STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH DIGERLANDO, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6483

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 23, 1995, a formal administrative hearing was held in this case by televideo conference before James E. Bradwell, former Hearing Officer, Division of Administrative Hearings. (The hearing officer was in a specially-equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Tampa, Florida. The two hearing rooms were connected by televideo.) After the final hearing, former Hearing Officer Bradwell became unavailable, and the case was reassigned to J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings, for further proceedings and entry of a Recommended Order.

APPEARANCES

For Petitioner: Raymond R. Deckert, Esquire

Department of Health and Rehabilitative Services

4000 West Dr. Martin Luther King, Jr., Boulevard

Tampa, Florida 33614

For Respondent: Nelson D. Blank, Esquire

Trenam, Kemker, Scharf, Barkin Frye, O'Neill & Mullis, P.A.

2700 Barnett Plaza

101 East Kennedy Boulevard Tampa, Florida 33601-1102

STATEMENT OF THE ISSUES

The issue in this case is whether the Department of Health and Rehabilitative Services (HRS) should grant the Petitioner's applications, filed under F.A.C. Rule 10D-6.045, for variances from the F.A.C. Rule 10D-6.046(1)(c) requirement that on-site treatment and disposal systems (OSTDS's) be placed no closer than 200 feet from public drinking water wells serving a facility with a sewage flow of more than 2,000 gallons per day (gpd).

PRELIMINARY STATEMENT

On October 18, 1993, the Petitioner, Joseph DiGerlando, filed three applications for variances from the F.A.C. Rule 10D-6.046(1)(c) requirement. The applications were found to be incomplete and were returned to the Petitioner. On January 18, 1994, the Petitioner refiled the applications.

On April 7, 1994, the HRS variance committee considered the applications but tabled them to give the Petitioner time to submit more detailed site plans. On September 1, 1994, the HRS variance committee met again to consider the Petitioner's applications and on September 2, 1994, denied them.

On September 30, 1994, the Petitioner requested formal administrative proceedings on the applications. On November 18, 1994, HRS referred them to the Division of Administrative Hearings (DOAH), which assigned them to former Hearing Officer James E. Bradwell. On February 13, 1995, the matter was noticed for final hearing by televideo conference on March 23, 1995.

At final hearing, the Petitioner testified in his own behalf and called one expert witness. HRS called three witnesses. The parties stipulated to the admission of Exhibits 1 (a)-(c), 2-4, 5(a)-(d), 6-7, 8(a)-(c), 9(a)-(c), 10-11, 13(a)-(b), and 14 into evidence.

At the end of the hearing, the parties requested ten days in which to file proposed recommended orders. Both parties timely filed proposed recommended orders.

On May 16, 1995, before a recommended order was entered, a Notice of Unavailability of Hearing Officer and Order of Assignment of New Hearing Officer was filed. It recited that the previously assigned hearing officer no longer was with DOAH and that the case was being reassigned. It also gave the parties

14 days in which to report to the new hearing officer as to whether they contended that any additional evidence or argument was warranted.

On May 25, 1995, HRS filed a Reply to Notice of Unavailability of Hearing Officer and Order of Assignment of New Hearing Officer indicating that HRS was ordering the preparation and filing of a transcript of the final hearing for the use of the new hearing officer. The transcript was filed on June 1, 1995. On June 19, 1995, HRS filed additional argument.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-6483.

FINDINGS OF FACT

1. The Petitioner, Joseph DiGerlando, owns three lots (1, 2 and 26) in the San Remo subdivision in Hillsborough County, which was platted in 1977.

   
   

2. There is a public water well located between lots 1, 2 and 26. The well serves the entire San Remo subdivision, a 55-lot residential development having a total sewage flow much greater than 2,000 gallons per day (gpd) (although the sewage flow from homes built on lots 1, 2 and 26 can be expected to total no more than approximately 1350 gpd.)

   
   

3. There is no way for the Petitioner to construct an on-site sewage treatment disposal system (OSTDS) on each of the three lots so that no part of

   any OSTDS will be closer than 200 feet from the San Remo well, measured horizontally across the ground surface to the well head. Measuring horizontally across the ground surface to the well head: an OSTDS on lot 1 could be placed no farther than 156 feet from the well; an OSTDS on lot 2 could be placed no farther than 184 feet from the well; according to drawings in the Petitioners' application, an OSTDS on lot 26 could be placed no farther than approximately

   185 feet from the well. (Although lot 26 is larger than the others, it is contiguous to a surface water body, and the required setback from the surface water body decreases the area available for siting an OSTDS on the lot. The evidence was not clear exactly how far an OSTDS on lot 26 would be from the San Remo well.)

   
   

4. HRS concedes: (1) that requiring 200-foot setbacks from the San Remo well will place the Petitioner under a hardship that was not caused intentionally by his own actions; and (2) that no reasonable alternative exists for the treatment of sewage on his lots 1, 2 and 26. (It is not clear how or why HRS determined that utilization of a joint OSTDS to serve all three lots through the imposition of cross-easements on the lots would not be a reasonable alternative to at least one or two of the variance applications.)

