STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PLASTIC TUBING INDUSTRIES, ) INC., )
)
Petitioner, )
)
vs. )
) DEPARTMENT OF HEALTH, BUREAU OF ) ONSITE SEWAGE PROGRAMS, )
)
Respondent. )
Case No. 03-1527
)
RECOMMENDED ORDER
Notice was given, and on September 22 and 23, 2003, a final hearing was held in this case. Pursuant to Sections 120.569 and 120.57(1), Florida Statutes, the final hearing was conducted by Charles A. Stampelos, Administrative Law Judge, in Orlando,
Florida.
APPEARANCES
For Petitioner: Julie Gallagher, Esquire
Greenberg Traurig, P.A.
101 East College Avenue Post Office Drawer 1838
Tallahassee, Florida 32302-1838
For Respondent: Richard P. McNelis, Esquire
Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
STATEMENT OF THE ISSUE
Whether, on January 14, 1997, the Department of Health (Department or DOH), approved an alternative drainfield system for Plastic Tubing Industries, Inc. (PTI), consisting of a 9- pipe system on an equivalency of one linear foot of PTI's system to two square feet of mineral aggregate or one linear foot of PTI's system to three square feet of mineral aggregate.
PRELIMINARY STATEMENT
On January 14, 1997, the Department approved PTI's request for a 9-pipe system as an alternative drainfield system.
Thereafter, a controversy arose as to the specific scope of the Department's approval. PTI claimed that the Department had approved its 9-pipe system, such that one linear foot of PTI's 9-pipe system was equivalent to three square feet of mineral aggregate, rather than two square feet of mineral aggregate. On March 18, 2003, the Department advised PTI in writing that it stood by its previous decisions on the matter.
On April 2, 2003, PTI filed a Petition for Formal Administrative Proceedings (Petition) with the Department to contest the Department's March 18, 2003, action.
On or about April 16, 2003, the Department filed a motion to dismiss PTI's Petition on the ground that it was untimely filed. PTI filed a response.
On April 30, 2003, the Department referred the Petition to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge. (The Department did not rule on the Department's motion to dismiss.)
On May 1, 2003, the Department filed a motion to relinquish jurisdiction to the Department so that the Department could rule on the motion to dismiss. On May 2, 2003, PTI filed a response opposing the Department's motion to relinquish jurisdiction. On May 19, 2003, Administrative Law Judge J. Lawrence Johnston denied the Department's motion to relinquish jurisdiction.
Judge Johnston also determined that the Department's motion to dismiss was considered to be still pending.
On March 27, 2003, the Department filed a renewed motion to dismiss PTI's petition as untimely. On March 28, 2003, the Department filed a motion in limine which closely tracked its renewed motion to dismiss, but requested that PTI be prohibited from introducing any evidence on any matter which arose after January 14, 1997, the date of the Department's approval letter.
On June 5, 2003, PTI filed a response to the Department's renewed motion to dismiss and motion in limine.
After hearing argument of counsel on June 6, 2003, the Department's motions were denied by Order dated June 6, 2003. In a Corrected Order, entered on June 9, 2003, the parties were "requested in their pre-hearing stipulation to address the
issue of which party has the burden of proof and what is the standard of proof, e.g., a preponderance of the evidence, in this proceeding."
On June 10, 2003, the parties consented to continue the final hearing scheduled for June 25-27, 2003, and the final hearing was rescheduled for final hearing on September 22-24, 2003.
A pre-hearing conference was held on September 19, 2003, to address the order of proof, burden of proof, and the standard of proof. Prior to this telephone pre-hearing conference, the Department filed a memorandum of law and PTI filed a response.
After hearing argument of counsel, it was determined that PTI would proceed first, followed by the Department, followed by PTI for rebuttal only, and followed by the Department for surrebuttal only. It was further ordered that each party would bear the burden to prove its respective position as stated in its respective pre-hearing stipulation, and that each party was to assume that it had the burden of proof in this proceeding.
The applicable standard of proof would be determined in the recommended order. See Order, September 19, 2003.
The parties introduced into evidence Joint Exhibits 1-11. PTI called four witnesses: Michael C. Maroschak, Douglas
P. Everson, Scott Thomson, and John E. Garlanger, Ph.D., P.E. Dr. Garlanger was accepted as an expert witness in hydrology,
hydro-geology, and geotechnical engineering. PTI Exhibits 1-7, and 9-15 were admitted.
The Department called two witnesses: Fred Atchley and Paul
W. Booher, P.E. The Department Exhibits 1-4 were admitted.
A transcript of the hearing was filed on October 14, 2003.
After granting two unopposed extensions of time, each party filed a proposed recommended order, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner, Plastic Tubing Industries, Inc. (PTI), formerly Plastic Tubing, Inc., was originally formed in Florida in 1974. PTI manufactures plastic drain pipe and the fittings that accompany such pipe. Many of its products and processes are patented.
