The Issue The issues in this case concern the question of whether implementation of the consent agreement threatens the substantial interests of Petitioners in the surface waters and ground water resources at and around Seaboard's used oil facility located off Route 314A in Oklawaha, Marion County, Florida. Petitioner, State of Florida, Department of Environmental Regulation, gave public notice of its intent to implement a consent agreement with Respondent. The other Petitioners opposed the agreement asserting that the waters of the State were threatened by the agreement and requested a final hearing.
Findings Of Fact On March 7, 1988, Seaboard's used oil facility located off Route 314A in Oklawaha, Marion County, Florida, on Little Lake Bryant was inspected by a DER representative. At the time of the inspection pools of used oil were observed on the ground. Four 4,000 gallon above-ground tanks were being used to store used oil. Additionally, several old tank-truck bodies were used to store petroleum produces. These tanks did not have an impervious containment area to prevent used oil from spilling directly onto the ground and to prevent free runoff of precipitation. An underground tank (made from a septic tank) was being used to temporarily store water contaminated with used oil, which was gravity drained from the bottom of the used oil transport trucks. No impervious containment existed around the opening of the underground tank to prevent any spillage during transfer from directly reaching the ground. The underground tank was plugged and has no connection to a drain field. This tank is located in a flood plain. A 2,000 gallon above-ground tank and a 3,000 gallon above-ground tank were used to store water contaminated with used oil from the pumped underground tank. DER, in response to the March 7, 1988 inspection and subsequent site visits, negotiated a consent agreement with Seaboard. The consent agreement was executed on March 30, 1989 by Seaboard and filed with DER's Clerk on April 12, 1989. A copy of the consent agreement may be found as DER's Exhibit 1 admitted into evidence. The consent agreement specifies corrective actions to be taken by Seaboard, subject to DER approval, in order to address the problems identified at Seaboard's used oil facility. Paragraph 10 of the consent agreement addresses protection against spills directly reaching the ground. Impervious containment is required by the agreement for all above-ground used oil storage tanks but not the old truck bodies. Impervious containment is required for product transfer areas where transport trucks, pumps and hoses would operate, but not in the vicinity of the old truck bodies. A concrete containment dike surrounding the above-ground tanks is required to control drainage of rain, snow, sleet, fog, etc., but not around the truck bodies. (DER's Exhibit 1). The concrete pads already poured by Respondent are not impervious and the sides of these containment areas are not high enough to contain a major tank failure. Paragraph 11 of the consent agreement addresses operation of the underground tank in order to prevent leaks. Seaboard is required to provide protection against spillage during product transfer between transport trucks and the underground tank and provide for cleanup of spilled material. Nothing addresses the problems of the tank lying in a flood plain. (DER's Exhibit 1). Paragraph 12 of the consent agreement requires Seaboard to implement "Preliminary Contamination Assessment Actions". These actions provide the framework for determining if the problems identified at Seaboard's used oil facility have resulted in contamination of the soil, surface waters and ground water. The actions required are subject to prior DER approval. The actions represent standard conduct in these and similar types of cases. (DER's Exhibit 1). If the surveys and tests required by the agreement indicate soil, sediment, surface water or ground water contamination, DER can pursue any or all of the following: (1) institute an administrative proceeding requiring further assessment and cleanup; (2) institute a civil action in circuit court; or (3) perform the necessary corrective actions at the facility and recover the costs of such actions from Respondent, Seaboard. (DER's Exhibit 1). Notice was given of DER's proposed consent agreement with Seaboard by publication in the Ocala Star Banner of August 10, 1989. The Petitioners live around Little Lake Bryant, Oklawaha, Florida, where Seaboard's used oil facility is located. The Petitioners timely filed the petitions leading to the present hearing. The Petitioners are Helen V. Pierce, Mr. and Mrs. Marvin Pierce, Mr. and Mrs. Maurice Warner, Mr. and Mrs. Robert J. Painter, Sr., Mr. and Mrs. William E. Hartman, Mr. and Mrs. Bruce Hallman, Mr. Robert J. Painter, Jr., Mr. and Mrs. Elmer Weinheimer, Mr. and Mrs. Henry Allan Gwin, Mr. and Mrs. Edwin Jones, and Mr. and Mrs. Daryl N. Driscoll. Mr. and Mrs. Elmer Weinheimer and Mr. and Mrs. Marvin Pierce, Petitioners in this case, did not attend the hearing. The other Petitioners attended the hearing. Introduction of waste oil into the waters of Little Lake Bryant would endanger the waters of the lake around which all of the Petitioners live. They use this lake for recreational purposes.
