STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 93-5526
)
WAYNE H. CROTTY, d/b/a ) CROTTY SEPTIC/ROTO-ROOTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on February 3-4, 1994, in Orlando, Florida.
APPEARANCES
For Petitioner: Sonia Nieves-Burton, Esquire
Department of Health and Rehabilitative Services
District 7 Legal Office
400 West Robinson Street, Suite S-827 Orlando, Florida 32801
For Respondent: Stephen D. Milbrath, Esquire
Allen, Dyer, Doppelt, Franjola & Milbrath
255 South Orange Avenue, Suite 1401 Post Office Box 3791
Orlando, Florida 32802 STATEMENT OF THE ISSUES
On July 29, 1993, Respondent Wayne H. Crotty was served with an undated Administrative Complaint alleging violations of administrative regulations of the Department of Health and Rehabilitative Services and Chapter 386, F.S., relating to sanitary nuisances. The issues for disposition are whether these alleged violations occurred, and if so, what administrative penalties should be imposed.
PRELIMINARY STATEMENT
By its Administrative Complaint Petitioner, Department of Health and Rehabilitative Services (HRS), seeks to impose administrative fines totaling
$2,500 against Respondent, Wayne H. Crotty, for violating regulations concerning the disposal of stabilized septage and for creating or maintaining a sanitary nuisance. Respondent denied the allegations of the complaint and timely petitioned for a formal hearing. The matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing.
The Administrative Complaint charges that Respondent violated rule 10D- 6.075(4)(n), F.A.C., by failing to properly treat and dispose of septage at his lime stabilization facility adjacent to the Southport landfill in Osceola County, Florida. The Complaint further charges that Crotty "created and maintained" conditions at the facility which constituted a sanitary nuisance in accordance with section 386.041(1)(a), F.S. The specific violations alleged are:
Material retained in the screening process at Crotty's lime stabilization facility, had not been limed, containerized or disposed of properly, thereby creating a sanitary nuisance, in violation of rule 10D- 6.054(5)(c);
Leakage or spillage in the area of the screening tank at the facility "created a sanitary nuisance" and violated rule 10D-6.052(6);
Stabilized septage was not held for two hours but applied within one hour and fifteen minutes in violation of rule 10D-6.052(7)(b) and (f);
Stabilized septage was spread in the presence of cattle with no method to prevent grazing for thirty days from the last application, a violation of rule 10D-6.052(7)(b)2a; and
Old drainfield material containing untreated septage was disposed of at the site in an unapproved method and created a sanitary nuisance, in violation of rule 10D-6.052(7).
The violations alleged stem from inspections of Crotty's facility on April 20, April 29, and May 19, 1993. The Department's position concerning these inspections is set forth in a May 26, 1993 letter, which is attached to and incorporated into the Administrative Complaint.
At the formal hearing Petitioner presented the testimony of Michael James Napier, Dennis Cumeskey, Thomas Franklin Wolfe and Ronald L. Maston.
Petitioner's exhibits 1-4 and 6-9 were received in evidence.
Respondent Crotty testified in his own behalf and presented the additional testimony of Norman Davis, James Stafford and Ivan Dory. Respondent's exhibits 1-3 were received into evidence. The transcript was filed on March 4, 1994, and the Respondent timely submitted a proposed recommended order. The findings of fact proposed by that party are substantially adopted herein.
FINDINGS OF FACT
Parties and Background
The Department of Health and Rehabilitative Services (HRS) is an agency of the State of Florida and is charged with, among other things, the regulation of lime stabilization facilities and the enforcement of Chapter 386, F.S.
Respondent, Wayne H. Crotty, (Crotty) is a citizen of the State of Florida who operates a lime stabilization facility and a business which is engaged, among other things, in pumping septic tanks. Crotty is also a licensed septic tank contractor.
