The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a permit to Out of Bounds, Inc. (Out of Bounds, or applicant), to construct, operate, and close a construction and demolition debris disposal facility (C&D facility) in Hernando County.
Findings Of Fact On September 8, 2008, Out of Bounds applied to DEP for a permit to construct, operate, and close an unlined C&D facility on 26 acres located at 29251 Wildlife Lane, Brooksville, Hernando County, Florida, to be known as the Croom C&D Debris Landfill and Recycling Facility. There were four requests by DEP for additional information, which was provided, and the application was complete on September 3, 2009. In 1994, a previous owner of the property was issued a permit to construct, operate, and close an unlined C&D facility on the property. That owner did not proceed with construction, and the permit expired in 1999. The Out of Bounds application was for a new permit, not for the renewal of an existing permit. Robert McCune owns property adjacent to the proposed C&D facility. He and his wife reside on the property, keep horses in stables on the property, and use the property for horseback riding business, which includes hosting public horseback riding events. Hernando SSK was formed by David Belcher and one or more others to continue the business being operated by Paige Cool when she died during this proceeding. The business is conducted on ten acres of property Cool owned approximately one mile west of the proposed C&D facility. Belcher is one of two co-personal representatives of Cool’s estate. Belcher and his wife hold a mortgage on the property. When the estate is finalized, the Belchers plan to assign their mortgage to Hernando SSK. It is not clear who will own the property after the estate is finalized, or how Hernando SSK will be authorized to continue the business on the property. Western pleasure and trail-riding horses are boarded on the Cool property, which is known as At Home Acres. The business also has access to 20 adjoining acres to the east, which are used for grazing. Access to the horseback riding trails in the Withlacoochee State Forest is conveniently located just across Wildlife Lane from the property, to the north. A manager resides in a double-wide trailer on the property, and another trailer and a barn to the east of it are leased out. There is a potable water well on the property, which is the source of drinking water for the manager and lessees. Well Setback In the application process, Out of Bounds disclosed two potable water wells within 500 feet of the proposed landfill disposal area. The application provided that those wells would be converted to non-potable use. Out of Bounds did not disclose the existence of a third potable water well, on property owned by Daniel Knox, which is within 500 feet of the proposed landfill disposal area. When the Knox well was brought to the attention of DEP, Out of Bounds admitted that the well was permitted for potable use but took the position that it was not for potable use because it was not in use, was not connected to a source of electricity, and appeared to be abandoned. Daniel Knox and his brother, Robert Knox, had the Knox well dug and permitted in 1979 in anticipation of using it as the source of potable water for a residence to be built on the property for their parents and sister. The Knoxes have not yet built a residence on the property, but it still is their intention to do so and to use the well as the source of potable water. Since its construction, the well had been maintained and operated periodically using a gasoline-powered generator so that it will be ready for use when needed. During the application process, Out of Bounds also did not disclose the existence of a fourth potable water well within 500 feet of the proposed landfill disposal area on property once owned by Larry Fannin and now owned by his daughter and son-in- law, Robert McCune. The McCune well was permitted and installed in mid-2005 while the sale of the land from Fannin to the McCunes was pending. The intended purpose of the well was to provide potable water for the use of the McCunes when they started to reside on the property. Despite this intent, and unbeknownst to the McCunes, Fannin had the well permitted as an irrigation well. In mid-2008, the McCunes began to reside on their property. At first, they resided in a mobile home. They ran pipes from the well to the mobile home to provide drinking water. Eventually, later in 2008, they began construction of a residence on the property and ran pipes from the well to the house to provide drinking water to the house. The well was being used for drinking water before the Out of Bounds application was complete. (They also use water from the well from time to time for irrigation purposes--i.e., when they host horseback-riding events on weekends, they truck water from the well to their horseback-riding arena to apply to the ground to control dust.) Groundwater flows from the disposal area of the proposed landfill to the west and southwest. The Knox and McCune wells are down-gradient of the groundwater flow from the proposed disposal area. Out of Bounds represented at the hearing that it would accept a permit condition that no C&D debris, but only clean debris, would be disposed within 500 feet of the Knox and McCune wells. See Fla. Admin. Code R. 62-701.200(15)-(16) and (24). However, there was no evidence of new designs, plans, or operations that would be used to meet such a permit condition. Liner and Leachate Collection Existing unlined C&D facilities in the Southwest District report various parameters that exceed groundwater quality standards and criteria. These include arsenic, benzene, iron, aluminum, nitrate, ammonia, vinyl chloride, methylene chloride, 3- and 4-methyl phenols, sulfate, and total dissolved solids (TDS). Arsenic and benzene are primary (health-based) groundwater quality standards. The others are secondary standards that relate to taste, odor, and aesthetics. The likely source of the reported arsenic violations in the Southwest District is wood treated with chromate copper arsenate (CCA). See Fla. Admin. Code R. 62-701.200(11). Out of Bounds proposes to not accept CCA-treated wood and to use a trained “spotter” to exclude CCA-treated wood from the landfill. This is an appropriate measure to prevent arsenic violations, and is now required for C&D facilities. See Fla. Admin. Code R. 62-701.730(7)(d), (8), and (20). It was not clear from the evidence whether the C&D facilities in the Southwest District with arsenic violations accepted CCA-treated wood. Even if they did, the operational plan proposed by Out of Bounds to exclude CCA-treated wood and to use a trained spotter is not a guarantee that no CCA-treated wood will enter the landfill. A C&D facility would not be expected to dispose of material that would result in benzene contamination. The reported benzene violations suggest that unauthorized material contaminated with benzene nonetheless makes its way into C&D facilities in the Southwest District. The evidence was not clear whether a trained spotter was used at those facilities. Whether or not a spotter was used at those facilities, having a trained spotter would not guarantee that no benzene-contaminated material will enter the landfill proposed by Out of Bounds. Out of Bounds suggested that ammonia violations result from C&D facilities accepting yard trash. However, there was no evidence of a connection between acceptance of yard trash and ammonia violations. The operational plan proposed by Out of Bounds to “cover as you go” is the accepted best practice to control hydrogen sulfide odor, which comes from wet drywall. Out of Bounds suggested that its cover plan would prevent any sulfate violations, but there was no evidence to prove it. There was no evidence as to whether the C&D facility proposed by Out of Bounds would be substantially different from the other existing C&D facilities in DEP’s Southwest District. Absent such evidence, Out of Bounds did not provide reasonable assurances that its proposed facility would not cause groundwater quality violations. The site for the C&D facility proposed by Out of Bounds is internally drained. There are no surface waters onsite or within a mile of the site. There was no evidence of a surficial aquifer above the Floridan aquifer. Rainfall entering the Out of Bounds property migrates downward into the Floridan aquifer. Once in the aquifer, there is a horizontal component of groundwater water flow in a generally southwest direction, towards the Knox and McCune wells. Contaminated leachate from the proposed C&D facility would migrate with the groundwater. Out of Bounds suggests that a thick clay layer under the site of its proposed facility would prevent the downward migration of groundwater into the Floridan aquifer. There are several reasons why the clay layer does not provide the reasonable assurance of a liner that contamination from the proposed landfill would not reach the Floridan aquifer. Clay is much more permeable than a geomembrane meeting DEP’s specifications for use as a liner. The clay on the proposed site is on the order of at least a thousand times more permeable. (Out of Bounds appeared to confuse the permeability of such a geomembrane with the allowable permeability of the geosynthetic clay layer or compacted clay layer underlying the geomembrane. Cf. Fla. Admin. Code R. 62-701.730(4)(f).) In the application process, Out of Bounds relied on the clay layer for purposes of sinkhole prevention and mitigation, not for reasonable assurance that no liner was needed. The limestone formation underlying the site is highly variable, with numerous pinnacles; for that reason, the thickness of the clay layer also is highly variable, making it difficult to excavate the proposed landfill with complete assurance that the clay layer would not be penetrated. To provide reasonable assurance for purposes of sinkhole prevention and mitigation, Out of Bounds proposed to leave or create a clay layer at least six feet thick underlying the bottom of the proposed landfill. Because the site is in an area of high recharge to the Floridan aquifer and drains entirely internally, the clay layer alone does not provide reasonable assurance that there will be no downward migration of contaminated groundwater to the Floridan aquifer. Reasonable assurance requires a liner and leachate collection system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP deny the application for a C&D facility made by Out of Bounds. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 8th day of December, 2011. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 John R. Thomas, Esquire Law Office of John R. Thomas, P.A. 233 Third Street North, Suite 101 St. Petersburg, Florida 33701-3818 Timothy W. Weber, Esquire Battaglia, Ross, Dicus & Wein, P.A. Post Office Box 41100 St. Petersburg, Florida 33743-1100 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Thomas Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000
The Issue The issue to be determined in this case is whether the Notice of Intent to Issue Order Requiring Access to Property (“Access Order”) issued by the Department of Environmental Protection (“Department”) and directed to Glenda Mahaney, as the property owner, is a valid exercise of the Department’s authority.
