The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns a parcel of land in Palm Beach, County on which is housed Petitioner's paving and landscapping business and which is zoned for industrial use. Petitioner intends to install a manufactured building for use as an office. To provide sewage treatment for the bathroom of the office, Petitioner had a septic tank designed and applied for a septic tank permit which was denied as was its variance request. As a result of a complaint, Petitioner was inspected in August, 1988, by the Palm Beach County Department of Environmental Resources Management and by the Florida Department of Environmental Regulation. Both inspections yielded citiations for soil contamination by oil and other hazardous waste. Petitioner represented that most of the infractions had been rectified by the date of the hearing in this matter and pledged full cooperation with the County and State rules. To oversee the operation of the business and assure that no further problems arose, Petitioner decided to establish its office on site. The closest sewage treatment plant is at full capacity and does not intend to provide service to the parcel in the near future. The adjoining properties are serviced by septic tanks. As such, the proof did not demonstrate that alternative methods of waste disposal were available to the site However, as part of its business operation, Petitioner does minor repair of its equipment on site and may include oil changes and other such services. Although Petitioner does not intend to pollute the groundwater and intends to use the proposed septic tank for office use only, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of its equipment could result in the disposition of prohibited hazardous waste into the groundwater. Further, the proof failed to demonstrate that the septic tank would be protected from use by those who handled the hazardous waste. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner and the proof failed to demonstrate reasonable alternatives of waste disposal, the potential for an adverse affect of the operation to the groundwater is great. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions or whether the property was platted prior to 1972. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Hattie Parker 160 Toneypenna Drive Jupiter, Florida 33468 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to a permit permitting installation of an on-site sewage disposal system (OSDS) on his property located in Dixie County, Florida, in the vicinity of the Suwannee River and whether he is entitled to seek a variance from the statutes and rules concerning permitting of such systems.
Findings Of Fact The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered denying the Petitioner's application for an OSDS permit, without prejudice to the applicant applying for and seeking a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above, and without prejudice to applying for and pursuing an OSDS permit application should the applicant, at a later time, be able to demonstrate that alternative methods of treatment and disposal of the sewage effluent at issue can feasibly be performed, within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE and ENTERED this 21st of December, 1990 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-2487 PETITIONER'S PROPOSED FINDINGS-OF FACT Accepted. Accepted. 5-14. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT 1-7. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John K. McPherson, Esquire 22 South Main Street Gainesville, FL 32601 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609 =================================================================
Findings Of Fact Respondent City of Okeechobee (City) has applied to the Department of Environmental Regulation (Department) for a permit to construct a 0.6 mgd sewage treatment plant with land spraying as the method for effluent disposal. The facility will be used to provide secondary treatment of domestic waste for the City of Okeechobee. The location of the facility site will be north of the City of Okeechobee on Cemetary Road. It will be adjacent to R- Bar Estates, a residential subdivision, and the Florida School for Boys. This site is a suitable land site for the facility. Analysis of other sites has not produced a better site for the project. The waste material will be introduced into the plant where some solids will be removed. The wastewater will then move into the treatment tanks where bacteria will assimilate the nutrients. With secondary treatment, approximately 90 percent of the nutrients will be removed. The treated wastewater will then be disinfected with chlorine so as to maintain a chlorine residual of 0.5 ppm. The chlorination should destroy most if not all of the bacteria in the effluent. The method of treatment described above is a standard method. The design of the plant itself is quite common and, with the changes recommended by the Department, should be simple to maintain and should provide an acceptable level of treatment. If the plant is operated properly, the wastewater will meet all Department standards for secondary sewage treatment. Petitioner introduced no evidence at the hearing to establish that the plant itself could not be properly constructed or that the plant could not meet treatment levels. There are no noises or lighting at the plant which would carry to any residential areas. The plant itself is well removed from R-Bar Estates. While the sprayfields are located near R-Bar Estates, the only noise associated with the effluent disposal will be that of the small electric motor used to move the spray bars. The entire site will be enclosed by a fence so as to restrict access. The facility has been provided with a flow meter and with raw wastewater and finished effluent taps. The treated effluent from the plant is to be disposed of on sprayfields adjacent to the facility. Combined area of the sprayfields will be 310 acres. The sprayfield area consists of seven separate sprayfields. Each sprayfield will receive 1/2 inch of effluent per week, with each field receiving effluent one day per week. Prior to disposal of effluent, the entire site will be graded so as to eliminate low areas. Elimination of low areas on the site will reduce the possibility of effluent ponding on the site. The entire area of the sprayfield will be surrounded by a dike. The dike will prevent any surface