The Issue The issue is whether respondents should have a civil penalty imposed against them for failing to repair allegedly faulty on-site sewage disposal units.
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Respondents, Carl L. and Deborah J. Forrester, have resided on Lem Turner Road in Callahan, Nassau County, Florida, since December 1988. Their home is serviced by two underground sewage disposal systems, both located in the back yard and installed prior to 1983. In the fall of 1991, Betty Bailey and her now deceased husband began construction of a new home on the lot adjacent to the Forresters. The home was completed in early 1992. As a result of a complaint filed by Bailey with the Nassau County Public Health Unit, which is an arm of respondent, Department of Health and Rehabilitative Services (HRS), respondents were required to obtain a construction permit to repair their sewage disposal systems. Because HRS concluded that respondents did not repair their systems as required by the permit, it contends they should be assessed a civil penalty until the violations are corrected, but that such fine not exceed $1500. This preliminary decision is embodied in an administrative complaint issued against respondents in early 1993. The street on which respondents live, Lem Turner Road, runs in a north- south direction. Beginning at the northern end of the block and going south are the Lindemann, Forrester, Bailey, and Campbell home sites, respectively. The natural slope of the land runs north to south so that water runs from the Lindemann property, which is the high point on the block, south over the Forrester property, then over the Bailey property, and finally through the Campbell property and into a small pond on an adjacent lot. Directly behind the Forrester lot is a home owned by Susan Lewis and her husband while Ronald K. Earl's home is located on a 3-acre home site directly behind Bailey's lot. There is also a sod farm which lies to the south and east of the block and, at its closest point, is no more than seventeen hundred feet from the Earl property. Since there is no central wastewater treatment plant, each of the homes in this area must use an individual sewage disposal unit (septic tank and drainfield). It is noted that because of the low elevation in the area, and the seasonal high water table elevation, at least 95 percent of all new systems currently installed in Callahan must use a septic tank with a mound-type of drainfield. When the Baileys were constructing their home, Betty Bailey noticed that the elevation of her property was lower than the Forresters' lot, and the area in the back yard immediately adjacent to the Forresters' property line was always "wet" and "mushy". Indeed, it was so wet that on occasion construction trucks would get stuck. She also observed water bubbling up out of the Forresters' yard adjacent to her property line. In an effort to eliminate the wet area, Bailey added a considerable amount of fill dirt to her lot and sodded the area. She recalls adding some twenty loads or so while Carl Forrester says it was much more than that. In any event, the elevation on her lot increased to a height slightly greater than that of the Forrester lot, and this changed the natural flow of stormwater runoff from over her lot to a ditch which straddles her property line. Even so, she says the fill and sod did not correct the wet condition near the property line and it still remained wet as of the date of hearing. After moving into her home in February 1992, Bailey began noticing a sewage odor emanating from the soggy area of ground running from her back yard to the Forresters' back yard. The odor, which was worst in the evening and when it rained, was so bad that it prevented her from using her screened back porch and swimming pool in the evening or entertaining friends outside. The condition still existed as of the date of hearing. Bailey spoke to Carl Forrester about the odor and mushy ground on several occasions. Once he told her there was an underground spring causing the wet ground and suggested she install a french drain system to convey stormwater runoff from her back yard. He also suggested the odor was caused by the nearby sod farm which used manure to fertilize the sod. Bailey contacted the Nassau County Public Health Unit on March 2, 1992, and requested that it check out the source of the problem. Shortly thereafter, Stanley Stoudenmire, a Nassau County environmental health care specialist, inspected the area where respondents' property abuts the Bailey property and observed "mushy" ground, standing water, flies, and bright green algae growth. He also smelled hydrogen sulfide, which is indicative of a failing drainfield, and observed water coming out of the ground. Without the need to take water samples, Stoudenmire identified the pooling liquid as effluent flowing from respondents' drainfields. All of these conditions were indicative of a failed sewage system and constituted a sanitary nuisance. It is noted that an improperly operating system is a threat to human life and safety since it can cause a number of diseases. After advising Carl Forrester that there was a problem with his drainfield, Stoudenmire was told by Forrester that his systems had been checked out by two septic tank firms and nothing was wrong. Nonetheless, Stoudenmire advised Forrester to repair the systems. Stoudenmire continued to monitor the situation and even ran a red dye test on one visit. This produced no evidence of a faulty system, but the test is not a conclusive indicator of a failed system. After Bailey continued to make complaints and further inspections revealed that no repairs had been made, Stoudenmire advised Forrester by letter dated July 9, 1992, that he must obtain a permit to correct the systems. On July 13, 1992, Carl Forrester made application for a permit. The application required him to make a site and soil evaluation and prepare a drawing of the proposed corrections. The next day, Stoudenmire conducted a soil and site evaluation on the Forrester property as an aid to them in determining the type of repairs that they needed and the specifications for the drainfield. According to the soil borings, which were not contradicted, the bottom of the existing drainfields were not separated from the seasonal high water table elevation by at least twelve inches, as required by Rule 10D-6.0571(4), Florida Administrative Code. Further, the area had a clay subsurface, which means that water percolation is not good. On July 16, 1992, respondents made application for a construction permit. The permit contained specifications consistent with Stoudenmire's evaluation and required respondents to disconnect both existing systems and install a mound-type drainfield, like that in Betty Bailey's back yard, so that the required 12-inch separation could be achieved. The permit required the work to be completed within ninety days. On September 15, 1992, Stoudenmire advised respondents by letter that they "had not notified (his) office of any efforts to correct the problem". They were told that unless corrective action was taken within ten days, "legal action would be pursued". On October 26, 