be permitted to operate its business under the permit for its duration, i.e., September 30, 1979, and to apply for a new annual permit upon a satisfactory showing that it meets Petitioner's stated requirements.

RECOMMENDATION

That Respondent's Permit No. 18362 be permitted to remain in effect until its expiration date provided that it disposes of sludge and/or contents from septic tanks in an acceptable method, as provided in Rule 10D-6.29, F.A.C.

DONE AND ENTERED this 26th day of September, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 904/488-9675

COPIES FURNISHED:

Robert Eisenberg, Esquire Department of HRS District IV Counsel

5920 Arlington Expressway Post Office Box 2050 Jacksonville, Florida

Craig James, Esquire Post Office Drawer DD Deland, Florida 32720

Department of HRS Attn: Eric J. Haugdahl

1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 79-000497

Orders for Case No: 79-000497