Lime stabilization is a process whereby lime is added to septage in sufficient quantity to raise the pH to 12 or higher. The high pH creates an environment that is not conducive to the survival of microorganisms.
In March 1992, HRS promulgated new regulations which, among other things, govern the land application of stabilized septage. These regulations, located in Chapter 10D-6, F.A.C., authorize the land spreading of septage after it has been mixed with lime to achieve a specified pH level.
A family corporation in which Respondent is a shareholder maintains a lime stabilization facility located in a rural area of Osceola County, Florida, near the "Southport" landfill. The site in question is part of a larger parcel of ranch land and is located in a wooded area remote from the highway and residences.
After the 1992 HRS regulations concerning lime stabilization went into effect, Crotty contacted representatives of the Osceola County Public Health Unit and conferred with them concerning the design and implementation of a lime stabilization facility. Following discussions with Osceola County and state health department personnel, Crotty was given approval to construct a lime stabilization facility.
On April 20, 1993, when the first events giving rise to the present proceeding occurred, Crotty had just begun operating his lime stabilization and land spreading facility.
Typical Method of Disposal
At times relevant to this proceeding, Crotty obtained septage for disposal at the Osceola County site as a result of a septic tank pumping business which he and his family operate.
Pumper trucks transport septage to the Crotty lime stabilization facility where they are connected, by means of a hose, to the lime stabilization system, which is partially underground. The initial part of the treatment of septage occurs in the screening chamber.
The operator of the pumper truck feeds septage through a hose into the screening tank where a bar screen separates inert materials from liquid septage. The inert screen materials are referred to as "screenings". Screenings consist of coarse solids of various kinds found in wastewater.
The bar screen is located inside a pre-treatment tank known as the screening chamber. Lime is added to this tank and mixed with the septage. As a result, the screenings caught by the bar screen contain some elements of lime since lime adheres to the inert materials trapped in the screening process.
The operator of the Crotty facility, James Stafford, routinely rakes screenings clear of the bar screen and deposits them into a container.
The septage which passes through the screening process in the prescreening chamber is then fed through underground sand traps and from the sand traps into mixing tanks (called stabilization tanks in 10D-6.054(5)(c)), into which lime is deposited. Air is introduced into these tanks through the means of aeration pipes.
After septage has been stabilized for the required length of time, workers typically connect a pumper truck to the mixing tanks, load the truck with stabilized septage and then spread the septage on the adjoining land.
The Department interprets its regulations to provide that the stabilization process in the aeration tanks must raise the pH level of the septage to a level of 12 for a minimum of two hours, or alternatively, a level of 12.5 for thirty minutes, prior to any land application of the stabilized septage.
Respondent Crotty and the operator of the stabilization facility, Stafford, were aware of these requirements and sought to insure that land spreading of septage occurred only after stabilization at 12.5 for thirty minutes. Neither Crotty nor Stafford are at the site of the facility at all times during active operation.
The Disposal of the Screenings
The Department's first charge against Crotty, that material retained in the screening process was not properly "limed, containerized and disposed of", stems from inspections that took place on April 20, April 29 and May 19, 1993, at the Crotty facility. Michael James Napier, then Assistant Director of Environmental Health in Osceola County, was personally present at each of the three inspections.
During the April 20 inspection, which occurred during the business day, and partially while a Crotty employee (Norman Davis) was land spreading, Napier observed that screenings had been placed into an open container and were "piled up" so that they were "overflowing and falling onto the ground". Napier opined that to the extent these screenings were not cleaned up or overflowed they constituted untreated septage.
During the subsequent April 29 inspection, Napier concluded that the materials removed from the screening bar were still not being handled properly. Elaborating on this point, Napier testified that the material he saw was not then covered and it was "still spilling onto the ground".
During the May 19, 1993, inspection, Napier saw James Stafford, the operator of the lime stabilization facility, picking up screenings from the ground and taking screenings out of the limed screening chamber, and putting them into bags with the use of a shovel. Stafford was not wearing gloves while he was using the shovel for this purpose.