Findings Of Fact Petitioner Glenda Mahaney is a natural person and the owner of the property identified in the Access Order. The Department is the state agency which has been granted powers and assigned duties under chapters 376 and 403, Florida Statutes, for the protection and restoration of air and water quality and to adopt rules and issue orders in furtherance of these powers and duties. Background The groundwater beneath a parcel of land adjacent to Petitioner’s property was contaminated with petroleum when the land was used in the past for auto salvage operations. Initial groundwater sampling near the border of Petitioner’s property showed groundwater contamination by gasoline constituents which exceeded Groundwater Cleanup Target Levels (“GCTLs”). In other words, the contamination was at levels that required cleanup. However, later sampling showed the concentration of contaminants had decreased below GCTLs, probably as a result of natural attenuation. The existing data suggests that any groundwater contamination beneath Petitioner’s property is probably now at a level that would not require cleanup. However, the Department issued the Access Order because the Department is not certain about the contamination beneath Petitioner’s property and because Petitioner has continually requested further investigation. Petitioner believes contamination from the auto salvage site has caused illness in a tenant and even contributed to other persons’ deaths. However, no expert testimony was received on this subject and no finding is made about whether contamination exists on Petitioner’s property which has caused illness or death. The Department’s Site Investigation Section wants access to Petitioner’s property in order to determine whether contamination has migrated beneath Petitioner’s property and, if it has, the extent and concentration of the contaminants. The Department wants to: (a) install up to five temporary groundwater monitoring wells, (b) collect groundwater samples from the wells, (c) collect a groundwater sample from Petitioner’s potable water well, and (d) remove the monitoring wells after the sampling. The Access Order includes terms related to advance notice, scheduling, and related matters. Liability Although Petitioner believes petroleum contamination is present and wants it cleaned up, she objects to the provision of the Access Order related to liability. Paragraph 9(e) of the Access Order provides: Ms. Mahaney shall not be liable for any injury, damage or loss on the property suffered by the Department, its agents, or employees which is not caused by the [sic] negligence or intentional acts. Petitioner insists that she should not be liable under any circumstances for injuries or damages suffered by Department’s agents or employees who come on her property for these purposes. She demands that the Department come onto her property “at their own risk.” At the final hearing, the Department stated that it did not intend to impose on Petitioner a level of liability different than the liability that would already be applicable under Florida law. The Department offered to amend Paragraph 9(e) of the Access Order to indicate that Petitioner’s “liability, if any, shall be determined in accordance with Florida law.” Scope of the Investigation Petitioner objects to the proposed groundwater sampling because she does not believe it is extensive enough. Petitioner also believes the Department should test for soil contamination. The Department’s expert, David Phillips, testified that the proposed monitoring well locations were selected based on the direction of groundwater flow in the area and the wells are along the likely path of migration of any contaminated groundwater from the former auto salvage site. Another Department witness, Tracy Jewsbury, testified that no soil contamination was found on the auto salvage site, so the Department has no reason to expect there would be soil contamination on Petitioner’s property that came from the auto salvage operation. The Department will use the data collected from the wells to determine if contamination is present and whether future contamination assessment and/or remediation activities are necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection withdraw the Access Order or, alternatively, that Paragraph 9(e) of the Access Order be amended to provide that Ms. Mahaney’s potential liability, if any, shall be determined in accordance with Florida law. DONE AND ENTERED this 15th day of November, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2017. William W. Gwaltney, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Glenda Q. Mahaney Post Office Box 123 Mount Dora, Florida 32756 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed
The Issue Whether Respondent committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 February, 2001.
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
Findings Of Fact The Application Respondent; Manatee County (County), has applied to Respondent; Department of Environmental Regulation (Department), for a permit to construct a deep injection well in Manatee County. On July 9; 1985; the Department issued a Notice of Intent to issue the permit with certain conditions. In 1983, the County updated its Federal 201 Facilities Plant for treatment and disposal of waste to take into consideration both growth that had taken place in the southwest part of the county and the needs of the rest of the unincorporated area of the county. It was determined to expand the southwest treatment plant as part of the amendments. As before, the County planned to dispose of effluent from the southwest treatment plant by land application to agricultural lands and public golf courses. However; the Environmental Protection Agency requires a twenty year guarantee that effluent can be disposed of in the manner proposed in the 201 plan. The County could not make such a twenty year guarantee for the land application system because it only has a ten-year lease with the Manatee Fruit Company allowing-application on its agricultural fields. The additional cost to purchase or lease land to enable the County to make a twenty year guarantee made land use plus a back-up deep injection well the most cost effective alternative. The County included such a well in its amended 201 Plan. The County plans to continue to use land application as long as it is available. However; even with current land application capacity; land application and existing storage facilities will not enable the county to handle all of the effluent produced during rainy weather. The County estimates that this shortage of capacity will exist on an average of 27 days per year on which approximately 4 million gallons per day (MOD) would be disposed of by deep well injection. After the first several years of operation, it is expected that the rate of injection on these days during the rainy season will increase to approximately six MGD. Effluent from the County's southwest treatment plant is secondarily treated. It has the capability of controlling pH and being disinfected. The plant also can be modified to add a filtration system to filter suspended matter and viruses if necessary. The site of the proposed deep injection well is the Cortez Peninsula in Manatee County. The proposed site is virtually the westernmost point of land in Manatee County other than the barrier islands off the coast. Under the construction permit for which the County has applied, the County would first construct a monitor well on the same construction pad as, and approximately 70 feet away from, the deep injection well. The County does not propose to construct an exploratory well at the proposed site. The County previously constructed an exploratory well approximately three and a half miles east of the proposed site at the County's southwest treatment plant. That exploratory well will also be used to monitor background water in the aquifer above the confining formation above the proposed injection zone. The purpose of the proposed deep injection well is for testing preliminary to an application for a permit to operate the deep injection well to dispose of secondarily treated wastewater or effluent. During construction of the proposed well, water quality; geophysical and hydrological tests will be conducted. The results of the tests will be presented to the Technical Advisory Committee (TAC). Based on the tests results, the TAC will either approve or disapprove testing the well with fresh water. These tests will yield additional information concerning the transmissivity of the injection zone and pressure build-ups. The results of these additional tests will again be presented to the TAC. Based upon the results of the tests, the TAC will either approve or disapprove further testing under operating conditions; i.e., using secondarily treated wastewater or effluent. This last testing period probably will last between three and six months. (The representations of the County and the Department in this Finding Of Fact are not specified in the draft permit which the Department noticed intent to issue.) Manasota-88 Petitioner, Manasota-88; Inc.; opposes the granting of the County's application. Manasota-88 is properly and currently incorporated under the laws of the State of Florida and took proper corporate action to commence its petition in this case. Manasota-88 is a citizen with standing to petition in opposition to the granting of the County's application. The Injection Zone The proposed well will be approximately 1700 feet deep. At that depth; the injection zone will consist of the Avon Park limestone formation which begins approximately 1000 feet deep. The proposed injection zone consists of brown, finely crystalline, massive dolomite with well developed solution cavities and fractures. Above the injection zone lies the Ocala limestone formation; the confining bed; which occurs at depths of approximately between 1000 and 700 feet. The Ocala limestone confining bed consists of friable or chalky limestone or calcareous clay. Above the confining bed is the Suwannee limestone formation, which occurs at depths of approximately 700 to 425 or 350 feet. Like the Avon Park limestone formation, the Suwannee limestone formation is an aquifer however, unlike the Avon Park limestone formation, Suwannee limestone formation is used as a source of water in Manatee County, primarily for agricultural irrigation purposes. Like the exploratory well, the monitor well will monitor water occurring at the bottom of the Suwannee limestone formation aquifer. This will enable both the monitor well and the exploratory well to observe water quality at those locations. D Water Quality In The Injection Zone The water quality at the top of the