The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (HRS) should grant the Petitioner's applications, filed under F.A.C. Rule 10D-6.045, for variances from the F.A.C. Rule 10D-6.046(1)(c) requirement that on-site treatment and disposal systems (OSTDS's) be placed no closer than 200 feet from public drinking water wells serving a facility with a sewage flow of more than 2,000 gallons per day (gpd).
Findings Of Fact The Petitioner, Joseph DiGerlando, owns three lots (1, 2 and 26) in the San Remo subdivision in Hillsborough County, which was platted in 1977. There is a public water well located between lots 1, 2 and 26. The well serves the entire San Remo subdivision, a 55-lot residential development having a total sewage flow much greater than 2,000 gallons per day (gpd) (although the sewage flow from homes built on lots 1, 2 and 26 can be expected to total no more than approximately 1350 gpd.) There is no way for the Petitioner to construct an on-site sewage treatment disposal system (OSTDS) on each of the three lots so that no part of any OSTDS will be closer than 200 feet from the San Remo well, measured horizontally across the ground surface to the well head. Measuring horizontally across the ground surface to the well head: an OSTDS on lot 1 could be placed no farther than 156 feet from the well; an OSTDS on lot 2 could be placed no farther than 184 feet from the well; according to drawings in the Petitioners' application, an OSTDS on lot 26 could be placed no farther than approximately 185 feet from the well. (Although lot 26 is larger than the others, it is contiguous to a surface water body, and the required setback from the surface water body decreases the area available for siting an OSTDS on the lot. The evidence was not clear exactly how far an OSTDS on lot 26 would be from the San Remo well.) HRS concedes: (1) that requiring 200-foot setbacks from the San Remo well will place the Petitioner under a hardship that was not caused intentionally by his own actions; and (2) that no reasonable alternative exists for the treatment of sewage on his lots 1, 2 and 26. (It is not clear how or why HRS determined that utilization of a joint OSTDS to serve all three lots through the imposition of cross-easements on the lots would not be a reasonable alternative to at least one or two of the variance applications.) The San Remo well, which is 400 feet deep, has a steel casing from the surface of the well to 100 feet below the ground surface. The steel casing prevents the entry of ground water into the well above the bottom of the casing. If the distances between the proposed OSTDS's and the San Remo well were measured diagonally, through the ground, from the proposed OSTDS's to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 185 feet from the well; the proposed OSTDS on lot 2 would be 209 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (The evidence was not clear exactly how much farther.) In fact, due to the draw-down effect of the well, the path groundwater would travel from the proposed OSTDS's to the bottom of the steel casing of the San Remo well would curve upward somewhat from, and be somewhat longer than, the diagonal line running directly between those two points. (The evidence is not clear exactly how much longer the curved path would be.) If the distances between the proposed OSTDS's and the San Remo well were measured first horizontally across the ground surface to the well head and then vertically down to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 253 feet from the well; the proposed OSTDS on lot 2 would be 281 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (Since the bottom of the OSTDS's will be three feet below the ground surface, the vertical component of the measurement is only 97 feet instead of the full 100 feet between the well head and the bottom of the casing.) When applying the HRS rules on distances required between OSTDS's and existing public water wells, HRS measures from the OSTDS horizontally across the ground surface to the well. The evidence was that HRS's method of measurement is consistent both with the methods used by the federal EPA and with the scientific data on which the technical advisory board based the distances in the HRS rules. The Petitioner's expert witness testified that there is a 17-foot thick layer of sand and clay between 53 and 70 feet below the ground surface in the vicinity of the San Remo well and that the sand and clay layer would prevent contamination from the OSTDS's from reaching the bottom of the steel casing of the well. (He also testified that is a white lime rock layer between 70 and 90 feet below the ground surface and inferred that the white lime rock layer would add some degree of protection.) The opinions of the Petitioner's expert are accepted. Petitioner's expert is a civil, sanitary and environmental engineer, not a geologist or hydrogeologist; however, his experience is in the area of wastewater treatment and disposal is extensive. Meanwhile, HRS presented no competent evidence whatsoever to contradict the Petitioner's expert. The Petitioner proposes to use Norweco Singulair Bio-Kinetic Waste Water Treatment Systems. These systems treat waste better than a standard septic tank system. Instead of the single septic tank, they have three distinct chambers: first, a retreatment chamber; second, an aeration chamber to reduce biological oxygen demand (BOD) and total dissolved solids (TDS); and, finally, a clarification or filter chamber that further reduces BOD and TDS. With the proposed systems, BOD and TDS will be reduced to approximately a fourth of the BOD and TDS levels that would enter the drainfield from a septic tank system. In addition, unlike in a septic tank system, the proposed systems utilize chlorine tablets in conjunction with the clarification chamber to kill bacteria and viruses. It is found that the evidence presented in this case, taken as a whole (and in particular in the absence of any competent evidence to contradict the credible opinions of the Petitioner's expert) was sufficient to prove that the proposed OSTDS's would not adversely affect the health of members of the public. Except for a fleeting reference in its Proposed Recommended Order, HRS has not taken the position that the Petitioner's proposed OSTDS's will significantly degrade the groundwater or surface waters. The reference in the Proposed Recommended Order would seem to reflect that HRS's concern about the impact of the Petitioner's proposed OSTDS's on groundwater quality is limited to its public health concerns.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order granting the Petitioner's applications for variances, on the condition that the Petitioner utilizes the proposed Norweco Singulair Bio- Kinetic Waste Water Treatment Systems. RECOMMENDED this 30th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6483 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-6. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as to "significantly degrade the groundwater or surface waters"; HRS did not make this an issue, except with respect to public health concerns. Otherwise, accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. However, accepted that HRS presented no evidence sufficient to support a finding on the issue. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994). Accepted but subordinate and unnecessary. Rejected as to "relevant criteria"; not proven and as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-7. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as contrary to facts found and as contrary to the greater weight of the evidence. (As found, HRS did not contend that the Petitioner's OSTDS's would "significantly degrade the groundwater or surface waters." HRS only raised this issue with respect to public health concerns.) 10.-12. Accepted but subordinate and unnecessary. (These were hearsay statements that were not sufficient to support findings as to the matters asserted. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994).) COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 W. Dr. Martin Luther King, Jr., Boulevard Tampa, Florida 33614 Nelson D. Blank, Esquire Trenam, Kemker, Scharf, Barkin Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 E. Kennedy Boulevard Tampa, Florida 33601-1102 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Should Petitioner fine Respondent for using contaminated spoil from the previous septic system to cover a new drainfield being installed?