During a subsequent inspection, conducted on June 17, 1993, Napier observed that the plastic containers used for depositing screenings had been replaced by steel 55 gallon drums.
Napier conceded that on none of the inspections at issue did he test for the presence of lime in the screenings deposited into Crotty's containers. Napier also acknowledged that he did not know whether the screenings contained lime. The Department's expert, health consultant Ronald L. Maston, similarly conceded that he had no knowledge whether the screenings encountered by Napier were limed or not. Maston agreed that he was not in the position to dispute testimony from the operator of the facility that the screenings were limed.
During the inspection on April 29, Napier observed James Stafford, the facility operator, operating the screening chamber. He saw Stafford applying septage from a truck into the screening tank and then mixing lime into the tank. The screenings Napier observed Stafford working with that day contained lime.
Mr. Stafford, who was the only person present at the completion of the stabilization process on the days in question, testified that it has always been his practice consistently to add lime to the screening chamber. As a result, the screening chamber, from which the screenings are retrieved, has significant quantities of lime in it, including residue after the stabilization process.
In April, during Napier's first two inspections, Stafford was having difficulty locating a dumpster service for disposal of screenings. He had ordered a dumpster that did not arrive as promised.
While he was waiting for a more suitable disposal method, Stafford raked the screening free of the bar screen containing lime residue, and put the screenings in plastic cans. He later used steel drums for that purpose. Periodically, after one or two days, these screenings were deposited into limebags, containing lime residue, and Stafford transported them to the Crotty septic company's dumpster in Orlando. Screenings placed by Stafford in the Crotty dumpster were thereafter taken away to a disposal site.
Stafford typically kept container tops on the containers during operation, but at the time of the April inspections the containers were too full to accommodate a top. Nevertheless, these screenings were soon placed into limebags and disposed of in the manner described above. In some cases Stafford raked screenings from the ground, if they spilled over.
Mr. Napier conceded that he did not witness large amounts of screening on the ground during his April 20 inspection.
On at least one occasion Stafford was not wearing his gloves while shoveling up screenings. He testified that this was because he had a bad hand and it irritated him so he tried to avoid wearing gloves. Nevertheless he wears gloves now at the request of the Department and Crotty. In addition, Stafford pointed out that he had extensive lime residue on his hands while using the shovel and had access to water in tanks at the site, which he frequently used to wash his hands.
Now that the dumpster is available, Stafford deposits the screenings into the dumpster and spreads a five gallon bucket full of lime on the screenings, something requested by the Department.
The garbage cans noted in the April inspections were "containers". The dumpsters at the Crotty office in Orlando into which Stafford deposited screenings, after first placing them in limebags, were also "containers", as required by Department rule.
Disposal within a day or two following the deposit of screenings into a container is consistent with good sanitary practices, according to competent expert opinion.
During portions of the day, while the plant was in operation and before screenings were deposited into the limebags, the tops of the containers were sometimes left off. The container tops were usually placed on the containers at the end of the day preliminary to the contents being placed in limebags and transported off-site for disposal.
Keeping screenings inside open containers could create a sanitary nuisance if left that way for a lengthy period of time. The credible evidence of record established, however that screenings were disposed of by Mr. Stafford usually the same day and at the most within two days.
The screenings kept by Mr. Stafford for brief periods of time did not create a sanitary nuisance, kept as they were in a site approved for disposal of septage, remote from the public, and shortly thereafter fully containerized.
The Spillage Allegation
During the April 20 inspection, Napier encountered what he characterized in his May 26 letter as "standing effluent" around the screening chamber which "most likely" came from "overflow of screening tank".
During the hearing Napier testified that what he observed on April 20 was "standing water that we concluded was effluent" and that it had "an odor". During the April 29 inspection Napier concluded that he was still seeing "effluent around the screening chamber that had not been cleaned up". On neither occasion did Napier test what he concluded was effluent.