injection zone at the exploratory well; following pumping and sampling, stabilized at about 14,000 milligrams per liter total dissolved solids (TDS). The water quality in the rest of the injection zone at the exploratory well ranged from 15,290 TDS to 37,700 TDS. Generally, water quality improves as one moves up, south and east within the aquifer. As a result, there is an approximate interface within the aquifer at which water quality equals 10,000 TDS. This saltwater interface or wedge at the top of the Avon Park aquifer is approximately four miles east of the exploratory well. The interface is a dynamic interface which moves with stress or recharge the aquifer. It may, for example, move in a band during the wet season and dry season. If the recharge is great into the zone somewhat further out to the east, the interface may move to the west. In a drought period, the zone is stressed to the west, and it may move to the east as a function of recharge and discharge. But in any event, the inter-face at the top of the injection zone is east of the exploratory well. Apparently contrary evidence suggesting that water quality improves as one moves west is limited to the Suwannee limestone aquifer, which is used for irrigation purposes. Discharge of water from the Suwannee aquifer for irrigation creates hydrauli gradients which can cause artificial water quality findings. The Avon Park aquifer is unaffected by irrigation or any other use of the aquifer. Since the proposed test injection well is located approximately two and a half miles west of the exploratory well; water quality throughout the proposed injection zone can be expected to be greater than 10,000 TDS. If, contrary to the greater weight of the evidence presented at the final hearing in this case, water quality at the proposed injection zone is less than 10,000 TDS, that fact would be revealed during the construction of the test deep injection well and during the various tests to be conducted after construction. There is no environmental reason to construct another exploratory well at the proposed site instead of the test injection well. Water quality tests would be just as accurate as, if not more accurate than; with an exploratory well. The practical use of an exploratory well is that the smaller (six inch versus twenty-four inch casing) exploratory well costs approximately one tenth the cost of a test injection well; allowing an applicant to reduce the potential losses in the event the well proves unsuitable. Based upon the findings at the exploratory site; there is not even an economic reason for digging another exploratory well at the new proposed site. Confinement In The Injection Zone The proposed confining zone is the Ocala limestone formation which occurs from approximately 700-1000 feet deep and consists of friable or chalky limestone or calcareous clay. The Ocala limestone has very low permeability, particularly vertical permeability; and would act as a proper confining zone. The permeability of the Ocala limestone is on the order of 3000 to 5000 times lower than that of the injection zone. In additional to permeability, the rate and manner of injection into the injection zone affects the ability of the confining zone to confine the injectant. It is easier for a confining zone to do so if the injection occurs periodically rather than continuously. When water is injected periodically, the pressure associated with buoyancy is dissipated rather quickly, decreasing pressure build-up. Although 15 million gallons per day (MOD) is the operational capacity of the well, the average rate of injection to be used by the county will be approximately 6 MGD. The 6 MGD average will not be reached during the first several years of operation. At the beginning of operations, the rate of injections will be approximately between 3 and 4 MGD. Aquifer pressure also is affected by the transmissive qualities of the injection zone. Based upon tests run at the exploratory well, it is estimated that the injection zone at the exploratory well can transmit between 500,000 and 1 million gallons per day per foot. Those estimates were made in part by adjusting actual transmissivity figures of between 100,000 and 150,000 gallons per day per foot for friction loss in the six- inch exploratory well which would not be experienced in a twenty-four inch test injection well. Based upon the geology of the area; it can be expected that the transmissivity of the proposed injection zone will approximate the transmissivity of the injection zone at the exploratory well. Again, if, contrary to the greater weight of the evidence presented at the final hearing of this case, transmissivity of the proposed injection zone is significantly lower than 500,000 to 1 million gallons per day per foot, the actual transmissivity of the proposed injection zone will be indicated by tests run during construction of the test infection well and during tests run after construction. Since the test injection well will be able to run tests under operational conditions; transmissivity values from the test well will be more accurate than any similar tests that could be run at another exploratory well at the proposed site. There also will be no need to estimate an adjustment for friction loss. Again, there is no environmental reason to construct an exploratory well instead of a test well at the proposed site. Using a constant injection rate of 6 MGD and a transmissivity value of 500 thousand gallons per day per foot, the travel time through the confining zone would be approximately 130 years. Using a transmissivity value of one million gallons per day per foot, the travel time through the confining zone would be approximately 225 years. As previously mentioned; the proposed Well actually is intended to be used periodically; not constantly. With this type of use; the travel time through the confining zone would extend many hundreds of years. The effect of variations in the actual injection rate from the proposed injection rate can be controlled during operational permitting. The Ocala limestone extends westward into the Gulf of Mexico about 100 to 150 miles. Fluid injected at the proposed injection zone would travel a predominantly westward direction; consistent with the regional hydraulic gradient in the injection zone. If the effluent travels through the confining zone during the 130 or more years; it would be filtered by the fine grain limestone which would remove all the suspended matter and; over that period of time, the biodegradation of the effluent would render it virtually inert. Under the conditions and pressures under which Manatee County proposes to operate the deep injection well, none of the injected fluid would come through the confining zone and there would be no salinity changes above the confining zone attributable to the injection well. No aquifer or any part of an aquifer which is or may be used as an underground source of drinking water will be affected by the proposed injection of treated effluent. No Need For Filtration Filtration of effluent being injected into the proposed deep well does not require filtration for removal of viruses. The suspended matter to which viruses attach themselves will be filtered out of the effluent by the rock matrix and particles of the injection zone and especially the confining zone. Filtration also probably will not be necessary for operational efficiency of the proposed well. The transmissivity of the injection zone is high enough for the proposed well to be expected to operate at less than 70 pounds per square inch (psi) pressures; well below the approximate confining zone fracture pressure of 1000 psi. Because of the transmissivity of the injection zone, it is not anticipated that filtration will be necessary. In any event, the need for filtration is an operational concern which can be governed in operation permit procedures in light of the better information which will be obtained as a result of testing during and after construction of the proposed well. If pressure build-ups do occur as a result of unexpected plugging of the well, the problem can be eliminated by more frequent (and costly) maintenance cleaning of the well or by adding a filtration system. Financial Responsibility The cost to plug the proposed well if, for some reason, it could not be operated ranges between $10,000 and $100;000.$10;000 would cover the cost of pumping cement down the well; the simplest plugging technique. It would cost about $100,000 to set up a complete rig. The rig system would be the better system for plugging the well. The County has approximately 3.5 to 4.5 million dollars of-uncommitted reserves which could be used to pump the well; if necessary. In addition; the County has money in contingency funds as part of its overall 201 Facility Plan construction program. The County has sufficient funds available on a day-to-day basis to pay for plugging the well. The Department does not usually require a county government to post a performance bond as financial assurance of its ability to plug an abandoned well; at least where the county government's financial resources approximate those of Manatee County. The Department's rationale for this policy is that a county government is a subunit of the state government. The County maintains financial responsibility and resources to close, plug and abandon the proposed well if necessary without posting a performance bond. But the draft permit which the Department noticed intent to issue does not require the County to certify continued maintenance of this financial ability.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent; Department of Environmental Regulation; enter a final order granting the application of Respondent; Manatee County for a permit to construct a Class I deep injection/test well in Manatee County and issuing a permit as previously drafted; with all specific and general conditions; plus additional conditions: (1) that no testing of the completed well will be done without prior Department approval, upon recommendation of the Technical Advisory Committee: (2) that no testing of the completed well with waste water be done before completion of testing with freshwater: and (3) that Manatee County be required to certify that it will continue to maintain at least $150,000 of its reserves uncommitted and available for use in closing, plugging, and abandoning the well if necessary. DONE and ORDERED this 5th day of May, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1986.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
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 by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER 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 9th day of November, 1994.