1992, a second letter was sent to the Forresters by Stoudenmire advising them that he continued to receive complaints, that the repairs may have been done in "an illegal manner", and that they had "5 days from receipt of this notice to contact (him) for an inspection." In November 1992, Carl Forrester made certain "repairs", but they were not of the type required under the permit. Instead, he installed a french drain system, consisting of a 55-gallon drum, an electric pump and a drain pipe, which simply conveyed stormwater runoff and effluent from his back yard to a percolation system in his front yard. Bailey says that, as a result of these "repairs", she can now smell the sewage odor emanating from the front yard. Forrester also placed lime on the soggy area and sprayed the same area with a chemical. On November 26, 1992, HRS issued another warning letter to the Forresters stating that it was "imperative" that they "cooperate and respond immediately" due to continued complaints by Bailey. Stoudenmire also returned to the site and once again observed insects and "mushy ground", caused by a combination of effluent and stormwater, and could smell a raw sewage odor in an area which straddled the Forrester-Bailey property line. These conditions were the same as those previously observed on prior inspections, were indicative of a failed sewage disposal system, and constituted a sanitary nuisance. There is no evidence that the conditions had been corrected as of the date of hearing. During this same period of time, Susan Lewis, who lives directly behind the Forresters, occasionally smelled a raw sewage odor, especially in the evening, coming from the Forresters' back yard. When she spoke with Carl Forrester about the odor, he told her that he was aware of the problem, had "no doubt" there was sewage "going to" the Bailey property, but denied it was from his systems. However, he also told her he intended to correct the problem. Testimony by two other neighbors established that they do not smell any foul odors coming from the Forrester property but that when climatic conditions are just right, they can smell an odor from the nearby sod farm. However, it is found that the odor smelled by Stoudenmire, Bailey and Lewis comes from the Forresters' faulty drainfields and is different from that occasionally caused by the sod farm. Respondents do not want to incur the cost of disconnecting their two existing systems and installing an unsightly mound system, which would cost almost $3,000.00. In addition, Carl Forrester says that the trucks and equipment used to install a mound system would cause another $2,000.00 in driveway and landscape damage. Because of this, Forrester contends he will sell his home before installing a mound system. Forrester also blamed the newly added fill on Bailey's lot, which disrupted the natural flow of water, for causing the standing water on his property. However, there was no evidence that this condition caused the drainfields to operate in a faulty manner. Forrester also said four septic tank firms found his systems to be in compliance with HRS rules. But this testimony is hearsay in nature and cannot be used to make a finding in his favor. Finally, he blamed part of the odor on a rotting gum tree stump in his back yard which eventually dissipated. However, this contention is not accepted as being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a $1,000 civil penalty upon respondents for violating Subsections 386.041(1)(a) and (b), Florida Statutes, and Rule 10D-6.0571(4), Florida Administrative Code. Respondents should also be required to correct their failed system by installing a mound- type drainfield within thirty days from date of final order. DONE AND ENTERED this 20th day of May, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1300 Petitioner: 1-2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 6 and 9. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Covered in preliminary statement. Partially accepted in finding of fact 4. 9-10. Partially accepted in finding of fact 7. Partially accepted in finding of fact 12. Partially accepted in finding of fact 2. Respondents: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 12. 6-7. Partially accepted in finding of fact 6. 8. Partially accepted in finding of fact 7. 9. Partially accepted in finding of fact 6. Partially accepted in findings of fact 1 and 12. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 13-14. Partially accepted in finding of fact 11. 15. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire Post Office Box 2417 Jacksonville, FL 32231-0083 J. Gary Baker, Esquire Post Office Box 1177 Callahan, FL 32011
Findings Of Fact Based upon my observation of Respondent's witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Sometime prior to May 7, 1980, Petitioner, Wyatt S. Odom, applied for a permit to construct an individual sewage disposal facility for a houseboat on Drs Lake in Orange Park, Clay County Florida. By letter dated May 7, 1980, Ronald E. Bray, Sanitarian Supervisor for the Clay County Health Department, advised Petitioner that his permit application to construct an individual sewage disposal facility for a houseboat was being denied since the area of Petitioner's property was approximately 26,250 square feet2 A survey of the subject property revealed that the area is 19,890 square feet, which is of course less than one-half acre. (Respondent's Exhibit 2) (0.60 acre) with three individual sewage disposal systems already existing on the property; the land was not suitable for the installation that would allow the proper and required drainfield absorption area and setback requirement could not be maintained due to the existence of buildings, waterlines, wells, a lake and existing sewage disposal facilities which, if permitted, would be in contravention of Chapters 10D-6.23(2) and 10D-6.24(2), (3), (4) and (6), Florida Administrative Code. Supervisor Bray and Sanitarian Thomas Haley, observed the subject property and the survey, and concluded that based on the size of Petitioner's property and the existing wells and septic tanks thereon, it was unsuitable for and could not satisfy the setback requirements and the required drainfield absorption area. (Testimony of Ronald E. Bray.) As stated, Petitioner did not appear at the hearing to contest the Respondent's denial of his permit application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent's denial of Petitioner's request for a permit to construct an individual sewage disposal facility for a houseboat on Drs. Lake in Orange Park, Florida, be UPHELD. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of September, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Wyatt S. Odom P. O. Box 14735 Jacksonville, Florida 32210 Leo J. Stellwagen, Esquire Assistant District IV Counsel Department of Health and Rehabilitative Services Post Office Box 2417F Jacksonville, Florida 32231 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Should Petitioner's application for variance from the standards for onsite sewage treatment and disposal systems be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, through its local health units, is the agency in the State of Florida responsible for permitting or granting variances from permitting standards set forth in Chapter 64E-6, Florida Administrative Code, for Onsite Sewage Treatment and Disposal Systems (OSTDS). Sometime around 1970, Petitioner purchased a mobile home park (Park) in Winter Haven, Florida. The Park presently contains 68 spaces for mobile homes, all of which are occupied. The Park is situated due south of Lake Shipp. There are two canals running approximately east and west through the interior of the Park. Another canal borders the Park on the north side. Included with the purchase of the Park was a Sewage Treatment System (STS) which is permitted and regulated by the Department of Environmental Protection and is presently operating at its maximum capacity serving the 68 mobile homes located in the Park. Sometime around 1980, Petitioner purchased a parcel of land (Property) immediately north of, and across a canal (this is the canal that borders the north side of the Park) from, the Park. The Property borders a basin to Lake Shipp. The Property is zoned for mobile home usage and such is the purpose for which Petitioner purchased the Property. Petitioner has designed the Property such that it will accommodate three mobile home lots (Lots numbered 69, 70, and 71) which Petitioner intends to operate as part of the Park. Initially, Petitioner requested approval of the Department of Environmental Protection to connect the new lots to the existing STS. However, since the existing STS was already at capacity, the Department of Environmental Protection denied Petitioner's request to connect the additional three lots to that system. However, the Department of Environmental protection advised Petitioner that it would have no objection to the installation of septic tanks approved by the Department of Health to serve the additional lots. Subsequently, Petitioner proceeded to obtain the necessary approvals from the local governing authorities and a permit from the Department for the installation of septic tanks on the Property. Petitioner was successful in obtaining the necessary approvals from the local governing authorities but was not successful in obtaining a permit for the installation of septic tanks on the Property from the Department. By letter dated July 16, 1997, the Polk County Health Department denied Petitioner's Application for Onsite Sewage Treatment Disposal System Permit for the following reason: "Domestic sewage flow exceeds 10,000 gallons per day." The denial letter also advised Petitioner that she could request a variance through the Variance Review Board or request an administrative hearing pursuant to Chapter 120, Florida Statutes, on the Department's denial of her application for a permit to install septic tanks on the Property. Petitioner elected to file an application for a variance from Section 381.0065(3)(b), Florida Statutes, with the Variance Review Board. By letter dated August 7, 1997, the Department denied Petitioner's application for variance for the following reasons: The Variance Review and Advisory Committee for the Onsite Sewage Treatment and Disposal Program has recommended disapproval of your application for variance in the case of the above reference property. The granting of variances from established standards is for relieving hardships where it can be clearly shown that the public's health will not be impaired and where pollution of groundwater or surface water will not result, where no reasonable alternative exists, and where the hardship was not intentionally caused by the action of the applicant. The advisory committee's recommendation was based on the failure of the information provided to satisfy the committee that the hardship was not caused intentionally by the action of the applicant, no reasonable alternative exists for the treatment of the sewage, or the discharge from the system will not adversely affect the health of the public. I concur with the advisory committee's recommendation and hereby deny your variance request. Subsequently, Petitioner requested and was granted a formal hearing pursuant to Chapter 120, Florida Statutes, on the denial of Petitioner's application for a variance. The Petitioner intends to locate the OSTDS on the Property. The tank and drain field for the OSTDS will be located approximately 125 feet from the basin. The City of Winter Haven's Sewage System is not available to the Property. The Park's existing STS does not have adequate capacity to accept the sewage that will be generated by the Property. There is no publicly-owned or investor-owned sewage system capable of being connected to the plumbing of the Property. Petitioner testified that the estimated cost of increasing the capacity of the Park's Sewage System to accommodate service to the three additional lots was $30,000.00 - $40,000.00. However, Petitioner presented no evidence as to how the estimate was determined. The projected daily domestic sewage flow from the Property is less than 1,500 gallons per acre per day. The Property contains 1.78 acres and there will be less than four lots per acre. In a letter dated October 17, 1997, from W. R. Cover, a professional engineer with Cover Engineering, Inc., Mr. Cover expresses the following opinion: The location of these proposed mobile homes is such that a septic system will not cause adverse effects or impacts on the environment or public health. The unit will be located so as not to significantly degrade groundwater or surface waters. There is no reasonable alternative for the treatment of the sewage in view of the fact that it would be an additional financial burden to attempt to connect these units to the existing sewage treatment plant Mr. Cover did not testify at the hearing. However, the letter was received as evidence without objection from the Department. Petitioner has failed to present sufficient evidence to show that: (a) no reasonable alternative exists for the treatment of the sewage, and (b) the discharge from the Onsite Sewage Treatment and Disposal System will not adversely affect the health of the applicant or the public or significantly degrade groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order denying Petitioner's application for variance from the requirements of Section 381.0065, Florida Statutes and Chapter 64E-6, Florida Administrative Code. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Robert J. Antonello, Esquire Antonello, Fegers and Cea Post Office Box 7692 Winter Haven, Florida 33883-7692 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-0293