Findings Of Fact Petitioner issues permits for the construction, installation, modification, or repair of onsite sewage treatment systems in accordance with Section 381.0065, Florida Statutes. Those repairs are conducted by septic tank contractors as qualified and registered by Petitioner, with the expectation that the registrants shall be subject to ethical standards of practice in their business as established by Petitioner's rules. See Section 489.553(3), Florida Statutes. Respondent, whose address is Post Office Box 390073, Deltona, Florida 32738-0073, is registered by Petitioner as a septic tank contractor. Respondent does business as Alpha Environmental Services. Respondent contracted with a customer at 1019 Pioneer Drive, Deltona, Florida to replace an onsite sewage treatment and disposal system at that address. Petitioner issued a permit for the work related to the septic system. Leila Baruch, then of the Volusia County Florida Environmental Health Agency, certified by Petitioner in inspecting septic systems, inspected the site before the work was performed. On February 18, 1999, Ms. Baruch returned to the site for the purpose of examining the "easy way" drainfield which Respondent had installed over the natural soil at the bottom of the replacement system. The easy way drainfield is a system of pipes surrounded by pieces of styrofoam. At the time of this inspection, the cover that was to be placed over the top of the drainfield had not been arranged. Ms. Baruch observed the old contaminated material that had been excavated from the failed system (the spoil) located to the side of the new drainfield. The new drainfield had been left uncovered to allow the inspector to observe its placement depth. As was the custom, the Volusia County Environmental Health Agency approved the installation of the drainfield concerning its relative depth and a call was made from Ms. Baruch to Respondent's business indicating that it would be acceptable to cover the drainfield following the more recent inspection. By this contact, it was not intended to grant permission to cover the drainfield with the spoil that had been removed from the failed system. This call to Respondent's business was made on February 18, 1999. Later on February 18, 1999, Ms. Baruch spoke with Respondent. This contact was based upon remarks that had been made to Ms. Baruch by the customer homeowner during Ms. Baruch's inspection of the site earlier on that date. The customer's remarks were to the effect that she understood that Respondent intended to use the spoil removed from the original septic system to cover the new system. In her conversation with Respondent, Ms. Baruch reminded Respondent that Respondent could not use the spoil to cover the new drainfield. In addition, Ms. Baruch read from Rule 64E-6.015(6), Florida Administrative Code, concerning the prohibition against the use of spoil material in covering the new drainfield. Ms. Baruch returned to the job site two or three days later and observed that the spoil material from the failed septic system had been used to cover the new drainfield. Respondent was responsible for the placement of the spoil material as a cover for the new drainfield. This condition in which the spoil material had been placed over the new drainfield was also observed by Scott Chambers of the Volusia County Environmental Health Agency, who is registered as a sanitarian with the Florida Environmental Health Association and certified by Petitioner for inspection of onsite sewage and disposal systems. As a consequence of the findings made by the inspectors, Petitioner cited Respondent for violation of Rule 64E-6.015(6), Florida Administrative Code, and seeks to impose a fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. Respondent's contention in his testimony that the spoil material was not placed immediately on the new drainfield is rejected. A substantial portion, if not all, of the new drainfield was covered by the spoil removed from the failed drainfield.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Rule 64E-6.015(6), Florida Administrative Code, and imposes a $500.00 fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. DONE AND ENTERED this 17th day of November, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael Jedware Post Office Box 390073 Deltona, Florida 32738-0073 Angela T. Hall, Agency Clerk Department of Health Bin A02 CHARLES C. ADAMS 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 17th day of November, 1999. 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether Petitioner North Fort Myers Homeowners Association, Inc. (Homeowners) participated in DOAH Case No. 91-6436 for an improper purpose.
Findings Of Fact On September 11, 1991, Homeowners filed its Petition for Administrative Hearing and Request to Consolidate with Administrative Hearing set for November 7, 1991. The Petition alleged that Homeowners' interests would be adversely affected by Bradley's request for a permit for construction of a wastewater collection system that it planned to connect to Florida Cities Water Company's Sewage Treatment Plant. It was further alleged that Florida Cities current violations of federal water quality standards would increase as a result of such a connection. Bradley responded to the Petition by filing a Motion to Dismiss for failure to State a Claim/Or in the Alternative Motion for Summary Judgment. On October 31, 1991, Hearing Officer Quattlebaum granted Bradley's Motion to Dismiss for Failure to State a Claim. The Hearing Officer found that the Petition did not allege that the application for a wastewater collection system permit failed to comply with the agency's relevant rules and criteria. The Hearing Officer also ruled that the Petition did not identify when such criteria would be unmet by the project. Homeowners was given leave of ten days to file an Amended Petition. Homeowners timely filed its Amended Petition for Administrative Hearing on November 13, 1991. This Amended Petition continued to focus upon whether Bradley's wastewater collection system should connect to Florida Cities Water Company's Sewage Treatment Plant and the federal water quality issue as it relates to discharge after treatment. After Bradley filed its Motion to Dismiss the Amended Petition and Homeowners replied, Hearing Officer Quattlebaum entered a Recommended Order of Dismissal on December 12, 1991. The basis for the recommendation was that Homeowners had "failed to allege that the application for permit failed to comply with the relevant criteria as set forth in statute and rule which govern issuance of the permit." The Temporary Operating Permit under which Florida Cities was operating expressly allowed Bradley's wastewater collection system to connect to the sewage treatment plant upon satisfaction of the Department's permitting requirements for such a collection system. Homeowners lost its opportunity to address whether such a connection was proper when it failed to timely challenge this Temporary Operating Permit. The only agency action subject to challenge in this case was whether Bradley's application to construct the wastewater collection system complied with the Department's permitting requirements for the system. Florida Cities anticipated actions were irrelevant to this particular proceeding because final agency action had already been taken on the question of whether the connection could take place. Throughout this proceeding, Homeowners failed to comprehend that it had waived its opportunity to pursue a challenge to the connection of Bradley's wastewater collection system to the sewage treatment plant when it did not timely challenge Florida Cities' Temporary Operating Permit. The Order granting Bradley's Motion to Dismiss dated October 31, 1991, did not affirmatively set forth that the connection issue could not be pursued in DOAH Case No. 91-6436. Homeowners' lack of comprehension on this issue remains evident in the Amended Petition, the Motion for Reconsideration filed after the Recommended Order of Dismissal, the Response to the Motion for Attorney's Fees and the testimony presented at hearing. Lack of comprehension is a neutral condition which neither proves nor disproves that the Petition and Amended Petition were filed for improper purposes, as defined by Subsection 120.59(6)(e), Florida Statutes. No direct evidence of Homeowners' participation in the proceeding for an improper purpose was established at hearing. The attorney for Homeowners at the time the Petition and Amended Petition were filed denied that Homeowners was motivated by an improper purpose. It was seeking to protect water quality in its locale and to assure the local sewer treatment system is adequate. There was no evidence presented as to whether Homeowners has participated in other such proceedings involving Bradley and the same project for an improper purpose.