The position where the supposed effluent was located is a low area in the Crotty site. The low spot, or depression, around the screening chamber is intentional so that if there is a spillage, the effluent, like rainwater, will be confined and will not run across the landscape. This condition also makes it easier for cleanup. Indeed, because the area in question is also compacted by traffic, it would not percolate as rapidly as most other soil.
Rainwater in the depression around the lime stabilization facility would not be considered a sanitary nuisance by the Department. Napier conceded that the material he encountered in the low spot on the Crotty site could be rainwater and that he did not test it to conclusively make a determination.
Rainwater falling on a stabilization site such as the Crotty site would likely smell and could even be more of an annoyance or a nuisance than effluent from a septic spill under some conditions.
The only individual with personal knowledge concerning the composition of the supposed effluent was James Stafford. Stafford testified that the liquid in question was not a spill but was rainwater. Stafford confirmed that the spot in question collects rainwater and that it stands there for some time. Stafford further testified that if the material had been effluent, he would have limed it and cleaned it up.
Crotty and his personnel described at least three other occasions when spills have taken place at the Crotty site.
The first spill resulted from an overflow of the screening chamber, just after the facility opened for business. The only credible evidence of record is that on that occasion Stafford immediately cleaned up the spillage by means of absorbing, through a pumper truck, the overflow fluid, and then by raking the ground with lime.
The next documented spill at the Crotty site occurred on June 17, 1993, during Napier's inspection. Stafford was, according to Napier, "trying to suck stuff back up into his truck; but it had spilled all over the ground." The unrebutted testimony concerning this spill is that this effluent was promptly absorbed, limed, raked, and cleaned up.
The final documented spill occurred shortly before the evidentiary hearing in this case, in January 1994. On that occasion a new employee overflowed the site accidentally and the material was again promptly absorbed, limed, raked, and cleaned up.
Crotty and Stafford maintain the routine practice of absorbing, liming, raking, and cleaning any spills that occur on the site.
Taking into consideration this practice, and the lack of evidence showing the actual contents of the liquid noted on the site, there is no credible evidence to establish that Crotty or his employee allowed spillage or leakage in the area of the screening tank to stand for any appreciable length of time and there is no credible evidence that Napier encountered a sanitary nuisance created by spilled effluent which was allowed to stand unattended on the stabilization facility.
The Spreading Issue
During the May 19, 1993 inspection Napier concluded that Stafford had spread septage which had not been properly treated. According to Napier's testimony, Napier observed Stafford loading septage at approximately 3:30p.m. and then spreading the septage at approximately 4:45 p.m., less than the two hours required for stabilization at a pH of 12.
According to Napier, he had been gone from the property for a period of about an hour and fifteen minutes, and when he returned Stafford was already spreading the material in the field. According to Stafford, Stafford saw Napier running toward him and "I thought I'd done killed somebody or something the way he was running".
Napier questioned Stafford about the pH and specifically asked why Stafford had not waited two hours.
At that time and place, Napier was not aware of the Department's policy that stabilization for thirty minutes at a pH of 12.5 was adequate. Accordingly, he was not aware that Stafford would have been permitted to spread the material after a stabilization for thirty minutes at the requisite 12.5 pH.
Stafford was spreading the material because he had previously confirmed that the pH was 12.5, before Napier returned to the property.
Napier tested the pH of the material being spread and determined that the pH of the material was 12. He conceded that stabilized septage rapidly destabilizes after it is drawn out of the stabilization tank, which is the reason for spreading it quickly. Napier further agreed that the pH can decline rapidly once the septage is taken out of the stabilization tank.
It takes as long as thirty minutes to extract stabilized septage from the stabilization chamber for the purpose of spreading. Napier's reading of a pH of 12 at the time of spreading is not inconsistent with Stafford's claim of reading 12.5 pH prior to extraction and spreading.
