The Issue The issues for consideration in these cases concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit, or the grant of a variance from the permitting requirements embodied in the statutes and rules cited herein, so as to authorize installation of an OSDS for property they own near the Suwanee River in Dixie County, Florida. See, Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners are the owners of certain real property located in Dixie County, Florida, in close proximity to the Suwanee River, more particularly described as Lots 22 and 37, High Point Suwanee Riverfront Estates, a subdivision platted and recorded in 1983. Lot 22 is approximately 150 feet by 127 feet by 121 feet, and Lot 37 is approximately 100 feet by 175 feet by 176 feet in dimension. The lots were purchased on September 22, 1987 and December 10, 1987, respectively. The parties have stipulated that evidence and factual testimony adduced in this proceeding shall apply equally to the circumstance of both lots since they are in close proximity to each other and have similar elevations and other site characteristics. Accordingly, these Findings of Fact will be based upon that stipulated, combined evidence; and all Findings of Fact will apply to both lots, except as to elevation figures peculiar to each lot and as otherwise noted in these Findings of Fact. The Petitioners purchased Lot 22 for $14,995.00 and Lot 37 for $12,500.00. They were purchased in September and December of 1987, respectively. The Petitioners purchased them with the intent of holding them for investment and building a retirement-type home on one of the lots. On March 22, 1990, the Petitioners applied for an OSDS permit for the lots in question. The new systems applied for would be for a frame-type "stilt home", which would contain three bedrooms and a heated and cooled area of 1,232 feet, which equates to a 350-450 gallons per day sewage flow under the standards contained in the Respondent's rules. Hubert H. Raker, a certified, land surveyor of Cross City, Florida, performed a survey on the property, shown by Petitioners' Exhibit NO. 1 in evidence. That survey establishes a benchmark elevation for Lot 22 of 11.79 feet above mean sea level ("MSL"). That benchmark is actually six inches above the grade level elevation of the property at the benchmark location. Lot 37 was established to have a benchmark elevation of 12.25 feet above MSL, also six inches above the actual grade level of the lot at the benchmark elevation site. The site of the proposed installation of the OSDS has an elevation of 11.19 feet above MSL, as to Lot 22, and 11.75 feet above MSL, as to Lot 37. The ground water level, at the time the site evaluation was made by the Respondent's representative, was 60 inches below the surface of the grade for Lot 22 and 54 inches below the surface of the grade for Lot 37. The wet season water table for both lots was shown, by "mottling" existing in the soil beneath the surface of the lots, to be 54 inches below `:he surface of both lots. The soil type for both lots, starting with six inches below the surface, is of a "slight limited" soil characteristic and is fine sand down to approximately 48 inches and from 48 inches to 72 inches, consists of "loamy-sand". Such soils are well adapted to OSDS installation and operation. The property was shown, by the Respondent's own Composite Exhibit NO. 2 in evidence, to not be subject to frequent flooding. The property is, however, as to both lots, beneath the ten-year flood elevation established by the Suwanee River Water Management District's calculations and admitted into evidence in this proceeding as a part of Respondent's Composite Exhibit NO. 2. The ten-year flood elevation for both lots was shown to be 15 feet above MSL. Thus the surface elevation of both lots is somewhat below the 15-foot, ten-year flood elevation. The bottom of the drain-field or absorption-bed trenches, if the systems were installed on the lots, would be a greater distance beneath the ten- year flood elevation. Thus, the property is located within the ten-year flood elevation of the Suwanee River and is also located within the regulatory floodway of the Suwanee River. Other properties and lots in the immediate proximity of the Petitioners' two lots are equipped with OSDS's, including a number of "mounded systems", involving the placement of septic tanks and drain fields in elevated earthen mounds in order to elevate them above the ten-year flood elevation. Petitioner, John W. Holian, testified in a general way that such a system might be feasible and advisable in his situation, as well as the possibility of installing an aerobic septic tank treatment and disposal system, involving the injection of air into the septic tanks so that aerobic, (as opposed to anaerobic), bacteria could perform the sewage treatment function, which typically perform the function better than does a conventional anaerobic system. Petitioner Holian, did not offer any detailed testimony or evidence which would explain and establish how such a system could work without endangering the health of the Petitioners or members of the general public, if placed on the lots in question below the ten-year flood elevation, nor if or how such a system would protect against degradation of the ground or surface waters involved in the proximity" of the sites. If the system were mounded above the ten-year flood elevation, the Petitioners did not establish, through proper engineering testimony and other evidence generated by a registered engineer, that the use of the fill for the earthen mound for such a system would not raise the level of the "base flood." In summary, although the Petitioners suggested such a mounded system or an aerobic system or such a system possibly used in combination, the Petitioners did not go beyond suggesting an alternative and did not offer evidence which could establish that such an alternative would be a reasonable operationally feasible one and would adequately protect the ground or surface waters and the members of the general public from health hazards associated with sewage effluent. See, Rule 10D-6.47(6), Florida Administrative Code. On May 1, 1990, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding upon the initial denial of their OSDS permit application and advised