STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DANIEL M. SEVICK, | ) | |||
) | ||||
Petitioner, | ) | |||
) | ||||
vs. | ) ) | Case | No. | 08-2552 |
DEPARTMENT OF HEALTH, | ) ) | |||
Respondent, | ) ) | |||
and | ) ) | |||
NO MOUNDS SYSTEMS OF FLORIDA, | ) | |||
INC., AND SAVE OUR SUWANNEE, | ) | |||
INC., | ) | |||
) | ||||
Intervenors. | ) | |||
| ) |
RECOMMENDED ORDER
This cause came on for formal proceeding and hearing before
P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Tallahassee, Florida, on September 16 and 17, 2008. The appearances were as follows:
APPEARANCES
For Petitioner: Kenneth J. Plante, Esquire
Tana D. Storey, Esquire Brewton Plante, P.A.
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
For Respondent: Mark Dunn, Esquire
Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Lucy M. Schneider, Esquire Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399
For Intervenor: Save Our Suwannee, Inc.
John M. Lockwood, Esquire Rutledge, Ecenia & Purnell, P.A.
215 South Monroe Street, Suite 420 Tallahassee, Florida 32301
For Intervenor: No Mound Systems of Florida, Inc.
Kenneth J. Plante, Esquire Tana D. Storey, Esquire Brewton Plante, P.A.
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
STATEMENT OF THE ISSUES:
The issues to be resolved in this proceeding concern whether an application to construct and operate an on-site sewage treatment and disposal system (OSTDS), within the Suwannee River flood plain, meets the requirements of Section 381.0065(4)(t), Florida Statutes (2007), and relevant Department of Health (Department) rules, and whether the department applied an un-adopted rule in denying the permit application.
PRELIMINARY STATEMENT
This cause arose concerning the denial of the Petitioner's application to construct an OSTDS on Lots 12 and 13 in the Log Landing Subdivision in Dixie County, Florida. Those lots are
located adjacent to the Suwannee River. On July 23, 2007, a letter was issued by the Department denying the permit application based upon the following statement:
Our engineer has reviewed your proposal. Based on the site elevation submitted (16.8 feet) and the 10 year flood elevation (22 feet) the proposal is not in compliance with 381.0065(4)(t), Florida Statutes, and must be denied.
Thereafter a timely Petition in Opposition to the denial was submitted by the Petitioner, seeking an administrative hearing. The Petition was filed August 16, 2007, and by Order of September 21, 2007, the Department assigned the Petitioner to an appointed presiding officer to conduct an informal administrative hearing.
On January 4, 2008, the Petitioner filed an Amended Petition for Administrative Hearings, which included a challenge pursuant to Section 120.57(1), Florida Statutes (2007), concerning its position that the Department had followed and applied an un-adopted rule in the process of its denial of the permit application. On May 14, 2008, the Department entered an Order Granting the renewed Motion for Leave to file an Amended Petition and then referred the Amended Petition to the Division of Administrative Hearings. The matter was assigned to an administrative law judge and thence transferred to the
undersigned administrative law judge, and this proceeding ensued.
Prior to the hearing, Petitions to Intervene were filed by Save our Suwannee, Inc. (SOS), the Suwannee River Water Management District (the District), the Florida Department of Environmental Protection (DEP), and No Mounds Systems of Florida, Inc. (No Mound).
Thereafter, an amended Petition to Intervene was filed by SOS. The Petitions to Intervene filed by SOS, DEP, and the District were denied based upon lack of standing. No Mound's Petition for Leave to Intervene was granted, based upon there being no objection thereto. SOS was granted leave to file a Second Amended Petition to Intervene to demonstrate how it and its members' substantial interests could be affected by the permit application and therefore why it and its members had standing.
The Second Amended Petition to Intervene by SOS was filed pursuant to an Order denying the Amended Petition to Intervene by SOS, entered by the undersigned on the day prior to the hearing, because the Amended Petition was filed immediately prior to the hearing. This resulted in the Second Amended Petition to Intervene by SOS being timely filed on September 29, 2008, after the conduct of the hearing. Because of this sequence of events concerning SOS's intervention, SOS was
allowed to proffer its testimony at the hearing, as to its standing, and as to its position regarding the merits of the permit application, with the understanding by all parties that should the Second Amended Petition to Intervene be granted, (which it was) that the proffered evidence by SOS would become its actual evidence to be considered in support of its second amended intervention petition. This was done in order to avoid a bi-furcated hearing situation, with the inherent delay involved in allowing SOS to put on its case at a later time, if it were allowed to file a Second Amended Petition to Intervene, which it was. Thus the hearing, including SOS's full participation as an intervenor, under the above-described circumstances, was concluded on the above date.
The cause came on for hearing as noticed. The Petitioner presented the testimony of Allen F. Hassett, Professional Engineer (PE), accepted as an expert in the field of Sanitary and Waste Water Engineering: Harry Wild; PE, who was accepted as an expert in onsite sewage treatment and disposal systems (OSTDS) design and environmental engineering; and Steven Sayko, Professional Geologist (PG), who was accepted as an expert in the field of Hydrogeology. The Petitioner's Exhibits 1 through
16 were admitted into evidence.
The Department presented the testimony of Gerald Briggs, Chief of the Bureau of Onsite Sewage Program; Samuel Averett;
and Paul Booher, PE, of the Bureau of Onsite Sewage Programs, of the Department of Health. The Respondent's Exhibits 1 through
12 and 15 through 17, as well as 20A, B, and C were admitted into evidence.