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 the DER enter a Final Order approving a consent agreement incorporating the following four recommendations: installation of impervious areas with high enough walls to retard a spill under all tanks; removal of the underground tank from the flood plain; installation of monitoring wells in sufficient quantity in new and old areas; and frequent inspection. DONE AND ORDERED this 24th day of January, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1990. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Otis Ted Holly Route 4, Box 851 Silver Springs, FL 32688 Francine M. Ffolkes, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Elbert Gray Route 1, Box 1293A Oklawaha, FL 32679 =================================================================
The Issue Whether Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 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, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
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 the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF 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 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact David D. Boak, Petitioner, owns a 3/4 acre lot at 9602 East Flora Street on which he proposes to put a two-bedroom house trailer. The area is rural in nature. There is no sewage service to the area and none is currently planned. Soil samples taken at the site show that from 9 inches to 48 inches below the surface the soil is a mixture of Manatee and Pompano fine sands which have poor percolation qualities. Soil Survey for Hillsborough County (Exhibit 1) describes the limitations of these soils for septic tank use as severe with wetness. Petitioner contends that he has lived on this property for 21 years and has had his septic tank pumped out once, 11 years ago; that he has never seen this property flooded; nor has he seen water standing on the property more than minutes following a heavy rain. Respondent's witnesses testified the water table at this site is 13 inches below the surface and septic tanks will not work properly in this area. When Petitioner's initial application for a permit was denied, he applied for a waiver. The application for waiver was presented to the review group pursuant to the provisions of Rule 10D-6.45(1), Florida Administrative Code, and the review group recommended the waiver be granted. However, the Staff Director, Health Program Office, denied the waiver and this appeal followed. The Hillsborough County Aviation Authority has condemned the land in this area, including that owned by Petitioner, for use as a county airport site. That condemnation proceeding is currently in litigation. If this property is ultimately taken for airport purposes, Petitioner will have no use for the variance here sought. Testimony was presented that the soil conditions plus the wetness factor make the site unsuitable for the installation of a septic tank. No evidence was presented regarding the pollution of surface waters by a septic tank in this area or whether public health will or will not be impaired if a septic tank is installed.
Findings Of Fact Petitioner Robert R. Waszak, a resident of Broward County, Florida, purchased Lot 258-A, a 1.25-acre lot in an unrecorded subdivision, Pinetree Estates Subdivision, in Parkland, Broward County, Florida. He cleared the property of a major portion of the sawgrass, pine trees, willows and other types of vegetation and placed thereon fill consisting of sand, rock, shell and other porous material. He obtained a test boring report from Nutting Engineers of Florida, Inc. (Petitioner's Exhibit 2). On December 16, 1980 he filed an application for a septic tank permit on a form provided by the Broward County Health Department together with residential plans and a survey of the property, which application was subsequently denied on January 15, 1981 by the environmental engineering section of the health department. Respondent made an on-site inspection of the Petitioner's lot on December 18, 1980 and at least one other inspection subsequent thereto. A report was filed as part of the notification of denial (Respondent's Exhibit 1). The uncompacted fill placed on the subject property by Petitioner created a mound considerably less than six (6) feet in depth on the obviously low, swampy property. Under the fill and the layer of top soil on the lot there is a layer of cap rock overlying the property. The largely impervious cap rock is visible in areas where the fill does not cover it (Respondent's Exhibit 1). Samples of the fill material and also of the cap rock were examined at the hearing by the Hearing Officer. The fill placed on the property has many rock fragments and rock fines in it which, according to the uncontroverted testimony of the Respondent's witness, are subject to chemical reaction which "cements up" a drainfield area when it comes in contact with septic tank effluent. This "cementing" would take from one to two (2) years after installation on the subject property. There was no evidence presented as to the depth of the water table at the wettest season. Petitioner did not dispute the testimony and evidence presented by the Respondent but was interested in further improvement so that he could use his property as a residential site. He noted that a new subdivision was being built near his property. Respondent pointed out that said subdivision had a central disposal system planned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the application of Petitioner Robert R. Waszak for a septic tank permit be denied. DONE and ORDERED this 29th day of June, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND, 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 29th day of June, 1981. COPIES FURNISHED: Mr. Robert R. Waszak 60 NW 56th Court Fort Lauderdale, Florida 33302 Alan W. Ludwig, Esquire Broward County Health Department 2421 SW Sixth Avenue Post Office Box 14608 Fort Lauderdale, Florida 33302 Alvin J. Taylor, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner is the owner of several acres of land which are a part of a platted subdivision in Orange Park, Florida. At an undisclosed date in 1979, Petitioner orally applied to the Clay County Health Department for septic tank permits for Lots 3, 4, 5N, and 5S. The only documentation submitted with his application was a site plan for Lot 5S. By letters of March 26 and 30, 1979, the Clay County Health Department advised the Petitioner that his application was denied because the lots were not in compliance with specified provisions of Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. By letter of May 3, 1979, Petitioner requested an administrative hearing to contest the denial of his application. At the hearing, officials of the Clay County Health Department predicated the denial on the fact that the lots in question were not sufficiently large to permit the required setbacks imposed by law and regulation. (Testimony of Bray, Hickey, Exhibits 1-3) A stream runs in an easterly direction across the property in question to the St. Johns River which lies approximately 300 years to the east of the property. A curved extension of the stream located on Lot 4 has been filled at some time in the past. A pond is located at the center of Lots 5N and 5S. The size of the lots vary from over one-third to less than one-half acre. The City of Orange Park has a 20 foot wide easement on both sides of the stream bed for maintenance purposes. The easement precludes the construction of permanent structures but does not proscribe other uses of the land area. There is not a public water supply or sewage disposal system available at the present time, although an artesian well located on adjacent Lot 2 provides water for homes which have previously been constructed on that lot and adjacent Lot 1. It is adequate to supply water needs of the lots in question. However, local health officials informed Petitioner that the artesian well cannot be used as a central water supply for the additional lots. Petitioner proposes to install individual septic tanks and drainage fields on each of the lots. Service easements are also located on Lots 4,5, and 5S. (Testimony of Petitioner, Exhibits 1,4) By exclusion of the easement area on all four lots, together with the pond area of 4,000 square feet on Lot 5N and 3,000 square feet on Lot 5S, the remaining land area of Lots 3 and 4 is more than one-third but less than one- half acre each in size. Lot 5S is slightly less than one-quarter acre in size. Lot 5D is slightly less than one-quarter after exclusion of the pond and easement area. (Testimony of Bray, Exhibit 4) There is sufficient area in Lots 3 and 4 to provide for set back requirements for individual sewage disposal facilities, i.e., not within five feet of property line or within fifty feet of the high water line of lakes, streams, or other waters, as provided in Rules 10D-6.24(3) and (4), F.A.C., respectively. There is sufficient area in Lots 5N and 5S to meet the above setback requirements when consideration is given to the area necessary for septic drain fields. (Testimony of Bray, Exhibit 4)
Recommendation That Petitioner's application for septic tank permits be denied. DONE and ENTERED this 6th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert D. Woolverton 3551 St. Johns Avenue Jacksonville, Florida 32205 Robert M. Eisenberg, Esquire District IV Counsel Post Office Box 2417F Jacksonville, Florida 32231
The Issue There are two issues in this case: whether the Petitioner, Thomas M. Parham, is maintaining an unpermitted stationary installation that is reasonably expected to be a source of air or water pollution; and whether installations on Mr. Parham's property are discharging into groundwater, and whether he should therefore be required to obtain a groundwater monitoring permit and conduct groundwater monitoring as ordered in the Department's Final Order, DEP OGC File No. 08-0521 (the Order).