In conjunction with its business, PTI has developed several alternative drainfield systems that utilize plastic tubing or corrugated pipe in lieu of a standard subsurface system made with mineral aggregate for septic tank drainfields. An alternative drainfield system substitutes pipe, or other materials, for aggregate (gravel or rock) used in traditional systems.
Before installation in the State of Florida, PTI was required to obtain approval for its alternative drainfield
system from the Department. See Fla. Admin. Code R. 10D-6.049, effective January 3, 1995, amended November 19, 1997, and February 3, 1999; and replaced with Fla. Admin. Code R. 64E- 6.009.
The Department was, at all times relevant to this administrative proceeding, the state agency authorized to approve the use of alternative systems (to standard subsurface systems) in the State of Florida. Approvals of alternative systems were based on the Department's analysis of, in part, plans prepared by an engineer registered in the State of Florida and submitted by applicants. See Rule 10D-6.049.1
Septic Tanks and Drainfields
"Alternative system" means "any approved onsite sewage treatment and disposal system used in lieu of, including modifications to, a standard subsurface system." Rule 10D- 6.042(3). "Standard subsurface drain field system" means "an onsite sewage system and disposal system drain field consisting of a distribution box or header pipe in a drain trench or absorption bed with all portions of the drain field side walls installed below the elevation of undisturbed native soil (see Figure 3)." Rule 10D-6.042(45).
The primary purpose of any on-site septic tank system, and ultimately, the septic tank drainfield, is the storage and dispersal of wastewater until the soil can accept it. In other
words, a drainfield is a transmission device that takes water and other liquids from a septic tank to the ground. Liquids leave the septic tank into the drainfield which is designed to store the liquid before letting it flow into the ground or soil. Mineral aggregate provides a conducive medium to spread and temporarily store the effluent.
Storage capacity refers to the amount of effluent coming out of a septic tank that will be stored in the aggregate or aggregate alternative, here the pipes, until the ground will accept the effluent.
Filtrative surface area refers to the openings (in the pipe or aggregate) that allow the water/effluent to leave the storage area and enter the soil. In the case of mineral aggregate, the openings between the aggregate provide an exit for the water/effluent into the soil. With respect to PTI's pipe product, the water leaves the holes in the pipes and travels through voids created from the ridges and valleys of the pipes and enters the soil.
An alternative system is evaluated by how the alternative system compares in function (storage capacity and filtrative surface area) to mineral aggregate.
In November 1998, the Department defined "reduction" for the first time to mean any change in the actual bottom area size of the drainfield or a change in the footprint of a
drainfield. For example, if a product system is 33-inches wide, it would have a reduction because it is less than 36 inches wide. Prior to November 1998, reduction referred to a reduction in linear feet, rather than total trench area or footprint.
Thus, if 80 feet of an alternative product could function as well as a 100-foot trench of aggregate, a reduction of 20 feet would occur. PTI did not ask for a reduction in drainfield linear footage, and in particular, regarding the 9-pipe system. The Approval Process
On or about April 21, 1995, PTI submitted a letter to the Department which apparently requested approval "to utilize both the 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems." (Petitioner Exhibit 2.) This letter is not part of the final hearing record, but is reflected in the Department's May 24, 1995 letter from Paul Booher, P.E., to Fred Atchley, on behalf of PTI.2 (The quoted language is from the May 24, 1995 letter.)
In the May 24, 1995, letter, the Department requested PTI to provide additional information to assist the Department in its evaluation of PTI's request. In part, the Department stated that there are three mechanisms that affect the performance of the infiltrative surface, i.e., chemical, biological, and physical, and that "[b]iological, and perhaps
other physical (soil size) considerations, affect the performance of drainfield systems."
By letter dated July 7, 1995, PTI's engineer, John E. Garlanger, Ph.D., P.E., a principal with Ardaman & Associates, Inc., provided PTI, to the attention of Mr. Atchley, a letter/report which responded to the Department letter of
May 24, 1995. Dr. Garlanger stated in part: "As requested, Ardaman & Associates, Inc. has prepared cross-sectional drawings showing the dimensions associated with the installation of a 9- pipe and 13-pipe Rockless Drain Field System (PTI System) in both mound trench and subsurface trench drain field system." In addition to the letter/report, Dr. Garlanger provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. (Joint Exhibit 1.)
The July 7, 1995, drawing depicts the 9-pipe system and 13-pipe system. The 9-pipe system consists of nine four- inch diameter corrugated polyethylene pipes. Four pipes are placed on top of five pipes and one of the four pipes is a distribution pipe. The nine pipes are bundled together, are
8.63 inches in height and 23.25 inches in width, and depicted within a two-foot wide trench. Note 4 of 6 on the drawing indicated that the "ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY
UP TO 10 % DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES."
(The same drawing also illustrates the 13-pipe system with six pipes placed on top of seven pipes and bundled. The 13-pipe system is 8.63 inches in height and 32.375 inches in width and depicted within a three-foot wide trench. Note 4 is also referenced. (Joint Exhibit 1.))