waters or effluent from leaving the site. There will be no contamination of any waters from surface water runoff from the site. The facility has the capacity to store effluent for 90 days in the event of an unusually wet rainy season. That capacity allows the plant to retain all effluent for 90 days without any discharge in the event the sprayfields become saturated. The size of the pond may allow for some mosquito propagation but no mosquito problem is anticipated if the project is done properly and maintained. Mosquito propagation in holding ponds does occur in Florida. However, in every holding pond in which mosquito propagation has become a problem, it has been controlled by proven management techniques. The most common method of eliminating areas for mosquito propagation is to keep the side slopes of the pond free from vegetation. However, if that is not effective, adequate control may be achieved by use of chemical larvicides. In a pond of this size, chemical use is not as practical, but nonetheless remains as an alternative. The City of Okeechobee already owns the machinery necessary to mow around the perimeter of the pond. The holding pond area includes a separate pond which will accept effluent during times in which the plant upsets. During an upset, hydraulic or other factors may result in the plant producing inadequately treated effluent. That inadequately treated effluent will be pumped back to the head of the plant for further treatment. During the treatment process, ozone will be injected into the raw sewage. Ozone serves to reduce the smell of the sewage. Between the ozone treatment and the treatment at the plant, the finished effluent should have a very slight and innocuous odor. The application of effluent shall be accomplished by two methods. In four fields, effluent will be sprayed by an irrigator which moves in a circle from a central pivot. The effluent is sprayed down to the ground, thereby eliminating potential for aerosol drift. In the three fields furthest from inhabited areas, effluent is sprayed by a rolling unit which is pulled across the sprayfield. Trees and other vegetation at the property boundaries will eliminate any aerosol drift which may occur. There is a buffer of 200 feet from the edge of the sprayfield to the property boundary. It is in excess of 400 feet from the edge of the sprayfield to the nearest drinking water well. This distance should be adequate to keep any contaminants from reaching wells offsite. The nearest wells are all fully encased wells at approximately 100 feet or greater in depth. The plant described in the application and drawings is designed to provide Class I reliability pursuant to Florida Administrative Code Rule 17-6.040(4)(m). The primary constituents of the effluent will be water, nitrogen and phosphorus. Vegetation utilizes nitrogen and phosphorus in its growth process. When treated effluent is sprayed on a field, much of the nutrients remaining after treatment are assimilated by vegetation on the fields. Therefore the vegetation provides additional treatment for effluent beyond that provided in the plant. The types of vegetation to be grown in the Okeechobee sprayfields are Pangola grass and rye grass. Pangola grass, which is recommended for the area by the Soil Conservation Service, is a commercially valuable hay. Okeechobee intends to have a person contract with the City to harvest the hay four times per year. During the winter, when Pangola grass is dormant, rye grass will be planted and utilized to provide the same treatment. The facility will be surrounded by a series of monitoring wells which will allow early detection of contaminants leaving the property boundary. The wells will measure upstream and downstream groundwater. Nitrogen and phosphorus are not health related components of effluent. They are nutrient related standards and must exist in extremely high concentrations to have a health risk. However, if the monitoring wells pick up levels of nitrogen or phosphorus leaving the site boundary, a fund has been established for the construction of water mains to R-Bar Estates to provide residents of the area with city water. An adequate water supply to R-Bar Estates is assured. The soils in the project area consist of Myakka and Imokolee fine sand with pockets of other fine sands. An organic pan exists at elevations from 24 to 35 inches below the surface. The organic pan acts as a semi-confining layer. The permeability rate of the sands is approximately 12 feet per day. The organic layer rate is from 4 to 12 feet per day. As a part of the site preparation, the organic layer will be deep plowed to break up the layer and allow for a greater permeability rate. The permeability of the shallow water table is approximately 2 feet per day, and for purposes of doing calculations, in DER Exhibit 2, a rate of 2 feet per day was used. Based on all available data, the soils and vegetation at the site should be more than capable of assimilating and fixing the nitrogen and phosphorus load from the effluent. There is little or no risk of contamination of water sources off-site, including Taylor Creek. The City of Okeechobee has agreed to obtain a $3,000,00c policy of pollution insurance protecting against pollution of drinking water wells resulting from construction of the proposed wastewater treatment facility, and the City has the authority to obtain the insurance. There is no reverter clause in a deed from Okeechobee County to the State of Florida that would effect the use of the proposed site as a wastewater treatment facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting a permit to the City of Okeechobee to construct the wastewater treatment facility as proposed. DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of June, 1984. COPIES FURNISHED: Robert v. Kennedy, Esquire Post Office Box 968 Okeechobee, Florida 33472 Lester W. Jennings, Esquire Post Office Box 237 Okeechobee, Florida E. Gary Early, Esquire Department of Environmental Regulation 2600 Blairstone Road, Suite 654 Tallahassee, Florida 32301