Findings Of Fact Thomas Parham purchased the property at 5401 Pickettville Road, Jacksonville, Florida (the Property), in a tax sale on November 21, 2007. His intention was to use it to park and store trucks and heavy equipment. At the time of purchase, there were no signs posted on the Property indicating that it was hazardous or toxic or otherwise compromised environmentally. At the time, there was no statute or rule requiring the Property to be posted to give the public notice of any of those conditions. Parham drove past the Property before buying it, but it was fenced, and the gates were locked, and he was unable to get in to inspect it. From the fence, he saw no indication that the Property was hazardous or toxic or otherwise compromised environmentally. However, Parham knew that there was fill material on the Property. He states that he did not know the Property was toxic or hazardous, but he did no due diligence to determine what kind of fill was on the Property. Parham has bought and sold property in tax sales for a living for the past 11 years. He owns 115 different properties, and has been involved in 795 property transactions. Once, he accidentally bought a contaminated property, which the City of Jacksonville bought back from him after the contamination was discovered. Based on his experience, Parham knew or should have known to conduct due diligence on the Property before buying it. After purchasing the Property, Parham saw that part of it had a significant amount of a black material. He testified that he believed it was charcoal or bituminous coal, which he called "black beauty." Instead of determining what it was, Parham decided to cover it with dirt. He had 124 truckloads of fill delivered to the Property and covered all of the supposed "black beauty." Someone saw the activity on the Property and contacted the Department of Environmental Protection (DEP). DEP inspected and entered a Final Order, DEP OGC File No. 08-0521 (the Order) to require Parham to install monitoring wells and implement a monitoring program to determine whether the Property was causing pollution and contamination offsite. Parham challenged the Order, which resulted in this proceeding. Actually, the black material on the Property was not charcoal or bituminous coal. It was sandblasting grit material used by Jacksonville Shipyards, Inc. (Jacksonville Shipyards), in its shipyard operations to sandblast old paint coatings and rust from ships before re-painting. It would be expected that the used grit would be contaminated with metals and volatile organic compounds (VOCs). The used grit was trucked to and deposited on the Property when it was owned by Jacksonville Shipyards in the 1970's and early 1980's. Prior to Jacksonville Shipyards' purchase of the Property in 1972, it was used as a sand mine. In the process, two large pits, each 20 to 25 feet deep, were excavated on the Property. Later, waste was dumped into the pits, including concrete, asphalt, metal pipes, wire, and wooden demolition material. When Jacksonville Shipyards purchased the Property in 1972, sandblasting grit was added to the waste placed into the pits. Initially, these activities were not regulated, and the pits were not lined before being used for waste disposal. By July 1980, leachate generated when waste material (including the sandblasting grit, which was being delivered to the Property daily) came in contact with water was running off the Property towards Six Mile Creek, which flows east to where it is joined by Little Six Mile Creek, from which the combined flow towards the east becomes the headwater of the tidal Ribault River. In addition, leachate was entering the groundwater on the Property, which also flowed generally to the north towards Six Mile Creek. When DEP's predecessor, the Department of Environmental Regulation (DER) began to regulate land fills, it required Jacksonville Shipyards to submit a groundwater monitoring plan, which DER approved. Monitoring wells were installed, and the groundwater on the Property was sampled once in 1984 and showed groundwater contamination. DER groundwater standards and criteria for arsenic, barium, chromium, lead, chlorides, copper, iron, manganese, total dissolved solids (TDS), and zinc were exceeded. DER attempted to negotiate a consent order with Jacksonville Shipyards to address the contamination, but those efforts failed, and then Jacksonville Shipyards and related business entities went into bankruptcy proceedings. After the bankruptcy proceeding was initiated, Jacksonville Shipyards conducted no further groundwater monitoring at the Property. Neither DER nor DEP issued a solid waste permit or a groundwater monitoring permit for the Property. No waste has been removed the Property, and no liner has been installed. Leachate has continued to run off the Property and infiltrate the groundwater on the Property and flowed towards Six Mile Creek. After bankruptcy proceedings were initiated, representatives of DER and DEP checked from time to time to see if overdue property taxes had been paid, reasoning that payment of the taxes would be an indication that the bankruptcy proceedings had progressed to the point that a financially viable owner of the Property could be required to implement an appropriate monitoring program for the Property. In fact, unbeknownst to DEP, title to the Property was conveyed to Picketsville Realty Holdings, LLC, in 1998. In 1998 DEP contracted with a consultant to conduct sampling at the Property to identify the source of the groundwater contamination detected in the onsite monitoring wells in 1984. Groundwater, soil, and surface water samples were collected and analyzed, as were reports on assessments conducted at the Pickettville Road Landfill, a federal Superfund site located across Pickettville Road from the Property. The consultant reported in 1999 that lead in groundwater samples exceeded the maximum contaminant level (MCL) in shallow well 11 and in deep well 2. In shallow well 9, N-nitrosodiphenylamine also exceeded the MCL. Lead was detected in all twelve soil samples collected in areas where sandblasting grit was found on the surface although none of the soil samples exceeded DEP's residential direct exposure Soil Cleanup Target Level (SCTL) of 400 mg/kg. The report concluded that the Property was the source of most if not all of the contamination detected in the monitoring wells on the Property. The Pickettville Road Superfund site was