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing installation of an OSDS on property which Petitioner owns near the Suwanee River in Dixie County, Florida, in accordance with Section 8l.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is an owner, by joint tenancy, of real property located in Dixie County, Florida, more particularly described as part of Government Lot 1, Section 4, Township 11 South, Range 13 East; closely proximate to the Suwanee River at a location generally known as "New Pine Landing". The surrounding property is characterized by homes and mobile home,;, which have OSDS's installed and operating. The subject property has no improvements constructed thereon, although the Petitioner intends the placement of a 12X60 foot mobile home, containing two bedrooms and one bathroom. There is no OSDS of any type installed on the property at the present time. The subject property is approximately 18.5 acres in size. It was purchased on January 17, 1990, but the property in question has never been platted. On March 20, 1990, the Petitioner made application for an OSDS permit for the aforesaid property, which was denied by the Respondent's letter of denial dated April 23, 1990. The Petitioner was not afforded the opportunity to pursue an informal variance application through the variance procedure set up by the statute and rules cited hereinbelow. Rather, the Respondent, in its denial letter, indicated that, because of the perceived effect of the Governor's Executive Order, discussed hereinbelow, no variances were being granted and the variance procedure would be "bypassed" in favor of affording the Petitioner a formal administrative hearing before the Division of Administrative Hearings concerning the permit denial. The Petitioner testified generally concerning the character of the property in question and the general nature of the terrain and vegetation. The property is characterized by a wetland or swampy area at one end of the property and, in the area of the proposed installation site, the ground elevation is higher, with a benchmark elevation of 8.8 feet above mean sea level ("MSL"), as established by Herbert H. Raker, certified land surveyor, and depicted by Petitioner's Exhibit 2 in evidence. The Petitioner offered no testimony concerning the ground water levels, other than to say that at one point in time, he dug a three-foot-deep hole on the subject property near the septic tank installation site and observed no water in the hole. His testimony did not indicate at what season of the year the observation was made nor whether conditions were wet or dry at the time. The only concrete evidence concerning ground water level at this installation site was that offered by the Respondent, which indicates that the ground water level at the time of the site evaluation was 42 inches below the surface of the property in question at the proposed installation site and, through observation of "mottling1, of the soil, indicating the presence of dampness, that the wet season water table is 12 inches below the surface of the property. Likewise, the Petitioner professed to have no knowledge of the ten-year flood elevation for the property. The Respondent's evidence, derived from materials submitted by the Petitioner in furtherance of the application, consisting of a report from the Suwanee River Water Management District, establishes that the ten-year flood elevation is 14 feet above MSL for Suwanee River Mile 29, which corresponds to the location of the subject property. The property is also located within the regulatory floodway administered by the Suwanee River Water Management District. Rule 10D-6.047, Florida Administrative Code, mandates that before a mounded system for on-site sewage disposal can be installed, a certification by a registered engineer would be necessary to determine that installation of such a mounded system would not raise the level of the "base flood". No such engineering testimony or evidence has been offered in this proceeding, however. The Petitioner further testified in a general sense that it would be a hardship not to be able to) install the OSDS on the property, given the money paid to purchase the property and the intent by the Petitioner to use it for a residence. The Petitioner has no use for the property without being able to use it for a residence. The Petitioner, however, did not offer any testimony or evidence concerning alternatives to installing the proposed OSDS, nor did the Petitioner establish that installation of such a system or an alternative system would pose no adverse health effects on the Petitioner or members of the general public nor that it would pose no degradation to the surface or ground waters involved for purposes of the Petitioner establishing entitlement to a permit or a variance It should be remembered, however, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances, or permits for OSDS within the ten-year flood elevation. This leads to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such system; beneath the ten-year flood elevation was entered on January 17 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting, for the reasons found and concluded above; and without prejudice to pursuing an OSDS permit application at a later time should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3120 Respondent's Proposed Findings of Fact: 1-9. Accepted. Petitioner's Proposed Findings of Fact: None filed. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mary Ann White and Inman White P.O. Box 756 Old Town, Florida 32680 Frances Childers, Esquire Assistant District Legal Counsel HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to the grant of a variance for the installation of an onsite sewage disposal system ("OSDS") for his property on the Santa Fe River in Gilchrist County, Florida, in accordance with Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Gilchrist County, Florida, more particularly described as Lot 4, Unit 4, Ira Bea's Oasis, a subdivision. The evidence is not clear concerning whether the plat of the subdivision was actually recorded, although the evidence and the Petitioner's testimony indicates that the lots in the subject subdivision were subdivided in 1965. The evidence does not clearly reflect whether the subdivision was ever platted, however. On April 2, 1990, the Petitioner filed an application for an OSDS permit regarding the subject property. The application was for a new OSDS on the above-described property; and the system was intended to serve a single- family residence, which the Petitioner desires to construct on the subject property for a vacation and retirement home. The proposed residence would contain three bedrooms and a heated or cooled area of approximately 1,100 square feet. In the permit application process, at the Respondent's behest, the Petitioner had a survey performed by Herbert G. Parrish, registered land surveyor. That survey, in evidence as the Respondent's Exhibit 1, reveals a benchmark elevation of 21.65 feet above mean sea level ("MSL"). The proposed installation site is at an elevation of 22.5 feet above MSL. A report by the Suwannee River Water Management District, which is admitted into evidence and was submitted to the Respondent by the Petitioner with the application for the OSDS permit, shows a ten-year flood elevation for the subject property, and River Mile 10 of the Santa Fe River, at 31 feet above MSL. Thus, the subject property is located beneath the ten-year flood elevation. The property is also located within the regulatory floodway of the Santa Fe River, as that relates to required engineering certification and calculations being furnished which will assure that if OSDS's are constructed employing mounding or sand filters, and like constructions, that such related