The Respondent's Exhibits 1 through 10 and 15 through 17 are maintenance reports which are routinely submitted to the Department on a quarterly basis and relate to various no mound systems in Florida. These were objected to by the Petitioner on relevancy and hearsay grounds. It was determined that they come within the business records exception to the hearsay rule and the hearsay objection was overruled. They were determined to be relevant, subject to briefing on whether the prejudice out- weighed the relevance. It is determined that these exhibits are relevant and they are admitted. They will be weighed and considered in terms of their remoteness in time from the design and installation of the proposed system, and in terms of any innovations which have been brought forward as to no mound systems since the time of a particular maintenance report regarding a no mound system in these exhibits. Other factors such as location and elevation, which render the systems addressed by some of these maintenance reports to be different in character, construction and operational parameters from the system proposed, are deemed to detract from the substance and materiality of such reports.
Upon conclusion of the proceeding, the parties had the evidence transcribed and elected to submit proposed recommended orders. The Proposed Recommended Orders were timely submitted after the Order was entered on the Second Amended Petition for Intervention by SOS, which closed the record. Proposed Recommended Orders were submitted by the Petitioner, the Respondent, and by the Intervenors. All have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
Daniel Sevick is the owner of two lots, consisting of a total of 1.24 acres, within the flood plain of the Suwannee River. The lots are lots 12 and 13 in "Log Landing Subdivision." The Petitioner applied for a construction permit for the installation of an OSTDS on that property. The application for the permit was submitted to the Dixie County Health Department, which forwarded it to the Department of Health for review, in accordance with Section 381.0065(4)(j), Florida Statutes (2007). The Respondent, Department of Health, (Department) is an Agency of the State of Florida charged with implementing and enforcing the provisions of Chapter 381, Florida Statutes, and Florida Administrative Code Chapter 64E. Among its duties are the review of and issuance of permits for construction of OSTDS.
The permit application was reviewed by the Department and was subsequently denied, based upon the following reasoning contained in the denial letters:
Our engineer has reviewed your proposal. Based on the site elevation submitted (16.8 feet) and the 10 year elevation (22 feet) the proposal is not in compliance with 381.0065(4)(t), Florida Statutes, and must be denied.
Certain of the facts have been stipulated to by the parties. The parties thus agree that the 10-year flood elevation for the property is 22 feet; the site elevation of the property is 16.8 feet and the two-year flood elevation for the property is 16.00 feet. The bottom of the proposed drainfield is at an elevation of 14.30 feet. The Petitioner thus proposes to install the OSTDS system with the bottom of the drainfield
1.70 feet below the two-year flood elevation. The proposed system consists of a conventional septic tank system connected to a "no mound" drainfield system.
No Mound System
The no mound drainfield system is an innovative drainfield system. No Mound was granted a permit for its design as an "innovative system" by the Department, initially authorizing installation of five systems in Florida, starting on December 23, 1998. An "innovative system" is defined as an "onsite sewage treatment and disposal system that, in whole or
in part, employs materials, devices, or techniques that are novel or unique and that have not been successfully field tested under sound scientific and engineering principles under climatic and soil conditions found in this state." See § 381.0065(4)(2)(g), Fla. Stat (2007). Innovative systems, by definition are considered to be "performance-based systems" which have additional requirements placed on them depending on the performance level of the effluent treatment.
The design of the OSTDS system submitted with the permit application included several changes intended for this particular property, based upon discussions between the Petitioner's representatives and the Department. The changes include relocation of the OSTDS and drainfield to the highest elevation of the property; addition of a solar-recharge battery alternative power supply; the obtaining of additional information with regard to soil borings; and the performance of an evaluation to confirm the capacity of the soil anchors in saturated soil. The OSTDS, including the no mound drainfield, was designed by Harry Wild, PE, specifically for the Petitioner's property. The proposed OSTDS is considered by the Department to be an "engineer-designed" system.
Over approximately the last 10 years No Mound has been issued innovative permits authorizing the installation of approximately 250 no mound drainfield systems.
The no mound system is an innovative system which does not employ a conventional drainfield. Instead, based upon principles of physics and engineering, the drainfield system is designed to be installed underground, with air pumped into the system to depress the groundwater elevation or "water table," so as to provide the required separation or distance between the absorption surface of the drainfield (bottom of the drainfield) and the groundwater. In Florida the separation required is 24 inches. The drainfield system is designed to retain air pumped into it, for depression of the groundwater level, by being covered with pieces of geo-fabric and a p.v.c. membrane designed to retain air within the system under a certain level of pressure. The air pressure is designed to depress the water level of groundwater directly beneath the area of the drainfield, much like the principle of a "diving bell."
The drainfield system would be covered with two pieces of geo-fabric on either side of a 30 mill. p.v.c. membrane, the same material used as a liner for hazardous waste landfills.
The geo-fabric material protects the p.v.c. membrane from damage or puncture during construction. Once in operation the membrane is unlikely to tear under normal conditions, unless through intentional puncture with an extremely sharp implement or through some catastrophic event, such as a large tree falling on the surface above the membrane.
The membrane is held in position by a patented ballast and anchor system. The ballast material consists of pre- stressed concrete beams, spanning the width of the drainfield. At each end of each beam is a soil anchor.
The 20 pre-stressed ballast beams are held in place with 40 helically shaped screw anchors, which screw into the soil. Each anchor is intended to withstand 5,000 pounds of upward force. The screw anchors are designed to hold the concrete beams in place in saturated soil. The soil anchors are threaded with a washer and nut on both the top and the bottom of the concrete beam which prevents the beam from moving vertically, downward or upward, so that the beam can resist any uplifting force.
Air is pumped into this system by a continuous air pump which would be wired into the power system of the residence to be on the property. There would also be an emergency power supply. The air pressure inside the system would vary in response to the level of water outside the system whether groundwater or surface water. As the water outside the system rises or subsides, the water inside and beneath the system is supposed to remain lowered, as the pressure inside the system is designed to increase or decrease. The Petitioner maintains that the ballast system is designed to contain the pressure (air pressure) which would be required to continue to suppress any
groundwater or flood water associated with a ten-year flood event.