Findings Of Fact Brevard applied for a permit to construct a Class I exploratory injection well at the site of the existing South Beaches Domestic Wastewater Treatment Plant, located on U.S. Highway A1A, one mile south of Melbourne Beach, Florida. The exploratory injection well is required to determine if the hydrologic characteristics of the Melbourne Beach area are suitable for deep well disposal of treated domestic waste water. The application proposes that an exploratory well be constructed to meet the Class I standard of Chapter 17-28, Florida Administrative Code, so that it can ultimately be used as a Class I injection well if the required testing indicates the hydrologic formations of the area are suitable for deep well disposal of treated domestic effluent. It is anticipated that a suitable zone for injection bay be found at approximately 3,000 feet below ground level. The conditions required by the Department for issuance of a construction permit would not authorize testing or operation of the well. Once the well is constructed, further approval from the Department is required prior to testing. If the Department authorizes testing, the well will he tested with water from the Indian River. If the test results are favorable, Brevard must then apply for an operation permit authorizing injection of treated effluent. Further Department review will occur prior to issuance of an operation permit. The evidence presented by Brevard and the Department establishes that the design specifications for the exploratory well satisfy the appropriate standards for a Class I exploratory well. The Amended Petition for Hearing raised a number of concerns which were adequately addressed by Brevard and the Department: The Petitioner failed to establish that the documents comprising the application contain false and mis- leading information. The maps and photographs submitted by Brevard adequately depict exist- ing residences, roads, public water systems and water wells. Although well #061 does not appear in the list of owners on the well inven- tory, it clearly appears next to that list on the actual map showing wells within the area of study. Such a clerical error does not draw into question the integrity of Brevard's data. The purpose of constructing and then testing an exploratory well is to determine if the hydrologic environment is suitable for deep well disposal of treated domestic waste water; obviously, it is impossible for Brevard to demon- strate the feasibility of deep well injection until the required testing has been completed. The application and accompanying documents adequately address the design specifications and life expectancy of the proposed well. The application and special conditions of the Department's draft permit provide sufficiently for monitoring during the con- struction and any later testing of the well. The application and the Department's draft permit adequately address the possibility of fluid discharge to surface and ground waters during construction and any later testing of the well. Existing knowledge of the geologic formations in the Brevard County area makes it extremely unlikely that construction and testing of the well could cause an earthquake) Deep well disposal of domestic effluent has been utilized in South Florida for years and has not yet caused an earthquake. No credible evidence was presented by the Petitioner to indicate that an earthquake could result from deep well injection activities in Brevard County. It is important to note that the design specifications and conditions of Brevard's proposal were reviewed and negotiated with the Technical Advisory Committee over a period of many months. Appropriate technical staff from the Department's St. Johns River District office, Brevard County, the St. Johns River Water Management District, and the United States Environmental Protection Agency participated on that Committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered issuing a permit to Brevard County to construct the Class I exploratory well proposed in its application. DONE and RECOMMENDED this 22nd day of November, 1983, 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 22nd day of November, 1983. COPIES FURNISHED: Jeanne Whiteside 10520 South Tropical Trail Merritt Island, Florida 32952 Kenneth C. Crooks, Esquire Post Office Pox 37 Titusville, Florida 32781-0037 Dennis R. Erdley, Esquire Department of Environmental Regulation Twin Towers Office Building 2660 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent created a sanitary nuisance by installing drainfield pipes too far apart in a septic tank drainfield and failing to seal the lid to a septic tank, failing to call for a required inspection before covering an onsite sewage disposal system, and engaging in gross misconduct by assaulting two of Petitioner's employees.
Findings Of Fact Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services. On May 4, 1994, pursuant to a previously issued permit, Respondent completed the installation of a new drainfield at 204 West DelMonte Avenue in Clewiston. He asked Petitioner's office for an inspection for approval to cover the system. Jim Rashley, an environmental specialist employed by Petitioner, inspected the system on the morning of May 4. No one was at the site during the inspection. Mr. Rashley discovered a violation concerning the type of header pipe. He also discovered that the drain lines were more than 36 inches apart and 18 inches from the side of the field. Mr. Rashley determined that the drainfield pipes were three feet and four inches apart. Examining the septic tank itself, which Respondent had pumped, Mr. Rashley found that the lid had not been properly resealed, which would allow rain or dirt to enter the tank or effluent to escape from the tank if the drainfield failed. Returning to his office, Mr. Rashley informed his supervisor, Steve Havig, that he was failing the system and called Respondent and told him the same thing. Respondent asked Mr. Rashley to come out to the site so they could both examine the system, and Mr. Rashley agreed. When they met at the site, Respondent asked Mr. Rashley to point out the three violations, which he did. Respondent's response was to tell him that he was sick and tired of college kids telling him how to install septic tank systems. Mr. Rashley said that he could not ignore violations of the rules. After Respondent became more upset, he moved to within inches of Mr. Rashley's face and asked him if he would approve the system. Mr. Rashley answered he would if Respondent fixed the violations. While Respondent yelled at Mr. Rashley only a few inches from his face, Mr. Rashley, feeling very uncomfortable, retreated to his vehicle and started to drive back to his office. Respondent got into his vehicle and tailgated Mr. Rashley the entire way. When they arrived at Mr. Rashley's office, Respondent told the secretary to call Mr. Rashley's boss. Claiming that Mr. Rashley had unfairly disapproved the system, Respondent asked Mr. Havig to visit the site himself. Mr. Havig agreed to do so. Mr. Havig visited the site on the morning of May 5 outside the presence of Respondent. He confirmed the violations. At their closest point, the drain lines were three feet four inches apart, and the septic tank lid was not sealed. Mr. Havig left a message for Respondent with this information. At Respondent's request, Mr. Havig agreed to meet Respondent at the site at 1:30 pm. Returning from lunch with two other men, Mr. Havig stopped off at the site to meet Respondent. He found that the header pipe violation had been corrected, but the other violations had not been. Mr. Havig and Respondent talked about the separation of the drain lines. Respondent said he could not move the pipe without disturbing the elevation, which is crucial to the functioning of the drainfield. Mr. Havig said he could either move the pipe or add another line so as to reduce the maximum separation between lateral lines to below 36 inches. Respondent complained that he could not maintain the position of the flexible pipe when pouring gravel over the pipes. Respondent became angry. He grabbed a section of the plastic pipe and said that he would show Mr. Havig. The gravel fell in behind the place where the pipe had rested. Respondent declared that he would get the homeowner's approval to cover up the system rather than modify it. Mr. Havig went to his car to get a camera, and Respondent began using a lot of vulgarity. As Mr. Havig took pictures of the installation, Respondent became angrier. His face turned red and he accused Mr. Rashley and Mr. Havig of harassing him. He warned Mr. Havig that, if they did not stop, they would have to suffer the repercussions. Moving very close to Mr. Havig and pounding his fist into his hand, Respondent asked Mr. Havig if he knew what Respondent meant. Mr. Havig said yes, that it was time for him to go. Respondent covered the system up shortly after Mr. Havig departed. Respondent did not allow a reinspection of the system to determine if he corrected either the separation of the drain lines, which he