The Issue Should Petitioner's application for variance from the standards for onsite sewage treatment and disposal systems be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, through its local health units, is the agency in the State of Florida responsible for permitting or granting variances from permitting standards set forth in Chapter 64E-6, Florida Administrative Code, for Onsite Sewage Treatment and Disposal Systems (OSTDS). Sometime around 1970, Petitioner purchased a mobile home park (Park) in Winter Haven, Florida. The Park presently contains 68 spaces for mobile homes, all of which are occupied. The Park is situated due south of Lake Shipp. There are two canals running approximately east and west through the interior of the Park. Another canal borders the Park on the north side. Included with the purchase of the Park was a Sewage Treatment System (STS) which is permitted and regulated by the Department of Environmental Protection and is presently operating at its maximum capacity serving the 68 mobile homes located in the Park. Sometime around 1980, Petitioner purchased a parcel of land (Property) immediately north of, and across a canal (this is the canal that borders the north side of the Park) from, the Park. The Property borders a basin to Lake Shipp. The Property is zoned for mobile home usage and such is the purpose for which Petitioner purchased the Property. Petitioner has designed the Property such that it will accommodate three mobile home lots (Lots numbered 69, 70, and 71) which Petitioner intends to operate as part of the Park. Initially, Petitioner requested approval of the Department of Environmental Protection to connect the new lots to the existing STS. However, since the existing STS was already at capacity, the Department of Environmental Protection denied Petitioner's request to connect the additional three lots to that system. However, the Department of Environmental protection advised Petitioner that it would have no objection to the installation of septic tanks approved by the Department of Health to serve the additional lots. Subsequently, Petitioner proceeded to obtain the necessary approvals from the local governing authorities and a permit from the Department for the installation of septic tanks on the Property. Petitioner was successful in obtaining the necessary approvals from the local governing authorities but was not successful in obtaining a permit for the installation of septic tanks on the Property from the Department. By letter dated July 16, 1997, the Polk County Health Department denied Petitioner's Application for Onsite Sewage Treatment Disposal System Permit for the following reason: "Domestic sewage flow exceeds 10,000 gallons per day." The denial letter also advised Petitioner that she could request a variance through the Variance Review Board or request an administrative hearing pursuant to Chapter 120, Florida Statutes, on the Department's denial of her application for a permit to install septic tanks on the Property. Petitioner elected to file an application for a variance from Section 381.0065(3)(b), Florida Statutes, with the Variance Review Board. By letter dated August 7, 1997, the Department denied Petitioner's application for variance for the following reasons: The Variance Review and Advisory Committee for the Onsite Sewage Treatment and Disposal Program has recommended disapproval of your application for variance in the case of the above reference property. The granting of variances from established standards is for relieving hardships where it can be clearly shown that the public's health will not be impaired and where pollution of groundwater or surface water will not result, where no reasonable alternative exists, and where the hardship was not intentionally caused by the action of the applicant. The advisory committee's recommendation was based on the failure of the information provided to satisfy the committee that the hardship was not caused intentionally by the action of the applicant, no reasonable alternative exists for the treatment of the sewage, or the discharge from the system will not adversely affect the health of the public. I concur with the advisory committee's recommendation and hereby deny your variance request. Subsequently, Petitioner requested and was granted a formal hearing pursuant to Chapter 120, Florida Statutes, on the denial of Petitioner's application for a variance. The Petitioner intends to locate the OSTDS on the Property. The tank and drain field for the OSTDS will be located approximately 125 feet from the basin. The City of Winter Haven's Sewage System is not available to the Property. The Park's existing STS does not have adequate capacity to accept the sewage that will be generated by the Property. There is no publicly-owned or investor-owned sewage system capable of being connected to the plumbing of the Property. Petitioner testified that the estimated cost of increasing the capacity of the Park's Sewage System to accommodate service to the three additional lots was $30,000.00 - $40,000.00. However, Petitioner presented no evidence as to how the estimate was determined. The projected daily domestic sewage flow from the Property is less than 1,500 gallons per acre per day. The Property contains 1.78 acres and there will be less than four lots per acre. In a letter dated October 17, 1997, from W. R. Cover, a professional engineer with Cover Engineering, Inc., Mr. Cover expresses the following opinion: The location of these proposed mobile homes is such that a septic system will not cause adverse effects or impacts on the environment or public health. The unit will be located so as not to significantly degrade groundwater or surface waters. There is no reasonable alternative for the treatment of the sewage in view of the fact that it would be an additional financial burden to attempt to connect these units to the existing sewage treatment plant Mr. Cover did not testify at the hearing. However, the letter was received as evidence without objection from the Department. Petitioner has failed to present sufficient evidence to show that: (a) no reasonable alternative exists for the treatment of the sewage, and (b) the discharge from the Onsite Sewage Treatment and Disposal System will not adversely affect the health of the applicant or the public or significantly degrade groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order denying Petitioner's application for variance from the requirements of Section 381.0065, Florida Statutes and Chapter 64E-6, Florida Administrative Code. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Robert J. Antonello, Esquire Antonello, Fegers and Cea Post Office Box 7692 Winter Haven, Florida 33883-7692 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-0293