The system has an "air bleed," which is intended to maintain aerobic conditions in the drainfield. If surface waters overflow the top of the drainfield system in a flood event, the air bleed system is designed to continue functioning. The air would enter the soil beneath the ground surface and bubble up through any water above the ground surface. If both the primary and backup power supplies should fail, the Petitioner maintains that the air bleed would "shut off" so that no air would escape from the system and thus maintain the pressure within the system, much like a diving bell. This characteristic is designed to maintain the separation between the groundwater surface and the bottom of the drainfield in the event of a power failure.
The Department has interpreted the operative statute, Section 381.0065(4)(t), Florida Statutes (2007), as providing that the absorption surface of a drainfield for any OSTDS system cannot lie below the 10-year flood elevation, if it is located within the floodways of the Suwannee or Aucilla Rivers, unless the system meets all the exceptions contained in Section 381.0065(4)(t)1.a.b. and c., Florida Statutes. One of these exceptions requires that the bottom of the drainfield, the absorption surface, be at least 36 inches above the two-year
flood elevation for the site. The two-year flood elevation at the subject site is 16 feet. The proposed installation would have the bottom of the drainfield or absorption surface located
1.70 feet below that two-year flood elevation, thus not complying with that exception.
The applicant's system is not in compliance with the portion of paragraph (c), referenced above as an exception, concerning a system approved by the county health department, pursuant to department rule, which is "other than" a system using "alternative drainfield materials." This system would apparently use so-called "alternative drainfield materials."
Innovative systems are those which represent new technology that has not been completely field-tested in Florida. The Petitioner has applied for the permit as an innovative permit application, which contains a requirement that the system be replaced with an alternative system in case it fails within a five-year test period.
No mound systems are site specific, with each one being specifically designed for a particular property with its unique characteristics. There are approximately 50 no mound systems approved, permitted and operating in Florida at the present time. The evidence does not reflect which, if any, of those systems are installed below flood elevations. The drainfield portion of such a system works in the same way as a
conventional drainfield, that is, the soil and piping which lies below the membrane. The membrane system is the unique characteristic of the no mound system. Because of the membrane and ballasting system designed to retain air pressure over and in contact with the drainfield absorption surface, the system is different and more complex than the standard drainfield system, although it treats affluent in the same way.
Two significant problems arose with the installation of the first five innovative permit, no mound systems. The testimony of Sam Averett, who is a septic system contractor, described an installation of a no mound system on his own property in 1999. The system was installed in accordance with Mr. Hassett's specifications and recommendations, and he was present during the installation. Mr. Hassett testified in support of the petition in this case as an engineering expert. Within a few days or weeks the Averett system developed a problem. Apparently, with a substantial rain event, the system "floated" that is, the air pressure contained within the membrane rose to the surface of the ground, similar to a "bubble." This would have amounted to a failure to maintain the air pressure necessary to ensure that a 24-inch separation between the absorption surface of the drainfield and the groundwater table elevation was maintained. That system was re- designed and a different ballasting system or buoyancy package
was used, involving the use of "railroad iron" (rails), and plywood spanning the drainfield in order to hold the membrane beneath in place, with the whole arrangement being recovered with dirt. Thereafter, on January 1, 2003, after a substantial rainfall event, the system floated out of the ground once again. After that second failure of the Averett system, Mr. Averett installed a "hoot" system, which involves a "drip irrigation" drainfield installation, with the delivery piping and the drainfield being much closer to the ground surface or within six inches of the surface.
The system described by Jack Murray in his testimony was also one of the original five systems installed in Florida by No Mound, Inc. That system was designed to maintain a 30- inch separation between the absorption surface of the drainfield (bottom of drainfield) and the groundwater elevation or water table. According to Mr. Murray it never maintained that separation. He was aware of the lack of a 30-inch separation being maintained because of the onsite monitors installed with the system. He described the actual separation which the system provided as being only .9 feet. The onsite monitors by which he was able to observe the actual separation failed after about two years of operation. He brought the separation issue to the attention of the contractor or representative of No Mound, which patented the system and oversaw the installation. According to
Mr. Murray, however, they never satisfactorily addressed the problem. When the air pump failed, after approximately two years of operation, he called the manufacturer of the air pump and was informed that the air pump had been the incorrect type or size for the no mound system which he had installed.
Although these two referenced problems concerning the Murray system and the Averett system represent two of the first five innovative no mound systems installed in Florida, the problems associated therewith may have been corrected since, because each system installed at a given site is specifically and uniquely designed by an engineer for that site and its physical, hydrologic and operating circumstances. Thus, the referenced problems involving buoyancy or "floating-up" of the drainfield membrane system and the failure to maintain adequate pressure so as to achieve the legally-mandated 24-inch differential between groundwater elevation and the bottom of the absorption surface, may not be construed to be direct predictors of what will occur with the installation of the Sevick system. The problems do point up, however, the fact that the air pressure maintained at different groundwater levels in the system is a critical component of the system's function and also that the ballasting system and design is critical in order to maintain the integrity of the membrane system or air chamber overlying the drainfield surface, at different water levels and
conditions. This is a particular concern with regard to flood conditions.
It also true that the proposed air pressure to be maintained in the system at issue, the Sevick system, would be five pounds per square inch. Earlier systems, possibly including the Murray system, maintained a pressure of two pounds per square inch.
However, aside from the rather conclusory testimony of the Petitioner's expert witnesses, who opined generally that the air pressure and the integrity of the membrane system and ballast system would be adequate to maintain the legally- mandated 24-inch differential of unsaturated soil below the absorption surface, there was no definitive evidential showing of what air pressure would actually be necessary to perform that function adequately under all conditions. This is particularly problematic under conditions of flooding, since the proposed drainfield would be beneath both the 10-year flood elevation and the two-year flood elevation. Although there was testimony which indicated that the air pressures would vary, would increase or decrease depending upon the water levels beneath the drainfield and outside of the membrane, there was no definitive showing in the evidence as to what pressures under those varying water level conditions would still enable the 24-inch differential to be maintained. Under the Department's
interpretation of its statutes and rules, a 24-inch differential is deemed adequate and necessary for treatment of the sewage effluent entering the drainfield.