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Supplemental Final Order denying Bradley's request for attorney's fees and costs as Homeowners did not participate in this proceeding for an improper purpose as defined by Subsection 120.59(6)(e), Florida Statutes. RECOMMENDED this 26th day of June, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6436 Homeowners' proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #6. Accepted. Accepted. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. Rejected. Contrary to fact. See separate order on that issue. Rejected. Pleading amended accordingly. Accepted. See HO #13. Rejected. Contrary to fact. See Preliminary Statement. The Department's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. 3. Accepted. See HO #2. 4. Accepted. See HO #3. 5. Accepted. 6. Accepted. 7. Accepted. See HO #4. 8. Accepted. See HO #4. 9. Accepted. See HO #5. 10. Accepted. See HO #6. 11. Accepted. 12. Accepted. See HO #6. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. Rejected. Contrary to fact. See HO #7 - HO #13. Bradley's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See HO #7 and HO #8. Accept that Homeowners failed to present any justifiable issue of law or fact that could be heard in relation to this permit. See HO #7 - HO #9. COPIES FURNISHED: HAROLD M STEVENS ESQ PO DRAWER 1440 FT MYERS FL 33902 FRANCINE FFOLKES ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 GERI L WAKSLER ESQ PEPER MARTIN JENSEN MAICHEL & HETLAGE 2000 MAIN ST - STE 600 FT MYERS FL 33901 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPARTMENT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue The issues in this case are: Whether Mr. Decker had an improperly maintained septic system on his property. Whether Mr. Decker illegally repaired his on-site sewage treatment and disposal system. Whether the Department of Health properly issued a citation to Mr. Decker for violation of Sections 381.0065(4) and 386.041(1)(b), Florida Statutes.
Findings Of Fact On April 25, 1997, an employee of the Department of Health, Volusia County Health Department, David Stark, inspected Mr. Decker's property known as Bulow Creek Farm. Mr. Decker provides low-cost rental housing on this property which utilizes an onsite well to provide drinking water. Mr. Stark observed a wet area in the ground with the smell of sewage near the building identified as Apartment Building C, which houses seven (7) apartments. Mr. Stark identified this area as a sewage leak. On May 28, 1997, Mr. Stark returned to Mr. Decker's property with another Volusia County Health Department employee, Ed Williams. They both observed a wet area in the ground with the smell of sewage in the vicinity of the septic tank serving Apartment Building C. Mr. Stark identified this area as a sewage leak. Mr. Stark issued a Notice of Violation (NOV) to Mr. Decker which stated the raw sewage leak was a sanitary nuisance and provided that Mr. Decker should have his drainfield repaired in accordance with the repair permit Mr. Decker had previously obtained from the Department. The NOV stated the repair should be completed no later than June 11, 1997. A repair permit is valid for a period of eighteen (18) months. Mr. Decker's permit expired on April 20, 1997. Repairs must be inspected by the Department as they are made. On June 13, 1997, Mr. Stark mailed Mr. Decker a letter reiterating the need for repair of his septic system and enclosed a Notice of Intended Action giving Mr. Decker a deadline of June 20, 1997 to make the needed repairs. Mr. Stark received a letter dated June 29, 1997, from Mr. Decker, informing him that Mr. Decker, himself, had repaired the drainfield for Apartment Building C. The letter described the new tank and drainfield which Mr. Decker had installed, and Mr. Decker stated his repair was a "cheaper version of what you wanted me to do in the first place." Mr. Decker had not sought the required inspections for the repairs which he had made to the septic system, and the repairs were not inspected and approved by the Department. The Department cited Mr. Decker for having an improperly built or maintained septic system, and for failing to repair the system in accordance with the terms of the permit. The citation levied a $500 civil fine for Mr. Decker's violation.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue a final order affirming the civil penalty against Mr. Decker and requiring Mr. Decker to repair his septic system according to permit. If Mr. Decker fails to effect the repairs, the Department should initiate action to abate this public health hazard. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Tamaron wastewater treatment facility (facility), located at 3800 Gatewood Drive, Sarasota, Florida, serves the Tamaron residential subdivision which was originally developed by U. S. Homes Corporation in 1976. The subdivision presently consists of 499 homes and was completely built out in the mid-1980's. The facility was originally owned and operated by U. S. Homes Corporation. Tamaron Utilities, a nonprofit entity comprised of the 499 homeowners, acquired the facility in November, 1987. At that time, the facility's existing operating permit was transferred to Tamaron Utilities. The facility is overseen by an elected board of volunteer homeowners. The Department is the agency of the State of Florida that is authorized to regulate domestic wastewater treatment and disposal facilities and permit their construction and operation. It is the successor agency to the Department of Environmental Regulation. By letter dated November 10, 1987, the Department notified Tamaron of the requirements of Chapter 87-303, Laws of Florida (Grizzle-Figg Amendment), which amended Section 403.086, Florida Statutes, and of the Department's intention to modify Tamaron's operating permit to incorporate a schedule of compliance with Section 403.086, Florida Statutes, as amended by Chapter 87-303, Laws of Florida. On August 23, 1988, an operating permit (D058-141783), which contained secondary water treatment requirements, was issued to the facility. Specific condition 7 of the permit required that the facility be in compliance with the Grizzle-Figg Amendment by October, 1990, or eliminate discharge to surface waters. On September 5, 1990, Tamaron filed an application with the Department to renew its domestic waste water treatment and disposal systems operation permit. Tamaron did not consider its facility as discharging waste into one of the specifically named water bodies set forth in the Grizzle-Figg Amendment or to "water tributary thereto" and