not considered to be contributing to the groundwater contamination on the Property because groundwater data indicated that the Superfund site is not up-gradient of the Property. Groundwater flow from the Property was found to be generally westerly towards Six Mile Creek. In approximately 2003, the federal Environmental Protection Agency (EPA) contracted with a consultant to perform an Expanded Site Inspection (ESI) on the Property to determine whether it should be placed on the federal National Priorities List (NPL) of sites at which a release, or potential release, of hazardous substances poses a serious enough risk to the public health or the environment to warrant further investigation and possible remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 and the Superfund Amendments and Reauthorization Act of 1986. In this assessment, surface and subsurface soils and groundwater were collected from the Property, sampled, and analyzed. In addition, surface water and sediment samples from Six Mile Creek and from the Ribault River were collected, sampled, and analyzed. The federal ESI report was issued in 2004. It found arsenic, copper, benzo(a)pyrene equivalents in the surface soil samples that exceeded the default levels of concern for direct exposure, as provided in Florida Administrative Code Rule Chapter 62-777. It also found arsenic, copper, iron, lead, polychlorinated biphenyls (PCBs), and benzo(a)pyrene equivalents in the subsurface soil samples that exceeded the default levels of concern for direct exposure, as provided in Rule Chapter 62- 777. It also found chromium, iron, and lead in one groundwater sample at concentrations exceeding DEP's groundwater standards. Aluminum, arsenic, barium, chromium, copper, nickel, vanadium, acenaphthene, fluorine, and phenanthrene levels in various groundwater samples were elevated but did not exceed DEP's groundwater standards. It also found that surface water samples from Six Mile Creek contained barium, copper, manganese, and vanadium at elevated concentrations. Sediment samples from Six Mile Creek and the Ribault River contained numerous metals, bis(2-ethylhexyl)phthalate, several polyaromatic hydrocarbons (PAHs), and PCB-1260 at concentrations exceeding EPA Region 4 guidance values. It was concluded that from the elevated concentrations in the surface water samples that contamination of the surface water pathways continues to occur from inorganic contaminants from the Property. The number of impacted groundwater monitoring wells decreased from 1984 to 2004. However, arsenic concentrations increased in shallow well 9, and barium concentrations increased in shallow well 8, during that time. Also, acenapthene, which is a semi-volatile compound associated with PAHs, was reported in two wells in the 2004 ESI report but no detection was reported in the 1985 report. The 1985, 1999, and 2004 reports indicate that the waste-filled pits on the Property are discharging to groundwater. This is not surprising since there is no liner beneath the waste that has been placed in the pits. Rain and runoff on the Property would percolate through the waste and leaches contaminants out of the waste. The leachate enters the groundwater on the Property. Parham contends that contamination found on the Property is from the 53-acre Pickettville Landfill, which was operated by the City of Jacksonville. He contends that a large number of lead batteries were placed in the Pickettville Landfill from extensive lead battery disposal. The evidence proved that the Pickettville Landfill is a Superfund site but did not prove composition or amount of the waste placed in the Pickettville Landfill over the years. Even if the Pickettville Landfill was used extensively for lead battery disposal over the years, the evidence was that little or none of the contamination on the Property is attributable to the Pickettville Landfill. Besides groundwater flow from the Pickettville Landfill likely being away from the Property, lead contamination was found in the surface and subsurface soils of the Property, making it very unlikely that the contamination on the Property came from the Pickettville Landfill. Parham also questions the estimate in the three contamination reports on the Property that 200,000 cubic yards of sandblasting grit were dumped on the property. He estimated that would amount to 13,000 truckloads, which would not fit on the 4-acre Property. But a witness for DEP estimated that two- acres of 20-25 foot deep pits would hold that quantity of sandblasting grit. Even if the actual quantity of sandblasting grit dumped on the Property was less, the evidence was that it was the likely source of the metal contamination found in the soils and groundwater on and under the Property. Similarly, Parham suggests that waste oil and other waste in the Pickettville Landfill could be the source of PAH or PCB contamination on the Property. Besides groundwater flow from the Pickettville Landfill likely being away from the Property, those contaminants move very slowly and do not move large distances, making it very unlikely that the contamination on the Property came from the Pickettville Landfill. Even if some did, the Pickettville Landfill would not account for much of the contamination on the Property. Parham contends that, even if the Property is contaminated, his placement of 124 truckloads of dirt on the Property will prevent any further groundwater contamination. But dirt is not impervious and will not prevent rain and runoff from percolating through the waste on the Property and leaching contamination into the groundwater on the Property. Eventually, this groundwater leaves the Property and enters Six Mile Creek.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order requiring Thomas Parham to: Submit a complete application for monitoring plan approval on Form 62-520.900(1) to the Department of Environmental Protection, Northeast District, 7825 Baymeadows Way, Suite B200, Jacksonville, Florida 32256-7590 within 90 days of entry of the Final Order; Implement the approved monitoring program within 90 days after Department approval; and Install monitoring wells in accordance with the approved monitoring program and Rule 62-520.600(6). DONE AND ENTERED this 9th day of December, 2008, 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 9th day of December, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County. On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.