fill deposited on the property within the regulatory floodway will not raise the level of the "base flood" for purposes of the rules cited hereinbelow. No evidence of such certification by an appropriately-registered engineer was offered in this proceeding concerning the installation of a mounded system and its effect on the base flood level. The surface grade level of the subject property at the installation site is 9.5 feet below the ten-year flood elevation. The grade elevation of the subject property is also .5 feet below the "two-year flood elevation", and the property has been flooded once in the past three years and has been flooded approximately four times in the past 15 years. It has thus not been established in this proceeding that the property is not subject to frequent flooding. On April 18, 1990, the Respondent denied the Petitioner's application for an OSDS permit by letter of that date. The Petitioner did not make a timely request for a formal administrative hearing to dispute that denial. The Petitioner maintained at hearing that this was, in essence, because the Respondent's personnel informed him that he should seek a variance instead, which is what he did. The testimony of Mr. Fross reveals, however, that, indeed, he was advised of his opportunity to seek a variance but was also advised of his right to seek a formal administrative hearing to contest the denial of the permit itself. Nevertheless, either through the Petitioner's misunderstanding of his rights or because he simply elected to choose the variance remedy instead, the fact remains that he did not timely file a petition for formal proceeding to contest the denial of the OSDS permit itself. Even had a timely petition for formal proceeding concerning the denial of the OSDS permit application been filed, the evidence of record does not establish the Petitioner's entitlement to such a permit. As found above, the property lies beneath the ten-year flood elevation and, indeed, lies below the two-year flood elevation, which subjects the property to a statistical 50% chance of being flooded each year. This and the other findings referenced above indicate that the property has not been established to be free from frequent flooding; and although appropriate "slight-limited" soils are present at the proposed installation site, those soils only extend 50 inches below the surface grade. That leaves an insufficient space beneath the bottom of the drainfield trenches where they would be located so as to have a sufficient volume and distance of appropriate treatment soil available beneath the drain field, if one should be installed. Below 50 inches at the subject site is a limerock strata which is impervious and constitutes a barrier to appropriate percolation and treatment of effluent waste water. Thus, for these reasons, especially the fact that the property clearly lies beneath the ten-year flood elevation and because adequate proof in support of a mounded system which might raise a septic tank and drainfield system above the ten-year flood elevation has not been adduced, entitlement to the OSDS permit itself has not been established. Concerning the variance application actually at issue in this proceeding, the Petitioner has proposed, in essence, two alternative systems. The Petitioner has designed, and submitted as an exhibit, a plan for a holding- tank-type- system. By this, the Petitioner proposes a 250-gallon holding tank, with a venting pipe extending approximately three feet above the level of the ten-year flood elevation, with an attendant concrete retaining wall and concrete base to which the tank would be securely attached. The Petitioner thus postulates that flood waters would not move or otherwise disturb the holding tank and that he would insure that the holding tank was pumped out at appropriate intervals and the waste there from properly deposited at a treatment facility located above the ten-year flood elevation. The precise method of such disposal and its location was not disclosed in the Petitioner's evidence, however. Moreover, the testimony of Dr. Hunter establishes that the deposition of waste water and human waste into the tank, either through pumping, or by gravity line, if the residence were located at an elevation above the inlet to the tank, might well result in a hydraulic condition which would cause the untreated sewage to overflow from the vent pipe of the tank. Moreover, such systems do not insure that public health, the health of the occupants of the site, and ground or surface waters will not be degraded since it is very costly to pump such a tank out which would have to be done on a frequent basis. This leaves the possibility that the user of such a holding-tank-facility could surreptitiously drain the tank into nearby receiving waters or otherwise improperly empty the tank. Even though the Petitioner may be entirely honorable in his intentions and efforts in this regard and not violate the law and the rules of the above-cited chapter in his manner of disposal of the holding-tank effluent, there is no practical, enforceable safeguard against such illegal activity, especially if one considers that the property may later be conveyed to a different landowner and user of the system. The Petitioner also proposes in his testimony and evidence the possibility of using a nondischarging, composting-toilet-type system to handle sewage involving human excreta. Such a system has been shown by the Petitioner's evidence to adequately treat human sewage so that public health and the ground and surface waters involved in and near the site could be adequately safeguarded. The problem with such a system, however, is that the "gray water", that is, waste water from bathtubs, showers, lavatories and kitchens, cannot be disposed of in the composting-toilet system. Such gray water, which also contains viruses, coliform bacteria and nutrients, must be disposed of, according to the rules at issue, in an appropriate sewage disposal system, be it in a septic tank and drain field or through pumping to an appropriate disposal and treatment facility located above the ten-year flood elevation. The Petitioner's proof does not establish how such gray water could be appropriately and safely disposed of in the environmental and public health context at issue herein. Thus, the proposed alternatives suggested by the Petitioner's proof do not constitute minor deviations from the minimum requirements for OSDS's specified in Chapter 10D-6, Florida Administrative Code. Ironically, the composting-toilet system, coupled with a proper disposal system for household gray water, could constitute a reasonable alternative to a conventional system. Thus, the Petitioner's proof, itself, shows that a reasonable alternative may exist, which militates against the granting of the variance, although he did not prove how it could feasibly be accomplished. In summary, therefore, the Petitioner's proof failed to establish that no reasonable alternative exists and that the proposed system would only be a minor deviation from the minimum requirements of the Respondent's rules concerning OSDS's and their installation and operation. The Petitioner established that a reasonable alternative to a conventional OSDS might exist for purposes of granting an OSDS permit itself, had that issue been formally placed before the Hearing Officer, but did not prove how it could feasibly be accomplished and operated. This proof shows, however, that such a reasonable alternative might be found operable which, thus, fails to justify the granting of a variance based upon hardship. If the Petitioner could come forward with proof to establish the feasibility of disposal and treatment of the household gray water involved in an appropriate treatment and disposal site and facility above the ten-year flood elevation, in conjunction with use of a composting- toilet system, a later permit application might be entertained in which could be justified the granting of an OSDS permit.