thereby required to meet the advanced waste treatment criteria set forth in the Grizzle-Figg Amendment. However, in an abundance of caution, Tamaron proceeded to bring its facility into compliance with the advanced waste treatment criteria as set forth in the Grizzle-Figg Amendment. After numerous requests for additional information and several meetings between Tamaron and the Department, the Department issued its Notice of Permit Denial on April 9, 1991, asserting that Tamaron had not provided: (a) reasonable assurance that the requirements of Section 403.086(1)(c), Florida Statutes, mandating advanced waste treatment (AWT) before discharge to certain designated surface waters, would be met and; (b) reasonable assurance that the discharge to those certain designated surface waters would result in minimal negative impact as required by Section 403.086(5)(a), Florida Statutes. The facility continues to operate under its secondary treatment permit No. DO58-141783. The facility consists of a wastewater treatment plant designed for secondary treatment, with tertiary filtration. The design capacity of the facility is 155,000 gallons per day (0.155MGD) with actual flows of slightly over 100,000 gallons per day (0.100MGD+). Three percolation ponds surround the facility comprising the primary effluent disposal method for the facility. The Tamaron subdivision has a series of excavated surface water bodies (stormwater lakes), hydraulically connected, which eventually discharge at the northeast corner of the subdivision into Phillippi Creek. The direct path of surface water flow is from the subdivision's stormwater lakes to Phillippi Creek. These stormwater lakes are in multiple ownership. Under Department policy, stormwater systems permitted by the Department, its predecessor DER, or a water management district solely as stormwater treatment facilities under Chapter 17-25, Florida Administrative Code, are not considered "waters of the State". However, stormwater systems built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, were considered "waters of the State" if they discharge more frequently than a twenty five year, twenty-four hour storm event. See Petitioner's exhibits 13 & 15. Tamaron's stormwater system was built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, and was designed to discharge at a ten year, twenty-four hour storm event which is more frequent than a twenty five year, twenty-four hour storm event. Discharge of water into Phillippi Creek from the subdivision's stormwater lakes is fairly frequent; however, the volume of the discharge is low. Phillippi Creek is a natural surface water which eventually flows into Roberts Bay. Roberts Bay is a specifically named water body in the Grizzle-Figg Amendment (Section 403.086(1)(c), Florida Statutes). Since September, 1989, Tamaron has retained William Murchie, P.E. of AM Engineering, to evaluate the design and operation of the facility in order to comply with appropriate regulatory requirements. The facility provides biological treatment through a contact stabilization utilizing an activated sludge. This process typically provides high quality advanced secondary biological treatment. A chemical feed tank system utilizing ferrous sulfate was added to the facility several years ago to chemically precipitate out total phosphorus to meet the advanced waste treatment requirements. High-level disinfection is achieved in the large chlorine contact chamber and through two tertiary filters. At the design flow of 0.155MGD, the chlorine contact chamber provides nearly 80 minutes of contact time, while actual contact time for existing flows, not including time in filters, is calculated at 110 minutes. Upon leaving the chlorine contact chamber and the biological treatment components of the facility, the chlorinated effluent is directed through two tertiary filters to reduce the biochemical oxygen demand (BOD) and total suspended solids (TSS). After the tertiary filters, the effluent passes through the sample block where it is sampled for TSS, BOD and chlorine and is then piped sequentially into the first, second and third percolation ponds. The percolation ponds span two acres and provide residence time of 35 to 45 days, during which time the effluent is further biologically treated and nitrogen is reduced. From the percolation ponds, the effluent is pumped into a low pressure system which uniformly distributes effluent over two nitrogen reduction filters. The nitrogen reduction filters are located north of the plant and are immediately adjacent to one of the subdivision's stormwater lakes. The nitrogen reduction filters consist of deep sand beds covered with Bermuda grass to provide high nitrogen uptake. The irrigation of the two nitrogen reduction filters is alternated every half day. These nitrogen reduction systems were modified in October/November, 1990, by adding 3 to 3 1/2 feet of clean sand with a permeability rate of 28 feet per day, planting Bermuda grass, and installing an irrigation/distribution system. These filters replaced two sand pits with shallow layers of very coarse sand, after initial testing demonstrated the sand pits to be inadequate in removing nutrients consistent with statutory requirements. In January, 1992, an underdrain system utilizing perforated pipe was installed in the nitrogen reduction filters to create an aerobic zone and to provide a representative sample port after nutrient reduction in the filters. This sample port, used for the biweekly monitoring, consists of a single solid pipe, that collects effluent from the perforated pipes, with a tap to prevent discharge into the adjacent stormwater lake, except during sampling events. The biweekly sampling event results in effluent being discharged from the pipe for approximately 30 minutes to flush the pipe so as to get a proper sample. The underdrain sampling port at the nitrogen reduction filters replaced two earlier monitor wells between the nitrogen reduction filter and the stormwater pond, which proved ineffective because of their location. The perforated underdrains are situated in filter bed sand of medium grain size with a permeability rate 100 feet per day and located below 3 - 3 1/2 feet of clean sand with a permeability rate of 28 feet per day and above very permeable layers of sand, stone and coarse shell. (See Tamaron's exhibit 23 and Department's exhibit 14) The very permeable layers of sand, coarse shell, the perforated pipe and the single solid pipe are all located above the ground water table. Since the perforated pipe and sample port are both located above the ground water level and the surface of the adjacent stormwater lake, it is unlikely that the effluent sample taken from the sample port would be influenced by the ground water or a back flow of water from the adjacent stormwater lake. The coarse shell layer situated below the nitrogen reduction filters extends to the edge of the adjacent stormwater lake. Therefore, the effluent, other than the effluent trapped in the perforated pipe and carried to the sample port, that is irrigated onto the nitrogen reduction filters passes through the sand and into the coarse shell layer. The effluent is then transported laterally through the coarse shell layer to the underground edge of the adjacent stormwater lake where there is a subsurface discharge into the adjacent stormwater lake. Since the discharge to the stormwater lakes is primarily subsurface in nature, the logical compliance point to measure effluent parameters would be the underground sample port which collects the effluent prior to subsurface discharge into the stormwater lake. See Petitioner's exhibit 15. The direction of ground water flow at the facility is towards the north to the