The Issue The issues to be resolved in this proceeding concern whether an application to construct and operate an on-site sewage treatment and disposal system (OSTDS), within the Suwannee River flood plain, meets the requirements of Section 381.0065(4)(t), Florida Statutes (2007), and relevant Department of Health (Department) rules, and whether the department applied an un-adopted rule in denying the permit application.
Findings Of Fact Daniel Sevick is the owner of two lots, consisting of a total of 1.24 acres, within the flood plain of the Suwannee River. The lots are lots 12 and 13 in "Log Landing Subdivision." The Petitioner applied for a construction permit for the installation of an OSTDS on that property. The application for the permit was submitted to the Dixie County Health Department, which forwarded it to the Department of Health for review, in accordance with Section 381.0065(4)(j), Florida Statutes (2007). The Respondent, Department of Health, (Department) is an Agency of the State of Florida charged with implementing and enforcing the provisions of Chapter 381, Florida Statutes, and Florida Administrative Code Chapter 64E. Among its duties are the review of and issuance of permits for construction of OSTDS. The permit application was reviewed by the Department and was subsequently denied, based upon the following reasoning contained in the denial letters: Our engineer has reviewed your proposal. Based on the site elevation submitted (16.8 feet) and the 10 year elevation (22 feet) the proposal is not in compliance with 381.0065(4)(t), Florida Statutes, and must be denied. Certain of the facts have been stipulated to by the parties. The parties thus agree that the 10-year flood elevation for the property is 22 feet; the site elevation of the property is 16.8 feet and the two-year flood elevation for the property is 16.00 feet. The bottom of the proposed drainfield is at an elevation of 14.30 feet. The Petitioner thus proposes to install the OSTDS system with the bottom of the drainfield 1.70 feet below the two-year flood elevation. The proposed system consists of a conventional septic tank system connected to a "no mound" drainfield system. No Mound System The no mound drainfield system is an innovative drainfield system. No Mound was granted a permit for its design as an "innovative system" by the Department, initially authorizing installation of five systems in Florida, starting on December 23, 1998. An "innovative system" is defined as an "onsite sewage treatment and disposal system that, in whole or in part, employs materials, devices, or techniques that are novel or unique and that have not been successfully field tested under sound scientific and engineering principles under climatic and soil conditions found in this state." See § 381.0065(4)(2)(g), Fla. Stat (2007). Innovative systems, by definition are considered to be "performance-based systems" which have additional requirements placed on them depending on the performance level of the effluent treatment. The design of the OSTDS system submitted with the permit application included several changes intended for this particular property, based upon discussions between the Petitioner's representatives and the Department. The changes include relocation of the OSTDS and drainfield to the highest elevation of the property; addition of a solar-recharge battery alternative power supply; the obtaining of additional information with regard to soil borings; and the performance of an evaluation to confirm the capacity of the soil anchors in saturated soil. The OSTDS, including the no mound drainfield, was designed by Harry Wild, PE, specifically for the Petitioner's property. The proposed OSTDS is considered by the Department to be an "engineer-designed" system. Over approximately the last 10 years No Mound has been issued innovative permits authorizing the installation of approximately 250 no mound drainfield systems. The no mound system is an innovative system which does not employ a conventional drainfield. Instead, based upon principles of physics and engineering, the drainfield system is designed to be installed underground, with air pumped into the system to depress the groundwater elevation or "water table," so as to provide the required separation or distance between the absorption surface of the drainfield (bottom of the drainfield) and the groundwater. In Florida the separation required is 24 inches. The drainfield system is designed to retain air pumped into it, for depression of the groundwater level, by being covered with pieces of geo-fabric and a p.v.c. membrane designed to retain air within the system under a certain level of pressure. The air pressure is designed to depress the water level of groundwater directly beneath the area of the drainfield, much like the principle of a "diving bell." The drainfield system would be covered with two pieces of geo-fabric on either side of a 30 mill. p.v.c. membrane, the same material used as a liner for hazardous waste landfills. The geo-fabric material protects the p.v.c. membrane from damage or puncture during construction. Once in operation the membrane is unlikely to tear under normal conditions, unless through intentional puncture with an extremely sharp implement or through some catastrophic event, such as a large tree falling on the surface above the membrane. The membrane is held in position by a patented ballast and anchor system. The ballast material consists of pre- stressed concrete beams, spanning the width of the drainfield. At each end of each beam is a soil anchor. The 20 pre-stressed ballast beams are held in place with 40 helically shaped screw anchors, which screw into the soil. Each anchor is intended to withstand 5,000 pounds of upward force. The screw anchors are designed to hold the concrete beams in place in saturated soil. The soil anchors are threaded with a washer and nut on both the top and the bottom of the concrete beam which prevents the beam from moving vertically, downward or upward, so that the beam can resist any uplifting force. Air is pumped into this system by a continuous air pump which would be wired into the power system of the residence to be on the property. There would also be an emergency power supply. The air pressure inside the system would vary in response to the level of water outside the system whether groundwater or surface water. As the water outside the system rises or subsides, the water inside and beneath the system is supposed to remain lowered, as the pressure inside the system is designed to increase or decrease. The Petitioner maintains that the ballast system is designed to contain the pressure (air pressure) which would be required to continue to suppress any groundwater or flood water associated with a ten-year flood event. The system has an "air bleed," which is intended to maintain aerobic conditions in the drainfield. If surface waters overflow the top of the drainfield system in a flood event, the air bleed system is designed to continue functioning. The air would enter the soil beneath the ground surface and bubble up through any water above the ground surface. If both the primary and backup power supplies should fail, the Petitioner maintains that the air bleed would "shut off" so that no air would escape