Napier also contends that on April 20th he found that driver, Norman Davis, spread septage that had not been adequately stabilized. When Napier tested this material with old papers provided him by Davis (Napier had none of his own), the tests proved inconclusive.
The test was inconclusive more likely than not because the paper used by Napier at the time was old paper and therefore not reliable. Napier had no knowledge of how long Norman Davis had been spreading or the pH at the time the material being spread was extracted from the stabilization tank.
Norman Davis claims that the pH was 12.5 for thirty minutes although it is not clear how he established this without reliable test papers. However, the septage Davis spread had been loaded into the stabilization system by Stafford earlier in the day and had been stabilized in Stafford's customary manner at a pH of 12.5, according to Stafford.
The Cattle Grazing Issue
During the April 20, 1993 inspection Napier observed that septage being spread by Norman Davis was in a field where cattle were present. Napier had been to the lime stabilization facility several times prior to the April 20 inspection and was there several times later. This was the first and only time he saw cows in the spreading field.
There were fences provided on the property to keep cows away from the spreading area. Based upon Napier's own observations, it is more likely than not that the cows were in the field by accident.
Norman Davis, the driver in question, testified that at that time he was not aware that he was not supposed to spread where cows were present. The cows were at some distance from the septage.
After learning about the incident, Crotty promptly conferred with the rancher responsible for the cows and determined that a ranch hand had left the gate open, thereby providing a way for the cows to enter the stabilization field. Crotty has since added electric fencing and electric gates to create a movable electric barrier designed to keep cattle out of the spreading area.
There is no credible evidence that the cows grazed in the area spread for the brief period that they were in the field and generally cattle will avoid the smelly substance.
Crotty had means and methods in place to prevent cattle from being in the spreading field or from grazing for a period of thirty days from the last application of stabilized septage. The isolated incident observed by Napier was an accident. There is no evidence that Crotty was indirectly or directly responsible for grazing, which is to say putting livestock out to feed, in the area where stabilized septage was spread.
The Old Drainfield Material
During his April 20 inspection, Napier noted what he described as old drainfield material stacked on the lime stabilization site. The material was used to stabilize a road on the property used for lime stabilization. The material in question contained dirt, a few pipes and a substantial amount of gravel. The type of gravel was useful for stabilizing a road.
Napier speculated that this material likely came from a drainfield system that had been dug up previously. Napier conceded that he was unaware of the exact nature of the constituents other than dirt, gravel and plastic.
Napier never tested this material. The area which was stabilized with the materials in question was outside the cow fence on the site. Napier had no idea if there was any fecal material in the drainfield or the amount of such material.
The only person with any genuine knowledge about the drainfield constituents was Wayne Crotty, who had instructed his personnel to retrieve one load of drainfield material from a specific job site and to use it for filing in a low spot in the road. Crotty was familiar with this specific job and testified that it was highly unlikely that there was any septage in the contents removed because the system in question had not been receiving effluent as a result of pipe blockage. The system had not been functioning.
Crotty was unaware of any HRS regulation or policy forbidding the use of such septage material for stabilizing a road in an approved application area. There is no evidence that HRS has ever taken the position that used drainfield material not containing liquid septage is a sanitary nuisance. The issue is currently being addressed in proposed code rewrites.
Crotty's expert, Ivan Dory, testified that the drainfield material in question would not, if installed for purposes of stabilizing a road, constitute or create a sanitary nuisance. Old drainfield material which has been exposed to the sun and elements and which does not contain liquid septage, and is kept in a remote location, does not create a sanitary nuisance.
HRS was aware that the old drainfield material was situated on the stabilization site as of the April 20 inspection. At no time between April 20 and the agency's May 26, 1993 violation letter did HRS apprise Crotty that the use of the drainfield materials was a violation. In one conversation, Napier asked Crotty why the drainfield material was there and Crotty explained. Although the material was there for as long as a month thereafter, Crotty was never given any indication that HRS considered the material a nuisance or otherwise objectionable.