them that an application for a variance from the requirements of Rule 10D-6.47(6), Florida Administrative Code, regarding the ten-year flood elevation problem at issue, should not be pursued but rather, the formal hearing process before the Division of Administrative Hearings should be employed by the Petitioners. The Respondent asserts, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such systems beneath the ten year flood elevation was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications. The Petitioners apparently took-that advice because no variance application was filed. It is noted, somewhat parenthetically, however, that in terms of the requirements for the establishment of a right to a variance, the Petitioners have not shown that no reasonable alternatives exist to a standard subterranean septic tank and drain field OSDS, (such as those alternatives referenced in the paragraph next above, which efficacy was, nonetheless, not established by the Petitioners). Neither did the Petitioners establish, in terms of the variance requirements in the authority referenced below, that the installation of an OSDS would not have an adverse effect on the public's health or the quality of the ground or surface waters involved at the sites. Because these two necessary elements of proof necessary to establish the right to a variance, through hardship, were not proven by the Petitioners, the elements of proof necessary to establish the right to a hardship variance have not been made out by the Petitioners and one could not be granted under the proof of record in this proceeding, even had the Petitioners made formal application for such a variance. That is not to say, however, that with proper preparation and presentation of evidence, entitlement to a variance could not be established in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3109 AND 90-3445 The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact 1-9. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John W. Holian 466 South Lake Triplet Drive Casselberry, Florida Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, Florida 32609
The Issue The issues are whether the Consent Order entered into between the Department of Environmental Regulation (DER) and Kenneth Acre (Acre) is an appropriate settlement of the violations addressed therein and whether Acre is entitled to construction permit number IC35-190005 for an Industrial Waste Disposal Facility. The Bradys assert that the Consent Order is not a reasonable exercise of DER's enforcement discretion and that the permit should be denied.
Findings Of Fact Background Acre owns and operates an animal research facility in Eustis, Florida. Acre performs research trials on dogs using a USDA approved heartworm medication sold under the brand name of Heartguard, the chemical name of which is ivermectin. Acre is not in the business of testing or manufacturing new drugs. The Consent Order To handle the waste generated by the animals at the facility, Acre initially constructed a conventional septic tank system. Prior to construction, Acre contacted the Lake County health department to inquire about permitting and was told that he did not need a permit for his facility. With that information, he continued with the project. Subsequently, DER became aware of the facility and notified Acre that a DER industrial waste permit was required and that he should cease the discharge into the septic tank until such a permit was obtained. Acre complied with DER's instructions and plugged the septic tanks. Since the time the septic tanks were plugged, the waste has been collected by Roto Rooter on a periodic basis and disposed of offsite. Acre entered into a Consent Order with DER to resolve the alleged past violation for not obtaining a permit and paid of penalty of $600 as required by DER. The Consent Order is a reasonable and appropriate settlement of the violations alleged therein. The Disposal System Acre has applied for a permit to construct and operate an evapotranspiration disposal system to dispose of the waste from his facility on site. The proposed system is essentially a modified septic tank system using a lined drainfield to capture and hold the liquid waste, allowing it to transpire from the grass or otherwise evaporate into the atmosphere and preventing any discharge to groundwater. The waste will be discharged to a series of modified septic tanks which will provide treatment beyond that of a traditional septic tank system and will reduce the amount of total suspended solids. The first septic tank accepts the waste and provides initial treatment through natural settling of solids. The waste then passes through a filter device and travels by gravity flow to the second septic tank. From the second tank it flows through a second filter device and into a dosing tank. The dosing tank is basically a small holding basin with a pump that disperses the waste to the drainfield in incremental amounts. The dosing tank contains several float mechanisms which monitor the level of liquid in the tank. When the water level in the dosing tank reaches a certain level, one such float mechanism turns on the pump to transport the liquid to the drainfield. The waste is then pumped from the dosing tank through a closed pipe to one of two evapotranspiration cells where it is distributed through a number of perforated pipes. The Evapotranspiration Cells The perforated pipes are situated in a gravel bed approximately 24 inches in depth. On top of the gravel bed is a clay soil mix approximately 15 inches deep. The clay soil mix absorbs the liquid waste in the gravel bed by drawing it up through the process of capillarity. Once the liquid is in the upper clay soil layer, it is evaporated. Grass is planted on top of the soil mix as an additional method for dissipation of the waste. The liquid waste is absorbed by the roots of the grass and transpired through the grass leaves. The clay soil mix in the top layer of the system is relatively impervious. The impervious nature of the soil mix along with a three percent surface slope will prevent rain water from entering the evapotranspiration cells and impacting the effective operation of the system. The entire drainfield has a double liner: one PVC plastic liner and a 6" clay layer. These two liners will