adjacent stormwater lakes as evidenced by the hydraulic gradient of the site determined using ground water table elevations. The location for sampling effluent from the facility for compliance with secondary standards was described in Specific Condition 5 of Tamaron's previous permit No. D058-141783 dated August 23, 1988. Specific Condition 5 states that the discharge from the chlorine contact chamber shall be sampled in accordance with Chapter 17-19, Florida Administrative Code, (now Chapter 17-601, Florida Administrative Code), for compliance with the stated secondary limits. The facility's tertiary filters are located after the chlorine contact chamber. Tamaron samples effluent for compliance with secondary standards (BOD,TSS, chlorine) at the sampling box after disinfection and tertiary filtration. Tertiary filtration is designed to achieve a more efficient removal of TSS and BOD. The resulting effluent is usually of higher quality than secondarily treated effluent. A secondary plant with tertiary filtration is referred to as an "advanced secondary treatment" plant. Data presented by Tamaron titled Tamaron 1991-1993 Data On FDER Permit Compliance (Tamaron's exhibit 17, page 1 of 2) shows reported values, sampled after tertiary filtration at the sample box, which suggest that secondary treatment parameters, including fecal coliform, are not being exceeded. The data actually shows a very high removal rate for the parameters sampled. The United States Environmental Protection Agency issued a National Pollutant Discharge Elimination System (NPDES) permit, number FL0042811, to Tamaron for the facility with an effective date of June 1, 1991, which authorized Tamaron to discharge from the facility to the receiving waters named Phillippi Creek to Roberts Bay in accordance with the effluent limitation, monitoring requirements and other conditions set forth in the permit. Since the facility was located in the Grizzle-Figg Amendment area of Florida certain changes were made from the draft permit to the final permit. Those changes appear in the Amendment To The Statement Of Basis At The Time Of Final Permit Issuance which is made a part of the final permit. The amendment provides for changes in Part I, Effluent Limitations and Monitoring Requirements. These changes, among other things, require that the Grizzle-Figg Amendment annual limits of 5 mg/l BOD, 5mg/l TSS, 3mg/l total nitrogen and 1mg/l total phosphorus be added to the effluent limits to adequately maintain water quality standards, and added monitoring requirements and measurement frequency regulations to give the basis for permit limits and conditions in accordance with Chapters 17-302, 17-600 and 17-601, Florida Administrative Code. Data presented by Tamaron titled Tamaron 1991-1993 Data On NPDES Permit Compliance (Tamaron's exhibit 17, page 2 of 2) show reported values sampled after nitrogen reduction filters which suggest that the maximum values for AWT parameters, including fecal coliform, are not being exceeded, particularly after January, 1992, when Tamaron began sampling effluent collected by the perforated underdrains at the sample port. Tamaron has been monitoring and reporting compliance under its final NPDES permit and providing copies to the Department. There was no evidence that Tamaron was ever in violation of its NPDES permit. Tamaron submitted documentation to the Department with its permit application that demonstrated high-level disinfection within the facility was being achieved. However, TSS was being sampled after the application of the disinfectant. Using this procedure, the facility continued to achieve high- level disinfection until the permit denial. After the permit denial, the facility resumed basic disinfection which was required under Tamaron's permit for secondary treatment. This same data indicates that there was compliance with the requirements for fecal coliform. The record is not clear as to the frequency and number of samples taken to provide the data for reporting compliance with the NPDES permit and the data presented in Petitioner's exhibit 17, page 2 of 2. However, there was no evidence, other than sampling for TSS after the disinfectant was added, that Tamaron was not complying with its NPDES Permit that required, among other things, that the monitoring requirements and measurement frequency of the Department's rules and regulations be followed by Tamaron. Tamaron has modified and upgraded the facility in order to achieve a treatment process which will produce effluent of a quality for discharge under the Grizzle-Figg Amendment. Tamaron has provided reasonable assurances, although not absolute assurance, that the facility can comply with the discharge permit requirements of Chapter 403, Florida Statutes, including Section 403.086, Florida Statutes, notwithstanding the testimony of Jay Thabaraj to the contrary concerning Tamaron's sampling technique and its method of obtaining high-level disinfection which can be addressed as a specific condition, if necessary. Studies conducted by the Tamaron's engineer included in Petitioner's exhibit 21 indicates that there was no adverse impact to the stormwater lakes from the facility's wastewater treatment and disposal system. Tamaron has provided reasonable assurances that the point of discharge is a reasonably access point, where such discharge results only in minimal negative impact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Tamaron an operating permit for its facility as secondary treatment facility. In the alternative, that the Department enter a final order granting Tamaron an operating permit for its facility that requires compliance with the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, that, in addition to any general or specific conditions that are normally required, contains specific conditions that: (a) contains specific instructions on sampling technique, sampling frequency and reporting as set forth in Rule 17- 740(1)(b)2., Florida Administrative Code, and (b) sets forth compliance with high-level disinfection, with a time limit for compliance, that accomplishes the intent of the rule, if not the strict letter of the rule, without total redesign of the facility. DONE AND ENTERED this 3rd day of May, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2968 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Tamaron's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(5,6); 5(6); 6(7); 8(12); 10(8); 11-12(13-25,38); 13(31-34); 14(8); 15(13); 16(14); 17-18(15); 19(36); 20(16); 21(17); 22(18); 23(19); 24(20); 25(21);26(22); 32(32,7); 33(33); 34(32,32); 36(31); 39-40(34); 41(36); 42- 43(34); 44(35); 47(4); and 51(10). Proposed findings of fact 27-31, and 35 are conclusions of law rather than findings of fact.. Proposed findings of fact 45, 46, 48-50, 56, 57, 59, and 61-72 are arguments rather than findings of fact. Proposed findings of fact 7, 9, 37, 38, 52-55, 58 and 60 are neither material nor relevant. Respondent, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,6); 2(2); 3(4,10); 5(9); 6(9,10); 8(11); 9-17(18-27); 18(8); 19(13); 20(5); 21(17); 22(30); 23(31); 24(14); 25(17); 26(18-23); 27(34); and 32(35,38). Proposed finding of fact 4 is neither material nor relevant but see Findings of Fact 18-25. Proposed findings of fact 7, 31 and 33 are arguments rather than findings of fact. Proposed findings of fact 28-30 are conclusions of law rather than findings of fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles G. Stephens, Esquire C. Robinson Hall, Esquire Enterprise Plaza, Suite 1516 101 E. Kennedy Blvd. Tampa, Florida 33602 Francine Ffolkes, Esquire Office of General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioner has just cause to terminate Respondent.