Dr. Garlanger provided six notes to the July 7, 1995 drawing, as follows:
1.) STORAGE VOLUME BENEATH BOTTOM OF 0.75- INCH DIAMETER PERFORATIONS IN DISTRIBUTION PIPE FOR 9-PIPE SYSTEM IS GREATER THAN 1180
in3/ft (5.1 gal/ft) [1190 in3/ft (5.2 gal/ft)] AND FOR 13-PIPE SYSTEM IS GREATER
THAN 1690 in3/ft (7.3 gal/ft) [1710 in3/ft (7.4 gal/ft)]. THIS COMPARES WITH A STORAGE VOLUME OF 660 in3/ft (2.8 gal/FT) FOR CONVENTIONAL 2-FOOT WIDE AGGREGATE-FILLED
TRENCH AND 1000 in3/ft (4.3 gal/ft) FOR A CONVENTIONAL 3-FOOT WIDE AGGREGATE-FILLED TRENCH.
2.) TOTAL AVAILABLE STORAGE VOLUME WITHIN
9-PIPE SYSTEM IS 1985 in3/ft (8.6 gal/ft) [2070 in3/ft (8.9 gal/ft)] AND WITHIN 13-PIPE
SYSTEM IS 2910 in3/ft (12.6 gal/ft) [2980 in3/ft (12.9 gal/ft)]. THIS COMPARES WITH A TOTAL STORAGE VOLUME OF 1185 in3/ft (5.13
gal/ft) [1200 in3/ft (5.2 gal/ft)] FOR 2-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM AND 1790
in3/ft (7.75 gal/ft) [1800 in3/ft (7.8 gal/ft)] FOR A 3-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM.
3.) THE BOTTOM AREA AVAILABLE FOR FILTRATION IS GREATER THAN 160 in2/ft FOR THE 9-PIPE SYSTEM AND GREATER THAN 220 in2/ft FOR THE 13-PIPE SYSTEM. COMPARABLE BOTTOM AREAS FOR AGGREGATE SYSTEMS ARE 100 in2/ft FOR A 2- FOOT TRENCH AND 150 in2/ft FOR A 3-FOOT TRENCH.
4.) ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10% DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES.
5.) PERFORATIONS [IN DISTRIBUTION PIPE] ARE SPACED 4" ON CENTER. PERFORATION AREA IS
2.65 in2/LINEAL FOOT.
6.) EITHER OF THE UPPER PIPES IN THE DISTRIBUTION PIPE BUNDLE MAY BE USED FOR THE DISTRIBUTION PIPE. THE LOWER PIPE SHALL NOT BE USED FOR THE DISTRIBUTION PIPE. [THE DISTRIBUTION PIPE SHALL BE MARKED WITH A REFERENCE LINE TO ORIENT THE PERFORATIONS. THE DISTRIBUTION PIPE SHALL BE COUPLED BETWEEN EACH BUNDLE TO PROVIDE A CONTINUOUS LENGTH OF PIPE.]
(The language appearing in brackets appears in the revised drawing, Joint Exhibit 2, submitted by PTI with Dr. Garlanger's December 8, 1996, letter, DOH Exhibit 4.)
In his July 7, 1995 letter to PTI, Dr. Garlanger, in responding to Mr. Booher's letter of May 24, 1995, stated in part:
Explain how the pipe bundles fulfill the requirement for a 12-inch deep drain field?
Paragraph 10D-6.056(3)(e) requires the mineral aggregate material have a total depth of at least 12 inches and that the distribution pipe have a minimum of six inches of aggregate under the pipe. The purpose of the aggregate is to provide a highly conductive medium to spread and temporarily store the wastewater above the infiltrative surface between loading cycles. Twelve inches of mineral aggregate in a 2- foot wide trench can store approximately
5.25 gallons of wastewater per foot. Deducting the dead storage below the perforations in the distribution pipe, the
total available storage in a conventional 2- foot wide trench drain is 5.13 gallons per foot and in a conventional 3-foot wide trench is 7.75 gallons per foot.
The height of the 9-pipe and 13-pipe systems is 8.360 inches. The distance from the bottom of the trench to the bottom of the perforations in the distribution pipe is 4.836 inches. The total available water storage in a 9-pipe system after deducting the dead storage is 8.60 gallons per foot and in a 13-pipe system after making the same deduction is 12.58 gallons per foot.
In both cases, the total available storage is greater for the PTI system. [See Note 2 above.]
Note that the total available water storage capacity below the bottom of the perforations in the distribution pipe is also greater for the PTI System than for the aggregate system: 5.1 gal/ft for the 9-pipe system compared to 2.8 gal/ft for a conventional 2-foot wide trench and 7.3 gal/ft for the 13-pipe system compared to
4.3 gal/ft for the conventional 3-foot wide trench. [See Note 1 above.]