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Respondent denying the Petitioner's application for a variance from the statutory and regulatory requirements, cited above, for the issuance of permits. At such time as the Petitioner is able to show changed factual circumstances, as for instance, that a reasonable, feasible alternative system, which will adequately treat and dispose of all household waste water effluent in a manner comporting with the rules of Chapter 10D-6, Florida Administrative Code, a permit application should be entertained. DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4569 The Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact 1-16. Accepted. 17. Rejected, as not supported by the preponderant evidence of record. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Mark Moneyhan, pro se Route 3, Box 407 Perry, FL 32347 Frances S. Childers, Esq. Department of HRS District III Legal Office 1000 Northeast 16th Avenue Gainesville, FL 32609
Findings Of Fact Kearney is engaged in the development of real property in and around Hillsborough County, Florida, and is located in Tampa, Florida. Corrugated is a Louisiana Corporation which maintains a local headquarters in Tampa, Florida, and is presently seeking a business outlet in Hillsborough County for the assembly and distribution of metal buildings. At all times material hereto, Kearney and Corrugated have been parties to a real estate transaction concerning certain real property located at 1920 U.S. Highway 301 in Tampa, Hillsborough County, Florida. The subject property consists of .82 acres of undeveloped land which is located in an area of rapid commercial and industrial growth. Under the Hillsborough County Zoning Code, the subject property is designated M-1, which authorizes commercial and industrial uses. Corrugated is the purchaser of the subject property, and proposes to establish an assembly and distribution center for pre-painted sheet metal buildings. Corrugated does not propose to engage in any activity which will generate industrial wastewaters of any kind, and in particular, will not generate wastes or wastewaters of a "hazardous" or "toxic" nature. No centralized public wastewater service has been available to this property, and septic tanks with drainfields are utilized by both adjacent properties for their domestic and other wastewater needs. Kearney and Corrugated have determined that the property in question is suitable for the intended uses in all other respects, including water, electricity, and transportation. In September, 1988, Kearney and corrugated sought approval from Respondent of a permit to install an onsite sewage disposal system (septic tank and drainfield) for the sole purpcse of providing toilet services to employees of the company. The site plan and preliminary construction drawings for the on- site system were reviewed by the Department of Environmental Regulation (DER) to determine whether the project posed unusual wastewater problems or relied upon inadequately designed facilities. The DER had no objection to the installation of the septic tank and drainfield to serve the proposed system because of the non-hazardous character of the business, and the absence of floor drains in the proposed work areas. The Hillsborough County Health Department, however, gave immediate verbal denial of a septic tank permit based solely upon the industrial zoning of the property, and set forth its denial, in writing, on October 14, 1988. Following the County Health Departnent's denial, Kearney and Corrugated, based upon consultation with Respondent's officials in Tallahassee, assembled additional information to provide further assurance that the site would not generate industrial or hazardous wastes which could be disposed of via the septic tank. They provided detailed descriptions of each process to be performed by Corrugated, in substantiation of its claim that no wastewaters would be generated at the site. They also obtained the agreement of the Hillsborough County Building Department to subject any future building permit applications at the site to particular wastewater scrutiny, in addition to formal deed restrictions which they proposed for the subject property. Notwithstanding these additional representations, the Environmental Health Director of the Hillsborough County Health Department continued to reject the application on the sole ground that the property was zoned for industrial uses. On October 14, 1988, Petitioners submitted an application for a variance to the Hillsborough County Health Department and the Respondent, accompanied by supporting material setting forth the regulatory history referred to above, as well as the written representations and assurances, including proposed deed restrictions, which they had previously tendered to the County Environmental Health Director. They appeared before the Variance Advisory Review Board on November 3, 1988, to substantiate the specific measures which they proposed in order to ensure that no toxic or hazardous substances would be introduced into the septic tank system. These proposals were received by the Advisory Board without objection, and members observed that Petitioners had done everything they could do to provide the comfort margin which the agency sought. However, denial of the variance was recommended based upon the failure of Hi1sborough County to adopt a local ordinance providing for future inspections or controls by local officials to prevent future toxic or hazardous wastes from being disposed into the on- site sewage disposal system. Without such a local ordinance, the Advisory Board members expressed the view that it did not matter what the applicant presented to the Board. On December 2, 1988, the Respondent formally informed the Petitioners, in writing, that their application for a variance had been disapproved. This denial had the effect of formally denying Petitioners' permit application. Thereupon, Petitioners timely sought review of this decision by filing a petition for formal administrative hearing.