   
   

5. The San Remo well, which is 400 feet deep, has a steel casing from the surface of the well to 100 feet below the ground surface. The steel casing prevents the entry of ground water into the well above the bottom of the casing.

   
   

6. If the distances between the proposed OSTDS's and the San Remo well were measured diagonally, through the ground, from the proposed OSTDS's to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 185 feet from the well; the proposed OSTDS on lot 2 would be 209 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (The evidence was not clear exactly how much farther.)

   
   

7. In fact, due to the draw-down effect of the well, the path groundwater would travel from the proposed OSTDS's to the bottom of the steel casing of the San Remo well would curve upward somewhat from, and be somewhat longer than, the diagonal line running directly between those two points. (The evidence is not clear exactly how much longer the curved path would be.)

   
   

8. If the distances between the proposed OSTDS's and the San Remo well were measured first horizontally across the ground surface to the well head and then vertically down to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 253 feet from the well; the proposed OSTDS on lot 2 would be 281 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (Since the bottom of the OSTDS's will be three feet below the ground surface, the vertical component of the measurement is only 97 feet instead of the full 100 feet between the well head and the bottom of the casing.)

   
   

9. When applying the HRS rules on distances required between OSTDS's and existing public water wells, HRS measures from the OSTDS horizontally across the ground surface to the well. The evidence was that HRS's method of measurement is consistent both with the methods used by the federal EPA and with the scientific data on which the technical advisory board based the distances in the HRS rules.

   
   

10. The Petitioner's expert witness testified that there is a 17-foot thick layer of sand and clay between 53 and 70 feet below the ground surface in the vicinity of the San Remo well and that the sand and clay layer would prevent

    contamination from the OSTDS's from reaching the bottom of the steel casing of the well. (He also testified that is a white lime rock layer between 70 and 90 feet below the ground surface and inferred that the white lime rock layer would add some degree of protection.)

    
    

11. The opinions of the Petitioner's expert are accepted. Petitioner's expert is a civil, sanitary and environmental engineer, not a geologist or hydrogeologist; however, his experience is in the area of wastewater treatment and disposal is extensive. Meanwhile, HRS presented no competent evidence whatsoever to contradict the Petitioner's expert.

    
    

12. The Petitioner proposes to use Norweco Singulair Bio-Kinetic Waste Water Treatment Systems. These systems treat waste better than a standard septic tank system. Instead of the single septic tank, they have three distinct chambers: first, a retreatment chamber; second, an aeration chamber to reduce biological oxygen demand (BOD) and total dissolved solids (TDS); and, finally, a clarification or filter chamber that further reduces BOD and TDS. With the proposed systems, BOD and TDS will be reduced to approximately a fourth of the BOD and TDS levels that would enter the drainfield from a septic tank system.

    In addition, unlike in a septic tank system, the proposed systems utilize chlorine tablets in conjunction with the clarification chamber to kill bacteria and viruses.

    
    

13. It is found that the evidence presented in this case, taken as a whole (and in particular in the absence of any competent evidence to contradict the credible opinions of the Petitioner's expert) was sufficient to prove that the proposed OSTDS's would not adversely affect the health of members of the public.

    
    

14. Except for a fleeting reference in its Proposed Recommended Order, HRS has not taken the position that the Petitioner's proposed OSTDS's will significantly degrade the groundwater or surface waters. The reference in the Proposed Recommended Order would seem to reflect that HRS's concern about the impact of the Petitioner's proposed OSTDS's on groundwater quality is limited to its public health concerns.

    
    

    CONCLUSIONS OF LAW

    
    

15. Under Section 381.0065, Fla. Stat. (1993), Department of Health and Rehabilitative Services (HRS), has the authority to regulate the construction and operation of onsite sewage treatment and disposal systems (OSTDS's) under rules promulgated by HRS.

    
    

16. F.A.C. Rule 10D-6.046 provides in pertinent part:

    
    

    All systems shall be located and installed so that with proper maintenance the systems function in a sanitary manner, do not create sanitary nuisances or health hazards and do not endanger the safety of any domestic water supply, ground-

    water or surface water. Sewage waste and effluent from onsite sewage treatment and disposal systems shall not be discharged onto the ground surface

    or directly or indirectly discharged into ditches, drainage structures, groundwaters, surface waters, or aquifers. To prevent such discharge or health hazards:

    1. Systems shall be placed no closer than the minimum distances indicated for the following:

* * *

(c) Two-hundred feet from a public drinking water well as defined in rule 10D-6.042(40)(b) if such a well serves a facility with an estimated sewage flow of more than 2000 gallons per day.

(Although the Petitioner argues that the 100-foot distance in F.A.C. Rule 10D- 6.046(1)(b) should apply, he applied for variances from the 200-foot distance in

F.A.C. Rule 10D-6.046(1)(c). Besides, it is concluded that F.A.C. Rule 10D- 6.046(1)(c) applies. The San Remo well serves the entire San Remo subdivision, not just lots 1, 2 and 26. It is concluded that the 2000 gpd demarcation in the rule should be interpreted to apply to the estimated total sewage flow of the entire subdivision.)