Because the thickness of aggregate below the pipe is less than the minimum requirement of 6 inches, we are concerned about the distribution of the effluent over the infiltrative surface, especially since the sidewalls are such an integral part of the operation of the system.
The hydraulic conductivity of both the aggregate system and the bundled pipe system is several orders of magnitude higher than that of the in situ sand that underlies the drain field. In both cases, but certainly for the PTI System, water flowing out of the perforations in the distribution pipe can spread out evenly across the infiltrative surface. The depth to which the water rises above the infiltrative surface depends
primarily on the inflow rate and the hydraulic conductivity of the organic mat that forms on the bottom of the trench.
Because of the differences in porosity between the two systems, the water increases in depth faster in the aggregate system than in the PIT System. However, the ultimate depth of water for a given inflow rate will be roughly the same for both systems, i.e., when inflow equals outflow. The only difference between the two systems is in the volume of water that is stored in the trench during each loading period; the PTI System stores more.
There should be no significant difference in the effect of the sidewalls on the infiltrative capacity of the two systems.
The effect of increasing sidewall seepage on the overall hydraulic performance of a drain field system is not large. For a 2-foot wide trench, increasing the sidewall seepage by raising the water depth from 5 to 6 inches increases the peak infiltration rate by less than 7 percent. The corresponding increase for a 3-foot wide trench is less than 5 percent.
State the area per lineal foot of bundle that constitutes the infiltrative surface.
The surface area at the bottom of the trench that is available for filtration of suspended solids in the effluent is greater than 160 in2/lineal foot for the 9-pipe system and greater than 220 in2/lineal foot for the 13-pipe system. This compares with
100 in2/lineal foot for a 2-foot wide aggregate-filled trench and 150 in2/lineal foot for a 3-foot wide aggregate-filled trench. [See Note 3 above.]
(The underlined portions are inquiries made by Mr. Booher. The language in brackets refers to the "Notes" mentioned above.)
DOH Exhibit 3 is a copy of Dr. Garlanger's July 7, 1995, letter, which also contains Mr. Booher's comments of August 14, 1995. It is noted that Dr. Garlanger discusses the calculations which appear in Notes 1, 2, and 3, in that portion of Dr. Garlanger's letter/report recited above. Mr. Booher also made notations on the July 7, 1995, drawing, with respect to, among other things, the Notes. Material here, beside Note 3, Mr. Booher wrote "Gravel Shadow? @ .35% open." (Joint Exhibit 1.) Mr. Booher also noted on Dr. Garlanger's July 7, 1995, letter/report "disagree" and other notations with respect to Dr. Garlanger's explanation under the subject discussed in Note 3 above, and under the heading "State the area per lineal foot of bundle that constitutes the infiltrative surface." (Emphasis in original.) (See Finding of Fact 16, p. 13.)
On October 15, 1996, Mr. Booher requested additional information from Mr. Atchley, as follows:
Per our conference call yesterday please provide the following for approval of the rockless pipe drainfield:
A written request.
Drawings showing the distribution and void pipe locations. Indicate the pipe bundle configurations.
If you intend to use the notes on drawing 95-104 titled "Installation guidelines-Multi-pipe rockless drainfield system" please fully include and explain the calculations, including drawings with the areas calculated shown by shading.
Explain comparison calculations. For example, gravel percent voids used,
effective gravel depth, percent assumed for gravel shadowing and how determined, percent used for pipe shadowing and how determined.
If the distribution pipes are of different material than the void pipe please so indicate.
Reference the applicable ASTM standard for all materials.
Below item 6, the following handwritten note (by Mr. Booher) appears: "Fred-Don't get optomistic [sic]-we are attempting to define 'gravel equivalent.'" (Joint Exhibit 5.)
In response to Mr. Booher's October 15, 1996, request for additional information, on December 8, 1996, Dr. Garlanger provided a two-page letter, and Attachment 1 to Mr. Atchley. Attachment 1 provided "Calculations for Storage Volumes and Infiltration Areas for Multi-Pipe Rockless System and Conventional Gravel Drain." Material here, Attachment 1 contained a summary of Dr. Garlanger's conclusions (and the actual calculations) comparing PTI's multi-pipe system, 9-pipe and 13-pipe, to 24 and 36-inch wide gravel-filled trenches, regarding three parameters: storage volume below holes in the distribution pipe; filtration area; and total storage volume in the system. The specific calculations and illustrations are provided, including "area and volume calculations," in Attachment 1 on pages 1-10. (DOH Exhibit 4 and Joint
Exhibit 4.)
Dr. Garlanger also provided comparison calculations responding to item 4 in Mr. Booher's October 15, 1996 letter (see Finding of Fact 18) as follows:
Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined.