admits he did not correct, or if he sealed the septic tank lid, which he claims he did correct. Respondent has worked as a septic tank contractor in the area for 18 years. The likelihood of system failure is high if a septic tank lid is not properly sealed before the system is covered and placed into operation. Respondent appears to have been a responsible contractor. Based on these facts, there is enough doubt on the lid-sealing issue to preclude finding that Petitioner proved by clear and convincing evidence that Respondent did not seal the lid before covering the system. The pipes constituting the drain lines are manufactured to allow 18 inches of effluent to escape from either side of the pipe. By installing lines with more than 36 inches between each other or 18 inches between a line and a side, Respondent reduced the efficiency of the drainfield because parts of the drainfield, which lies beneath the lines, will not receive as much effluent as other parts of the drainfield. For awhile, due to safety concerns, Petitioner had to send two inspectors to inspect Respondent's work sites. Respondent never apologized to either Mr. Rashley or Mr. Havig until, acknowledging his unprofessional behavior, he apologized during the hearing. Respondent also noted that Petitioner has dealt with him professionally since the incidents in question. Petitioner and Respondent have had troubled dealings in the past. On one occasion, Petitioner insisted on the placement of a drainfield adjacent to an existing, failed drainfield, even though the existing and proposed drainfields drained directly into a canal. Respondent wanted to locate the drainfield well away from the canal. Unable to secure approval locally, Respondent took an appeal to Petitioner's representatives in Tallahassee, who approved Respondent's original, more sensible plan to relocate the drainfield. On the other hand, Respondent violated the minimum- separation rule for drain lines in 1993. Petitioner fined Respondent for the violation.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Rule 10D-6.056(4)(b) and thus 10D- 6.075(2)(a) by installing a drainfield with excessive separation between drain lines, Rule 10D-6.075(4)(d) by failing to call for a required inspection, and Rule 10D-6.075(4)(l)1 by engaging in gross misconduct in his behavior toward two of Petitioner's employees. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $500. ENTERED on July 14, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Floirda 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 14, 1995. APPENDIX Rulings on Petitioner's Proposed Findings All adopted or adopted in substance except that Respondent failed to seal the septic tank lid, which is rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Attorney Melanie A. McGahee 333 S. Commercio, Suite B Clewiston, FL 33440 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Martha Valiant, M. D. Director, Hendry County Public Health Unit P.O. Box 70 LaBelle, FL 33935
The Issue Whether, on January 14, 1997, the Department of Health (Department or DOH), approved an alternative drainfield system for Plastic Tubing Industries, Inc. (PTI), consisting of a 9- pipe system on an equivalency of one linear foot of PTI's system to two square feet of mineral aggregate or one linear foot of PTI's system to three square feet of mineral aggregate.
Findings Of Fact The Parties Petitioner, Plastic Tubing Industries, Inc. (PTI), formerly Plastic Tubing, Inc., was originally formed in Florida in 1974. PTI manufactures plastic drain pipe and the fittings that accompany such pipe. Many of its products and processes are patented. In conjunction with its business, PTI has developed several alternative drainfield systems that utilize plastic tubing or corrugated pipe in lieu of a standard subsurface system made with mineral aggregate for septic tank drainfields. An alternative drainfield system substitutes pipe, or other materials, for aggregate (gravel or rock) used in traditional systems. Before installation in the State of Florida, PTI was required to obtain approval for its alternative drainfield system from the Department. See Fla. Admin. Code R. 10D-6.049, effective January 3, 1995, amended November 19, 1997, and February 3, 1999; and replaced with Fla. Admin. Code R. 64E- 6.009. The Department was, at all times relevant to this administrative proceeding, the state agency authorized to approve the use of alternative systems (to standard subsurface systems) in the State of Florida. Approvals of alternative systems were based on the Department's analysis of, in part, plans prepared by an engineer registered in the State of Florida and submitted by applicants. See Rule 10D-6.049.1 Septic Tanks and Drainfields "Alternative system" means "any approved onsite sewage treatment and disposal system used in lieu of, including modifications to, a standard subsurface system." Rule 10D- 6.042(3). "Standard subsurface drain field system" means "an onsite sewage system and disposal system drain field consisting of a distribution box or header pipe in a drain trench or absorption bed with all portions of the drain field side walls installed below the elevation of undisturbed native soil (see Figure 3)." Rule 10D-6.042(45). The primary purpose of any on-site septic tank system, and ultimately, the septic tank drainfield, is the storage and dispersal of wastewater until the soil can accept it. In other words, a drainfield is a transmission device that takes water and other liquids from a septic tank to the ground. Liquids leave the septic tank into the drainfield which is designed to store the liquid before letting it flow into the ground or soil. Mineral aggregate provides a conducive medium to spread and temporarily store the effluent. Storage capacity refers to the amount of effluent coming out of a septic tank that will be stored in the aggregate or aggregate alternative, here the pipes, until the ground will accept the effluent. Filtrative surface area refers to the openings (in the pipe or aggregate) that allow the water/effluent to leave the storage area and enter the soil. In the case of mineral aggregate, the openings between the aggregate provide an exit for the water/effluent into the soil. With respect to PTI's pipe product, the water leaves the holes in the pipes and travels through voids created from the ridges and valleys of the pipes and enters the soil. An alternative system is evaluated by how the alternative system compares in function (storage capacity and filtrative surface area) to mineral aggregate. In November 1998, the Department defined "reduction" for the first time to mean any change in the actual bottom area size of the drainfield or a change in the footprint of a drainfield. For example, if a product system is 33-inches wide, it would have a reduction because it is less than 36 inches wide. Prior to November 1998, reduction referred to a reduction in linear feet, rather than total trench area or footprint. Thus, if 80 feet of an alternative product could function as well as a 100-foot trench of aggregate, a reduction of 20 feet would occur. PTI did not ask for a reduction in drainfield linear footage, and in particular, regarding the 9-pipe system. The Approval Process On or about April 21, 1995, PTI submitted a letter to the Department which apparently requested approval "to utilize both the 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems." (Petitioner Exhibit 2.) This letter is not part of the final hearing record, but is reflected in the Department's May 24, 1995 letter from Paul Booher, P.E., to Fred Atchley, on behalf of PTI.2 (The quoted language is from the May 24, 1995 letter.) In the May 24, 1995, letter, the Department requested PTI to provide additional information to assist the Department in its evaluation of PTI's request. In part, the Department stated that there are three mechanisms that affect the performance of the infiltrative surface, i.e., chemical, biological, and physical, and that "[b]iological, and perhaps other physical (soil size) considerations, affect the performance of drainfield systems." By letter dated July 7, 1995, PTI's engineer, John E. Garlanger, Ph.D., P.E., a principal with Ardaman & Associates, Inc., provided PTI, to the attention of Mr. Atchley, a letter/report which responded to the Department letter of May 24, 1995. Dr. Garlanger stated in part: "As requested, Ardaman & Associates, Inc. has prepared cross-sectional drawings showing the dimensions associated with the installation of a 9- pipe and 13-pipe Rockless Drain Field System (PTI System) in both mound trench and subsurface trench drain field system." In addition to the letter/report, Dr. Garlanger provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. (Joint Exhibit 1.) The July 7, 1995, drawing depicts the 9-pipe system and 13-pipe system. The 9-pipe system consists of nine four- inch diameter corrugated polyethylene pipes. Four pipes are placed on top of five pipes and one of the four pipes is a distribution pipe. The nine pipes are bundled together, are 8.63 inches in height and 23.25 inches in width, and depicted within a two-foot wide trench. Note 4 of 6 on the drawing indicated that the "ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10 % DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES." (The same drawing also illustrates the 13-pipe system with six pipes placed on top of seven pipes and bundled. The 13-pipe system is 8.63 inches in height and 32.375 inches in width and depicted within a three-foot wide trench. Note 4 is also referenced. (Joint Exhibit 1.)) Dr. Garlanger provided six notes to the July 7, 1995 drawing, as follows: 1.) STORAGE VOLUME BENEATH BOTTOM OF 0.75- INCH DIAMETER PERFORATIONS IN DISTRIBUTION PIPE FOR 9-PIPE SYSTEM IS GREATER THAN 1180 in3/ft (5.1 gal/ft) [1190 in3/ft (5.2 gal/ft)] AND FOR 13-PIPE SYSTEM IS GREATER THAN 1690 in3/ft (7.3 gal/ft) [1710 in3/ft (7.4 gal/ft)]. THIS COMPARES WITH A STORAGE VOLUME OF 660 in3/ft (2.8 gal/FT) FOR CONVENTIONAL 2-FOOT WIDE AGGREGATE-FILLED TRENCH AND 1000 in3/ft (4.3 gal/ft) FOR A CONVENTIONAL 3-FOOT WIDE AGGREGATE-FILLED TRENCH. 