from the system and thus maintain the pressure within the system, much like a diving bell. This characteristic is designed to maintain the separation between the groundwater surface and the bottom of the drainfield in the event of a power failure. The Department has interpreted the operative statute, Section 381.0065(4)(t), Florida Statutes (2007), as providing that the absorption surface of a drainfield for any OSTDS system cannot lie below the 10-year flood elevation, if it is located within the floodways of the Suwannee or Aucilla Rivers, unless the system meets all the exceptions contained in Section 381.0065(4)(t)1.a.b. and c., Florida Statutes. One of these exceptions requires that the bottom of the drainfield, the absorption surface, be at least 36 inches above the two-year flood elevation for the site. The two-year flood elevation at the subject site is 16 feet. The proposed installation would have the bottom of the drainfield or absorption surface located 1.70 feet below that two-year flood elevation, thus not complying with that exception. The applicant's system is not in compliance with the portion of paragraph (c), referenced above as an exception, concerning a system approved by the county health department, pursuant to department rule, which is "other than" a system using "alternative drainfield materials." This system would apparently use so-called "alternative drainfield materials." Innovative systems are those which represent new technology that has not been completely field-tested in Florida. The Petitioner has applied for the permit as an innovative permit application, which contains a requirement that the system be replaced with an alternative system in case it fails within a five-year test period. No mound systems are site specific, with each one being specifically designed for a particular property with its unique characteristics. There are approximately 50 no mound systems approved, permitted and operating in Florida at the present time. The evidence does not reflect which, if any, of those systems are installed below flood elevations. The drainfield portion of such a system works in the same way as a conventional drainfield, that is, the soil and piping which lies below the membrane. The membrane system is the unique characteristic of the no mound system. Because of the membrane and ballasting system designed to retain air pressure over and in contact with the drainfield absorption surface, the system is different and more complex than the standard drainfield system, although it treats affluent in the same way. Two significant problems arose with the installation of the first five innovative permit, no mound systems. The testimony of Sam Averett, who is a septic system contractor, described an installation of a no mound system on his own property in 1999. The system was installed in accordance with Mr. Hassett's specifications and recommendations, and he was present during the installation. Mr. Hassett testified in support of the petition in this case as an engineering expert. Within a few days or weeks the Averett system developed a problem. Apparently, with a substantial rain event, the system "floated" that is, the air pressure contained within the membrane rose to the surface of the ground, similar to a "bubble." This would have amounted to a failure to maintain the air pressure necessary to ensure that a 24-inch separation between the absorption surface of the drainfield and the groundwater table elevation was maintained. That system was re- designed and a different ballasting system or buoyancy package was used, involving the use of "railroad iron" (rails), and plywood spanning the drainfield in order to hold the membrane beneath in place, with the whole arrangement being recovered with dirt. Thereafter, on January 1, 2003, after a substantial rainfall event, the system floated out of the ground once again. After that second failure of the Averett system, Mr. Averett installed a "hoot" system, which involves a "drip irrigation" drainfield installation, with the delivery piping and the drainfield being much closer to the ground surface or within six inches of the surface. The system described by Jack Murray in his testimony was also one of the original five systems installed in Florida by No Mound, Inc. That system was designed to maintain a 30- inch separation between the absorption surface of the drainfield (bottom of drainfield) and the groundwater elevation or water table. According to Mr. Murray it never maintained that separation. He was aware of the lack of a 30-inch separation being maintained because of the onsite monitors installed with the system. He described the actual separation which the system provided as being only .9 feet. The onsite monitors by which he was able to observe the actual separation failed after about two years of operation. He brought the separation issue to the attention of the contractor or representative of No Mound, which patented the system and oversaw the installation. According to Mr. Murray, however, they never satisfactorily addressed the problem. When the air pump failed, after approximately two years of operation, he called the manufacturer of the air pump and was informed that the air pump had been the incorrect type or size for the no mound system which he had installed. Although these two referenced problems concerning the Murray system and the Averett system represent two of the first five innovative no mound systems installed in Florida, the problems associated therewith may have been corrected since, because each system installed at a given site is specifically and uniquely designed by an engineer for that site and its physical, hydrologic and operating circumstances. Thus, the referenced problems involving buoyancy or "floating-up" of the drainfield membrane system and the failure to maintain adequate pressure so as to achieve the legally-mandated 24-inch differential between groundwater elevation and the bottom of the absorption surface, may not be construed to be direct predictors of what will occur with the installation of the Sevick system. The problems do point up, however, the fact that the air pressure maintained at different groundwater levels in the system is a critical component of the system's function and also that the ballasting system and design is critical in order to maintain the integrity of the membrane system or air chamber overlying the drainfield surface, at different water levels and conditions. This is a particular concern with regard to flood conditions. It also true that the proposed air pressure to be maintained in the system at issue, the Sevick system, would be five pounds per square inch. Earlier systems, possibly including the Murray system, maintained a pressure of two pounds per square inch. However, aside from the rather conclusory testimony of the Petitioner's expert witnesses, who opined generally that the air pressure and the integrity of the membrane system and ballast system would be adequate to maintain the legally- mandated 24-inch differential of unsaturated soil below the absorption surface, there was no definitive evidential showing of what air pressure would actually be necessary to perform that function adequately under all conditions. This is particularly