STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE F. CONLEY )

)

Petitioner, )

)

vs. ) CASE NO. 83-938

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, ) HEALTH PROGRAM OFFICE, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held pursuant to notice on November 15, 1983, in Clearwater, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the denial by the Respondent, Department of Health and Rehabilitative Services, Health Program Office, of an application for a septic tank by the Petitioner, George F. Conley. The sole issue involved is whether the Petitioner's application meets the criteria established by the statutes and rules for installation of an individual sewage disposal system (septic tank).

APPEARANCES

For Petitioner: Damon C. Glisson, Esquire

5808 Fortune Place

Apollo Beach, Florida 33570

For Respondent: Amelia M. Park, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue Tampa, Florida 33614

ISSUES

Based upon the evidence presented at the hearing, the primary factual issues are as follow:

1. whether the application for a variance was a minor deviation from the standards established by Rule 10D-6.45(3), Florida Administrative Code;

   
   

2. Whether the Petitioner clearly showed that the public health would not be impaired or that pollution of surface or groundwater would not result; and

   
   

3. whether the petitioner would suffer a hardship if the variance were not granted.

Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. On January 11, 1983, the petitioner, George F. Conley, applied for an individual sewage disposal system (septic tank) permit to the Hillsborough County Health Department, a part of the Respondent, Department of Health and Rehabilitative Services. This application appears to be for one of two adjoining lots owned by the Petitioner.

   
   

2. By letter dated January 11, 1983, signed by William Dickson of the Hillsborough County Health Department, the petitioner's application was denied. The grounds for denial, as stated in Dickson's letter received as Joint Exhibit 1, were lack of sufficient soil depth and severely limited soil.

   
   

3. The Petitioner applied for a variance as provided for in Joint Exhibit

1. On January 24, 1983, a hearing was held before the Variance Board pursuant to Section 10D-6.45, Florida Administrative Code. The transcript of said proceeding reflects that the Board unanimously recommended approval of a "mound" septic tank system which would be elevated at least three feet above the existing grade and be oversized. The application for the variance was for one of the Petitioner's two lots; however, the Board's approval was for a variance on both lots.

   
   

   1. On or about February 1, 1983, Robert Roush, soil conservationist for the United States Department of Agriculture, conducted a soil identification at the Petitioner's proposed construction site. In Roush's letter of February 1, 1983, he reported that test borings indicated the soil at the test site was Bradenton fine sand, thin surface phase, as described in the Soil Survey for Hillsborough County, Florida, Series 1950, No. 3, of September 1958, USDA--Soil Conservation Service. Roush further reported that the Soil Survey Supplement of the USDA--Soil Conservation Service, Seffner, Florida, June 1981, indicated said soil constituted a severe hazard, with wetness being the chief limiting factor.

      
      

   2. By letter dated February 14, 1983 (Joint Exhibit 5), Stephen H. King, State Health Officer, denied the Petitioner's request for a variance for a septic tank system in relationship to both lots. Dr. King's letter stated in pertinent part as follows:

      
      

      granting of variances from established standards is for relieving or preventing excessive hardships and may be granted where minor deviations will not result in pollution of ground- water or impairment of public health.

      The Hillsborough County Health Unit has stated that a history of failing systems has been noted in the Ruskin area in soil conditions similar to those existing on your lots.

      Although the Review Group for Individual Sewage Disposal has recom- mended approval of your variance appli- cation, the site specific conditions

      on your lots, including soil, seasonal

      high water table and potential flooding conditions, do not appear suitable for the installation of onsite sewage dis- posal systems. Therefore, I must hereby disapprove your request for variance.

      
      

   3. The Petitioner timely requested a formal hearing on the denial of his application and request for a variance.

      
      

   4. In the manner by which the water table is computed under the Respondent's rules, the perched water table normally lies at six inches beneath the surface.

      
      

   5. C. K. Satyapriya was accepted as an expert in civil engineering and geo-technical engineering. Satyapriya described a mound septic tank system for treatment of gray water waste which met the minimum criteria for soil depth as

      provided in Rules 10D-6.42(12) and 10D-6.45(2), Florida Administrative Code, and could be installed on the site. See Hearing Officer's Exhibit 1. According to Satyapriya's plan, the existing soil would be excavated, a soil with good absorptive qualities would be used as fill in the area excavated, and additional material added to form a mound. Black water would be dealt with separately, retained onsite, and removed from the site for disposal.

      
      

   6. The pictures taken by the parties and the weather information presented by the Petitioner indicate that January/ February 1983 was a period of exceptionally high rainfall in the Tampa Bay area within which Ruskin is located. The system described by the Petitioner's expert would not have flooded for any significant period during these exceptional conditions.