No credible evidence was presented that the old drainfield material created a sanitary nuisance or other hazard or that its use at the stabilization facility violated any rule or regulation of HRS.
The Issue of Notice
The first written notice to Crotty concerning HRS's charges is set forth in the May 26, 1993, letter, Petitioner's Exhibit 4.
Around the end of April 1993, Napier had a conversation with Crotty at the county health office in Osceola County. On that occasion Napier showed Crotty some of the photographs which he had in his possession from the inspections in April.
Crotty was not given an opportunity to cure any sanitary nuisances that were claimed to have existed prior to the decision to file an administrative complaint at the time of the May 26th letter. As Crotty's testimony also confirmed, the Department gave him no specific notice of specific conditions that would have to be cured within a specified time in order to avoid administrative sanctions.
After the May 26 letter, Crotty met with Department personnel at his lime stabilization facility and discussed the Department's position. Crotty and Department personnel discussed specific issues concerning the lime stabilization facility. As Crotty left this meeting, he perceived the problems with the Department were resolved and they were working together to achieve a common goal.
Mitigation
The Department has admitted, and has offered no evidence to the contrary, that it was Crotty's goal to achieve compliance with all Department regulations.
Any violations of the applicable regulations of the Department were minor and unintentional.
The preponderance of the evidence establishes that Crotty's operator, James Stafford, endeavored to comply with all Department regulations.
After being notified of the Department's position concerning the alleged violations, Crotty took reasonable measures to come into compliance with the Department's interpretation of its regulations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57, F.S.
The Administrative Complaint charges Crotty with creating or maintaining a sanitary nuisance, a violation of Chapter 386, F.S. Chapter 386, F.S., provides in pertinent part:
386.01 Sanitary nuisance. -- A sanitary nuisance is the commission of any act, by an individual, municipality, organization, or corporation, or the keeping, maintaining, propagation, existence, or permission of anything, by an individual, municipality, organization, or corporation, by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.
Notice to remove nuisances; authority of Department of Health and Rehabilitative Services and local health authorities.--
The Department of Health and Rehabilitative Services, upon determining the existence of anything or things herein declared to be nuisances by law, shall notify the person or persons committing, creating, keeping, or maintaining the same, to remove or cause to be removed, the same within 24 hours, or such other reasonable time as may be determined by the department, after such notice be duly given.
If the sanitary nuisance condition is not removed by such person or persons within the time prescribed in said notice, the department, its agents or deputies or local health authorities, may within the county where the nuisance exists, remove, cause to remove, or prevent the continuing sanitary nuisance condition in the following manner:
* * *
(d) Institute administrative proceedings authorized by the department as set forth in section 381.0061.
Nuisances injurious to health.--
The following conditions existing, permitted, maintained, kept, or caused by any individual, municipal organization, or corporation, governmental or private, shall constitute prima facie evidence of maintaining a nuisance injurious to health:
Untreated or improperly treated human waste, garbage, offal, dead animals, or dangerous waste materials from manufacturing processes harmful to human or animal life and air pollutants, gases, and noisome odors which are harmful to human or animal life.
* * *
Section 381.0061, F.S., provides, in pertinent part:
381.0061 Administrative fines.--
In addition to any administrative action authorized by chapter 120 or by other law, the department may impose a fine, which shall not exceed $500 for each violation, for a violation of any of the provisions of chapter 386. Notice of intent to impose such fine shall be given by the department to the alleged violator. Each day that a violation continues may constitute a separate violation.
In determining the amount of fine to be imposed, if any, for a violation, the following factors shall be considered:
The gravity of the violation, including the probability that death or serious physical or emotional harm to any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.
Actions taken by the owner or operator to correct violations.
Any previous violations.
All amounts collected under this section shall be deposited into an appropriate trust fund of the department.