Findings Of Fact The City is a municipality located in Pinellas County, Florida. Alexander was hired by the City on October 7, 2002, as a Service Worker in the Sanitation Division of the Public Works Department. He was a backup sanitation driver, working on residential collection routes. Grover Smith (Smith), the City's Sanitation Supervisor, supervises 17 employees, including Alexander. He is responsible for the daily operations of the collection of solid waste by the City's Sanitation Division. Smith has worked for the City as a sanitation supervisor for five years and was employed in the City's Sanitation Department for 17 years prior to becoming a supervisor. His work experience includes driving a sanitation truck and being a crew leader in the Sanitation Division. As an employee of the City, Alexander was subject to the City's Code of Conduct, which lists different groups of offenses for which City employees may be disciplined. The City's Code of conduct lists the following offense as a Group I offense: Tardiness, as defined as reporting late for work, overextending breaks or meal periods within one year of the first occurrence. Occurrences of tardiness shall only be considered for a year in applying progressive discipline. When determining the proper discipline go back only one year from the most recent occurrence and follow the progression of discipline as indicated. (Guide for determining tardiness: three times in any thirty (30) calendar day period, or six (6) times in any ninety (90) calendar day period or a continuous pattern of tardiness. From May 12, 2003, through June 6, 2003, Alexander was tardy to work four times. On June 10, 2003, Smith issued a verbal warning to Alexander for his tardiness. During November 2003, Alexander was tardy ten times. Smith issued Alexander a written warning on November 26, 2003, for his tardiness. Alexander was warned that any further violations would result in progressive disciplinary action up to and including termination. The City's Code of Conduct provides that "[f]ailure to immediately report an accident or injury in which the employee is involved in while on the job" is a Group II offense for which a City employee may be disciplined. On December 9, 2003, Alexander struck a pine tree in a trailer park while driving a sanitation truck. Alexander did not immediately report the accident. Smith learned of the accident from another employee on December 9, 2003. Smith questioned Alexander the same day about the accident, and Alexander denied hitting the tree. The next day Smith investigated the incident and found evidence that a pine tree in the trailer park had been struck and that there were remnants of the pine tree on the bumper of the right side of the sanitation truck that Alexander had been driving. Smith again questioned Alexander, who continued to deny that he hit the tree. Only after two other employees who had been working with Alexander on the day of the accident admitted that the truck had struck the tree did Alexander admit that he had hit the pine tree. On December 16, 2003, Smith issued Alexander a written warning for failing to immediately report the accident. From February 27, 2004, through March 22, 2004, Alexander was tardy four times. Alexander received a two-day suspension for this offense, which was in accordance with the guidelines of the City's Code of Conduct which provides for a one to three-day suspension for a third Group I offense. The City's Code of Conduct provides that "[n]eglect or carelessness which results in a preventable accident" is a Group I offense for which a City employee may be disciplined. On May 20, 2004, Alexander, while driving a City sanitation truck, made a left turn and failed to swing wide enough, striking a series of mailboxes. The following day Alexander had another accident when he was backing a City sanitation truck down the street in a mobile home park and struck an awning on a mobile home. Both of these accidents occurred on the driver's side of the vehicle and could have been avoided if Alexander had been paying attention. The City's Code of Conduct provides that a City employee may be discharged for a Group IV offense, which includes the following: Chronic offender of the Code of Conduct. (Guide: four (4) violations of any departmental or City rule or regulation in an eighteen (18) month period which results in a Verbal Warning or other disciplinary action (effective upon adoption of the revised Personnel Rules). Smith recommended to Kurt Peters (Peters), the Director of Public Works for the City, that Alexander be suspended for five days. Peters consulted the City's Personnel Director, Bill Cropsey (Cropsey). Cropsey determined that Alexander was a chronic offender and could be discharged. On June 9, 2004, Cropsey sent Alexander a letter advising him that he was in violation of the City's Code of Conduct as a chronic offender of the Code of Conduct and that a pre-disciplinary hearing was scheduled for June 14, 2004. Alexander was placed on administrative leave with pay, pending the pre-disciplinary hearing. The pre-disciplinary hearing was held on June 14, 2004, at which time Cropsey and Peters determined that Alexander should be discharged as a chronic offender. By letter dated June 14, 2004, Cropsey advised Alexander that he was terminated from his employment with the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Christopher Alexander's employment with the City. DONE AND ENTERED this 5th day of November, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 5th day of November, 2004. COPIES FURNISHED: Christopher T. Alexander 6324 150th Avenue, North Clearwater, Florida 33760 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman, Heyman & Jardine, P.A. Post Office Box 15309 Clearwater, Florida 33766 Jeff Bronson, Chairman Personnel Review Board City of Safety Harbor 750 Main Street Safety Harbor, Florida 34695
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue Whether the Respondent, Terry John Conley, d/b/a Terry's for Men's/Women's Hair, should be disciplined for violating Section 477.029(1)(i), Florida Statutes (1985)?