2.) TOTAL AVAILABLE STORAGE VOLUME WITHIN 9-PIPE SYSTEM IS 1985 in3/ft (8.6 gal/ft) [2070 in3/ft (8.9 gal/ft)] AND WITHIN 13-PIPE SYSTEM IS 2910 in3/ft (12.6 gal/ft) [2980 in3/ft (12.9 gal/ft)]. THIS COMPARES WITH A TOTAL STORAGE VOLUME OF 1185 in3/ft (5.13 gal/ft) [1200 in3/ft (5.2 gal/ft)] FOR 2-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM AND 1790 in3/ft (7.75 gal/ft) [1800 in3/ft (7.8 gal/ft)] FOR A 3-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM. 3.) THE BOTTOM AREA AVAILABLE FOR FILTRATION IS GREATER THAN 160 in2/ft FOR THE 9-PIPE SYSTEM AND GREATER THAN 220 in2/ft FOR THE 13-PIPE SYSTEM. COMPARABLE BOTTOM AREAS FOR AGGREGATE SYSTEMS ARE 100 in2/ft FOR A 2- FOOT TRENCH AND 150 in2/ft FOR A 3-FOOT TRENCH. 4.) ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10% DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES. 5.) PERFORATIONS [IN DISTRIBUTION PIPE] ARE SPACED 4" ON CENTER. PERFORATION AREA IS 2.65 in2/LINEAL FOOT. 6.) EITHER OF THE UPPER PIPES IN THE DISTRIBUTION PIPE BUNDLE MAY BE USED FOR THE DISTRIBUTION PIPE. THE LOWER PIPE SHALL NOT BE USED FOR THE DISTRIBUTION PIPE. [THE DISTRIBUTION PIPE SHALL BE MARKED WITH A REFERENCE LINE TO ORIENT THE PERFORATIONS. THE DISTRIBUTION PIPE SHALL BE COUPLED BETWEEN EACH BUNDLE TO PROVIDE A CONTINUOUS LENGTH OF PIPE.] (The language appearing in brackets appears in the revised drawing, Joint Exhibit 2, submitted by PTI with Dr. Garlanger's December 8, 1996, letter, DOH Exhibit 4.) In his July 7, 1995 letter to PTI, Dr. Garlanger, in responding to Mr. Booher's letter of May 24, 1995, stated in part: Explain how the pipe bundles fulfill the requirement for a 12-inch deep drain field? Paragraph 10D-6.056(3)(e) requires the mineral aggregate material have a total depth of at least 12 inches and that the distribution pipe have a minimum of six inches of aggregate under the pipe. The purpose of the aggregate is to provide a highly conductive medium to spread and temporarily store the wastewater above the infiltrative surface between loading cycles. Twelve inches of mineral aggregate in a 2- foot wide trench can store approximately 5.25 gallons of wastewater per foot. Deducting the dead storage below the perforations in the distribution pipe, the total available storage in a conventional 2- foot wide trench drain is 5.13 gallons per foot and in a conventional 3-foot wide trench is 7.75 gallons per foot. The height of the 9-pipe and 13-pipe systems is 8.360 inches. The distance from the bottom of the trench to the bottom of the perforations in the distribution pipe is 4.836 inches. The total available water storage in a 9-pipe system after deducting the dead storage is 8.60 gallons per foot and in a 13-pipe system after making the same deduction is 12.58 gallons per foot. In both cases, the total available storage is greater for the PTI system. [See Note 2 above.] Note that the total available water storage capacity below the bottom of the perforations in the distribution pipe is also greater for the PTI System than for the aggregate system: 5.1 gal/ft for the 9-pipe system compared to 2.8 gal/ft for a conventional 2-foot wide trench and 7.3 gal/ft for the 13-pipe system compared to 4.3 gal/ft for the conventional 3-foot wide trench. [See Note 1 above.] Because the thickness of aggregate below the pipe is less than the minimum requirement of 6 inches, we are concerned about the distribution of the effluent over the infiltrative surface, especially since the sidewalls are such an integral part of the operation of the system. The hydraulic conductivity of both the aggregate system and the bundled pipe system is several orders of magnitude higher than that of the in situ sand that underlies the drain field. In both cases, but certainly for the PTI System, water flowing out of the perforations in the distribution pipe can spread out evenly across the infiltrative surface. The depth to which the water rises above the infiltrative surface depends primarily on the inflow rate and the hydraulic conductivity of the organic mat that forms on the bottom of the trench. Because of the differences in porosity between the two systems, the water increases in depth faster in the aggregate system than in the PIT System. However, the ultimate depth of water for a given inflow rate will be roughly the same for both systems, i.e., when inflow equals outflow. The only difference between the two systems is in the volume of water that is stored in the trench during each loading period; the PTI System stores more. There should be no significant difference in the effect of the sidewalls on the infiltrative capacity of the two systems. The effect of increasing sidewall seepage on the overall hydraulic performance of a drain field system is not large. For a 2-foot wide trench, increasing the sidewall seepage by raising the water depth from 5 to 6 inches increases the peak infiltration rate by less than 7 percent. The corresponding increase for a 3-foot wide trench is less than 5 percent. State the area per lineal foot of bundle that constitutes the infiltrative surface. The surface area at the bottom of the trench that is available for filtration of suspended solids in the effluent is greater than 160 in2/lineal foot for the 9-pipe system and greater than 220 in2/lineal foot for the 13-pipe system. This compares with 100 in2/lineal foot for a 2-foot wide aggregate-filled trench and 150 in2/lineal foot for a 3-foot wide aggregate-filled trench. [See Note 3 above.] (The underlined portions are inquiries made by Mr. Booher. The language in brackets refers to the "Notes" mentioned above.) DOH Exhibit 3 is a copy of Dr. Garlanger's July 7, 1995, letter, which also contains Mr. Booher's comments of August 14, 1995. It is noted that Dr. Garlanger discusses the calculations which appear in Notes 1, 2, and 3, in that portion of Dr. Garlanger's letter/report recited above. Mr. Booher also made notations on the July 7, 1995, drawing, with respect to, among other things, the Notes. Material here, beside Note 3, Mr. Booher wrote "Gravel Shadow? @ .35% open." (Joint Exhibit 1.) Mr. Booher also noted on Dr. Garlanger's July 7, 1995, letter/report "disagree" and other notations with respect to Dr. Garlanger's explanation under the subject discussed in Note 3 above, and under the heading "State the area per lineal foot of bundle that constitutes the infiltrative surface." (Emphasis in original.) (See Finding of Fact 16, p. 13.) On October 15, 1996, Mr. Booher requested additional information from Mr. Atchley, as follows: Per our conference call yesterday please provide the following for approval of the rockless pipe drainfield: A written request. Drawings showing the distribution and void pipe locations. Indicate the pipe bundle configurations. If you intend to use the notes on drawing 95-104 titled "Installation guidelines-Multi-pipe rockless drainfield system" please fully include and explain the calculations, including drawings with the areas calculated shown by shading. Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined, percent used for pipe shadowing and how determined. If the distribution pipes are of different material than the void pipe please so indicate. Reference the applicable ASTM standard for all materials. Below item 6, the following handwritten note (by Mr. Booher) appears: "Fred-Don't get optomistic [sic]-we are attempting to define 'gravel equivalent.'" (Joint Exhibit 5.) In response to Mr. Booher's October 15, 1996, request for additional information, on December 8, 1996, Dr. Garlanger provided a two-page letter, and Attachment 1 to Mr. Atchley. Attachment 1 provided "Calculations for Storage Volumes and Infiltration Areas for Multi-Pipe Rockless System and Conventional Gravel Drain." Material here, Attachment 1 contained a summary of Dr. Garlanger's conclusions (and the actual calculations) comparing PTI's multi-pipe system, 9-pipe and 13-pipe, to 24 and 36-inch wide gravel-filled trenches, regarding three parameters: storage volume below holes in the distribution pipe; filtration area; and total storage volume in the system. The specific calculations and illustrations are provided, including "area and volume calculations," in Attachment 1 on pages 1-10. (DOH Exhibit 4 and Joint Exhibit 4.) Dr. Garlanger also provided comparison calculations responding to item 4 in Mr. Booher's October 15, 1996 letter (see Finding of Fact 18) as follows: Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined. The comparison calculations are presented in Attachment 1. The gravel porosity was calculated based on a typical dry density for loosely placed FDOT No. 57 stone of 110 pcf and a specific gravity for limestone of 2.8, resulting in a calculated porosity of approximately 35 percent. For a conventional gravel-filled trench, the area available for filtration was calculated as the total area of the gravel times porosity, i.e., the percent assumed for gravel shadowing was 100-35=65 percent. For the multi- pipe rockless drain, the contact between the bottom of each pipe and the ground surface was taken as 2 inches per lineal inch of pipe which provides sufficient bearing area to support the overburden pressure. Computation of equivalent storage in the gravel assumed a minimum of 6 inches of No. 57 stone beneath the invert of the pipe and a distance of 0.83 inches from the invert of the pipe to the bottom of the drain holes. (Emphasis added.) (Mr. Booher's request is underlined before Dr. Garlanger's response.) Dr. Garlanger also provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. This drawing reflects general revisions of October 11, 1995, and December 6, 1996, to the original drawing dated July 7, 1995, which accompanied Dr. Garlanger's July 7, 1995, letter to Mr. Atchley. See Findings of Fact 14-15. Six "Notes" were presented in the December 6, 1996, drawing revisions, with some changes made to Notes 1, 2, 5, and 6 which do not appear to be material. See Finding of Fact 15. No changes are made to Notes 3 and 4. Material here, Note 3 pertains to "the bottom area available for filtration" and Dr. Garlanger's calculations showing the 9-pipe system comparing more favorably (equal to or greater) to a 24 and 36-inch (two and three feet wide, respectively) wide aggregate (gravel) trench without any changes in response to Mr. Booher's August 14, 1995, comments and October 15, 1996, request for additional "comparison calculation" and explanation regarding "gravel shadowing." (Notes 1-3 are derived from the calculations appearing in Attachment 1, pages 1-9.) Dr. Garlanger's submissions indicated that one linear foot of the 9-pipe system is equal to or greater than three square feet of gravel. Also, the representation that the 9-pipe system fits within a 24-inch trench does not relate to equivalency. See Finding of Fact 36. Dr. Garlanger's December 8, 1996, letter, with Attachment 1, and the revised drawing, were forwarded to Mr. Booher with a cover letter from Mr. Atchley, dated December 11, 1996. Mr. Atchley stated in his letter: Enclosed are the drawings and calculations you requested. The "numbers" add up favorably. I look forward to your response and anticipated approval based on this information. Please notice the difference in volume (total capacity), porosity and filtrative surface area. Based on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time. We do ask that the bed installation constraint be removed from our acceptance letter. There seems to be more and more bed type installations even though the FAC 10D-6 clearly states that a trench system is the preferred method. Consequently, we will be requiring that certified installers of our systems employ a method of back filling that will insure against collapse of any part of the system. This method would also have to provide within reason, a guaranty against operating any equipment onto the drain field area until sufficient cover has been established. After 10 to 12 inches of cover has been established we ask them to mark the bed area with stakes and flagging to serve as a warning to other sub-contractors such as the sod installers and the finished grade tractor operator. If there are any questions please call me at (407) 298-5121. (On January 13, 1997, Mr. Atchley also sent Mr. Booher a similar letter, but also included some additional data regarding 1996 sales, including but not limited to average system size per square foot, the number of active installers, installations per month.) On January 14, 1997, Mr. Booher issued the following approval letter to Mr. Atchley: Dear Mr. Atchley: We have reviewed the engineering drawings dated 07/07/95 with revision 2 dated 12/06/96 and data prepared and sealed by Ardaman & Associates dated December 8, 1996, and received in this office on December 16, 1996. Your request for alternative drainfield system approval letters dated December 11, 1996, and January 13, 1997, have also been reviewed. The PTI nine pipe bundle and PTI thirteen pipe bundle Multi-Pipe Rockless Drainfield Systems are hereby approved for use in the State of Florida. We have concerns about the total effective sidewall contact surface area, especially when systems are installed with no fall. We also have concerns regarding the structural integrity of the pipe bundle systems when used in large bed applications. Nevertheless, approval is granted based on the design and recommendations submitted by your professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations. Except as herein noted, all systems shall be installed in accordance with sections 381.0065-381.0067 Florida Statutes, and all rules in Chapter 10D-6, Florida Administrative Code (FAC). All installations shall be sized and installed meeting all rules in Rule 10D-6, FAC and shall also meet the following conditions: All licensed septic tank contractors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. Both the 9 and 13 pipe bundle systems can be installed in subsurface, filled, or mound trench or bed systems. In bed systems the maximum centerline to centerline spacing of the distribution pipe shall be 36 inches. The distribution piping may be used to house low pressure distribution networks. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or any other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer or the registered septic tank contractor if an engineer didn't design the system is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions please call us at (904) 488-4070. (Emphasis added.) This letter was accompanied by a facsimile sheet which indicated, in part, that the Department intended to "notify the 67 counties within the week." On January 29, 1997, Mr. Booher authored an Interoffice Memorandum which was issued from John Heber, Chief, On-Site Sewage Program, Mr. Booher's supervisor at the time, to the County Health Department Director/Administrator. (Joint Exhibit 11.) This Interoffice Memorandum provided in part: The PTI 9 pipe and 13 pipe "Multi- Purpose Rockless Drainfield Systems" have both been given alternative systems approval for use in Florida. The systems are to be installed in accordance with drawing file number 95- 104 dated 07/07/95, revision 2 dated 12/06/96, copy attached. Except as hereby noted, systems shall be installed in accordance with sections 381.0065 - 381.0067, Florida Statutes, and all rules in Chapter 10D- 6, Florida Administrative Code (FAC). The following conditions apply: The 9 pipe system shall be rated at 1 linear foot equals 2 square feet of drainfield area. The 13 pipe system shall be rated at 1 linear foot equals 3 square feet of drainfield area. The 9 pipe and 13 pipe bundle systems may be installed in subsurface, filled or mounded trench or bed applications. Dosing will be acceptable when used to overcome a gravity situation. Pressurized systems shall be designed and installed in accordance with Chapter 10D-6, Florida Administrative Code. Please be reminded that certain pressurized dosing systems must be designed by engineers registered in the State of Florida. For designs requiring the use of smaller diameter pipe (either screw joint or glue joint), the 9 pipe and 13 pipe systems distribution pipe shall house the pressurized pipe system. All licensed septic tank contactors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or an other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer (or the registered septic tank contractor if an engineer does not design the system) is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions, please call me or Paul Booher, P.E., at (904) 488-4070, or SC 278-4070. (Emphasis in original.) On March 13, 1998, the Department issued a document entitled "Onsite Sewage Treatment and Disposal Systems Alternative Drainfield Products." This document describes several product names including PTI's product as follows: "PTI 'NPRDS' 9 ea.- 2-tier 13 ea.-2-tier." The engineer of record is listed as Ardaman and Associates, and the type of permit issued is referred to as "Alternative Status" along the same line as "PTI 'MPRDS"" and "No reduction in area" along the line "9 ea.