The electric power necessary for operation of the air pump which pressurizes the system would be derived from connection with the residence to be constructed on the lots. The emergency power system would be designed to accommodate situations where there is a power outage, for instance in a
storm situation. The alternative system would be dependent upon solar-rechargeable battery power. If the air pump ceased operation due to a power outage and the backup system was not adequate, or adequately charged, to operate the pump sufficiently or for a sufficient period of time to maintain the required air pressure, then the 24-inch differential might not be maintained. The evidence does not reveal a practical way to monitor the air inflow or the air pressure condition inside the membrane in the event of a power outage. The Petitioner's witnesses maintained that if there was a power outage the air bleed device would close down, thus maintaining the required air pressure (akin to a diving bell circumstance). There was no persuasive evidence, however, to show what air pressure would thus be statically maintained and whether it would maintain the required 24-inch separation.
Harry Wild was the design engineer who designed the no mound system for the Sevick property. Mr. Wild, however, was unaware, apparently, that Dr. Jeffrey Evans, a geotechnical expert and expert in the design of helical anchors for the ballast system for the Sevick property, had recommended that at least one boring be made for each site or each of the two lots to a depth of 20 feet. This was recommended in order to verify what the sub-surface conditions were, so that the conditions assumed in the system design could be verified. Mr. Wild testified that he only took borings to a depth of 10 feet.
Mr. Hassett on the other hand testified that he thought the borings had only been done to six feet. In fact, the site evaluations submitted to the Department demonstrated soil boring had been performed to a depth of six feet below ground surface, and the cross-sectional drawing indicates that the anchors, designed to hold down the beams and the membrane, would only begin approximately four feet below the ground surface.
Thus, even though Mr. Wild was the expert designer of the No mound system for the Sevick project, he was unaware of whether the ballast system was a new type of system which had been specifically designed for that property. He did acknowledge that it was the first time he had employed that type of ballast system.
In spite of the higher operating pressure, five PSI versus two PSI, to be maintained in the Sevick no mound system over that normally maintained in previous no mound systems,
Mr. Wild did not perform calculations or evaluations as to the beam strength and design requirements of the new ballast system. He did not perform calculations or evaluations that addressed the issue of membrane deflection requirements, which relates to how much the membrane would move upward under various pressures. This in turn could relate to how much downward pressure must be exerted by the anchoring system, to counteract the buoyancy of the membrane bulging upward under different pressure circumstances, associated with different water levels.
Mr. Hassett did not know what membrane deflection was acceptable for the Sevick no mound system other than "a fair amount" which he acknowledged varied "depending on the geo- synthetic or the geo-grid that was specified for that particular project." It is understandable that this is an innovative system which requires certain revisions at times before it is installed, or during the course of installation, to adapt its design to the particular site. However, the evidence presented at hearing, as shown by Mr. Hassett's testimony, and Mr. Wild's as well, in this regard, is somewhat indefinite and does not show a substantial likelihood that the membrane and concrete beam and anchor ballasting system proposed will work as planned
from a structure and strength standpoint. As Mr. Hassett testified "they will be tested before installation."
As shown by Mr. Wild's testimony, the soil of the Petitioner's lots is composed of fine sand at the installation site. There is no evidence concerning any erosion study or concerning what the erosion experience might be in a flooding situation, in order to determine the effect on the helical anchors and ballasting system in the event of floods of varying severities, including a 10-year flood.
Dr. Evans established in his deposition testimony that the helical anchors get their resistance to upward force from the sheer strength of the soil, which is a frictional value combined with the effective stress on the soil. If a certain amount of soil is eroded away, then the holding capacity of the anchors is correspondingly reduced. Dr. Evans, however, assumed that the applied load per anchor was 5,000 pounds, with the anchor handling 5,000 pounds of upward force if it was 10 feet underground. Therefore, the designers of the system would need to assure that the anchors are 10 feet underground and that the applied load is 5,000 pounds, according to Dr. Evan's testimony. He opined that if erosion of varying amounts occurred that could affect the anchors' holding capacity.
In fact, the evidence shows that the anchors or the top of the anchors may only be proposed to be installed four
feet below the surface. Therefore, the evidence does not clearly establish that the beam/anchor system is adequate to maintain the stability of the drainfield membrane system in the event of a flooding situation.
Gerald Briggs testified on behalf of the Department.
He described the growing concern that nitrogen levels in the effluent of OSTDS systems represent, in terms of potential environmental degradation of ground or surface waters, which the Department is charged with addressing by the statutory authority cited below. The no mound system, like any conventional OSTDS system, has no specific provision that would treat or reduce nitrogen levels in the effluent from the system. The 24-inch separation between the absorption surface of the drainfield and the groundwater elevation is designed to be unsaturated soil, which provides treatment of only a primary nature for essentially the public health/pathogenic components of the OSTDS system effluent (i.e. sanitary treatment).
Although there is not such a monitoring requirement, the Department has requested data from the Petitioner regarding the quality of the effluent that would leave the system. If the system were ever installed, it should be done with the condition that effluent sampling and testing of the effluent should be performed, in order to ascertain that the system operates
properly, in terms of public health and environmental degradation, on an ongoing basis.
The Petitioner's witnesses, Mr. Wild and Mr. Sayko, acknowledged that the system proposed is not infallible and there are certain risks posed by the installation. For instance, if a pump was broken then the water level would start to rise inside the no mound system, according to Mr. Sayko's testimony.