Findings Of Fact At all times relevant to this proceeding the Respondent, Terry John Conley, was licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida. Mr. Conley's license numbers are CL 0095556 and CE 0028208. At all times relevant to this proceeding, Mr. Conley was the owner of a cosmetology salon known as Terry's for Men's/Women's Hair (hereinafter referred to as "Terry's"). Terry's is located at 272 Palm Coast Parkway, Palm Coast, Florida 32026. On December 3, 1987, an employee of the Petitioner inspected Terry's. More than one of the drawers where employees of Terry's stored sanitized brushes and combs contained hair, coins, cards and medicine. Mr. Conley admitted that there may have been coins in the drawers and a little hair on brushes. Two additional alleged violations were cited as a result of the December 3, 1987, inspection. These alleged violations were corrected as of the date of the next inspection of Terry's by the Petitioner. On September 21, 1988, the same employee of the Petitioner that inspected Terry's on December 3, 1987, inspected Terry's again. During this inspection the inspector determined that the drawers where sanitized brushes and combs were stored were in a condition similar to their condition on December 3, 1987. Additionally, the following additional conditions were discovered during the September 21, 1988, inspection: Hair rollers, and the trays where hair rollers were kept, contained an excessive amount of hair and dirt; The Petitioner's sanitation rules were not displayed for public viewing in a conspicuous place; and More than one of the five sanitizer jars for combs were not filled sufficiently-to cover all of the teeth of the combs. Mr. Conley admitted that the jars are refilled "every day or two." The inspector also cited Terry's because one of the persons working at the shop had allegedly used clippers and scissors without sanitizing them. This alleged violation was not supported by the weight of the evidence. Mr. Conley has been operating Terry's for eleven years. The cited violations of December 3, 1987, and September 21, 1988, are the first violations cited against Mr. Conley or Terry's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be found to have violated Rules 21F-20.002 and 21F-20.004, Florida Administrative Code, in violation of Section 477.029(1)(i), Florida Statutes. It is further RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be required to pay an administrative fine of $150.00. DONE and ENTERED this 10th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1989. COPIES FURNISHED: Charles Tunnicliff Senior Attorney Tobi C. Pam Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Terry John Conley d/b/a Terry's for Men's/Women's Hair 272 Palm Coast Parkway Palm Coast, Florida 32307 Myrtle Aase Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner must be discharged from his position as a sanitation equipment operator II because he can no longer perform the essential functions of that job, with or without a reasonable accommodation.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that ECUA and its employees “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. For instance, Section B-11 provides that “[r]easonable accommodation is available to all disabled employees, where his or her disability affects the performance of job functions.” Section B-13 A (10) of the Manual requires ECUA employees to maintain all capabilities that are necessary for them to perform their assigned duties. Mr. Smith is 52 years old and initially worked for ECUA as a sanitation equipment operator from March 1997 through October 2002. He returned to his previous position at ECUA in January 2018. ECUA’s description of the sanitation equipment operator II position describes the “essential job functions” as follows: Operates a heavy duty, highly technical, and specially designed, one-person automated residential or commercial refuse collection truck equipped with a hydraulically operated container loading and waste packing mechanism in order to remove solid waste on an assigned collection route. Required to manually load yard trash, brush, or bulk waste when assigned to yard-trash duty. Operates a heavy duty residential rear-loading, semi-automated refuse collection truck equipped with a hydraulically operated container leading and waste packing mechanism in order to remove solid waste on an assigned collection route, while acting as crew leader for the two/three person assigned crew. Other “essential job functions” include activities such as manually picking up waste containers for disabled customers, climbing in and out of trucks, climbing stairs and ladders, and walking refuse containers to and from residences. As for the position’s physical requirements, the job description states that: While performing the essential functions of this job the employee is regularly required to sit, stand, or walk, use hands to finger, handle, or feel, reach with hands and arms, stoop, kneel, jump, step, or crouch, and lift and/or move up to 100 pounds and occasionally required to lift over 100 pounds. On June 25, 2019, Mr. Smith’s right knee collided with the rear door or bumper of a refuse truck while he was dumping refuse into a landfill. He sought medical attention that day, and the resulting “work status report” from the Sacred Heart Medical Group indicated he could return to work on June 26, 2019, but was prohibited from bending at the waist, stooping, kneeling, crawling, climbing, or squatting for the next eight days. ECUA learned of Mr. Smith’s injury on June 25, 2019, and he was promptly placed on leave pursuant to the Family and Medical Leave Act (“FMLA”). The standardized form memorializing that action advised Mr. Smith that “[y]ou will be required to present a fitness-for-duty certificate to be restored to employment.” Mr. Smith’s injured knee did not improve to a point at which he could return to his position as a sanitation equipment operator II, and he exhausted his 12 weeks of FMLA leave in September of 2019.1 At that point, ECUA’s Human Resources department placed him in two light-duty positions. The first was a temporary position counting inventory. That temporary position comes open for a week at the end of every ECUA fiscal year. After Mr. Smith completed that work, he was assigned to removing paper and plastic from ECUA’s composting operation. Mr. Smith’s tenure with the compost operation was brief because he was unable to walk or stand for long periods of time.2 1 Mr. Smith enjoyed working for ECUA and was interested in other employment opportunities there following his accident. Because he has 20 years of customer service experience and associates degrees in culinary management and hotel and restaurant management, Mr. Smith inquired about becoming a customer service representative. However, ECUA only had one such opening between March and November of 2019 and typically receives hundreds of applications when such a position comes open. Also, ECUA’s Human Resources department does not have the authority to reassign employees from one department to another. An employee interested in a position outside his or her department must apply for the position, and the department seeking to fill that opening makes the final decision as to who is hired. 