      
      

   7. Dickson, a sanitarian with the Hillsborough County Health Department for 22 years and supervisor in the area of administration of septic tank applications, was called to rebut Satyapriya's testimony. Dickson had worked for many years in the area of Ruskin, Florida, where the Petitioner's lots are located. Many problems with septic tanks, including flooding and breakdown of the system, occur in this general area because of a layer of impermeable material near the ground surface. This impermeable layer prevents the waste water from dissipating within the drainfield and, when it rains, acts as a basin to retain rainwater above the impermeable layer. Any excavation into, but not through, this impermeable layer traps the water, creating a bathtub effect. The bathtub effect creates problems when the area floods during heavy rains and the replaced material within which the drainfield has been installed becomes saturated. When saturated with water, the septic tank system is unable to accept any more waste product, which in turn backs up sewage into the waste line of the home or business. These conditions constitute a health hazard to the public and a potential health hazard to ground and surface water. Dickson interpreted the rule to require digging through the impermeable layer to permit the water to move down into absorptive material below.

      
      

   8. The existing water tables in the area of concern are a result of the subsurface impermeable layer described above. This layer retains the water above the layer and prevents it from sinking deeper into the ground. It also forms a cap on top of the water beneath it, which water table may be restrained by it. The resultant water pressure causes artesian wells. Therefore, this impermeable layer causes two water tables in this area, one perched on top of the impermeable layer and another underneath the impermeable layer. It is the water table perched on top of the impermeable layer which lies close to the

      surface. However, the impermeable layer keeps this "surface" water from mixing with water beneath the layer. Drinking water is not obtained from the upper water table, but from the water table under the impermeable layer. The impermeable layer would not be penetrated by the proposed gray water system, which meets the Respondent's guidelines of 54 inches beneath the drainfield.

      
      

   9. According to Dickson, a mound made of absorptive materials would soak water up into the mound from the groundwater level. This would saturate the drainfield in the mound above the normal water table. Satyapriya testified that the use of course material would prevent this absorption through capillary action. Satyapriya's testimony is accepted as the most credible, and the gray water treated in the mound would not pollute the upper water table.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Department of Health and Rehabilitative Services has the responsibility for regulating the disposal of sewage in individual sewage disposal systems pursuant to Section 381.26., Florida Statutes. This Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.

       
       

   11. Rule 10D-6.47(2)(c), Florida Administrative Code, sets forth the site evaluation criteria for installation of an onsite sewage disposal system. There is no viable dispute between the parties concerning the need for 42 inches or more of soil depth beneath the bottom surface of the drainfield gravel or that in areas of impervious, severely limited soil there must be 54 inches beneath the bottom of the proposed drainfield surface. However, to construct a septic tank system under these circumstances requires a variance, the issuance of which is governed by Rule 10D-6.45, Florida Administrative Code. The criteria for issuance of a variance require that the deviation from the rules be minor, that the public health will not be impaired, and that pollution of the surface and groundwater will not result.

       
       

   12. Based upon the evidence produced at the hearing, the Hearing Officer concludes that a mound septic tank system could be built in the manner described by the Petitioner's expert witness which would meet the criteria established in the rule in terms of the system's dimensions. If the system can be built within the dimensions as provided in the statutes, there is little if any deviation and, therefore, the first criterion of Rule 10D-6.45, supra, is met. However, the last two related criteria must also be considered.

       
       

   13. Under normal circumstances, the treatment of waste material in such a system would be sufficient to prevent water pollution and to protect the public health. However, based upon the observations of William Dickson, a sanitarian who has worked for many years in the area, many problems involving the flooding and breakdown of septic tank systems occur in this area. This is due to the layer of impermeable soils which runs through the area. Dickson, the Respondent's expert witness, stated that he would not recommend approval because eventually the septic tank systems in the area give problems due to the impermeable layer which runs under the area. This eventually leads to saturation of the drainfield, particularly when there is severe wet weather. In such weather, all the water is held above the impermeable layer, and the perched water table may rise to sea level. Under such conditions, drainfields cease to function.

       
       

   14. The rules address flooding situations and provide that a septic tank cannot be flooded for any significant period of time. Mound systems are designed to avoid flooding by placing the septic tank and drainfield above

       ground level. The mound system described by the Petitioner's expert witness for gray water could be installed and would avoid potential flooding problems. This system would be above the upper water table. If the impermeable layer is not penetrated completely, the system would not endanger the lower water table. The drainfield within the mound is over 54 inches above the impermeable layer as required by the rule; therefore, presumably there is no danger from the gray water. The weather and photographs of the area show there will be no flooding for significant periods of the mound drainfield.