-2 tier." Mr. Everson may have seen this chart prior to seeing the November 27, 2000, chart mentioned below. But, the mention of no reduction would have been consistent with his understanding that reduction referred to a reduction in linear feet and PTI did not request a reduction in linear feet. On November 27, 2000, an employee of the Department prepared a similar chart which included a description of product names and included the same PTI product. However, under the heading "Type of Permit Issued and Sizing Criteria," the following language appears: PRODUCT NAME DESCRIPTION SUBMISSION DATE APPROVAL DATE CPHU NOTIFICATION DATE ENGINEER OF RECORD TYPE OF PERMIT ISSUED and SIZING CRITERIA *** *** *** *** *** *** PTI "MPRDS" 9 ea.-2 tier 12/06/96 12/14/96 01/15/97 Ardaman and Associates 1 linear foot of product = 2 sq ft of mineral aggregate 13 ea.-2 tier 1 linear foot of product = 3 sq ft of mineral aggregate On February 26, 2001, the Department issued a similar chart which contained the same information regarding PTI as the November 27, 2000, chart, which appears above. All of the charts were designed to provide guidance to the local health departments regarding the alternative drainfield systems approved in the State of Florida and the ratings, e.g., equivalency, assigned to each. See Findings of Fact 26-28. The November 27, 2000, and February 26, 2001, charts described PTI's 9-pipe system approved by the Department on a one-to-two square foot equivalency to mineral aggregate. In late 2000, while working with a Department representative on an industry presentation, Mr. Everson, vice president of PTI, discovered the November 27, 2000, chart mentioned above. Mr. Everson believed this representation to be incorrect and reported it to Michael Maroschak, the president of PTI. Discussions transpired between representatives of PTI and the Department. Ultimately, the Department implicitly decided that the Department had approved PTI's 9-pipe system, consistent with these charts. On March 18, 2003, the Department advised PTI in writing that it "stands by its previous decisions on the matter." PTI then filed its Petition challenging this agency action. Resolution of the Controversy PTI has developed various pipe configurations to serve as alternative drainfield systems. PTI requested the Department to approve its 9-pipe and 13-pipe bundle Multi-Pipe Rockless Drainfield Systems in or around April of 1995. The 9-pipe system is the subject of this proceeding. As early as May 1995, the Department understood that PTI requested approval to utilize both PTI's 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems. Over the course of over a year and a half, in support of its approval request and in response to questions posed by the Department, PTI, by and through Dr. Garlanger, PTI's registered Professional Engineer, submitted an engineering drawing (signed and sealed), as revised, and specific specifications and calculations to indicate that one linear foot of the 9-pipe system compared favorably, on paper, with a conventional three-foot wide, 12-inch deep (three square feet) aggregate system. The Department raised questions regarding PTI's proposal to which PTI, and specifically Dr. Garlanger, responded. During the approval process, the Department raised issues related to "gravel shadowing" and Dr. Garlanger's calculations regarding the "bottom area available for filtration." See, e.g., (DOH Exhibit 3, p. 2; Joint Exhibit 1.) Dr. Garlanger responded to these inquiries. See, e.g., (DOH Exhibits 3 and 4; Joint Exhibits 1 and 2.) Dr. Garlanger has been a registered Professional Engineer in the State of Florida since 1974 and has served as vice-president for Ardaman & Associates and chief engineer since 1975. He was accepted as an expert in the areas of hydrology, hydro-geology, and geotechnical engineering. Dr. Garlanger prepared and signed and sealed the engineering drawings and all comparative data submitted by PTI with its approval request. Dr. Garlanger's engineering drawings, including the "Notes" as revised, and calculations indicated favorable (equal to or greater than) comparisons of one linear foot of PTI's 9- pipe system with two and three square feet of aggregate (gravel). The fact that the 9-pipe system fits within a 24-inch or two-foot wide trench does not affect its equivalency to three square feet of aggregate (gravel) with respect to the three parameters in Notes 1-3 and in the calculations referred to in Attachment 1. See Finding of Fact 22. During the final hearing, the Department, consistent with written comments made during the approval process, suggested that the "gravel shadowing" or "a shadowing technique" that occurs with alternative systems to compare their infiltrative surface area (bottom area available for filtration) to aggregate, has never been used by the Department "as an evaluator." Mr. Booher3 explained that this technique "reduces the size of the actual area, the length times the width of the drain field [sic], by a cross sectional area of interrupting gravel, saying the actual absorption area is reduced as a result of the gravel that is sitting on the infiltrative surface and reduces the total area, absorptive area, to about one-third of the actual total area. And that's what [he] disagree[s] with." Mr. Booher also stated that he would not approve a 9- pipe system at a three square-foot equivalent because of biological loading. He explained his position in some detail. In the May 24, 1995, letter to PTI, the Department stated that it was "interested in verifying that the drainfield environment will support aerobic treatment over the long term." This question expressed the Department's concern regarding "biological loading and problems that can develop. Dr. Garlanger responded to this inquiry and his explanation was accepted by Mr. Booher "because everyone claims it." See (DOH Exhibit 3; Petitioner Exhibit 2, p. 3.) The Department also contended that it did not approve PTI's request because PTI did not ask for a "reduction." Mr. Booher explained during the final hearing that Dr. Garlanger's drawings (Joint Exhibits 1 and 2) referred to "the 9-inch pipe and the 24-inch trench and the 13-inch pipe and the 36-inch trench because that note 4 says that if you put them in accordance with this document, then you will be a full 24-inch, 9-inch, 24-inch equivalent and 36-inch, 13-pipe equivalent" and that he "needed to restrict [his] review to no reduction in area." Mr. Booher also commented on Note 3, for which he disagreed during the approval process. It did not matter to Mr. Booher that Dr. Garlanger used "the shadow masking technique because [PTI] was not asking for any reduction." He considered Note 3 as "just more information, as opposed to an evaluation for determination of the sizing." In other words, according to Mr. Booher, the Department's approval letter of January 14, 1997, did not address the idea of using the 9-pipe system in a 36-inch trench" because PTI "asked for no reduction." 4 The Department's position is also based, in part, on Mr. Atchley's cover letters of December 11, 1996, and January 13, 1997, in which Mr. Atchley, referring to Dr. Garlanger's drawings and calculations, that "[b]ased on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time." The weight of the evidence indicates that the reference to the "40%" pertains to the 13-pipe system, which would have been a large reduction, and not the 9-pipe system. The 9-pipe system qualified for only a minimal reduction which was not requested. Also, PTI did not request a reduction in linear feet. There is a conflict in the evidence regarding what PTI requested. Mr. Atchley opines that PTI did not request approval of the 9-pipe system such that one linear foot of product is equivalent to three square feet of aggregate. Mr. Booher agrees and also opines that the Department did not approve this configuration. Mr. Everson takes the opposite view as does Dr. Garlanger. The conflict is resolved in PTI's favor. While Mr. Booher's comments appearing of record, regarding PTI's request for approval and the Department's approval, and which were explained more fully during the final hearing, are credible, the fact remains that the Department granted approval "based on the design and recommendations submitted by [PTI's] professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations." (Joint Exhibit 6.) The Department did not take exception in its approval letter, as it did during the final hearing, to PTI's submissions by Dr. Garlanger, PTI's professional engineer.5 Dr. Garlanger's submissions and his explanation of his submissions are credible. The weight of the evidence indicates that PTI requested approval for and the Department approved PTI's 9-pipe system on an equivalency of one linear foot of product to three square feet of mineral aggregate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order concluding that Plastic Tubing Industries, Inc.'s 9-pipe bundle Multi-Pipe Rockless Drainfield System, such that one linear foot of PTI's 9-pipe system is equivalent to three square feet of mineral aggregate, is approved for use in the State of Florida. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003.