Findings Of Fact Respondent owns and operates a waste water treatment facility at Polynesian Village Mobile Home Park, owns the land at this village, leases these lots to mobile home owners, and provides them with waste water treatment. He was last issued an operating permit on January 18, 1983, by Petitioner. Respondent posted an Operational Bond (Exhibit 2) in the amount of $7,500 with Northwestern National Insurance Company as surety to faithfully operate the treatment facility and comply with all Rules and Regulations of the Petitioner. Englewood Water District, petitioner, was established by special act of the Florida Legislature in Chapter 59-931, Florida Statutes, and is given authority in Section 4 thereof to regulate use of sewers, fix rates, enjoin or otherwise prevent violations of the act or any regulation adopted by Petitioner pursuant to the act, and to promulgate regulations to carry out the provisions of the act. Pursuant to this authority, Petitioner promulgated Waste Water Treatment Facilities Design, Construction and Operation Regulations dated June 19, 1980, and revised April 28, 1983. During an inspection of Respondent's waste water treatment facility on October 17, 1983, leaching was observed at both the north and south drain fields with effluent from the system rising to the surface. Samples of this effluent when tested showed a fecal coliform count of 2800/100 ml. The basic level of disinfectant shall result in not more than 200 fecal coliform values per 100 ml of effluent sample (Rule 17-6.060(1)(b)3a, F.A.C.). Following this test, Notice of Violation (Exhibit 4) was served on Respondent. No action was taken by Respondent to correct this condition and on January 6, 1984, a Citation (Exhibit 5) was issued to Respondent scheduling a hearing for January 26, 1984. Following the issuance of that Citation frequent inspections of the facility were conducted by employees of Respondent to ascertain if steps were being taken by Respondent to correct the deficiencies. Additionally, inspections were made by inspectors from Sarasota County Pollution Control. Inspections were conducted January 9, 16, 17, 18, 20, 23, and 31; February 1, 8, 13, 14, 16, 21, 24, 25, 26, 27, 28, and 29; and March 2, 5, 8, and 9, 1984. These inspections revealed what appears to be a "blow-out" in the south drain field where effluent bubbles to the surface and flows onto the adjacent streets and propert (Exhibits 9 and 11). Effluent tested from this source had fecal coliform counts as high as 9440/100 ml. During one of these inspections effluent from the treatment plant was being discharged directly onto the road to a drainage ditch adjacent to the plant (Exhibit 8). The coliform count of a sample taken from this ditch was 13500/100 ml. Respondent was issued a second Citation on March 2, 1984, and this hearing was held on the violations alleged in that Citation, to wit: creating a public nuisance and leaching from drain field. Respondent contends that he is dealing with the Sarasota County Engineer to correct the problems and, after failing in his attempt to get the county to provide drainage from his property, he is now in the process of installing drain pipes. Respondent contends that the natural drainage of surface waters from his land to adjacent land was stopped by development on the adjacent land and the heavy rains this winter has saturated his land and inhibited percolation in the drain fields. Accordingly, the effluent from his plant could not be absorbed by the drain field. Respondent also contends that the drain field worked fine for several years before the drainage problem arose and believes it will again work well when the drainage situation is corrected.
Findings Of Fact Respondent HDR has applied to DER for a permit to construct a 60,000 gallon per day extended aeration sewage treatment plant with percolation ponds. The facility would be used to provide secondary treatment of domestic waste from the HDR Mobile Home Park. The project is in Volusia County south of the City of Oak Hill and north of the Town of Edgewater. It is bounded on the east side by the Indian River and the west side by U.S. Highway One. The mobile home project site consists of approximately 156 acres, with the proposed wastewater treatment plant located in the southwest corner of the tract. HDR submitted Application No. 85433 to DER on July 2, 1984, requesting a permit to construct a 0.6 MGD extended aeration sewage treatment plant and associated percolation ponds for the mobile home project. Supplemental information was filed with DER on August 29, 1984. DER issued a notice of intent to permit the project on November 8, 1984. The plant would provide secondary treatment of effluent with a minimum of 90 percent removal of BOD's and suspended solids through aeration, settling and chlorination processes. The system is designed to collect sewage through a gravity system and lift station. The lift station dumps the sewage into the aeration chambers where forced air is mixed with the sewage, resulting in removal of organic materials and solids. The dissolved solids are then separated in the settling tank. From the settling tank, clear effluent enters the chlorine contact chamber where chlorine disinfectant is added prior to discharge into the percolation pond. The method of treatment described above and the design of the plant are standard. If the plant is operated properly, the wastewater will meet all DER criteria for secondary sewage treatment. Plant odor will be minimized by the continual feed of forced air into the system. Silencers will be installed on blowers to minimize any adverse noise effects from the blowers' operation. Aerosol drift is not a factor with the design of this plant. Security lighting will be provided, and the plant site will be surrounded by a six foot security fence. The design provides for effluent sampling access points and there will be a flow meter for measuring effluent discharge on site. A Class C operator will be required to operate the plant. Disposal of the 90 percent treated effluent will be made into two percolation ponds. The ponds will be alternately loaded, with one pond being loaded for seven days and then resting seven days. The total surface area for the two ponds is approximately 130,000 square feet. The ponds are designed with berms of three feet with an emergency overflow one foot from the top of each berm. The two ponds together are designed to handle 200,000 gallons per day which would be