The Administrative Complaint also alleges that Respondent violated rule 10D-6.075(4)(n), F.A.C., which provides:
10D-6.075 Standards of Practice.
The following actions by a person included under this rule shall be deemed unethical and subject to penalties as set forth in section 10D-6.0751:
* * *
(n) Failure to properly treat or properly dispose of septage or food establishment sludge.
The penalty for first violation is a $500.00 fine and for repeat violations, revocation. Rule 10D-6.0751(1)(n), F.A.C. Rule 10D-6.0751(2), F.A.C.,
describes circumstances to be considered in mitigation or aggravation of penalty, as follows:
Circumstances which may be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:
Monetary or other damage to the registrant's customer, in any way associated with the violation, which damage the registrant
has not relieved, as of the time the penalty is to be assessed.
Actual job-site violations of this code or conditions exhibiting gross negligence, incompetence or misconduct by the contractor, which have not been corrected as of the time the penalty is being assessed.
The severity of the offense.
The danger to the public.
The number of repetitions of the offense.
The number of complaints filed against the contractor.
The length of time the contractor has practiced.
The actual damage, physical or otherwise, to the customer.
The effect of the penalty upon the contractor's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
Appropriate notice to abate the nuisances charged was not given by the Department prior to the filing of the Administrative Complaint. Accordingly, the Department failed to comply with a condition precedent to charging Crotty with a violation of Chapter 386, F.S.
The preponderance of the evidence establishes that the screenings encountered by Napier during his inspection of the Crotty facility in April and May 1993 had been limed. The term "limed", in rule 10D-6.054(5)(c), F.A.C., means treated with lime, and therefore has reference to a process or application whereby lime is applied to screenings. The greater weight of the evidence establishes that the screenings were removed from a screening tank containing substantial amounts of lime, and that as a consequence the screenings were limed just as if lime had been added to the screenings after they were placed into a container.
The greater weight of the evidence also establishes that the screenings were containerized. Although maintaining the screenings in an open container would not satisfy the requirement, the greater weight of the evidence establishes that the previously limed screenings were within a day or two deposited into lime bags containing lime residue, removed from the stabilization facility and thereafter properly taken to a solid waste disposal facility.
Crotty's personnel substantially complied with the containerization requirement.
The agency failed to establish the existence of a sanitary nuisance in connection with the screenings described by Napier during his inspections on April 20, April 29 and May 19, 1993. Although it was not desirable that Mr. Stafford had an excess amount of screenings in the containers on site on at least two occasions, these screenings were soon disposed of in a proper manner. This is substantial compliance with the requirement of liming and containerizing screenings.
The most desirable means of disposing of the screenings in question would have been to deposit them into a dumpster, which Crotty currently does. Crotty made reasonable efforts, but was unable to secure an acceptable dumpster for a period of time, during which time reasonable alternative measures were pursued.
The Respondent effectively rebutted the department's conjecture that standing water Napier encountered on the Crotty facility on April 20, 1993, was "standing effluent" resulting from the overflow or leakage of the screening tank. The evidence established that the area in question was in fact a low spot or depression intentionally designed on the Crotty facility to contain spillage. Operator James Stafford had a routine practice of cleaning up spills that occurred on the plant site.
The Administrative Complaint charges that in connection with the May 19, 1993, inspection of Crotty's site, stabilized septage was not held for two hours but was applied within one hour and fifteen minutes in violation of rule 10D-6.052(7)(b) and (f). Under rule 10D-6.052, an operator of a lime stabilization facility may spread stabilized septage after septage has been treated with lime at a pH of 12 for two hours or, alternatively, for 30 minutes at a pH of 12.5 (according to incorporated EPA standards).
The greater weight of the evidence establishes that the septage on May 19, 1993, had been stabilized for a period of thirty minutes or more at a pH of
12.5. As the department's own expert conceded, there is no evidence that the septage on the day in question was not stabilized at the requisite pH for the required time.