The comparison calculations are presented in Attachment 1. The gravel porosity was calculated based on a typical dry density for loosely placed FDOT No. 57 stone of 110 pcf and a specific gravity for limestone of 2.8, resulting in a calculated porosity of approximately 35 percent. For a conventional gravel-filled trench, the area available for filtration was calculated as the total area of the gravel times porosity, i.e., the percent assumed for gravel shadowing was 100-35=65 percent. For the multi- pipe rockless drain, the contact between the bottom of each pipe and the ground surface was taken as 2 inches per lineal inch of pipe which provides sufficient bearing area to support the overburden pressure.
Computation of equivalent storage in the gravel assumed a minimum of 6 inches of No. 57 stone beneath the invert of the pipe and a distance of 0.83 inches from the invert of the pipe to the bottom of the drain holes.
(Emphasis added.) (Mr. Booher's request is underlined before Dr. Garlanger's response.)
Dr. Garlanger also provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. This drawing reflects general revisions of October 11, 1995, and December 6, 1996, to the original drawing dated July 7, 1995, which accompanied Dr. Garlanger's July 7, 1995, letter to Mr. Atchley. See Findings of Fact 14-15.
Six "Notes" were presented in the December 6, 1996, drawing revisions, with some changes made to Notes 1, 2, 5, and
6 which do not appear to be material. See Finding of Fact 15.
No changes are made to Notes 3 and 4. Material here, Note 3 pertains to "the bottom area available for filtration" and Dr. Garlanger's calculations showing the 9-pipe system comparing more favorably (equal to or greater) to a 24 and 36-inch (two and three feet wide, respectively) wide aggregate (gravel) trench without any changes in response to Mr. Booher's
August 14, 1995, comments and October 15, 1996, request for additional "comparison calculation" and explanation regarding "gravel shadowing." (Notes 1-3 are derived from the calculations appearing in Attachment 1, pages 1-9.)
Dr. Garlanger's submissions indicated that one linear foot of the 9-pipe system is equal to or greater than three square feet of gravel. Also, the representation that the 9-pipe system fits within a 24-inch trench does not relate to equivalency. See Finding of Fact 36.
Dr. Garlanger's December 8, 1996, letter, with Attachment 1, and the revised drawing, were forwarded to Mr. Booher with a cover letter from Mr. Atchley, dated December 11, 1996. Mr. Atchley stated in his letter:
Enclosed are the drawings and calculations you requested. The "numbers" add up
favorably. I look forward to your response and anticipated approval based on this information. Please notice the difference in volume (total capacity), porosity and filtrative surface area. Based on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time. We do ask that the bed installation constraint be removed from our acceptance letter.
There seems to be more and more bed type installations even though the FAC 10D-6 clearly states that a trench system is the preferred method. Consequently, we will be requiring that certified installers of our systems employ a method of back filling that will insure against collapse of any part of the system. This method would also have to provide within reason, a guaranty against operating any equipment onto the drain field area until sufficient cover has been established. After 10 to 12 inches of cover has been established we ask them to mark the bed area with stakes and flagging to serve as a warning to other sub-contractors such as the sod installers and the finished grade tractor operator.
If there are any questions please call me at (407) 298-5121.
(On January 13, 1997, Mr. Atchley also sent Mr. Booher a similar letter, but also included some additional data regarding 1996 sales, including but not limited to average system size per square foot, the number of active installers, installations per month.)
On January 14, 1997, Mr. Booher issued the following approval letter to Mr. Atchley:
Dear Mr. Atchley:
We have reviewed the engineering drawings dated 07/07/95 with revision 2 dated 12/06/96 and data prepared and sealed by Ardaman & Associates dated December 8, 1996, and received in this office on December 16, 1996. Your request for alternative drainfield system approval letters dated December 11, 1996, and January 13, 1997, have also been reviewed.
The PTI nine pipe bundle and PTI thirteen pipe bundle Multi-Pipe Rockless Drainfield Systems are hereby approved for use in the State of Florida. We have concerns about the total effective sidewall contact surface area, especially when systems are installed with no fall. We also have concerns regarding the structural integrity of the pipe bundle systems when used in large bed applications.
Nevertheless, approval is granted based on the design and recommendations submitted by your professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations.
Except as herein noted, all systems shall be installed in accordance with sections 381.0065-381.0067 Florida Statutes, and all rules in Chapter 10D-6, Florida Administrative Code (FAC). All installations shall be sized and installed meeting all rules in Rule 10D-6, FAC and shall also meet the following conditions:
All licensed septic tank contractors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation.
Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff.
Both the 9 and 13 pipe bundle systems can be installed in subsurface, filled, or mound trench or bed systems. In bed systems the maximum centerline to centerline spacing of the distribution pipe shall be 36 inches.
The distribution piping may be used to house low pressure distribution networks.
A copy of the applicable limited warranty shall be provided to each homeowner/builder.
Department approval of any alternative system application or any other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer or the registered septic tank contractor if an engineer didn't design the system is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations.
If you have any questions please call us at (904) 488-4070.
(Emphasis added.) This letter was accompanied by a facsimile sheet which indicated, in part, that the Department intended to "notify the 67 counties within the week."