the ultimate build out of this project. However, the maximum capacity of the initial phase of the wastewater treatment plant would be 60,000 gallons a day. Any expansion to the sewage treatment plant would require a separate permit. The overall elevation of the area where the ponds are to be located is approximately 14 feet above sea level. Each pond is designed so that the pond bottom is two feet above the underground water table level measured at the highest point for the rainy season. In a 100 year flood, it is expected that the effluent and water can be absorbed without an overflow. The mobile home park has a storm retention system in which any theoretical overflow would be caught. The soil type at the location of the percolation ponds consists of several layers of sands. This type of soil has good permeability in that it provides a good transfer of water through the soil and is therefore suitable for siting of the percolation ponds. Pond design is conservative in that the hydraulic loading rate has a safety factor of at least 300 percent. Once the effluent has percolated into the ponds, the discharge will meet or exceed the level of quality of the G-2 ground water within the 100 foot zone of discharge. The design of the wastewater treatment plant also includes sufficient monitoring wells and provides for adequate buffer zones from residences and drainage ditches. No surface waters of the state are located within 500 feet of the sewage treatment plant or its percolation ponds. The Indian River, which is adjacent to the Hacienda Del Rio project, is approximately 2,500 feet from the sewage treatment plant. There will be no direct discharge by the sewage treatment plant into this body of water or any surface waters, nor would any indirect effect on surface waters be measurable. Shellfish harvesting is a local industry. The waters of the Indian River immediately east of the Hacienda Del Rio property are designated Class II waters suitable for shellfish harvesting. The Indian River is also part of the Canaveral National Seashore Waters, which are designated as Outstanding Florida Waters. Concern was expressed that additional growth in the area might contribute to degradation of these Class II waters. There was, however, no evidence to indicate that the construction or implementation of the wastewater treatment plant by HCD would degrade ore pollute the Indian River (which is both Class II and Outstanding Florida Water) or any other State of Florida surface waters. It should be noted that waters north and south of the property in the Indian River are closed to shellfish harvesting, apparently due to pollution. The Town of Edgewater north of the Hacienda Del Rio project has a secondary wastewater treatment plant which discharges its effluent directly into the Indian River. The City of Oak Hill to the south of the project has no wastewater treatment plant whatsoever. Individual businesses and homes utilize septic tanks, which can cause pollution to the Indian River through seepage. The HDR sewage treatment plant would thus meet higher standards than neighboring community facilities.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a Final Order granting the application of Hacienda Del Rio. DONE and ENTERED this 31st day of May, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1985. COPIES FURNISHED: Betty J. Steffens, Esquire NABORS, GIBLIN & STEFFENS, P.A. 102 South Monroe Street Tallahassee, Florida 32302 William C. Henderson, Esquire HENDERSON & HENDERSON, P.A. Post Office Box 1840 New Smyrna Beach, Florida 32070 B. J. Owens, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Alva Stewart, Vice President South Waterfront Park Homeowners Association 150 Charles Street Edgewater, Florida 32032 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
Findings Of Fact The present certificate held by the petitioner, authorizes the provision of sewer service to territory in Bay County, Florida. The proposed geographic extension of that certificate will ultimately include approximately 300 new customers, mostly single-family residences, but the proposed additional territory is not inhabited at the present time. Several residences have recently been constructed by a real estate development corporation affiliated with the utility. The utility presently serves 453 residential customers and between 12 and 16 commercial customers. Sewage lines have been laid in a portion of the proposed additional territory, but no physical connections which would permit domestic waste water to reach the utility's sewage treatment plant have yet been made. Thus, none of the residences recently constructed, are utilizing any portion of the sewage plant capacity. The original sewage plant has been the subject of an investigation and reports of violations by the Department of Environmental Regulation (DER). These irregularities culminated in the issuance of a consent order by DER based upon an agreement between the utility and that agency concerning the former's violations of operating permit conditions, including effluent discharge limits and expansion of the collection system without prior authorization. (Exhibit 5). The consent order was issued April 19, 1979 regarding these deficiencies and, pursuant to the agreement between the agency and the utility embodied in that order, a temporary operating permit was issued on May 22, 1979 to enable the petitioner to continue operating its existing sewage plant in spite of the undisputed existence' of the violations. The temporary operating permit was issued with specific conditions, including the required installation of the new sewage treatment plant and the agreement to implement the proposed connection to the Bay County Regional Community Collection system by 1982. Upon issuance of the consent order the utility commenced arrangements for the construction of the new sewage plant presently in service. The new sewage treatment plant began operation March 17, 1980. It consists of a 2 million gallon per day capacity treatment plant capable of tertiary treatment and has totally replaced the previous plant. The old plant is held in reserve and can be placed in service with minor maintenance preparation, should the capacity of the new plant reach a level which will justify the return of the old plant's treatment capacity to service. The DER construction permit for the new treatment plant permitted a 200 thousand gallon per day capacity with the