15. Both Section 381.0065(4)(g)1., Fla. Stat. (1993), and F.A.C. Rule 10D-

1. allow applications for variances from the F.A.C. Rule 10D-6.046(1) distance requirements (as well as other permit requirements for OSTDS's. Section 381.0065(4)(g)1., Fla. Stat. (1993), provides in pertinent part:

   
   

   The department may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A

   variance may not be granted under this section until the department is satisfied that:

   
   

   1. The hardship was not caused intentionally by the action of the applicant;

   2. No reasonable alternative exists for the treatment of the sewage; and

   3. The discharge from the onsite sewage treat- ment and disposal system will not adversely affect the health of the applicant or the public or significantly degrade the groundwater or surface waters.

Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consid- eration must be given to those lots platted before 1972.

1. In this case, HRS concedes that the Petitioner meets criteria a. and

   b. of the variance statute and, as found, HRS has not taken the position that the Petitioner's proposed OSTDS's will significantly degrade the groundwater (except to the extent of HRS's public health concerns) or surface waters. (Finally, the Petitioner's lots are not entitled to "special consideration" under the statute; as found, they were platted in 1977.

   
   

2. F.A.C. Rule 10D-6.045(3) provides in pertinent part:

   
   

   A variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the hardship was not caused intentionally by the action of the applicant,

   where no reasonable alternative exists for the treatment of sewage and where proper use of the onsite sewage disposal system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public.

   
   

   The rule also provides: "An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters." However, as already mentioned, HRS has not taken the position that the Petitioner's proposed OSTDS's will significantly degrade the groundwater (except to the extent of HRS's public health concerns) or surface waters.

   
   

3. It has been held that, because the words "excessive" and "minor," modifying the words "hardship" and "deviation," respectively, in F.A.C. Rule 10D-6.045(3), may be interpreted as imposing greater restrictions than granted by the Legislature, they should be stricken from the rule. Final Order, Paul &

   V.M.P. Corp. v. Dept. of Health, etc., 15 F.A.L.R. 3349 (DOAH 1993).

   
   

4. In this proceeding, the Petitioner has the burden of proof and persuasion. See Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dept. of Health, etc., 348 So. 2d 349 (Fla. 1st DCA 1977).

   
   

5. It was found, and must be concluded, that the Petitioner proved entitlement to variances under Section 381.0065(4)(g)1., Fla. Stat. (1993), and

1. Rule 10D-6.045(3). Taken as a whole (and in particular in the absence of any competent evidence to contradict the credible opinions of the Petitioner's expert), the Petitioner's evidence was sufficient to prove that the proposed OSTDS's would not adversely affect the health of members of the public.

   
   

   RECOMMENDATION

   
   

   Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order granting the Petitioner's applications for variances, on the condition that the Petitioner utilizes the proposed Norweco Singulair Bio- Kinetic Waste Water Treatment Systems.

   
   

   RECOMMENDED this 30th day of June, 1995, in Tallahassee, Florida.

   
   

   
   

   J. LAWRENCE JOHNSTON 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 30th day of June, 1995.

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6483

   
   

   To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

   
   

   Petitioner's Proposed Findings of Fact.

   
   

   1. Accepted but conclusion of law, subordinate and unnecessary.

   2. Accepted and incorporated.

3.-6. Accepted but subordinate and unnecessary.

1. Accepted and incorporated.

2. Rejected as to "significantly degrade the groundwater or surface waters"; HRS did not make this an issue, except with respect to public health concerns. Otherwise, accepted and incorporated.

3. Rejected as not proven and contrary to the greater weight of the evidence. However, accepted that HRS presented no evidence sufficient to support a finding on the issue. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994).

4. Accepted but subordinate and unnecessary.

5. Rejected as to "relevant criteria"; not proven and as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated.

6. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

1. Accepted but conclusion of law, subordinate and unnecessary.

2. Accepted and incorporated.

3.-7. Accepted but subordinate and unnecessary.

1. Accepted and incorporated.

2. Rejected as contrary to facts found and as contrary to the greater weight of the evidence. (As found, HRS did not contend that the Petitioner's OSTDS's would "significantly degrade the groundwater or surface waters." HRS only raised this issue with respect to public health concerns.)

10.-12. Accepted but subordinate and unnecessary. (These were hearsay statements that were not sufficient to support findings as to the matters asserted. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994).)

COPIES FURNISHED:

Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 W. Dr. Martin Luther

King, Jr., Boulevard Tampa, Florida 33614

Nelson D. Blank, Esquire Trenam, Kemker, Scharf, Barkin Frye, O'Neill & Mullis, P.A.

2700 Barnett Plaza

101 E. Kennedy Boulevard Tampa, Florida 33601-1102

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire 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 to the Department of Health and Rehabilitative Services written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Health and Rehabilitative Services concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-006483

Orders for Case No: 94-006483