On January 29, 1997, Mr. Booher authored an Interoffice Memorandum which was issued from John Heber, Chief, On-Site Sewage Program, Mr. Booher's supervisor at the time, to
the County Health Department Director/Administrator. (Joint Exhibit 11.) This Interoffice Memorandum provided in part:
The PTI 9 pipe and 13 pipe "Multi- Purpose Rockless Drainfield Systems" have both been given alternative systems approval for use in Florida. The systems are to be installed in accordance with drawing file number 95-
104 dated 07/07/95, revision 2 dated 12/06/96, copy attached.
Except as hereby noted, systems shall be installed in accordance with sections 381.0065 - 381.0067, Florida Statutes, and all rules in Chapter 10D- 6, Florida Administrative Code (FAC).
The following conditions apply:
The 9 pipe system shall be rated at 1 linear foot equals 2 square feet of drainfield area.
The 13 pipe system shall be rated at 1 linear foot equals 3 square feet of drainfield area.
The 9 pipe and 13 pipe bundle systems may be installed in subsurface, filled or mounded trench or bed applications. Dosing will be acceptable when used to overcome a gravity situation. Pressurized systems shall be designed and installed in accordance with Chapter 10D-6, Florida Administrative Code. Please be reminded that certain pressurized dosing systems must be designed by engineers registered in the State of Florida. For designs requiring the use of smaller diameter pipe (either screw joint or glue joint), the 9 pipe and 13 pipe systems distribution pipe shall house the pressurized pipe system.
All licensed septic tank contactors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation.
Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff.
A copy of the applicable limited warranty shall be provided to each homeowner/builder.
Department approval of any alternative system application or an other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer (or the registered septic tank contractor if an engineer does not design the system) is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations.
If you have any questions, please call me or Paul Booher, P.E., at (904) 488-4070, or SC 278-4070.
(Emphasis in original.)
On March 13, 1998, the Department issued a document entitled "Onsite Sewage Treatment and Disposal Systems Alternative Drainfield Products." This document describes
several product names including PTI's product as follows: "PTI 'NPRDS' 9 ea.- 2-tier 13 ea.-2-tier." The engineer of record is listed as Ardaman and Associates, and the type of permit issued is referred to as "Alternative Status" along the same line as "PTI 'MPRDS"" and "No reduction in area" along the line "9 ea.-2 tier." Mr. Everson may have seen this chart prior to seeing the November 27, 2000, chart mentioned below. But, the mention of no reduction would have been consistent with his understanding that reduction referred to a reduction in linear feet and PTI did not request a reduction in linear feet.
On November 27, 2000, an employee of the Department prepared a similar chart which included a description of product names and included the same PTI product. However, under the heading "Type of Permit Issued and Sizing Criteria," the following language appears:
PRODUCT NAME DESCRIPTION | SUBMISSION DATE | APPROVAL DATE | CPHU NOTIFICATION DATE | ENGINEER OF RECORD | TYPE OF PERMIT ISSUED and SIZING CRITERIA |
*** | *** | *** | *** | *** | *** |
PTI "MPRDS" 9 ea.-2 tier | 12/06/96 | 12/14/96 | 01/15/97 | Ardaman and Associates | 1 linear foot of product = 2 sq ft of mineral aggregate |
13 ea.-2 tier | 1 linear foot of product = 3 sq ft of mineral aggregate |
On February 26, 2001, the Department issued a similar chart which contained the same information regarding PTI as the November 27, 2000, chart, which appears above.
All of the charts were designed to provide guidance to the local health departments regarding the alternative drainfield systems approved in the State of Florida and the ratings, e.g., equivalency, assigned to each. See Findings of Fact 26-28.
The November 27, 2000, and February 26, 2001, charts described PTI's 9-pipe system approved by the Department on a one-to-two square foot equivalency to mineral aggregate. In late 2000, while working with a Department representative on an industry presentation, Mr. Everson, vice president of PTI, discovered the November 27, 2000, chart mentioned above. Mr. Everson believed this representation to be incorrect and reported it to Michael Maroschak, the president of PTI. Discussions transpired between representatives of PTI and the Department.
Ultimately, the Department implicitly decided that the Department had approved PTI's 9-pipe system, consistent with these charts. On March 18, 2003, the Department advised PTI in writing that it "stands by its previous decisions on the matter." PTI then filed its Petition challenging this agency action.
Resolution of the Controversy
PTI has developed various pipe configurations to serve as alternative drainfield systems. PTI requested the Department
to approve its 9-pipe and 13-pipe bundle Multi-Pipe Rockless Drainfield Systems in or around April of 1995. The 9-pipe system is the subject of this proceeding.
As early as May 1995, the Department understood that PTI requested approval to utilize both PTI's 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems. Over the course of over a year and a half, in support of its approval request and in response to questions posed by the Department, PTI, by and through Dr. Garlanger, PTI's registered Professional Engineer, submitted an engineering drawing (signed and sealed), as revised, and specific specifications and calculations to indicate that one linear foot of the 9-pipe system compared favorably, on paper, with a conventional three-foot wide, 12-inch deep (three square feet) aggregate system.
