The Issue Is Respondent guilty of violations of Rule 10D-6.0751(l)(b) [gross negligence and incompetence] by the installation of a residence septic tank system and failure to obtain a new system construction permit with approved site plan prior to installation of a new on-site sewage treatment system, as charged in the undated administrative complaint numbered HPO-96-1003, which was referred to the Division of Administrative Hearings on or about November 26, 1996 and if so, what discipline should be imposed?
Findings Of Fact Respondent Larry A. Ford is registered by Petitioner agency as a septic tank contractor, under the registered name of "L.A. Ford Septic Services." On July 31, 1996, Gary W. Thompson, agent and building contractor for Johnny Howard, Jr., applied to the Suwannee County Health Department for an Onsite Sewage Disposal System Construction Permit to install an onsite sewage treatment and disposal system for Mr. Howard's residence. The site plan specified installation of a septic system on the north side of a house which was then under construction. On August 2, 1996, Charles Bradley, Environmental Health Specialist, Suwannee County Health Department, conducted a site evaluation at the construction site. His site evaluation included taking soil samples from the location proposed for the system to determine the suitability of the soil and the seasonal high water elevation table. A permit was issued in accord with the site evaluation. Mr. Howard (owner) and Mr. Thompson (general contractor) engaged Respondent Ford to install Mr. Howard's septic system. In practice, septic tank installers, including Respondent, usually will contact the Suwannee County Health Department for a copy of the permit, site plan, and other particulars before beginning an installation. The record is silent as to whether that happened in this case. On August 5, 1996, Respondent completed installation of the system and contacted Mr. Bradley to do a final inspection. When Mr. Bradley arrived to inspect the system, he discovered that it had been installed on the west side of the house instead of the north side as called for in the site plan and permit as issued. In other respects, the installed system seemed to comply with the technical requirements for septic systems and Bradley issued an "in place" approval even though Respondent had failed to advise, or have Mr. Howard or Mr. Thompson advise, the Suwannee County Health Department about the change in the system's location so that the Department could conduct another pre-installation site evaluation and issue a corrected permit. If a location or any other significant factor is going to be altered by the installer, the applicable rules require that the installer first amend the permit application and get a new site inspection and agency approval/permit. In practice, a location change is simply approved or rejected by the agency during the after-the-fact inspection, without any real insistence by the agency that the change be pre-approved. However, if the ultimate installation does not accord with health standards or rule standards for any reason, the agency is authorized by rule to require that the situation be corrected and that the installer arrange for a complying permit to be issued. The following week, Mr. Howard's father, who was also the owner of the land adjacent to Mr. Howard's home construction site, complained to Larry Williams, Environmental Health Supervisor at the Suwannee County Health Department. The senior Mr. Howard's primary concern was that the drainfield for his son's new septic system extended across the property line into his property in an area he used for cultivation. A subsequent inspection by Larry Williams, who is an agency superior to Mr. Bradley, revealed that the system had been mislocated across property lines; that the septic tank was installed nearby a dryer vent opening in the west side of the house, rather than the plumbing stub-out designed for this system on the north side of the house; and that the system's elevation as installed would not allow for gravity flow as originally designed; and that the system, as installed, would require additional plumbing and a pump to operate it. The property line trespass would not have showed up in the "as is" inspection by Mr. Bradley. The testimony herein with regard to gravity backflow is sufficient to establish another technical installation violation, despite Mr. Bradley's original post-installation approval of the system, but the record is lacking in evidence to establish that there was a clear danger to public health as a result. Upon further investigation, agency personnel were confronted with at least one disputed fact. On the one hand, they had the complaints of the two Mr. Howards against Respondent and on the other hand they had Respondent's insistence that the younger Mr. Howard's wife had authorized Respondent to relocate the system to the west side of the house. As a result, Respondent denied any and all responsibility for mislocating the system. Additionally, due to the original post-installation agency approval, the Respondent refused to correct the Howard septic system in any way or to participate in agency mediation. When agency efforts to mediate the problem were unsuccessful and Respondent failed to make any arrangements to correct the problem, the County Health Unit paid $975.00 for the correction of Mr. Howard's system by another certified septic contractor. This amount came out of its discretionary funds reserved for dangers to public health. Apparently, Mr. Howard has paid nothing for the