condition that it be an interim facility to be phased- out by August 1, 1982 when connection to the regional system is mandated. (Exhibit 8). In the course of the permitting process DER inspected the new plant on April 8, 1979, finding that certain additional. installations were necessary for appropriate operation of the plant. These items, including a filter time clock and filter pump, had been provided or ordered for installation at the plant by the date of the hearing. The present flow of this hew plant ranges between 115 thousand and 126 thousand gallons per day. Approximately 55 to 60 percent of the Plant's capacity is currently being used from the standpoint of hydraulic load. The plant is currently performing tertiary treatment. The utility engineering witness established that approximately 44 thousand additional gallons per day of treatment load would be added to the present average daily flow by 1901. This additional flow would include that emanating from 100 additional residential units and one commercial unit. By January 1982, an additional 44 thousand gallons per day load would be placed on the plant. The Utility envisions placing the original sewage treatment plant back in service when the average daily flow through the new plant breaches 210 thousand gallons, unless the required connection with the regional sewage system occurs prior to that time. Based upon the utility's evidence of projected residential construction in the subject territory, additional flow would be generated in 1982 of approximately 35thousand gallons per day). The Public Service Commission staff engineer established that the new plant can accommodate those estimated flows and that the plant has an average efficiency of 90 percent treatment for BOD and suspended solid removal. The cost of upgrading the original sewage treatment plant to DER specification would have been 100 thousand dollars, which would have changed its capacity from 83 thousand gallons to 125 thousand-gallons per day. The cost to construct the new plant was 123 thousand dollars. The addition of the required effluent disposal ponds and other disposal facilities raises that cost figure to approximately 215 thousand dollars. Public witnesses, including those from the Home Owners Association, complained of the noise level and poor aesthetic and safety qualities attributable to the new plant's operation. Such complaints stem from the location of the plant, from the record of violations with the DER, as well as the fact that the new plant stores chlorine gas on the site. The new plant is constructed above ground level while the old plant was almost completely under ground. The utility engineering witness established that a sound baffle has been installed and that trees had been planted around the circumference of the plant both for aesthetic reasons and to aid in reducing the noise level. The Commission staff engineer verified the existence of these improvements and according to that witness, the noise level was reasonable for a plant of this type due to the sound baffle. The cost of constructing the new plant underground would have added fifteen to twenty percent to the figure of 123 thousand dollars which the new plant actually cost and the sound baffle was shown to be the most economically feasible alternative for sound control. Chlorine gas was also stored at the original sewage treatment plant when it was in operation and there was no showing that such practice is at variance with acceptable safe and efficient operating procedures for such utilities nor that any specific danger or inconvenience has been occasioned by that practice in the instant situation. The public witnesses also were concerned about the location of the new sewage treatment plant. There is no particular engineering advantage for locating the plant at its present site, but the utility established that no other site was available. Moreover, the Commission staff's engineering witness established that the location of the plant was reasonable, appropriate and beneficial to the efficient operation of the system and that the territory proposed to be added with the amendment is a logical geographic extension of the territory presently served. The Mayor of the City of Callaway opposed the expansion of the service area partly due to fears of pollution of Callaway Bayou. The witness expressed a concern that the plant would be treating sewage from other areas. There was no showing however of any extant danger of pollution of the Bayou or other surrounding surface waters. Indeed, the evidence affirmatively shows that such will not occur because of the current compliance with DER standards occasioned by the construction and operation of the new plant. The City of Callaway has no current sewage treatment capability. The City has resolved to enter into a regional or interlocal agreement to finance and construct a regional treatment facility. Planning for such a facility is in its initial stages. No construction has taken place as yet however and no evidence was adduced to indicate any firm date upon which construction will begin.
Conclusions The amendment of Certificate No. 119-5 is feasible and in accordance with the provisions of Section 367.061 Florida Statutes. Engineering testimony and other substantial, competent evidence has established that the petitioner is capable of providing adequate service to the territory proposed to be included in its service area without hampering service to existing customers and therefore the Commission should allow such authority. The petitioner has reduced the noise level emanating from the new sewage treatment plant and has alleviated aesthetic objections occasioned by its construction by means of installation of a sound baffle and the planting of trees and shrubs. The Respondents failed to establish the utility's inability to serve the area proposed for extension of service nor did they demonstrate a feasible alternative to service by the petitioner's system. The Bay County regional sewage treatment facility will not be in operation for a number of years, and therefore the petitioner is the only viable alternative for sewage treatment service In the subject territory. The utility should be allowed to continue plans for construction in accordance with the provisions of Section 367.051 Florida Statutes. The utility should be allowed to continue its application process in accordance with Section 367.061 Florida Statutes.