problematic under conditions of flooding, since the proposed drainfield would be beneath both the 10-year flood elevation and the two-year flood elevation. Although there was testimony which indicated that the air pressures would vary, would increase or decrease depending upon the water levels beneath the drainfield and outside of the membrane, there was no definitive showing in the evidence as to what pressures under those varying water level conditions would still enable the 24-inch differential to be maintained. Under the Department's interpretation of its statutes and rules, a 24-inch differential is deemed adequate and necessary for treatment of the sewage effluent entering the drainfield. The electric power necessary for operation of the air pump which pressurizes the system would be derived from connection with the residence to be constructed on the lots. The emergency power system would be designed to accommodate situations where there is a power outage, for instance in a storm situation. The alternative system would be dependent upon solar-rechargeable battery power. If the air pump ceased operation due to a power outage and the backup system was not adequate, or adequately charged, to operate the pump sufficiently or for a sufficient period of time to maintain the required air pressure, then the 24-inch differential might not be maintained. The evidence does not reveal a practical way to monitor the air inflow or the air pressure condition inside the membrane in the event of a power outage. The Petitioner's witnesses maintained that if there was a power outage the air bleed device would close down, thus maintaining the required air pressure (akin to a diving bell circumstance). There was no persuasive evidence, however, to show what air pressure would thus be statically maintained and whether it would maintain the required 24-inch separation. Harry Wild was the design engineer who designed the no mound system for the Sevick property. Mr. Wild, however, was unaware, apparently, that Dr. Jeffrey Evans, a geotechnical expert and expert in the design of helical anchors for the ballast system for the Sevick property, had recommended that at least one boring be made for each site or each of the two lots to a depth of 20 feet. This was recommended in order to verify what the sub-surface conditions were, so that the conditions assumed in the system design could be verified. Mr. Wild testified that he only took borings to a depth of 10 feet. Mr. Hassett on the other hand testified that he thought the borings had only been done to six feet. In fact, the site evaluations submitted to the Department demonstrated soil boring had been performed to a depth of six feet below ground surface, and the cross-sectional drawing indicates that the anchors, designed to hold down the beams and the membrane, would only begin approximately four feet below the ground surface. Thus, even though Mr. Wild was the expert designer of the No mound system for the Sevick project, he was unaware of whether the ballast system was a new type of system which had been specifically designed for that property. He did acknowledge that it was the first time he had employed that type of ballast system. In spite of the higher operating pressure, five PSI versus two PSI, to be maintained in the Sevick no mound system over that normally maintained in previous no mound systems, Mr. Wild did not perform calculations or evaluations as to the beam strength and design requirements of the new ballast system. He did not perform calculations or evaluations that addressed the issue of membrane deflection requirements, which relates to how much the membrane would move upward under various pressures. This in turn could relate to how much downward pressure must be exerted by the anchoring system, to counteract the buoyancy of the membrane bulging upward under different pressure circumstances, associated with different water levels. Mr. Hassett did not know what membrane deflection was acceptable for the Sevick no mound system other than "a fair amount" which he acknowledged varied "depending on the geo- synthetic or the geo-grid that was specified for that particular project." It is understandable that this is an innovative system which requires certain revisions at times before it is installed, or during the course of installation, to adapt its design to the particular site. However, the evidence presented at hearing, as shown by Mr. Hassett's testimony, and Mr. Wild's as well, in this regard, is somewhat indefinite and does not show a substantial likelihood that the membrane and concrete beam and anchor ballasting system proposed will work as planned from a structure and strength standpoint. As Mr. Hassett testified "they will be tested before installation." As shown by Mr. Wild's testimony, the soil of the Petitioner's lots is composed of fine sand at the installation site. There is no evidence concerning any erosion study or concerning what the erosion experience might be in a flooding situation, in order to determine the effect on the helical anchors and ballasting system in the event of floods of varying severities, including a 10-year flood. Dr. Evans established in his deposition testimony that the helical anchors get their resistance to upward force from the sheer strength of the soil, which is a frictional value combined with the effective stress on the soil. If a certain amount of soil is eroded away, then the holding capacity of the anchors is correspondingly reduced. Dr. Evans, however, assumed that the applied load per anchor was 5,000 pounds, with the anchor handling 5,000 pounds of upward force if it was 10 feet underground. Therefore, the designers of the system would need to assure that the anchors are 10 feet underground and that the applied load is 5,000 pounds, according to Dr. Evan's testimony. He opined that if erosion of varying amounts occurred that could affect the anchors' holding capacity. In fact, the evidence shows that the anchors or the top of the anchors may only be proposed to be installed four feet below the surface. Therefore, the evidence does not clearly establish that the beam/anchor system is adequate to maintain the stability of the drainfield membrane system in the event of a flooding situation. Gerald Briggs testified on behalf of the Department. He described the growing concern that nitrogen levels in the effluent of OSTDS systems represent, in terms of potential environmental degradation of ground or surface waters, which the Department is charged with addressing by the statutory authority cited below. The no mound system, like any conventional OSTDS system, has no specific provision that would treat or reduce nitrogen levels in the effluent from the system. The 24-inch separation between the absorption surface of the drainfield and the groundwater elevation is designed to be unsaturated soil, which provides treatment of only a primary nature for essentially the public health/pathogenic components of the OSTDS system effluent (i.e. sanitary treatment). Although there is not such a monitoring requirement, the Department has requested data from the Petitioner regarding the quality of the effluent that would leave the system. If the system were ever installed, it should be done with the condition that