ensure that no discharge to groundwater will occur from the system. System Capacity It is estimated that the Acre facility will produce approximately 520 gallons per day (GPD) of waste to be handled by the system. The drainfield is designed to handle twice the volume that will be discharged by the Acre facility and is therefore more than adequate to assimilate the waste received into the system. The drainfield is composed of two independent cells so that loading of each cell will be rotated. Once one cell receives its maximum capacity, the loading of that cell will cease in order to allow that cell to assimilate the waste through evapotranspiration. In this manner, the first cell is permitted to "rest" while the second cell receives further loading from the dosing tank. Safety Features Although the proposed disposal system is innovative in design, it incorporates several safety features which will ensure that no overflow of waste will occur. First, a float mechanism in the dosing tank is designed to trigger an alarm in the event the water level in the dosing tank gets too high. If that occurs, the alarm provides a flashing light as well as a horn which will notify the operator of a problem. Once the float reaches this warning level, the system will automatically shut down, thus preventing further waste from entering the system. Second, each evapotranspiration cell is equipped with a similar device which will automatically close off the dosing tanks and prevent further discharge into the cells in the unlikely event the system were to become too saturated to accept further loading. Finally, the double lined drainfield provides an additional safety measure which will prevent any discharge to groundwater. The numerous permit conditions requiring periodic monitoring of water quantity and quality in the system itself as well as the groundwater in the vicinity of the system provide ample assurance that the system will not pose a threat to the state's water resources. Ivermectin Although the proposed system will not discharge to groundwater, DER required the applicant to determine the amount of ivermectin in the wastestream. Ivermectin binds tightly to soil and does not dissolve in water. A sample of the wastestream from the Acre facility was collected by Bionomics Laboratory, Inc., and analyzed by Analytical Development Corporation using the analytical procedure designed by Merck scientists. The results of this analysis show that the concentration of ivermectin in the Acre wastestream ranges from .6 to 6.1 parts per trillion (ppt). The publication submitted to the Department by Acre entitled, Chapter 11, "Environmental Aspects of Ivermectin Usage in Livestock: General Considerations" by Halley, Nessel and Lu, from William C. Campbell, Ivermectin and Abamectin, documents the results of studies designed to determine whether using ivermectin in animals would result in any harmful or undesirable effects on the environment through excretion in the feces. This publication indicates that: Ivermectin is relatively immobile in soil and will not readily translocate into groundwater. Ivermectin is rapidly decomposed by sunlight and therefore will not accumulate in soil when administered to livestock. Ivermectin has no effect on earthworms at a concentration in soil of 12 parts per million (ppm). (This concentration is approximately two million times higher than that of the Acre waste stream.) Aquatic organisms such as water fleas and fish are highly sensitive to ivermectin toxicity. However, ivermectin is not toxic to the most sensitive species, the Daphnia magna, at a concentration of 0.01 parts per billion (ppb). Ivermectin concentrations in cattle feedlot runoff was less than the no-effect level of 0.01 ppb for Daphnia magna and therefore should cause no adverse environmental effects in surface or subsurface waters. The highest concentration of ivermectin found in the Acre waste stream is 6.1 ppt (or .006 ppb), which is less than the 0.01 ppb non-toxic level for the most sensitive aquatic species. Based on the concentration of ivermectin found in the Acre waste stream and the fact that ivermectin binds tightly to soil, the discharge from the Acre facility would not cause any adverse environmental impact, even if it were discharged to groundwater. Bradys' case Bradys submitted no evidence to show that the Consent Order is not an appropriate settlement of the violations alleged therein. They submitted no evidence that the septic tanks were improperly plugged. Brady offered no expert testimony in support of their claim that the facility had caused an adverse impact to groundwater or that the proposed system would cause any threat to groundwater quality. Bradys apparent concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding. Their concern that the lining of the drainfield could leak is unsupported by competent evidence. Bradys learned immediately prior to hearing that DER had changed its position and intended to issue the permit. Their failure to present any relevant evidence that the Consent Order was insufficient or that the proposed facility would violate any applicable DER rules or criteria and their ill- prepared participation in the hearing was in part the result of DER's late change in position. Bradys' participation in this proceeding was not shown to be frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein: Ratify the terms of the Consent Order as reasonable. Grant Acre construction permit number IC35-190005 for an Industrial Waste Disposal Facility, subject to the special conditions set forth in DER Exhibit 1. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NOS. 91-2608, 92-0958 AND 92-0959 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Bradys 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6 & 7(8) and 15(10). 2. Proposed findings of fact 1-5, 16, 27, 28, 31, 36-42, 44, 46-49, 51, 52, 54, 57-59, 61, and 62 are subordinate to the facts actually found in the Recommended Order. 