The Department raised questions regarding PTI's proposal to which PTI, and specifically Dr. Garlanger, responded. During the approval process, the Department raised issues related to "gravel shadowing" and Dr. Garlanger's calculations regarding the "bottom area available for filtration." See, e.g., (DOH Exhibit 3, p. 2; Joint Exhibit 1.)
Dr. Garlanger responded to these inquiries. See, e.g., (DOH Exhibits 3 and 4; Joint Exhibits 1 and 2.) Dr. Garlanger has been a registered Professional Engineer in the
State of Florida since 1974 and has served as vice-president for Ardaman & Associates and chief engineer since 1975. He was accepted as an expert in the areas of hydrology, hydro-geology, and geotechnical engineering. Dr. Garlanger prepared and signed and sealed the engineering drawings and all comparative data submitted by PTI with its approval request.
Dr. Garlanger's engineering drawings, including the "Notes" as revised, and calculations indicated favorable (equal to or greater than) comparisons of one linear foot of PTI's 9- pipe system with two and three square feet of aggregate (gravel). The fact that the 9-pipe system fits within a 24-inch or two-foot wide trench does not affect its equivalency to three square feet of aggregate (gravel) with respect to the three parameters in Notes 1-3 and in the calculations referred to in Attachment 1. See Finding of Fact 22.
During the final hearing, the Department, consistent with written comments made during the approval process, suggested that the "gravel shadowing" or "a shadowing technique" that occurs with alternative systems to compare their infiltrative surface area (bottom area available for filtration) to aggregate, has never been used by the Department "as an evaluator." Mr. Booher3 explained that this technique "reduces the size of the actual area, the length times the width of the drain field [sic], by a cross sectional area of interrupting
gravel, saying the actual absorption area is reduced as a result of the gravel that is sitting on the infiltrative surface and reduces the total area, absorptive area, to about one-third of the actual total area. And that's what [he] disagree[s] with."
Mr. Booher also stated that he would not approve a 9- pipe system at a three square-foot equivalent because of biological loading. He explained his position in some detail.
In the May 24, 1995, letter to PTI, the Department stated that it was "interested in verifying that the drainfield environment will support aerobic treatment over the long term." This question expressed the Department's concern regarding "biological loading and problems that can develop. Dr. Garlanger responded to this inquiry and his explanation was accepted by Mr. Booher "because everyone claims it." See (DOH Exhibit 3; Petitioner Exhibit 2, p. 3.)
The Department also contended that it did not approve PTI's request because PTI did not ask for a "reduction." Mr. Booher explained during the final hearing that Dr. Garlanger's drawings (Joint Exhibits 1 and 2) referred to "the 9-inch pipe and the 24-inch trench and the 13-inch pipe and the 36-inch trench because that note 4 says that if you put them in accordance with this document, then you will be a full 24-inch, 9-inch, 24-inch equivalent and 36-inch, 13-pipe equivalent" and that he "needed to restrict [his] review to no reduction in
area." Mr. Booher also commented on Note 3, for which he disagreed during the approval process. It did not matter to Mr. Booher that Dr. Garlanger used "the shadow masking technique because [PTI] was not asking for any reduction." He considered Note 3 as "just more information, as opposed to an evaluation for determination of the sizing." In other words, according to Mr. Booher, the Department's approval letter of January 14, 1997, did not address the idea of using the 9-pipe system in a 36-inch trench" because PTI "asked for no reduction." 4
The Department's position is also based, in part, on Mr. Atchley's cover letters of December 11, 1996, and January 13, 1997, in which Mr. Atchley, referring to Dr. Garlanger's drawings and calculations, that "[b]ased on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time."
The weight of the evidence indicates that the reference to the "40%" pertains to the 13-pipe system, which would have been a large reduction, and not the 9-pipe system. The 9-pipe system qualified for only a minimal reduction which was not requested. Also, PTI did not request a reduction in linear feet.
There is a conflict in the evidence regarding what PTI requested. Mr. Atchley opines that PTI did not request approval of the 9-pipe system such that one linear foot of product is
equivalent to three square feet of aggregate. Mr. Booher agrees and also opines that the Department did not approve this configuration. Mr. Everson takes the opposite view as does Dr. Garlanger. The conflict is resolved in PTI's favor.
While Mr. Booher's comments appearing of record, regarding PTI's request for approval and the Department's approval, and which were explained more fully during the final hearing, are credible, the fact remains that the Department granted approval "based on the design and recommendations submitted by [PTI's] professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations." (Joint Exhibit 6.) The Department did not take exception in its approval letter, as it did during the final hearing, to PTI's submissions by Dr. Garlanger, PTI's professional engineer.5 Dr. Garlanger's submissions and his explanation of his submissions are credible. The weight of the evidence indicates that PTI requested approval for and the Department approved PTI's 9-pipe system on an equivalency of one linear foot of product to three square feet of mineral aggregate.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. Standing
PTI has standing to challenge to Department's action of March 18, 2003.