As the department's expert also conceded, Crotty did have in place a method for preventing cattle from grazing for a period of 30 days from the last application. The department failed to prove that stabilized septage was spread in the presence of cattle with no method to prevent grazing for thirty days from the last application.
Rule 10D-6.052(7)(b)2.a., F.A.C., provides that vegetation "on which stabilized septage or sludge has been applied shall not be cut for hay or salvaged, nor grazed for a period of thirty days from the last application." The cattle were in the same field as the stabilized septage on one occasion only, by accident, and there is no evidence they grazed on the area affected.
The Administrative Complaint contends that Crotty disposed of old drainfield material containing untreated septage at the lime stabilization site in an unapproved method and created a sanitary nuisance, in violation of rule 10D-6.052(7). Rule 10D-6.052(7), F.A.C., provides in pertinent part:
The food establishment sludge and contents from onsite waste disposal systems shall be disposed of at a site approved by the HRS county public health unit and by an approved disposal method. Untreated domestic septage or food establishment sludges shall not be applied to the land.
The rule nowhere addresses the application of old drainfield material specifically, and the department failed to establish that the material included untreated septage or that its presence at Crotty's facility constituted a sanitary nuisance. Rather, witnesses for both parties generally agreed that
drainfield material containing liquid or fresh septage would clearly not be properly applied for road repair, but none could say that the material in question harbored pathogens or was otherwise harmful.
At most, the department established some intermittent sloppy practices by the Respondent -- practices that resulted primarily from the failure to have proper equipment available (the dumpster), and from untrained staff (Norm's admission about the cows). In the absence of clear advance notice of violations and an opportunity to correct the violations as provided by section 386.03, F.S., and with Respondent's evidence of reasonable attempts to cooperate and to obtain more appropriate equipment and train staff, those isolated practices should not be subject to penalty.
Based on the foregoing, it is, hereby, RECOMMENDED:
That the agency issue its Final Order dismissing the administrative complaint.
DONE AND RECOMMENDED this 28th day of June, 1994, in Tallahassee, Leon County, Florida.
MARY CLARK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1994.
COPIES FURNISHED:
Sonia Nieves-Burton, Esquire Department of Health and Rehabilitative Services District 7 Legal Office
400 West Robinson Street Suite S-827
Orlando, Florida 32801
Stephen D. Milbrath, Esquire Post Office Box 3791 Orlando, Florida 32802
Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Aug. 19, 1994 | Final Order filed. |
| Jun. 28, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held Feb. 3-4, 1994. |
| Mar. 17, 1994 | Respondent's Proposed Recommended Order filed. |
| Mar. 04, 1994 | Notice of Filing Transcript of Proceedings; Transcript (Volumes I, II-A & II-B TAGGED) filed. |
| Feb. 04, 1994 | CASE STATUS: Hearing Held. |
| Feb. 02, 1994 | Petitioner's Pre-Hearing Statement w/Exhibit-C filed. |
| Jan. 27, 1994 | Respondent's Unilateral Pre-Hearing Statement w/Exhibit-E filed. |
| Jan. 18, 1994 | Respondent's Notice of Filing Previous Witness Designation w/Respondent's Designation of Witnesses filed. |
| Nov. 02, 1993 | Notice of Hearing and Initial Prehearing Order sent out. (hearing set for 2/3-4/94; 1:00pm; Orlando) |
| Oct. 15, 1993 | Petitioner's Response to Initial Order filed. |
| Oct. 08, 1993 | (Respondent) Response to Initial Order filed. |
| Sep. 28, 1993 | Initial Order issued. |
| Sep. 24, 1993 | Notice; Answer To Administrative Complaint And Request For Hearing; Administrative Complaint; Agency Action Letter; Supportive Documents filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 18, 1994 | Agency Final Order | |
| Jun. 28, 1994 | Recommended Order | Sloppy practices in land application of treated septage do not rise to level of violations in absense of required notice to licensee. |