Moreover, the absorption surface in the drainfield as proposed, would likely be "subject to flooding" in a situation of power outages and erosion during a flood event. It must be remembered that the ground surface is some five feet below the 10-year flood elevation at the installation site and the absorption surface or bottom of the drainfield is over seven feet below the 10-year flood elevation. Thus, in the circumstance of power outages or flood-caused erosion, the absorption surface of the proposed drainfield could be "subject to flooding."
The Department denied the subject permit application because the site elevation is 16.8 feet and the 10-year flood elevation at the site is 22 feet. Thus, the proposal was to install the absorption surface below the 10-year flood elevation (more than seven feet below it). In denying the requested permit the Department denied it based upon its interpretation of
the subject statute, Section 381.0065(4)(t)(1), Florida Statutes (2007). It did not actually employ an un-adopted rule or "agency statement of general applicability" in making this interpretation. Rather, it interpreted the statute, applying it to the particular facts of the permit application and the situation prevailing at the proposed installation site. It was not applying an interpretation or policy statement of general applicability enforced throughout its jurisdiction, or throughout the flood plain area of the Suwannee and Aucilla Rivers, but rather was applying the statutory language and its interpretation of it to the particular site and circumstances of the proposed system and its contemplated operation.
A variance from the above-referenced statutory requirements and related rules is not at issue in this case because the Petitioner has not sought a variance. Although variances have been granted in the Suwannee River flood plain area, in accordance with Section 381.0065(4)(h), Florida Statutes (2007), the grant of such variances has usually carried the concomitant requirement of more advanced treatment of the effluent in the system to be installed, as allowed by the granted variance. Thus, an aerobic treatment unit (ATU) or performance-based septic treatment system, such as an advanced secondary treatment system (AST), as well as the use of drip
drainfields, such as the hoot system, have been required in accordance with the statute.
An ATU introduces air into the treatment unit in order to enhance the treatment and generally employ filters as well, according to witness Briggs. An AST type system reduces the biochemical oxygen demand (BOD), total suspended solids, as well as treating the nitrogen and phosphorus contents of the effluent. Historically, the Department has only approved variances in the Suwannee or Aucilla River flood plains for vacant lots with the use of ATU or AST type systems.
A drip drainfield reduces the required height of the drainfield by some 12 inches because it is only buried six inches into the soil. This is done because it is designed to be buried in the shallow root zone of trees and plants which allow trees and plants to uptake the nutrients in the effluent water and thus prevent them from being deposited in the ground or surface waters. In the Suwannee River basin area, most of the variances granted by the Department have required such drip drainfield systems.
One of the statutory considerations for granting of a variance is that the Petitioner for a variance should not have created the hardship involved, resulting in the need for the variance. The Department maintains that the Petitioner,
Mr. Sevick, has created the hardship in this case by purchasing
the lot knowing of the restrictions on OSTDS systems that were legally prevailing. The evidence, however, does not really establish that the Petitioner intentionally created the hardship by purchasing a lot knowing of all the restrictions that were in place and their effects. One can infer, for instance, that he was aware of advertisements by No Mounds, that lots in the Suwannee River basin or flood plain area could be developed by using its OSTDS system without even necessitating the use of fill. The Department's evidence simply does not establish that the Petitioner, Mr. Sevick, intended creating the hardship, on his own volition, by purchasing the lot with knowledge that the specific restrictions were in place, from a legal standpoint.
Thus it was not proven that the Petitioner is unable to establish a hardship for purposes of seeking a variance pursuant to Section 381.0065(4)(h), Florida Statutes (2007), on the basis that the Petitioner created the hardship.
As established by witness Briggs, nitrogen and phosphorus elements of OSTDS effluents are of growing concern for ground and surface waters in Florida. Nitrogen and phosphorus enhance algae growth in surface waters, which can lead to reduced dissolved oxygen content and other factors harmful to fish and wildlife. There is thus a deleterious environmental impact from nitrogen and phosphorus levels in surface waters or groundwaters, in addition to the pathogens
which can characterize effluent from OSTDS systems, related to human waste.
Advanced septic systems such as ATUs or ASTs have been required in the grant of variance-based septic system permits in flood plains of the rivers because of the potential of their being flooded and because of the locations of the systems. The Department, in consideration of its statutory charge, has sought to seek as much treatment as possible for the effluent, in such situations, in order to prevent significant degradation of ground or surface water. A no mound system is a drainfield dispersal system, so it itself poses no additional treatment capability than does a conventional OSTDS system, as established by both witnesses Wild and Briggs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).
The Department has the authority to issue permits governing installation and operation of OSTDS systems. The intent of the Legislature to that effect is set out in Section 381.0065(1), Florida Statutes (2007), concerning permitting. Therein it is provided:
LEGISLATIVE INTENT.-It is the intent of the legislature that where a publicly owned or investor-owned sewerage system is not
available, the department shall issue permits for the construction, installation, modification, abandonment, or repair for onsite sewage treatment and disposal systems under conditions as described in this section and rules adopted under this section. It is further the intent of the legislature that the installation and use of onsite sewage treatment and disposal systems not adversely affect the public health or significantly degrade the groundwater or surface water.
The following requirements are imposed by Section 381.0065(4)(t), Florida Statutes (2007), for installation of OSTDS in the floodways of the Suwannee and Aucilla Rivers:
Notwithstanding the provisions of sub- paragraph (g)1., onsite sewage treatment and disposal systems located in floodways of the Suwannee and Aucilla Rivers must adhere to the following requirements:
The absorption surface of the drainfield shall not be subject to flooding based on 10-year flood elevations. Provided, however, for lots or parcels created by the subdivision of land in accordance with applicable local government
regulations prior to January 17, 1990, if an applicant cannot construct a drainfield system with the absorption surface of the drainfield at an elevation equal to or above 10-year flood elevation, the department shall issue a permit for an onsite sewage treatment and disposal system within the 10- year flood plain of rivers, streams, and other bodies of flowing water if all of the following criteria are met:
The lot is at least one-half acre in size;
The bottom of drainfield is at least 36 inches above the 2-year flood elevation; and
The applicant installs either:
A waterless, incinerating, or organic waste composting toilet and a gray water system and drainfield in accordance with department rules; an aerobic treatment unit and drainfield in accordance with department rules; a system approved by the state health office that is capable of reducing effluent nitrate by at least 50 percent; or a system approved by the county health department pursuant to department rule other than a system using alternative drainfield materials. . . . (Emphasis supplied).