Burden of Proof
This is a de novo proceeding designed to formulate final agency action. PTI challenges the Department's action of March 18, 2003, which effectively rejects PTI's contention as to what the Department approved on January 14, 1997, regarding PTI's request for approval of its 9-pipe alternative drainfield system.
Prior to the final hearing, given the unique nature of this case, it was resolved that both parties would have the burden of proof. See Order September 19, 2003.
As a general rule, "the burden of proof, apart from statutes, is on the party asserting the affirmative of an issue before an administrative tribunal." Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977). If PTI were an applicant for a license, for example, PTI would have the burden of proof. Florida Department
of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). If this were a disciplinary proceeding involving a license, for example, the Department would have the burden of proof. Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). This case does not involve either situation and no statute designates which party has the burden of proof here. Nevertheless, it is concluded that PTI, as the Petitioner, has the ultimate burden to prove its case by a preponderance of the evidence. Balino v. Department of Health
and Rehabilitative Services, supra. See also § 120.57(1)(j), Fla. Stat.
Resolution of the Controversy
The issue presented in this proceeding is difficult to resolve because it requires an examination of events which occurred from on or about April 1995 through January 14, 1997.
Technical documents were submitted to and evaluated by the Department's professional staff. PTI's professional engineer provided the Department with written explanations throughout the approval process, including responses to Department concerns. Some concerns are stated in the Department's approval letter. But none of those concerns pertain to the issue raised in this proceeding.
PTI proved by a preponderance of the evidence that the Department approved its 9-pipe system such that one linear foot of the PTI 9-pipe system is equivalent to three square feet of mineral aggregate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Health enter a final order concluding that Plastic Tubing Industries, Inc.'s 9-pipe bundle Multi-Pipe Rockless Drainfield System, such that one linear foot of PTI's 9-pipe system is equivalent to three square feet of mineral aggregate, is approved for use in the State of Florida.
DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003.
ENDNOTES
1/ Unless otherwise indicated, all citations to the Department's rules are to Chapter 10D-6, DOH Exhibit 1, which applied to PTI's application for its alternative drainfield system. This particular Chapter was amended and replaced with Chapter 64E-6, Florida Administrative Code, DOH Exhibit 2, after the Department's January 14, 1997 approval of PTI's alternative drainfield system.
2/ Mr. Atchley worked for PTI for approximately 16 years. His most responsible position was that of sales manager for four or five years. During the PTI product approval process,
Mr. Atchley reported regularly to Mr. Maroschak. Mr. Atchley discussed PTI's request with Mr. Booher, among other Department employees. Mr. Atchley does not believe PTI requested approval such that one linear foot of the 9-pipe system is equivalent to three square feet of mineral aggregate. In or around 1998, he was sued by PTI regarding the ownership of the 9-pipe design and did not prevail.
3/ Mr. Booher has worked continuously as an engineer since graduating from the University of Florida in 1962. He is registered as a Professional Engineer in the State of Florida. Mr. Booher has worked for the Department since January 11, 1995. He handles all of the engineering functions associated with the on-site sewage programs in the Bureau of On-Site Sewage. Since 1995, he handled all of the alternative drainfield product approval requests, 15 to 16.
4/ Mr. Booher stated that in 1997, the Department used the "total bottom area" to establish alternative drainfield sizing. In particular, Mr. Booher relied on Rule 10D-6.042(1) definition of "[a]bsorption surface - the total surface area of soil at the bottom of the drainfield" and that part of Rule 10D-6.048(5) which relates to [t]he minimum absorption area for standard subsurface drainfield systems. . . ." The Department considers "reduction" and "equivalency" the same because it sizes alternative drainfield systems by area not linear footage.
5/ The Department's Interoffice Memorandum of January 29, 1997, supports the Department's position that it approved PTI's 9-pipe system "rated at 1 linear foot equals 2 square feet of drainfield area." But, this document, memorializing what the Department believed it approved, was not part of the
Department's approval letter or sent to PTI and should not be construed to describe the nature and scope of the Department's approval.
COPIES FURNISHED:
Julie Gallagher, Esquire Greenberg Traurig, P.A.
101 East College Avenue Post Office Drawer 1838
Tallahassee, Florida 32302-1838
Richard P. McNelis, Esquire Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399
R.S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of 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 | Document | Summary |
|---|---|---|
| Dec. 26, 2003 | Agency Final Order | |
| Dec. 11, 2003 | Recommended Order | Petitioner proved by a preponderance of the evidence that Respondent, in January 1997, approved its request to use an alternative drainfield system such that 1 linear foot of Petitioner`s 9-pipe system is equivalent to 3 square feet of mineral aggregate. |