Recommendation Based upon the foregoing, it is recommended that the Respondent issue a permit for an onsite sewage disposal system to the Petitioners. DONE AND ENTERED this 18th day of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989. COPIES FURNISHED: Charles G. Stephens, Esquire Bayport Plaza - Suite 460 6200 Courtney Campbell Causeway Tampa, Florida 33607 Raymond Deckert, Esguire W. T. Edwards Facility 4000 W. Buffalo 5th Floor, Room 500 Tampa, Florida 33614 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Clerk 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact The Respondents, Frank L. Reppa and Denise J. Reppa, own and reside in their dwelling located at 3863 Plumosa Drive, St. James, Florida. The property is a narrow canal front lot. All lots in the area are small and narrow and the dwellings thereon, mostly mobile homes, are placed closely together. On January 11, 1988, as the result of a nuisance complaint by the Reppa's next door neighbor, Stephen E. Havig, an Environmental Specialist with the Lee County Health Department, a part of the State of Florida DHRS, inspected the property in question and observed that effluent from the Respondents' drain field, a malodorous liquid, had run from Respondent's property down onto the driveway of their neighbors. On January 13, 1988, he returned to the property and spoke with Mrs. Reppa who admitted to living on the property. He again observed that the drain field in the Reppas' septic system was heavily saturated and had failed. Effluent was coming to the surface due to the high water table resulting from heavy recent rains and the failure of the system, and there was still a sewage odor to the effluent. The effluent showed in stains on the neighbor's drive. Mr. Havig told Mrs. Reppa that the problem had to be corrected as it was a violation of the law to allow it to remain. In response, Mrs. Reppa indicated they had no money to effect the repairs and because of that, Mr. Havig, who could have cited them immediately, indicated he would return to his office to see if they could be given some additional time to have the work done. After checking with his supervisor, Mr. Havig, on the same day issued an "Official Notification of Insanitary Nuisance" and a "Notice of Intended Action", both of which were sent by Certified Mail and receipted for by Mrs. Reppa on January 19, 1988. The Notice gave the Reppas until January 28, 1988 to correct the problem. On January 14, 1988, Mr. Havig again talked with Mrs. Reppa, telling her what he was sending and advising her how she could get the problem fixed. When he again went out to the property on January 28, 1988, he noted that the property had dried out due to a lack of rain. However, he could see no evidence that any repairs had been effected. He returned to the property on February 1, 1988 after a rain and observed that the problems had reoccurred. Mr. Havig again spoke with Mrs. Reppa on February 8, 1988, at which time she advised him the problem was to be repaired, but they were without funds to pay for it. At that time, Mr. Havig gave the Reppas three weeks to have the work completed with a contractor to be retained within one week. When he spoke with Mrs. Reppa on February 16, 1988, she stated she was still having trouble getting a contractor. She had contacted one contractor who looked at the system on February 15, 1988 and who proposed to remove the washing machine from the drain system. When Mr. Havig talked with Mrs. Reppa on February 19, 1988, she indicated she would have to discuss the matter with her husband. Mr. Havig stated at that time that the Department would have to proceed with enforcement action if work was not started on the correction by February 22, 1988. No corrective action was taken by the Reppas and the Administrative Complaint was filed as a result. DHRS considers it important to properly dispose of effluent because, since it contains human waste, it carries bacteria, viruses and a danger of parasites. Agency policy requires that the septic system be continually monitored and that the tank be pumped and the drain field be repaired when necessary. The Department has no funds available to assist those who cannot afford to make repairs. In order to be properly processed, effluent drainage from septic tanks needs a minimum of two feet of soil between the discharge outlet of the tank and the water table. The soil acts as a filter to remove harmful organisms and contaminants from the effluent before it reaches the water table. A high water table, due to heavy rains or other causes, prevents this filtration and causes the effluent to come to the surface. The situation is correctable. Two methods of correction are: 1) elevate the system above the water table, or 2) remove the saturated soil and replace it with a good grade of sand. In October, 1985, another complaint against the Reppas, relating to the same situation, was filed with DHRS. At that time, the Reppas paid $650.00 to have the system repaired by an individual who replaced the drain field, drawing it away from adjoining property and toward the road. Though the contractor assured them this would fix the problem, wash water would continue to come to the surface. As a result, Mrs. Reppa has refrained from washing clothes at her home and takes them to the laundry in town. Because of the actions they have taken, such as having the drain field expanded and moved, the pumping out of the septic tank in January, 1988, and the cessation of washing clothes at home, Mr. and Mrs. Reppa are convinced the system is not overflowing and that the water on the neighbor's property is the accumulation of surface water drainage when it rains. The Reppa property is higher than the neighbor's property and Mrs. Reppa believes that rain water drains down there. The new part of the drain field works and the water in question, she feels, cannot be effluent. The evidence of record, however, indicates to the contrary and that it is waste effluent. Inquiry by the Reppas indicates that it would take $750.00 more to fix the system and the Reppas do not have that money. They are still paying back the money they borrowed from Mrs. Reppa's parents to make the first repairs. Mr. Reppa is a commercial fisherman whose income has been substantially reduced due to the restrictions placed on the taking of redfish. Many neighbors in the area, according to the Reppas, discharge sewage directly into the abutting canal and allow wash water to run out onto the ground. The Reppas cannot comprehend why these individuals, mostly three month winter visitors, are not cited while they, full time residents, are.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that an administrative fine of $50.00 per day be assessed against the Reppas for the violation established, said fine to be effective upon entry of a Final Order herein, with provision that the fine be remitted upon satisfactory proof that the violation has been corrected. Recommended in Tallahassee, Florida this 24th day of August, 1988. ARNOLD H. POLLOCK 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 24th day of August, 1988. COPIES FURNISHED: Eugenie G. Rehak, Esquire Staff Attorney Department of Health and Rehabilitative Services Post Office Box 06085 Ft. Myers, Florida 33906 Frank Lee Reppa, pro se Denise J. Reppa, pro se 3863 Plumosa Drive St. James, Florida 33986 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit ("OSDS") authorizing installation of an on-site sewage disposal system for property the Petitioner owns near the Suwannee River in Gilchrist County, Florida, in consideration of the relevant provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code, and whether the Petitioner should be entitled to pursue a variance from the permitting statute and rules embodied in that chapter of the code.