3. Proposed findings of fact 8, 10-14, 17, 19-21, 26, 29, 30, 32, 33, 35, 43, 53, 55, and 56 are irrelevant. Proposed findings of fact 9, 18, 22-25, 45, and 50 are unnecessary. Proposed findings of fact 34 and 60 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents, Acre and DER Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-44(1-44). Proposed findings of fact 45 and 46 are unsupported by the competent and substantial evidence. COPIES FURNISHED: Carlyn H. Kowalsky, Attorney at Law Bogin, Munns & Munns 250 North Orange Avenue 11th Floor-P.O. Box 2807 Orlando, FL 32802 Douglas MacLaughlin, Attorney at Law Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Martha Hunter Formella Attorney at Law FOLEY & LARDNER Post Office Box 2193 Orlando, FL 32802-2193 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing the installation of an OSDS on property which he owns near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as part of Section 30, Township 10 South, Range 14 East. The property is approximately 8.5 acres in size. The Petitioner purchased the property some ten-years ago, and the lot in question has never been platted. The petitioner purchased the property for purposes of constructing a residence for himself and his family. At the time that the Petitioner purchased the property, and since, there have been occupied homes on either side of the property served by septic tank and drain-field sewage disposal systems. There came a time when the Petitioner elected to construct a home on his property and applied to the Respondent for an OSDS permit on January 19, 1990. On April 20, 1990, after having its personnel make on-site inspections of the property, the Respondent determined that the propert, according to Suwannee River Water Management District calculations, lay beneath the ten-year flood elevation. The Respondent, therefore, denied the permit application. Pursuant to information obtained from a registered land surveyor, the benchmark elevation of the surface of the Petitioner's property is 14.56 feet above mean sea level ("MSL") The actual surface elevation is 6 inches lower than that or approximately 14 feet. The ten-year flood elevation level for the Petitioner's property, at the Suwannee River mile involved, is 17 feet above MSL. Thus, the surface of the Petitioner's property is some three feet beneath the ten-year flood elevation and were a drain-field system installed on the property, the bottom of the drain-field trench or absorption bed would be a greater distance beneath the ten-year flood elevation. A "mounded" septic tank and drain-field system might be feasible for the subject property because of the property's adequate size, although such a mounding might have to be approximately five feet or greater in height over the present grade level of the property. The Petitioner, however, did not adduce any testimony or evidence concerning the feasibility of such a mounded disposal system, including details of how it would be constructed and operated and whether there is adequate room on his property to build such a mounded system, including the required undisturbed land area around such a system. The Petitioner did not adduce testimony or evidence in support of the feasibility of any other alternative sewage treatment and disposal system for the subject property. In fact, the property is located within the regulatory floodway of the Suwannee River. Because of this, the rule cited hereinbelow would require that a registered engineer certify and adequately explain the manner and method by which such a mounded system could be built on this property within the regulatory floodway, without altering the level of the "base flood", as, for instance, by excavating an equal volume of fill from another location within the regulatory floodway. However, such engineering testimony and evidence was not offered by the Petitioner; therefore, it has not been established that such a mounded system is a feasible alternative nor has it been established that any other type of treatment and disposal system is a feasible alternative because of the dearth of such evidence. The Petitioner did not apply for a variance. In any event, however, although the Petitioner clearly has been placed at a hardship because of not being able to construct the retirement residence he has desired for years on the subject property, because of the inability, thus fail at least, to obtain an OSDS permit, the Petitioner has not established- with regard to the below- referenced variance criteria that no reasonable alternative exists to the installation of the subject proposed system beneath the present surface of the lot which would be beneath the ten-year flood elevation. The Petitioner has not offered evidence to establish that the installation of the proposed system will not adversely affect public health and will not degrade the surface and ground waters involved in the immediate area. Thus, the standards for the grant of a variance have not been established by the Petitioner's proof, although it is understood that the Petitioner did not leek a variance, at least as yet. In that connection, the Respondent asserts that the Petitioner was not accorded the opportunity to avail himself of the Department's variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90- 14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten-year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications. The Petitioner's proof and, indeed, Respondent's Exhibit NO. 2 establishes that this property is relatively high in elevation, is well-drained, and not subject to frequent flooding, although it does lie beneath the ten-year flood elevation. The soil profile indicates that fine sand exists from the surface down to 72 inches. This type of soil promotes very good percolation of water and, thus, would result in adequate operation of a septic tank and drain field if all other appropriate standards and conditions necessary for such adequate operation were met. In fact, the wet season water table is some 36 inches beneath the surface; and, in general, this property has been shown to be well-suited to the installation of a septic tank and drain-field system, but for the ten-year flood elevation circumstance delineated above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit, without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above, and without prejudice to applying and pursuing an OSDS permit application at a later time, should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed, within the bounds of the standards enunciated in the above-cited statutes and rules concerning on-site sewage disposal permitting. DONE AND ENTERED this of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3339 The Petitioner filed no proposed findings of fact. Respondent's Proposed Findings of Fact 1-4. Accepted. Rejected, as incomplete and, therefore, not shown to be material. Accepted. Rejected, as not necessary to resolution of material issues and as immaterial. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Donald D. Kersey Route 2, Box 187 Chiefland, FL 32626 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue The issue is whether Respondent should be required to obtain a current operating permit for his aerobic treatment unit and have a $500.00 fine imposed for violating an agency rule for the reason cited in the Citation for Violation issued by Petitioner on December 1, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this dispute, Petitioner, Department of Health (Department), has alleged that Respondent, Dr. Anthony Massaro, a retired public health physician, failed to obtain an annual operating permit for an aerobic treatment unit (ATU) located at his residence at 3402 North Oceanside Boulevard, Flagler Beach, Florida. The Flagler County Health Department (Health Department) is charged with the responsibility of issuing such permits. That department is under the direction and control of Petitioner. While Respondent readily admits that he failed to obtain a permit, he contends that he was misled by the Health Department when he first installed an ATU at his residence; the Health Department is not enforcing the law regarding ATUs and thus another system would be more appropriate; and the law, as he interprets it, allows him to install another type of on-site sewage disposal unit on his property. Respondent purchased his property in Flagler County in 1997. The property is located in Ocean View Estates Subdivision (subdivision), which has an Urban Single-Family Residential District (R-1b) zoning classification under the Flagler County Land Development Code (Code). Section 3.03.05A of the Code requires that owners within the R-1b classification use "public or community water and sewer facilities," but makes an exception for "[s]mall R-1b subdivisions, fifty (50) lots or less, utilizing a public community water system," in which case residents "may utilize Class I aerobic onsite sewage disposal systems." Further, "[t]he use of individual onsite sewage disposal systems must be consistent with adopted county policies and standards." Because the subdivision has 50 lots or less, and public or private sewer facilities were not available in the area, the subdivision's Plat Agreement recorded in 1995 provided that "[i]ndividual aerobic onsite sewage disposal systems are to be permitted and constructed as each lot is developed." Another type of onsite sewage disposal system is the anerobic system, which has a septic tank and larger drainfield, is far less expensive, but does not conform with "county policies and standards" in this locale. Thus, this type of system requires a variance from the zoning regulations before one can be installed in the subdivision. Even so, Respondent says "all" of his neighbors have installed such a system. Because of the Plat Agreement, the zoning restriction, the difficulty in obtaining a variance, and the lack of a sewer line, Respondent had no choice except to use an ATU system for his residence. This meant that he had to apply for a permit from the Health Department. Once a permit is obtained and an ATU installed, the owner must renew his operating permit annually at a cost of $150.00, and he must enter into a maintenance agreement with a licensed contractor. The $150.00 fee is used to defray the costs incurred by the Health Department in making quarterly inspections and performing annual sampling and laboratory analysis of effluent. The record does not reflect precisely when a sewer line became operational across the street from Respondent's property, but the sewer project was accepted "for service" in April 1998, or before Respondent's ATU was installed in August 1998. Had Respondent known this, he would have obviously chosen that option rather than an ATU. The evidence reflects that in November 1997 Respondent made application for an ATU with the Health Department, a permit was issued in December 1997, and the system was installed and approved in August and September 1998, respectively. In early April 1998, the Health Department was advised by the private utility company that it would accept new sewer connections in a service area that included Respondent's home. However, Health Department representatives made no mention of this to Respondent since they were under the impression that he desired to use the ATU option, they do not normally "counsel" applicants on onsite sewage disposal system options, and Respondent had made no inquiry. Disclosure of this fact would have saved Respondent considerable money (and grief) in the long run; unfortunately, however, while good public relations would dictate otherwise, the Health Department had no legal obligation to do anything other than process the pending application. Likewise, it has no obligation in law to now pay the costs for Respondent to hook up to the line because of its non-disclosure. Respondent has now invested more than $5,000.00 in his ATU. This type of system is operated by a compressor in Respondent's garage, which must be run 24 hours per day, and is very noisy. Because of this, Respondent understandably wishes to change to an anerobic system, which has a traditional septic tank, larger drainfield, no unsightly "mound" in the yard, no annual permits, and is far cheaper than an ATU. Also, it does not require a noisy motor to sustain operations. However, this type of system is prohibited by the Code except where a variance from Flagler County (County) has been obtained. It appears to be unlikely that Respondent can obtain a variance from the County. Because Respondent's property is so low in relation to the sewer line, to achieve the proper gravity, he must install a lift station and pay a connection fee, both totaling $3,540.00, before hooking up to the sewer system. Given these costs, and the considerable investment he already has in an ATU, Respondent does not consider this to be a viable alternative. Respondent pointed out that, despite