2 The witnesses disagreed about how long Mr. Smith worked at the compost operation. Chiquita Payne, a senior human resources generalist at ECUA, and Tim Dean, ECUA’s lead compost technician, testified that Mr. Smith spent no more than a few days with the compost operation. Mr. Smith testified that he was there for 2.5 weeks. Mr. Smith never returned to his position as a sanitation equipment operator II. The medical restrictions prohibiting Mr. Smith from activities such as bending at the waist, stooping, kneeling, crawling, climbing, or squatting were not lifted. A note from Dr. Juliet De Campos, Mr. Smith’s attending physician at the Andrews Institute of Orthopedics & Sports Medicine, gave the following assessment of Mr. Smith: This 52-year-old male, truck driver had an impact injury to the anterior [of] the right knee in the patellofemoral area with a fall to the ground which may have twisted his knee. He had a laceration which healed uneventfully but had recurrent swelling and giving way of his knee. X-ray showed no fracture or loose body. MRI suggested abnormal MRI and medial meniscus. What was not read was a prepatellar bursitis and contusion. The contusion has resolved but the patient still has recurrent swelling, catching, and giving way. He has had physical therapy and a knee sleeve. Exam today shows findings consistent with medial meniscus tear but no ACL injury, atrophy. Prepatellar bursitis has resolved. He continues to have recurrent swelling and instability. He has been in physical therapy which has helped but [has not restored] normal function. Within a reasonable degree of medical certainty, this injury was caused by the job injury and treatment is necessary on that basis. The note continued by recommending that Mr. Smith have right knee surgery, and he ultimately did so on January 22, 2020. Following the surgery, Mr. Smith’s attending physician anticipated that Mr. Smith would have a “permanent impairment rating” and recommended that he do no stooping, squatting, or kneeling. The attending physician also recommended that Mr. Smith not lift anything over 10 pounds. Thus, the attending physician noted that “[o]ffice work would be appropriate” and counseled against Mr. Smith engaging in “commercial driving.” Section D-16 of the Manual contains a section on workers’ compensation providing that: Employees will return to work anytime they are medically able, with or without reasonable accommodations, within six (6) months of the date of injury. If after six (6) months from the date of injury the employee remains unable to perform the essential functions of his or her job, with or without reasonable accommodation, the employee’s department director, in consultation with the Human Resources Director, shall consider the employee’s prognosis and anticipated return-to- work date, the department’s present and projected workload and needs, and all other relevant factors in determining whether additional leave is appropriate under the circumstances. Should the employee remain unable to perform the essential functions of his or her job, with or without reasonable accommodation, after passage of six (6) months from the date of the injury and any extension thereof, if any, he or she shall retire, resign, or be terminated. Keith Kyles Sr., ECUA’s sanitations collections manager, issued a letter to Mr. Smith on December 3, 2019, stating the following: The most recent medical note in your file shows you were last seen by your treating physician, Dr. DeCampos, on November 19, 2019. Regarding your ability to return to work to perform the essential functions of your job, Dr. DeCampos stated, “No change – will need to schedule surgery.” Based on the above, it is clear you are unable to perform the essential functions of your position as a Sanitation Equipment Operator II. Moreover, a return to work date is unknown and there is no estimated date for your return to work at this time. Your continued absence, without a probable date of your return to work, creates a substantial hardship on the operational needs of the Sanitation Department and impairs ECUA’s ability to properly fulfill its responsibilities to its ratepayers. ECUA is also unaware of any reasonable accommodations which would enable you to perform the essential functions of your job. Moreover, ECUA cannot indefinitely hold your position open, as the duties which it entails simply must be performed. We have done everything reasonably possible to accommodate your work restrictions. However, we can no longer allow your continuing inability to perform the essential functions of your job, with or without a reasonable accommodation, to create a substantial hardship and impair ECUA’s ability to properly fulfill its business obligations. The letter closed by notifying Mr. Smith that Mr. Kyles had scheduled a predetermination hearing for December 10, 2019, so that Mr. Smith could have an opportunity to discuss whether he could perform the essential functions of a sanitation equipment operator II, with or without a reasonable accommodation. After the predetermination hearing, Mr. Kyles issued another letter to Mr. Smith on December 12, 2019, notifying him that his employment with ECUA had come to an end: During your hearing, you provided information that your knee surgery is scheduled for December 26, 2019. After surgery, you stated that you would be required to be on crutches for 10 days, followed by an additional eight weeks off work for recovery post-surgery. Based on the information provided, I have determined your continued inability to perform the essential functions of your position, with or without reasonable accommodation, creates a substantial hardship and impairs ECUA’s ability to properly fulfill its business obligations. Your inability to perform the essential functions of your job, with or without reasonable accommodations, constitutes a violation of Section B-13 A (10) . . . of ECUA’s Human Resources Manual Therefore, it is with regret I notify you that your employment with ECUA is hereby terminated effective close of business December 12, 2019. The preponderance of the evidence demonstrates that Mr. Smith cannot tolerate the physical demands associated with his former position as a sanitation equipment operator II, nor is there any reasonable accommodation that could be made that would allow him to perform the duties of a sanitation equipment operator II. Thus, Mr. Smith is not in compliance with Section B- 13 A (10) of the Manual. Mr. Smith did not meaningfully contest ECUA’s argument that he could no longer perform the physical tasks associated with a sanitation equipment operator II. Instead, Mr. Smith’s case focused on arguing that there are other, less demanding positions, within ECUA’s Sanitation Department and that assigning him to one of those positions would be a reasonable accommodation. However, Mr. Smith failed to prove that he was capable of handling the physical demands associated with those positions. For instance, Mr. Smith raised the possibility of being assigned to ECUA’s “miss truck.” ECUA’s standard refuse trucks occasionally miss refuse pick-ups due to inadvertence on the drivers’ part or residents’ failure to place their garbage on the curb in a timely manner. The miss truck is not as large as a typical refuse truck and is more automated. Therefore, miss truck duty is not as physically demanding as driving a typical refuse truck. Nevertheless, Mr. Kyles’s testimony demonstrated that miss truck duty is still a physically demanding position in that the miss truck driver must be capable of transporting large refuse cans to and from residences over all types of surfaces and distances. Because ECUA’s standard refuse trucks typically miss 40-50 refuse pickups a day, the preponderance of the evidence indicates that the physical demands associated with miss truck duty are not appropriate for someone with Mr. Smith’s physical limitations. Mr. Smith also raised the possibility of transporting ECUA’s fuel trailer. ECUA obtains fuel for its refuse trucks by transporting a fuel trailer to the Alabama-Florida line, acquiring the fuel, and transporting it back to ECUA. While this work is probably not as physically demanding as operating a refuse truck, Mr. Kyles testified that a fuel trailer operator would still have to satisfy the physical requirements associated with the sanitation equipment operator II position. Mr. Smith did not present any evidence to rebut Mr. Kyles’s testimony, and it is therefore accepted. Finally, Mr. Smith mentioned “monitoring piles” during his direct testimony. However, he presented no details about such duty. As a result, there is no competent, substantial evidence indicating that pile monitoring would be within his physical limitations, or that it would be a reasonable accommodation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the executive director of the Emerald Coast Utilities Authority find that James V. Smith, Sr., is no longer qualified to perform the functions of a sanitation equipment operator II and take such action as deemed appropriate under the pertinent provisions of the Human Resources Manual and Employee Handbook. DONE AND ENTERED this 26th day of March, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2020. COPIES FURNISHED: Kimberly E. Scruggs Emerald Coast Utilities Authority Post Office Box 17089 Pensacola, Florida 32522-7089 James V. Smith, Sr. 901 Booker Street Cantonment, Florida 32533 Jessica L. Scholl, Esquire Moore, Hill & Westmoreland, P.A. Post Office Box 13290 Pensacola, Florida 32591 (eServed) Steve E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed) Cynthia Sutherland, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed)