Recommendation Having considered the substantial, competent evidence in the record, the foregoing findings of fact and conclusions of law It is, therefore, RECOMMENDED that the application of Lannie Rowe Development Corporation, Post Office Box 120008, Panama City Florida 32401, for amendment of its Certificate No. 119-S, be authorized in a manner allowing the petitioner to proceed with its plan for construction and provision of sewage collection and treatment facilities and service in the geographical area proposed in the subject petition. It is, further RECOMMENDED that Lannie Rowe Development Corporation be directed to comply with all applicable provisions of Section 367.061, Florida Statutes. DONE and ENTER this 16th day of July, 1980. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1980. APPENDIX A Township 4 South, Range 13 West, Bay County, Florida. Section 18 Commence at the Northwest corner of said Section 18 said corner being the centerline intersection of U.S. Highway 98 (S.R. 30A) and Cherry Street; thence South 35 feet; thence East along the South right-of-way line 1475 feet to the POINT OF BEGIN- NING; thence South, along a line parallel to and 135 feet East of the East right-of-way line of Gay Avenue, 240 feet, to the North property line of Lannie Rowe Lake Estates; thence Easterly along the North property line of Lannie Rowe Lake Estates, 460 feet to the West waters edge of Lannie Rowe Lake. Proceed South along the West waters edge, 1600 feet to the South property line of Lannie Rowe Estates. Proceed West, 330 feet along the, South property line of Lannie Rowe Estates to a line parallel to and 135 feet East of the East right- -of-way line of Gay Avenue; thence South, 680 feet to the North right-of-way line of Hickory Street; thence West 135 feet to the East right-of-way line of Gay Avenue. Proceed South along the East right- of-way line of Gay Avenue, 680 feet, to the Westerly portion of the South property line of Imperial Oaks, Unit 1. Follow the property line of Imperial Oaks, Unit 1, East 200 feet; thence South 645 feet; thence East 1100 feet, along the North right-of-way line of Lake Drive; thence North, 1350 feet, along the East property line of Imperial Oaks, Unit 1, to the North property line of Imperial Oaks, Unit 1, this being a line parallel to the South right-of-way line of Minneola Street. Proceed East, 750 feet, along said line and thence North, 250 feet, to the North right-of-way line of Minneola Street. Proceed East along the North right-of-way line of Minneola Street, 1050 feet, to the West right-of-way line of Katherine Street; thence North, 1580 feet, along the West right-of-way line of Katherine Street to the South right-of-way line of Letohatchee Street. Proceed West, 780 feet, to a line parallel to and 120 feet West of the West right-of-way line of Comet, Street; thence proceed North, 300 feet along said line to a point on a line parallel to and 240 feet North of the North right-of-way line of Letohatchee Street. Proceed West along said line, 560 feet to the West right-of-way line of Jan Drive; thence North along Jan Drive, 520 feet, to the South right- of-way line of Cherry Street. Proceed West along the South right-of-way line of Cherry Street, 180 feet, to a point which is the intersection of the West right-of-way line of Charlene Drive, extended, Charlene Drive being that portion of said street North of Cherry Street. Proceed North along the West right-of-way line of Charlene Drive, 250 feet; thence West 120 feet; thence North, 100 feet and thence proceed West, 190 feet, to the East right- of-way line of Kimbrel Avenue. Proceed South along the East right-of-way line of Kimbrel Avenue, 350 feet, to the South right-of-way line of Cherry Street. Return to the POINT OF BEGINNING along the South right-of-way line of Cherry Street, this being a part of the City of Callaway, Florida. Township 4 South, Range 14 West, Bay County, Florida. Section 13 Commence at the Northeast corner of said Section 13, said corner being the centerline intersection of U.S. Highway 98 (S.R. 30A) and Cherry Street; thence South 33 feet; thence West along the South right-of-way line of Cherry Street 50 feet to the POINT OF BEGINNING; thence South along the West right-of-way line of U.S. #98, 1850 feet, to a line parallel to the right-of-way line of Hickory Street; thence West 110 feet, to a line parallel to the West right-of-way line of U.S. #98; thence North 1140 feet, to a line parallel to the South right-of- way line of Cherry Street; thence West, 500 feet, to the East property line of Gilbert Lake Estates; thence South along the East property line of Gilbert Lake Estates, 470 feet; continue West along the South property line of Gilbert Lake Estates, 610 feet, to the East right-of-way of Senica Avenue. Proceed North, 560 feet, along the East right-of- way of Senica Avenue to the South line of Parkway Manor, this line being also the North line of Gilbert Lake Estates. Proceed East along the South line of Parkway Manor 320 feet; thence North along the East line of Parkway Manor, 660 feet to the South right-of-way line of Cherry Street; thence East along the South right-of-way line of Cherry Street, 930 feet, to the POINT OF BEGINNING, this area being a part of the City of Parker, Florida; and the Northeast 1/4 of said Section 13. Section 18 The South 1/2 of the Southeast 1/4. Section 13 Commence at the Northeast corner of said Section 13 said corner being the centerline intersection of U.S. Highway 98 (S.R. 30A) and Cherry Street; thence South 33 feet; thence West along the South right-of-way line of Cherry Street 50 feet to the POINT OF BEGINNING; thence South along the West right-of-way line of U.S. #98, 1850 feet, to a line parallel to the right-of-way line of Hickory Street to a POINT OF BEGINNING; thence West 110 feet, to a line parallel to the West right-of-way line of U.S. #98; thence North 1140 feet, to a line parallel to the South right-of-way line of Cherry Street; thence West, 500 feet, to the East property line of Gilbert Lake Estates; thence South along the East property line of Gilbert Lake Estates, 470 feet; continue West along the South property line of Gilbert Lake Estates, 610 feet, to the East right- of-way of Senica Avenue; thence South 1950 feet to the North right-of-way line of Hickory Street; thence East 1220 feet to the West right-of-way line of U.S. Highway 98; thence North 730 feet to the POINT OF BEGINNING.