the requirement that they do so, many ATU owners in the County are not running their systems 24-hours per day because of the noise from the compressor. He also pointed out that the Health Department has consistently found numerous violations of such systems during its inspections. He further asserted that while the $150.00 annual fee is to defray certain sampling and laboratory analysis costs associated with inspecting ATUs, the Health Department has done neither on his ATU. Finally, Respondent pointed out that prior to 1999 the regulations were enforced by sampling the compliance of a very small percentage of total ATU systems (ten percent), rather than all systems, in the County. Given these considerations, Respondent concludes that ATUs are the least effective way to treat sewage, and that existing laws and regulations have not been enforced. Assuming these allegations to be true, and they were not seriously disputed, they are legitimate concerns. However, until the law is changed, they do not constitute a lawful basis for allowing Respondent to switch to an anerobic system. Respondent further contended that under his interpretation of the general law, which was not fully understood by the undersigned, he is not required to use an ATU. But local zoning regulations clearly require that he do so, and until the state or local regulations are changed or waived, he cannot use an anerobic system. Finally, Respondent has cooperated with the Department throughout this process. With his lengthy public health background, Respondent initiated this action with good intentions, seeking to point out the flaws in the ATU systems, and to remedy a problem which none of his neighbors apparently have. Given these considerations, a civil penalty should not be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order sustaining the charge in the Citation for Violation and requiring that Respondent obtain an annual permit for his ATU. A civil penalty is not warranted. DONE AND ENTERED this 20th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Dr. Anthony Massaro 3402 North Oceanside Boulevard Flagler Beach, Florida 32136 Amy M. Jones, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit in consideration of the statutes and rules relating to approval of permits cited and discussed herein, or whether they are entitled to a variance from the strict requirements of those statutes and rules so as to allow the installation of the OSDS on their property near the Suwannee River. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners purchased real property located in Levy County, Florida, in 1967. That property is located in the unincorporated community of "Fowlers Bluff" on the east bank of the Suwannee River. The property is more particularly described as the west one-half of Lot 13, and the east three- quarters of Lot 14, Treasure Camp Addition, Unit 3. The lot in question is approximately 100 feet by 125 feet by 197 feet in size. There is adequate unobstructed area available for the subject system's installation, according to Respondent's Exhibit NO. 1 in evidence. The lot is part of a subdivision which was platted prior to 1956. The subject lot has available a potable water source from the public water system. Consequently, the lot is of sufficient size to meet the quarter-acre minimum requirement for the installation of septic tank and drain-field systems in situations where lots have potable water available from a public water system, which is the case in this circumstance. The effective soil depth at the drain-field installation site is greater than 42 inches below the bottom surface of the proposed drain-field trench or absorption bed location. That is, 72 inches of sand, which is a "slight limited soil" and appropriate for such installations, exist at the site. The wet season water table was shown to exist at 26 inches below the grade level. The wet season water table, pursuant to Rule 10D-6.047(2) Florida Administrative Code, must be at least 24 inches below the bottom surface of the drain-field trench or absorption bed. Consequently, the wet season water table in this situation is not sufficient in depth for the proposed installation to meet this provision of the Respondent's rules. The Petitioners seek to gain approval for a system to serve a single- family residence of approximately 2,000 heated and cooled square feet, with a "standard" 350 gallons per day sewage flow. The residence would contain three bedrooms, as presently envisioned. The Petitioners' Exhibit NO. 1 establishes a benchmark elevation for the grade level of the proposed OSDS installation site of 7.48 feet above mean sea level ("MSL"). The actual grade elevation is 0.8 feet below that benchmark elevation. That is, the elevation of the grade of the property is 6.72 feet above MSL at the proposed installation site., The ten-year flood elevation for the proposed installation site, however, is 9 feet above MSL, as verified by a report prepared by the Suwannee River Water Management District, admitted into evidence and which was submitted to the Respondent by the Petitioners in the application process. The property also lies within the regulatory floodway of the Suwannee R for purposes of Rule 10D-6.047(6), Florida Administrative Code. Testimony by Mr. Parker, as well as the Respondent's evidence through Mr. May, establishes that the property in the past has had approximately 30 inches of fill placed on it. Because of this, the grade level elevation is in fairly-close proximity to the ten-year flood elevation and because of the prevailing slight limited soil type down to a depth of six feet, the property was shown to be generally amenable to installation of a mounded septic tank and drain-field disposal system, which mounding could raise the property so that the bottom of the drain-field trench or absorption bed would not be within the ten- year flood elevation. As Mr. May indicated by letter dated March 1, 1990 to Mr. Parker, the lot could be filled utilizing slight limited soil so that a mound to contain the septic tank and drain field of no more than the required 36 inches, pursuant to Rule 10D-06.0493(b), Florida Administrative Code, might be utilized. That letter, in evidence, also indicates that if the lot, or a portion of it, is filled, the fill shall extend a minimum