effluent sampling and testing of the effluent should be performed, in order to ascertain that the system operates properly, in terms of public health and environmental degradation, on an ongoing basis. The Petitioner's witnesses, Mr. Wild and Mr. Sayko, acknowledged that the system proposed is not infallible and there are certain risks posed by the installation. For instance, if a pump was broken then the water level would start to rise inside the no mound system, according to Mr. Sayko's testimony. Moreover, the absorption surface in the drainfield as proposed, would likely be "subject to flooding" in a situation of power outages and erosion during a flood event. It must be remembered that the ground surface is some five feet below the 10-year flood elevation at the installation site and the absorption surface or bottom of the drainfield is over seven feet below the 10-year flood elevation. Thus, in the circumstance of power outages or flood-caused erosion, the absorption surface of the proposed drainfield could be "subject to flooding." The Department denied the subject permit application because the site elevation is 16.8 feet and the 10-year flood elevation at the site is 22 feet. Thus, the proposal was to install the absorption surface below the 10-year flood elevation (more than seven feet below it). In denying the requested permit the Department denied it based upon its interpretation of the subject statute, Section 381.0065(4)(t)(1), Florida Statutes (2007). It did not actually employ an un-adopted rule or "agency statement of general applicability" in making this interpretation. Rather, it interpreted the statute, applying it to the particular facts of the permit application and the situation prevailing at the proposed installation site. It was not applying an interpretation or policy statement of general applicability enforced throughout its jurisdiction, or throughout the flood plain area of the Suwannee and Aucilla Rivers, but rather was applying the statutory language and its interpretation of it to the particular site and circumstances of the proposed system and its contemplated operation. A variance from the above-referenced statutory requirements and related rules is not at issue in this case because the Petitioner has not sought a variance. Although variances have been granted in the Suwannee River flood plain area, in accordance with Section 381.0065(4)(h), Florida Statutes (2007), the grant of such variances has usually carried the concomitant requirement of more advanced treatment of the effluent in the system to be installed, as allowed by the granted variance. Thus, an aerobic treatment unit (ATU) or performance-based septic treatment system, such as an advanced secondary treatment system (AST), as well as the use of drip drainfields, such as the hoot system, have been required in accordance with the statute. An ATU introduces air into the treatment unit in order to enhance the treatment and generally employ filters as well, according to witness Briggs. An AST type system reduces the biochemical oxygen demand (BOD), total suspended solids, as well as treating the nitrogen and phosphorus contents of the effluent. Historically, the Department has only approved variances in the Suwannee or Aucilla River flood plains for vacant lots with the use of ATU or AST type systems. A drip drainfield reduces the required height of the drainfield by some 12 inches because it is only buried six inches into the soil. This is done because it is designed to be buried in the shallow root zone of trees and plants which allow trees and plants to uptake the nutrients in the effluent water and thus prevent them from being deposited in the ground or surface waters. In the Suwannee River basin area, most of the variances granted by the Department have required such drip drainfield systems. One of the statutory considerations for granting of a variance is that the Petitioner for a variance should not have created the hardship involved, resulting in the need for the variance. The Department maintains that the Petitioner, Mr. Sevick, has created the hardship in this case by purchasing the lot knowing of the restrictions on OSTDS systems that were legally prevailing. The evidence, however, does not really establish that the Petitioner intentionally created the hardship by purchasing a lot knowing of all the restrictions that were in place and their effects. One can infer, for instance, that he was aware of advertisements by No Mounds, that lots in the Suwannee River basin or flood plain area could be developed by using its OSTDS system without even necessitating the use of fill. The Department's evidence simply does not establish that the Petitioner, Mr. Sevick, intended creating the hardship, on his own volition, by purchasing the lot with knowledge that the specific restrictions were in place, from a legal standpoint. Thus it was not proven that the Petitioner is unable to establish a hardship for purposes of seeking a variance pursuant to Section 381.0065(4)(h), Florida Statutes (2007), on the basis that the Petitioner created the hardship. As established by witness Briggs, nitrogen and phosphorus elements of OSTDS effluents are of growing concern for ground and surface waters in Florida. Nitrogen and phosphorus enhance algae growth in surface waters, which can lead to reduced dissolved oxygen content and other factors harmful to fish and wildlife. There is thus a deleterious environmental impact from nitrogen and phosphorus levels in surface waters or groundwaters, in addition to the pathogens which can characterize effluent from OSTDS systems, related to human waste. Advanced septic systems such as ATUs or ASTs have been required in the grant of variance-based septic system permits in flood plains of the rivers because of the potential of their being flooded and because of the locations of the systems. The Department, in consideration of its statutory charge, has sought to seek as much treatment as possible for the effluent, in such situations, in order to prevent significant degradation of ground or surface water. A no mound system is a drainfield dispersal system, so it itself poses no additional treatment capability than does a conventional OSTDS system, as established by both witnesses Wild and Briggs.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Amended Petition be denied. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2009. COPIES FURNISHED: Kenneth J. Plante, Esquire Tana D. Storey, Esquire Brewton Plante, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Mark Dunn, Esquire Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Lucy M. Schneider, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 John M. Lockwood, Esquire Rutledge, Ecenia & Purnell, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32301 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C. The proposed canals, as well as the existing canals, are being developed as residential home sites. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development, the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.
Recommendation Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION KYLE BROTHERS LAND COMPANY, INC. Petitioner, vs. CASE NO. 76-607 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