Findings Of Fact Based upon my observation of Respondent's witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Sometime prior to May 7, 1980, Petitioner, Wyatt S. Odom, applied for a permit to construct an individual sewage disposal facility for a houseboat on Drs Lake in Orange Park, Clay County Florida. By letter dated May 7, 1980, Ronald E. Bray, Sanitarian Supervisor for the Clay County Health Department, advised Petitioner that his permit application to construct an individual sewage disposal facility for a houseboat was being denied since the area of Petitioner's property was approximately 26,250 square feet2 A survey of the subject property revealed that the area is 19,890 square feet, which is of course less than one-half acre. (Respondent's Exhibit 2) (0.60 acre) with three individual sewage disposal systems already existing on the property; the land was not suitable for the installation that would allow the proper and required drainfield absorption area and setback requirement could not be maintained due to the existence of buildings, waterlines, wells, a lake and existing sewage disposal facilities which, if permitted, would be in contravention of Chapters 10D-6.23(2) and 10D-6.24(2), (3), (4) and (6), Florida Administrative Code. Supervisor Bray and Sanitarian Thomas Haley, observed the subject property and the survey, and concluded that based on the size of Petitioner's property and the existing wells and septic tanks thereon, it was unsuitable for and could not satisfy the setback requirements and the required drainfield absorption area. (Testimony of Ronald E. Bray.) As stated, Petitioner did not appear at the hearing to contest the Respondent's denial of his permit application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent's denial of Petitioner's request for a permit to construct an individual sewage disposal facility for a houseboat on Drs. Lake in Orange Park, Florida, be UPHELD. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of September, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Wyatt S. Odom P. O. Box 14735 Jacksonville, Florida 32210 Leo J. Stellwagen, Esquire Assistant District IV Counsel Department of Health and Rehabilitative Services Post Office Box 2417F Jacksonville, Florida 32231 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated Florida Administrative Code Rules 64E-6.022(1)(b)2., 64E-6.022(1)(d), and 64E-6.022(1)(p) by repairing an onsite sewage disposal system without a permit, resulting in missed inspections, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with enforcing the statutory and regulatory provisions pertaining to the practice of septic tank installations and repairs in Florida. See § 381.0065(3), Fla. Stat. (2003). Repair of onsite sewage treatment and disposal systems must be performed under the supervision and control of a registered septic tank contractor. Respondent is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc., having been issued the registration number SR00011389. Respondent has 15 years of experience in the field of septic system construction and repair. The qualifying registered septic tank contractor for Simmons Septic and Tractor Service, Inc., is Joey Wayne Simmons. The qualifying registered septic tank contractor for AA Septic Tank Service, Inc., is Billy Wayne Joyner. However, Mr. Simmons, Mr. Joyner, and Respondent work closely together, sometimes working together on a job and/or acting as the qualifying registered septic tank contractor on each other's behalf. On September 2, 2003, the septic disposal system at the residence of Jack Young was not functioning properly. Mr. Young contracted with one of the above-referenced septic tank services to repair the system. On September 2, 2003, Respondent and another employee of All Florida Septic Tank Service, Inc., along with two employees from AA Septic Tank Service, Inc., went to Mr. Young's residence to repair Mr. Young's onsite sewage disposal system. No one applied for a permit to make any repairs to Mr. Young's system. With Respondent acting as the registered septic tank contractor, the men used a backhoe to dig up the septic tank, which was buried three feet in the ground. Respondent then repaired the pump and ran a new one and one-quarter force main line to the existing header because the old line had been compromised by roots. Respondent also cleaned roots from inside the distribution box. Respondent then sealed the tank and directed the men to cover it up. No one called Petitioner's local office, the Duval County Health Department, to request an inspection of the repair before covering the tank. The work on Mr. Young's septic system involved the replacement of an effluent transmission line. It required a permit because it constituted more than a minor repair to the pump and distribution box. Respondent should not have performed the work without a permit from the Duval County Health Department. Because there was no permit, there was no request for inspection by the Duval County Health Department. When the work was completed, Mr. Young gave Respondent a check in the amount of $1,000, payable to Mr. Simmons. The check reflected payment for repair to the filter bed, otherwise known as the drainfield. Respondent indicated his receipt of the check by signing the AA Septic Tank Service, Inc.'s Daily Truck Log and Maintenance Report. In February 2004, Mr. Young's septic system began to fail once again due to root blockage in the lines. Respondent advised Mr. Young that a permit would be required in order to make any further repairs. Mr. Young refused to pull a permit or to pay for any additional costs. On February 17, 2004, Mr. Young contacted Petitioner to report the failure of his system's drainfield. On February 18, 2004, Petitioner's inspector confirmed that Mr. Young's drainfield had failed and was causing a sanitary nuisance. During the hearing, Respondent admitted that there are no disputed issues of material facts in this case. He stated that he agreed with everything. However, he did not agree that the work he performed for Mr. Young required a permit from and inspections by Petitioner's Duval County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, finding that Respondent violated the standards of practice and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 6th day of December, 2005. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 West Beaver Street Jacksonville, Florida 32220 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 Dr. John A. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