of 20 feet in all directions beyond the perimeter of the mound base. The lot was shown to be of sufficient size to accommodate such a perimeter area of fill. In that same letter, Mr. May advised Mr. Parker that he had the right to request a variance from the provisions of Chapter 10D-6 Florida Administrative Code, since his property, in Mr. May's view, did not meet the criteria in that regulatory chapter for the issuance of an actual permit. The record does not reflect that an actual variance application had been filed, however. It would thus seem that this property is amenable to a reasonable alternative solution to a conventional, subterranean septic tank and drain-field system by the use of the "mounding process". That alternative, however, pursuant to Rule 10D-6.047(6), Florida Administrative Code, would require the certification of a registered professional engineer to the effect that the installation of such a mound could be done ,in such a way as not to raise the "base flood" level. This is because the property lies within the regulatory floodway of the ,Suwannee River; and under the rule section cited last above, a `certification must be made that the base flood level will not be raised by such a mounded system installation for property lying in the regulatory floodway. The Petitioners adduced no such engineering testimony or evidence to establish that if the system were installed with the mounding process, the base flood level would not be raised. In addition to the evidence culminating in the above Findings of Fact, the Petitioners offered general testimony to the effect that they had purchased the property in question for purposes of both having a "retirement rest egg" and a place to live should they choose to live on the property. The Petitioners established that they, like numerous other OSDS permit applicants in similar proceedings, are undergoing a hardship because they purchased the property for residential purposes or for re-sale for residential purposes and cannot construct a residence and live on the property or sell it for that purpose because of the inability to obtain a permit. The Petitioners' proof, in terms of the variance criteria noted below, is inadequate to show that there are no alternative systems available which will adequately dispose of and treat the sewage to be expected, nor did the Petitioners establish that installation of the system presently proposed would only constitute a minor deviation from the requirements of the Respondent's OSDS permitting rules, in terms of having no adverse effect on the health of the Petitioners, the general public, or upon the surface or ground waters involved in the vicinity of the site. Although the Petitioners did not formally apply for a variance, no adequate proof in these two particulars was offered so as to justify the grant of a variance; however, it was established that the property was platted prior to 1972 for purposes of the relaxed consideration embodied in the variance rule and statute for this circumstance. The Respondent now asserts, however, that the Petitioners should not be accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten- year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the application for the subject permit, without prejudice to a later application for a variance or a later application for an OSDS permit based upon additional and changed facts and circumstances. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3695 The Petitioners submitted no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Arnold G. Parker P.O. Box 467 Chiefland, Florida 32626 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, Florida 32609
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 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 Respondent HDR has applied to DER for a permit to construct a 60,000 gallon per day extended aeration sewage treatment plant with percolation ponds. The facility would be used to provide secondary treatment of domestic waste from the HDR Mobile Home Park. The project is in Volusia County south of the City of Oak Hill and north of the Town of Edgewater. It is bounded on the east side by the Indian River and the west side by U.S. Highway One. The mobile home project site consists of approximately 156 acres, with the proposed wastewater treatment plant located in the southwest corner of the tract. HDR submitted Application No. 85433 to DER on July 2, 1984, requesting a permit to construct a 0.6 MGD extended aeration sewage treatment plant and associated percolation ponds for the mobile home project. Supplemental information was filed with DER on August 29, 1984. DER issued a notice of intent to permit the project on November 8, 1984. The plant would provide secondary treatment of effluent with a minimum of 90 percent removal of BOD's and suspended solids through aeration, settling and chlorination processes. The system is designed to collect sewage through a gravity system and lift station. The lift station dumps the sewage into the aeration chambers where forced air is mixed with the sewage, resulting in removal of organic materials and solids. The dissolved solids are then separated in the settling tank. From the settling tank, clear effluent enters the chlorine contact chamber where chlorine disinfectant is added prior to discharge into the percolation pond. The method of treatment described above and the design of the plant are standard. If the plant is operated properly, the wastewater will meet all DER criteria for secondary sewage treatment. Plant odor will be minimized by the continual feed of forced air into the system. Silencers will be installed on blowers to minimize any adverse noise effects from the blowers' operation. Aerosol drift is not a factor with the design of this plant. Security lighting will be provided, and the plant site will be surrounded by a six foot security fence. The design provides for effluent sampling access points and there will be a flow meter for measuring effluent discharge on site. A Class C operator will be required to operate the plant. Disposal of the 90 percent treated effluent will be made into two percolation ponds. The ponds will be alternately loaded, with one pond being loaded for seven days and then resting seven days. The total surface area for the two