The purpose of Subsection (4)(t) is to provide additional requirements for OSTDS located in the floodways of the Suwannee and Aucilla Rivers. These provisions show a particular legislative concern for these environmentally important areas, hence the legislatively-imposed unique requirements for these regions.
The stated legislative intent provides that when attempting to place OSTDS in these floodways, "[T]he absorption surface of the drainfield shall not be subject to flooding based on 10-year flood elevations." If one reads the entire text of Section 381.0065(4)(t)1., a consistency through the entire text of that paragraph is revealed which shows a legislative intent centered on the actual placement of the bottom of a drainfield system in relation to the 10-year flood elevation. It is not a subjective concern that the absorption surface of such a drainfield not be "subject to flooding," depending upon the type
of innovative, engineered system which might be capable of being installed, which would, if operating correctly, isolate the absorption surface itself from flood waters.
It is true that the first sentence of that subparagraph, cited last-above, states that the absorption surface "shall not be subject to flooding based on 10-year flood elevations," rather than openly stating that the 10-year flood elevation is a mandatory minimum elevation. However, when the paragraph is read in its entirety, it can be seen that the second sentence of (4)(t)1., provides a legislative explanation of what "subject to flooding" actually means. In other words, if one wishes to install a OSTDS in the flood zone of either river, the drainfield must not be "subject to flooding," but if one owns a lot which meets the exception language beginning in the second sentence of that paragraph and the "applicant cannot construct a drainfield system with the absorption surface of the drainfield at an elevation equal to or above the 10-year flood elevation," the exceptions beginning in that second sentence can be applicable to that particular situation. The point is, if one reads Section 381.0065(4)(t)1., Florida Statutes (2007), in its entirety and in complete context, it is clear that the legislature meant that "subject to flooding" meant that one does not place the bottom of the drainfield below the 10-year flood elevation in the Suwannee and Aucilla River flood plains (unless
the exceptions are met). The system proposed by the Petitioner is a closed drainfield system designed to withstand the flood waters by isolation of the drainfield surface through the use of a maintained positive air pressure. The Petitioner thus contends that the above-referenced requirement regarding the absorption surface not being subject to flooding is met by the particular devices installed, with regard to the drainfield, referenced in the Findings of Fact.
The Petitioner contends that Section 381.0065, Florida Statutes (2007), contemplates the use and installation of innovative systems, such as the No mound system and, because it is a closed system, and is designed to withstand the pressure of flood waters, that the absorption surface will not be subject to flood waters as contemplated by the statute. However, the purpose of the above-cited subsection, in relation to the remainder of Section 381.0065, Florida Statutes, which provides the framework for OSTDS regulation, simply provides additional requirements for OSTDS systems to be located within the 10-year flood elevation of the Suwannee and Aucilla River basins, without regard to the type of system proposed.
Section 381.0065 addresses permitting, siting, construction, installation, inspection, operation, maintenance, modification, repair and abandonment of onsite systems. It also provides for variances, special consideration for sensitive
areas such as the Suwannee and Aucilla River flood zones, Department evaluation of onsite system additives, and the development and permitting of alternative treatment units and innovative system designs.
While that section contemplates innovation, design provisions for engineer-designed, performance-based systems, are found in Section 381.0065(4)(j), and innovative systems in Section 381.0065(3)(e), not in Section 381.0065(4)(t).
The No Mound Corporation has already been issued an innovative permit, to install 250 systems in Florida. When installing an OSTDS, No Mound must still meet all remaining requirements of Section 381.0065. If the absorption surface of a drainfield for any OSTDS, without regard to the type of system, is at an elevation less than the 10-year flood elevation, pursuant to Section 381.0065(4)(t)1., a. through c., all three of the statutorily-enumerated exceptions must be met, and engineering design is not one of them. If all of the exceptions are not met, then no OSTDS system, including the no mound system, is allowed to be constructed in the floodway of the Suwannee River.
In enacting the Section 381.0065(4)(t), Florida Statutes (2007), the legislature was not concerned with whether the engineering design or innovative devices for a particular type of drainfield system would render it flood proof. Rather,
it was concerned with the location of the drainfield, deeming it, in effect, to be "subject to flooding" if it was located beneath the 10-year flood elevation.
It is well-settled that legislative intent is the principal concept regarding statutory construction. Reynolds v. State of Florida, 842 So. 2d 46, 49 (Fla. 2003); McGhee v. State, 847 So. 2d 498, 501 (Fla. 4th DCA 2003). Legislative intent derives primarily from statutory language itself, which is the most reliable and authoritative expression of such intent. Reynolds, 842 So. 2d at 49; McGhee, 847 So. 2d at 501.
The statutory language must be read and considered in its entirety when making an interpretation. Jones v. ETS of New
Orleans, Inc., 793 So. 2d 912, 915 (Fla. 2001) (". . .
[S]tatutory phrases are not to be read in isolation, but rather within the context of the entire section." Acosta v. Richter, 671 So. 2d 149, 154 (Fla. 1996)). Once legislative intent is ascertained, all parts of the statute must be read conjunctively to arrive at a consistent complete context. Statutory phrases should be considered with a view to the entire context of the section from which they come. Borden v. Est-European Insurance
Company, 921 So. 2d 587, 595 (Fla. 2006); Parker v. State, 874 So. 2d 683, 684 (Fla. 4th DCA 2004). It is clear, when reading and considering Section 381.0065(4)(t)1., Florida Statutes, in its entire context, that the legislature was really concerned
with avoiding placement of the bottom of a drainfield below the 10-year flood elevation.