Findings Of Fact The Petitioner owns certain real property located in Gilchrist County, Florida on the east bank of the Suwannee River, adjoining the river. The property is more particularly described as Lot 9, Block B, Two River Estates. The property was purchased on January 3, 1985 and was platted as a subdivision on January 5, 1959. The lot in question upon which the OSDS would be installed should a permit be granted, is approximately one acre in size. On April 30, 1990, the Petitioner made application for an OSDS seeking authorization to install such a conventional septic tank and drain-field system for disposing and treating household sewage effluent on the subject property. The system would be designed to serve a single-family residence, containing approximately two bedrooms, and approximately 1,200 heated and cooled square feet of living space. Upon making application, the Petitioner was informed that he would have to obtain a surveyed elevation of his property, as well as the ten-year flood elevation for his property for the river mile of the Suwannee River at which his property is located. The Petitioner consequently retained Herbert H. Raker, a registered land surveyor, who surveyed the elevation for his property. Mr. Raker established a bench mark elevation of 29.24 feet above mean sea level ("MSL"). The site of the proposed OSDS installation on that lot has an elevation at the surface grade of 28.5 feet. The subsurface of the lot at the installation site is characterized by appropriate, "slight-limited" soil extending 72 inches below the surface grade of the lot. The wet season water table is 68 inches below the surface grade of the lot. Consequently, there is more than adequate slight-limited soil to handle disposal and treatment of the sewage effluent from a single-family residence, such as is proposed, since the wet season water table is 68 inches below the surface of the property. Thus, a more than adequate treatment space and appropriate soil beneath the bottom surface of any proposed drain field to be installed at the site would exist so as to comply with the pertinent rules cited herein. The problem with a grant of the subject permit consists only of the fact that the property lies beneath the ten-year flood elevation, that is, it is approximately 1.5 feet beneath that elevation. The Suwannee River Water Management District report submitted to the Respondent agency by the Petitioner in the application process for the OSDS permit (in evidence) reveals that the ten-year flood elevation for the property in question is 30 feet above MSL. The soils prevailing at the proposed installation site, the great depth of the wet season water table, and the fact that the lot is approximately one acre in size and above the minimum size requirements for the installation of an OSDS, all militate in favor of a grant of the permit, except for the basis for its denial initially, that is, that it is simply beneath the ten-year flood elevation for purposes of the prohibition contained in Rule 10D-6.047, Florida Administrative Code. Although located within the ten-year flood elevation, the site is not located within the regulatory flood way so that if a mounded system or other raised OSDS alternative system were proposed and installed, an engineer's certification would not be required regarding the issue of raising the base flood level by the deposition of fill at the installation site for purposes of Rule 10D-6.047(6), Florida Administrative Code. There is no central water system available to the property; however, although there was conflicting testimony about the distance the proposed installation site would be from a neighbor's potable water well, the testimony of the Petitioner is accepted as being most certain in establishing that more than the required distance from that potable water well exists between it and the proposed septic tank and drain-field installation site, since the Petitioner established that approximately 110 feet is the actual separation distance. The Petitioner purchased the property to construct a single-family residence for himself and his family. He expended a substantial sum of money for the property and is unable to use it for its intended purpose without the subject permit or at least a variance so as to authorize him to install an OSDS. The Petitioner offered no concrete proposals or plans for an alternative system which might reasonably accomplish treatment and disposal of the sewage effluent in question without harm to ground or surface waters or the public health. No substantial proof was offered of a system which would either dispose of and treat the effluent at a location above the ten-year flood elevation or, if still below it, would adequately treat and dispose of the effluent sewage to safeguard the public health and the ground or surface waters involved, such that its existence slightly beneath the ten-year flood elevation would only be a "minor deviation" from that portion of the permitting rules. In point of fact, it would seem that a mounded system would be feasible on a lot this size, especially in view of the fact that the bottom surface of the proposed drain-field trenches or absorption beds would only have to be raised slightly over 1.5 feet from the surface grade of the subject lot and installation site in order to comply with the ten-year flood elevation parameter, which was the only basis for denial of this permit application. No proof was offered concerning how such a mounded system would be designed, installed and otherwise accomplished, however. Upon denying the initial application for the OSDS permit, the Respondent advised the Petitioner that he should pursue a formal administrative hearing process rather than make application for a variance and proceed through the internal variance board mechanism operated by the department in order to obtain a variance from the requirements of Rule 10D-06.47(6), Florida Administrative Code. The Respondent advised the Petitioner of this because the subject property was located within the ten-year flood elevation of the Suwannee River; and as the Respondent interpreted the Governor's Executive Order Number 90-14, which incorporated by reference the "Suwannee River Task Force Report" commissioned by the Governor, the Order absolutely prohibited the granting of any variances authorizing installation of OSDS's beneath the ten-year flood elevation of the Suwannee River or the granting of any OSDS permits themselves authorizing such installations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 5th day of March, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The Petitioner did not file a Proposed Recommended Order. Respondent's Proposed Findings of Fact 1-10. Adopted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Gary Wilson P.O. Box 2061 Lake City, FL 32055 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