ponds is approximately 130,000 square feet. The ponds are designed with berms of three feet with an emergency overflow one foot from the top of each berm. The two ponds together are designed to handle 200,000 gallons per day which would be the ultimate build out of this project. However, the maximum capacity of the initial phase of the wastewater treatment plant would be 60,000 gallons a day. Any expansion to the sewage treatment plant would require a separate permit. The overall elevation of the area where the ponds are to be located is approximately 14 feet above sea level. Each pond is designed so that the pond bottom is two feet above the underground water table level measured at the highest point for the rainy season. In a 100 year flood, it is expected that the effluent and water can be absorbed without an overflow. The mobile home park has a storm retention system in which any theoretical overflow would be caught. The soil type at the location of the percolation ponds consists of several layers of sands. This type of soil has good permeability in that it provides a good transfer of water through the soil and is therefore suitable for siting of the percolation ponds. Pond design is conservative in that the hydraulic loading rate has a safety factor of at least 300 percent. Once the effluent has percolated into the ponds, the discharge will meet or exceed the level of quality of the G-2 ground water within the 100 foot zone of discharge. The design of the wastewater treatment plant also includes sufficient monitoring wells and provides for adequate buffer zones from residences and drainage ditches. No surface waters of the state are located within 500 feet of the sewage treatment plant or its percolation ponds. The Indian River, which is adjacent to the Hacienda Del Rio project, is approximately 2,500 feet from the sewage treatment plant. There will be no direct discharge by the sewage treatment plant into this body of water or any surface waters, nor would any indirect effect on surface waters be measurable. Shellfish harvesting is a local industry. The waters of the Indian River immediately east of the Hacienda Del Rio property are designated Class II waters suitable for shellfish harvesting. The Indian River is also part of the Canaveral National Seashore Waters, which are designated as Outstanding Florida Waters. Concern was expressed that additional growth in the area might contribute to degradation of these Class II waters. There was, however, no evidence to indicate that the construction or implementation of the wastewater treatment plant by HCD would degrade ore pollute the Indian River (which is both Class II and Outstanding Florida Water) or any other State of Florida surface waters. It should be noted that waters north and south of the property in the Indian River are closed to shellfish harvesting, apparently due to pollution. The Town of Edgewater north of the Hacienda Del Rio project has a secondary wastewater treatment plant which discharges its effluent directly into the Indian River. The City of Oak Hill to the south of the project has no wastewater treatment plant whatsoever. Individual businesses and homes utilize septic tanks, which can cause pollution to the Indian River through seepage. The HDR sewage treatment plant would thus meet higher standards than neighboring community facilities.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a Final Order granting the application of Hacienda Del Rio. DONE and ENTERED this 31st day of May, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1985. COPIES FURNISHED: Betty J. Steffens, Esquire NABORS, GIBLIN & STEFFENS, P.A. 102 South Monroe Street Tallahassee, Florida 32302 William C. Henderson, Esquire HENDERSON & HENDERSON, P.A. Post Office Box 1840 New Smyrna Beach, Florida 32070 B. J. Owens, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Alva Stewart, Vice President South Waterfront Park Homeowners Association 150 Charles Street Edgewater, Florida 32032 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of Respondent's witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Sometime prior to May 7, 1980, Petitioner, Wyatt S. Odom, applied for a permit to construct an individual sewage disposal facility for a houseboat on Drs Lake in Orange Park, Clay County Florida. By letter dated May 7, 1980, Ronald E. Bray, Sanitarian Supervisor for the Clay County Health Department, advised Petitioner that his permit application to construct an individual sewage disposal facility for a houseboat was being denied since the area of Petitioner's property was approximately 26,250 square feet2 A survey of the subject property revealed that the area is 19,890 square feet, which is of course less than one-half acre. (Respondent's Exhibit 2) (0.60 acre) with three individual sewage disposal systems already existing on the property; the land was not suitable for the installation that would allow the proper and required drainfield absorption area and setback requirement could not be maintained due to the existence of buildings, waterlines, wells, a lake and existing sewage disposal facilities which, if permitted, would be in contravention of Chapters 10D-6.23(2) and 10D-6.24(2), (3), (4) and (6), Florida Administrative Code. Supervisor Bray and Sanitarian Thomas Haley, observed the subject property and the survey, and concluded that based on the size of Petitioner's property and the existing wells and septic tanks thereon, it was unsuitable for and could not satisfy the setback requirements and the required drainfield absorption area. (Testimony of Ronald E. Bray.) As stated, Petitioner did not appear at the hearing to contest the Respondent's denial of his permit application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent's denial of Petitioner's request for a permit to construct an individual sewage disposal facility for a houseboat on Drs. Lake in Orange Park, Florida, be UPHELD. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of September, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Wyatt S. Odom P. O. Box 14735 Jacksonville, Florida 32210 Leo J. Stellwagen, Esquire Assistant District IV Counsel Department of Health and Rehabilitative Services Post Office Box 2417F Jacksonville, Florida 32231 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