The Department is the state agency charged with administering the provisions of Section 381.0065, Florida Statutes (2007). The construction or interpretation of a statute by an agency which it is given power to administer it will generally not be overturned unless clearly erroneous. Laborer's International Union of North America, Local 478 v. Burroughs, 541 So. 2d 1160, 1162 (Fla. 1989); Pan American World Airways v. Florida Public Service Commission, 427 So. 2d 716, 719 (Fla. 1983); Wallace Corporation v. City of Miami Beach, 793 So. 2d 1134, 1140 (Fla. 1st DCA 2001). See also Cenac v. State
Board of Accountancy, 399 So. 2d 1013 (Fla. 1st DCA 1981) (an agency's construction of statutes within its regulatory jurisdiction is generally given deference because of the agency's familiarity with the statutory scheme and its expertise in administering the field being regulated); Roberts v. Ayers,
380 So. 2d 1057 (Fla. 1st DCA 1979). The agency's construction of a statute need not be the only possible interpretation or even the most desirable one, but must only be within the range of possible statutory construction. Orange Park Kennel Club, Inc., v. Department of Business and Professional Regulation, 644 So. 2d 574, 576 (Fla. 1st DCA 1994); Florida League of Cities v.
Department of Environmental Regulation, 603 So. 2d 1363, 1369 (Fla. 1st DCA 1992).
If one considers Section 381.0065(4)(t), Florida Statutes (2007), in its entirety, along with the remainder of that statutory section, it becomes apparent that the legislature was concerned with creating special consideration for the area of the floodways of the Suwannee and Aucilla Rivers. It intended to ensure that drainfields not be subject to flooding, by requiring construction of them with an absorption surface at an elevation equal to or above the 10-year flood elevation. Design standards are established elsewhere in Section 381.0065, Florida Statutes (2007). Once a permit is granted for an innovative design system such as the no mound system, that system must still meet all other requirements of Section 381.0065, including the provisions of paragraph (4)(t).
In summary, the Department is the agency with the authority as well as expertise to administer Section 381.0065, Florida Statutes. Its interpretation of Section 381.0065(4)(t), Florida Statutes, is the more reasonable interpretation of those proposed and it is not clearly erroneous. Its interpretation reflects the most likely rationale and context of the legislature's intent in the enactment of the subject provision. Its interpretation is deemed correct.
Even if that were not the case, the above Findings of Fact reveal a number of problems or potential problems with the no mound system. There are several unanswered questions as to the installation and operation of the no mound system to be placed on the Sevick property. The primary concern is the question of how effective the anchoring system would be, given that some expert testimony and evidence seemed to rely on the anchors being at a 10-foot depth below the ground surface, while the design and apparent installation plans would indicate that they would actually begin four feet below the ground surface.
The unanswered questions also include what might happen if flood-caused erosion removed soil relied upon to exert a sufficient downward force on the anchoring system to hold the membrane in place. Thus, there is the potential that, through
flood-caused erosion, the membrane, and the air pressure that it is supposed to maintain, might be displaced, rendering the drainfield absorption surface subject to flooding in such an event.
Moreover, the evidence supportive of the above Findings of Fact does not clearly establish that, in the event of a power failure, even taking into account the back-up battery power system, a sufficient air pressure could be maintained beneath the membrane of the drainfield system so as to exclude flood waters and to maintain the required 24-inch separation
between the bottom of the drainfield system and the groundwater elevation. Thus, even if the Petitioner's interpretation of the referenced statute regarding the meaning of "subject to flooding" is correct, the preponderant evidence, supportive of the above Findings of Fact, shows that the drainfield's absorptive surface could be subject to flooding, in a flood event.
Un-adopted Rule Issue
The Petitioner contends that the Department applied an un-adopted rule in its review of the permit application. The Petitioner maintains that the Department expanded the definition of the term "flooding" contained in Florida Administrative Code Rule 64E-6.002(25) so as to include a location and elevation requirement. The permit was denied, however, based upon the Department's interpretation of the statute involved, Section 381.0065(4)(t)1., Florida Statutes (2007). Even had the rule definition of flooding been considered during the review of the application there is no evidence to show that the Department expanded the term "flooding" and employed an un-adopted rule.
A rule is defined in Section 120.52(15), Florida Statutes (2008), as an agency statement of "general applicability." The statement of general applicability regarding definition of the term "flooding" is codified in
Florida Administrative Code Rule 64E-6.002(25) and defines it as "a covering of the soil surface by water from any source. "
The definition of flooding in the Department's rule is used within the context of Section 381.0065(4)(t)1., which statute is concerned with elevation requirements regarding the flood zones of the Suwannee River. The statute thus states that the absorption surface of the drainfield shall not be subject to flooding, based on 10-year flood elevations, and also states that if the three exceptions are all met that an applicant who cannot construct a drainfield system with the absorption surface equal to or above the 10-year flood elevation may still be issued a permit based upon the three exceptions, quoted above.
In the case of Environmental Trust v. Department of Environmental Protection, 714 So. 2d 493, 498 (Fla. 1st DCA 1998), the First District Court of Appeal considered the question of the use of an agency's rule of general applicability within the context, or applicable to, a particular set of facts. The court opined:
An agency statement that is the equivalent of a rule must be adopted in the rulemaking process. . . .
This requirement, carried forward in Section 120.54(1), Florida Statutes (supp. 1996), prevents an administrative agency from relying on general policies that are not tested in the rulemaking process, but it does not apply to every kind of statement an agency may make. Rulemaking is required
only for an agency statement that is the equivalent of a rule, which is defined in Section 120.52(15), Florida Statutes (1996), as a statement of "general applicability."