       
       

   15. The black water waste would be retained onsite and removed from the site by an approved service. This alternative would prevent black water waste from being introduced into the area and prevent any contamination in a properly designed and constructed facility.

       
       

   16. Clearly, denial of a septic tank permit, which is required to obtain a building permit and without which no construction can be commenced, is a substantial hardship to a property owner who purchased a lot to build a house on and on which he has paid taxes.

1. The Respondent may require the design engineer to certify that the installed system complies with approved design and installation requirements. See Rule 10D-6.49, Florida Administrative Code.

   
   

   RECOMMENDATION

   
   

   Having found it is a minor deviation from the rules to install a septic tank system in an area of limited soil; having found the denial of the Petitioner's application is a substantial hardship; having found that a mound system can be installed within the physical limitations provided in the rules; and having found that a system separating gray and black water properly installed would not endanger public health or pollute water, it is recommended that the Respondent approve an alternate system for one of the Petitioner's lots, constructed in accordance with plans certified by a Florida engineer to be installed in accordance with the approved design and installation requirements to provide for onsite treatment of gray water waste and retention and removal of black water waste from the site for disposal.

   
   

   DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida.

   
   

   STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32301

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984.

   COPIES FURNISHED:

   
   

   DAMON C. GLISSON, ESQUIRE 5908 FORTUNE PLACE

   APOLLO BEACH, FLORIDA 33570

   
   

   AMELIA PARK, ESQUIRE DEPARTMENT OF HEALTH AND

   REHABILITATIVE SERVICES 4000 WEST BUFFALO AVENUE TAMPA, FLORIDA 33614

   
   

   DAVID H. PINGREE, SECRETARY DEPARTMENT OF HEALTH AND

   REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD

   TALLAHASSEE, FLORIDA 32301

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

   
   

   GEORGE F. CONLEY,

   
   

   Petitioner,

   
   

   vs. CASE NO. 83-938

   
   

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, HEALTH PROGRAM OFFICE

   
   

   Respondent.

   /

   FINAL ORDER

   
   

   This cause came on before me for the purpose of issuing a final agency order. On January 13, 1984, the hearing officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

   
   

   1. PDHE - meaning the HRS Health Program Office - filed Exceptions to the Recommended Order.

A copy of PDHE's Exceptions is attached hereto as Exhibit A.

HRS RULING AND STATEMENT ON THE EXCEPTIONS

(AA) PDHE EXCEPTION (1) - The Exception has merit. The recommendation to approve a system which retains, on a permanent basis, blackwater

waste for periodic removal is rejected. The Recommended Order is modified in accordance herewith.

(AA) PDHE EXCEPTIONS (2) and (3) - These Exceptions have merits and are sustained. Section 10D-6.49,

F.A.C., requires the submission of plans prior to considering the use of an alternative system. Only after consideration of the plans is there a need for the engineer to certify compliance of an installed system. Since no plans have been submitted, the recommendation by the Hearing Officer must be rejected. The Recommended Order is modified in accordance herewith.

FINDINGS OF FACT

1. The Department hereby adopts and incorporates by reference the general findings of fact made by the Hearing Officer.

CONCLUSIONS OF LAW

1. The overall conclusion of law stated by the Hearing Officer is rejected. The conclusion leads to an erroneous or otherwise inappropriate interpretation and application of law. The correct interpretation and application compel that the Petitioner's application for variance be denied.

The grounds for denial are stated in HRS Ruling and Statement on the Exceptions.

It is ADJUDGED that Petitioner's application for variance from the requirement of Chapter 10D-6, F.A.C., is denied. The recommendation submitted by the Hearing Officer is rejected.

ORDERED this 29th day of in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

COPIES FURNISHED TO:

DAMON C. GLISSON, ESQUIRE 5908 FORTUNE PLACE

APOLLO BEACH, FLORIDA 33570

AMELIA M. PARK, ESQUIRE DEPARTMENT OF HRS

4000 WEST BUFFALO AVENUE TAMPA, FLORIDA 33614

STEPHEN F. DEAN, HEARING OFFICER DIVISION OF ADMINISTRATIVE HEARINGS THE OAKLAND BUILDING

2009 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA 32301

HARDEN KING, AGENCY CLERK DEPARTMENT OF HRS

1323 WINEWOOD BOULEVARD

SUITE 406

TALLAHASSEE, FLORIDA 32301

Docket for Case No: 83-000938

Orders for Case No: 83-000938