An agency statement explaining how an existing rule of general applicability will be applied in a particular set of facts is not itself a rule. If that were true, the agency would be forced to adopt a rule for every possible variation on a theme, and private entities could continually attack the government for its failure to have a rule that precisely addresses the facts at issue. (Citations omitted)
In this case had the Department considered the rule term "flooding" during the course of its review of the OSTDS application, it would have done so within the context of the statute which specifically addresses the issue of locating such systems in the Suwannee and Aucilla River floodways and which is also concerned with the placement of drainfield absorption surfaces in relation to the 10-year and two-year flood elevations. The use of the existing rule of general
applicability (the flooding rule), applied to the particular set of facts, which includes a statute which contemplates location and elevation, does not mean that the definition of the term "flooding" found in Florida Administrative Code Rule 64E- 6.002(25) has been expanded to include a location and elevation requirement. The statute itself contained that definition.
A plain reading and consideration of that rule demonstrates that the 10-year flood elevation is indeed contemplated within that rule where it states as follows:
Flooding - A covering of soil surface by water from any source, such as streams overflowing their banks, runoff from adjacent or surrounding slopes, elevation of the groundwater table exceeding that of the soil surface, or combination of these.
Terms also associated with flooding and used elsewhere in this chapter are:
Frequent-flooding which occurs more than once every two years on the average;
Ten year flood elevation-that flood elevation which has a 10 in 100 probability of being equaled or exceeded in any calendar year.
Moreover, regarding the Petitioner's interpretation of the "subject to flooding" standards, it must be remembered that the absorption surface of the drainfield is defined as "the total surface area of soil at the bottom of the drainfield." Fla. Admin. Code Rule 64E-6.002(1). If flooding is a covering of soil surface as defined in the above-cited rule, and the absorption surface is at the bottom of the drainfield, which is obviously located beneath the soil surface, clearly when the soil surface is covered or submerged by water, anything beneath that surface is subject to flooding, including the absorption surface of the drainfield, given the rule's definition.
Section 381.0065(1), Florida Statutes, provides a statement of the legislature's intent in enacting the OSTDS regulatory program, including public health and environmental concerns, where it is stated:
It is further the intent of the legislature that the installation and use of onsite sewage treatment and disposal systems not adversely affect the public health or significantly degrade the groundwater or surface water.
If effluent from OSTDS systems is not properly treated and disposed of, it can pose a public health hazard involving pathogenic constituency and potential environmental degradation in the form of excessive nutrients, principally nitrogen and phosphorous in the groundwater or surface waters. These are the public health and environmental degradation-type concerns the legislature was treating in enacting the regulatory program involved.
The evidence adduced at hearing shows that there have been some operational problems with no mound systems in the past, as described in the above Findings of Fact. More pointedly, however, it has not been demonstrated persuasively that the no mound system proposed to be placed on the Sevick property has been adequately tested and found to safely address the proper disposal and treatment of effluent through the subject drainfield. The evidence is not persuasive in terms of
demonstrating that sufficient air pressure can be maintained in order to sustain the required 24-inch differential of unsaturated soil below the absorption surface. The air pressure necessary to perform that function, especially under varying ground and surface water levels, including varying flood conditions, were not definitively established. This is especially problematic under conditions of pump failure due to inadequacy of the solar-charged battery system, if primary power is interrupted, or if failure occurs due to maintenance issues.
Moreover, there is a significant potential for erosion, due to flood waters compromising the integrity of the soil anchoring system and the membrane, and therefore the air pressure within the drainfield system. The evidence shows that the anchors, rather than being 10 feet beneath the soil surface may only be as little as four feet below the surface (top of the anchors). It has not been demonstrated by preponderant, persuasive evidence that they could maintain sufficient downward force so as to stabilize the anti-buoyancy beams, cover and membrane system, and therefore preserve the integrity of the membrane in a flood and erosion situation, particularly a 10- year flood event.
Thus, it has not been clearly established, aside from the findings and discussions regarding the legal effect on the permit application of the 10-year flood elevation standards,
that the system will definitely work adequately as designed and installed. On balance, it must be determined that the permit should therefore be denied, subject to the applicant's statutory opportunity to apply for a variance, which may result in his ability to install an OSTDS system of some type, similar to those described above, which may provide adequate treatment, even if below the 10-year flood elevation.
In this connection, the preponderant evidence of record does not establish that the Petitioner purchased the lots in question with the intent to create a hardship situation with regard to variance requirements and standards, nor does it establish that he was aware, upon purchase of the lots, that the subject legal interpretation might be made and that the resultant legal difficulty in installing such a system below the 10-year flood elevation might ensue. The evidence adduced does not establish that he was even aware of the 10-year flood elevation when he purchased the property.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that the Amended Petition be denied.
DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida.
S
P. MICHAEL RUFF 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 16th day of February, 2009.
COPIES FURNISHED:
Kenneth J. Plante, Esquire Tana D. Storey, Esquire Brewton Plante, P.A.
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
Mark Dunn, Esquire
Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Lucy M. Schneider, Esquire Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399
John M. Lockwood, Esquire Rutledge, Ecenia & Purnell, P.A.
215 South Monroe Street, Suite 420 Tallahassee, Florida 32301
R. S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Dr. Ana M. Viamonte Ros, Secretary Department of Health
4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Josefina M. Tamayo, 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 |
|---|---|---|
| Apr. 02, 2009 | Agency Final Order | |
| Feb. 16, 2009 | Recommended Order | Petitioner failed to prove that innovative on-site sewage disposal system would not be subject to flooding. The statute has flood elevation standard, not an avenue to allow for a system which purports to prevent flooding by use of air pressure. |