repairs. The agency then instituted this instant disciplinary action against Respondent. Respondent refused certified mail delivery of the notice of intended action. Therefore, he had to be served by the Sheriff's office. The notice of intended action advised Respondent that the agency considered his acts and omissions with regard to his installation of the septic system to be gross negligence and incompetence under Rule 10D-6.075, Florida Administrative Code, and that if he did not take corrective action within three days of his receipt of the notice, the agency intended to issue an administrative fine against him and to suspend his registration as a septic tank contractor. Respondent again denied any responsibility for his installation of Mr. Howard's system and refused to take any corrective action or otherwise to try to mitigate the problem. The agency also has cited Respondent via an August 27, 1997 Letter of Warning which had nothing to do with the Howard job. The Letter of Warning advised Respondent that he was in violation of Part III, Chapter 489, Florida Statutes, punishable under Rule 10D-6.0751(1)(a) Florida Administrative Code, because his advertising used a business name (Ford Septic Tank Service) under which he is not registered, instead of his business registration name of "LA Ford Septic Tank". No timely request for administrative hearing was received to dispute the material issues raised by this warning letter, and therefore its allegations may be considered as true. This Letter of Warning also may be considered for purposes of aggravation of penalty, if any penalty is determined in the instant proceeding. The agency has had numerous other customer complaints against Respondent. Its own investigation of these other complaints has satisfied agency staff that in many instances Respondent was doing fraudulent and/or negligent septic system work. However, none of these allegations can be considered here for two reasons. First, because these other situations were not noticed nor charged in the pending administrative complaint, no findings of fact can be made herein with regard to them. Second, because these situations were never proven in a formal proceeding and were not reduced to a Letter of Warning, they may not be considered under the guidelines provided by the agency's rules to aggravate a penalty, if any penalty is determined in the instant proceeding. See the Conclusions of Law, infra. In filing the administrative complaint herein, witnesses Wilson and Melton considered the gravity of Respondent's situation at the Howard residence and his failure to take any mitigating action. They also considered, as aggravating circumstances, the many other citizen complaints discussed above. The administrative complaint for the charges surrounding Respondent's installation on Mr. Howard's permit was served on Respondent in October 1996. He timely requested a formal administrative hearing. Part of the registration procedure for septic treatment system contractors is to take an examination with regard to the requirements of Chapter 10D-6 Florida Administrative Code, including permit requirements, technical requirements for septic system installations and the conduct expected of contractors. Registered contractors who pass the examination, including Respondent, are expected to know and follow all requirements in Chapter 10D-6, Florida Administrative Code.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty of one violation of Rule 10D- 6.0751(1)(b)2. and one violation of Rule 10D-6.0751(1)(l)2; fining Respondent $1,000.00; and revoking his certificate. RECOMMENDED this 29th day of APRIL, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1997. COPIES FURNISHED: Thomas Koch, Esquire Department of Health 2639 N. Monroe Street Suite 160-A Tallahassee, FL 32399-2949 Larry A. Ford Route 1 Box 1705 O'Brien, FL 32071 David West, Esquire Department of Health District 3 Legal Office 1000 Northeast 16th Avenue, Box 3 Gainesville, FL 32601 Dr. James Howell, Secretary Department of Health 1317 Winewood Bouelvard Building 6 Room 306 Tallahassee, FL 32399-0700 Pete Peterson 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, FL 32399-0700
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Kenneth W. Barron for a septic tank be DENIED; however, applicant should be given thirty days from date of the final order in which to raise the tank to a height consistent with the construction permit. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of April, 1983.
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
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue The issue in this case is whether Petitioner is entitled to the issuance of a septic tank permit.
Findings Of Fact Petitioner owns land located at 6765 Narcoosee Road in Orange County. He purchased the land in 1983, at which time it was undeveloped and zoned for agricultural use. On June 25, 1990, the Orange County Commission approved the rezoning of the land for industrial use. Petitioner wants to build a mini-warehouse and caretaker's residence on the land. The site is not served by central sewer. The nearest sewage system is a package plant located 0.38 miles north of the site. The package plant serves a mobile home park. Orange County policy forbids any connection to the mobile home park's sewage disposal system until the package plant is replaced by a lift station that would pump the wastewater to the closest central sewer line operated by the County. This point would be at Crossen Drive and Charlin Parkway, which is about 1 to 1 1/2 miles from Petitioner's land. The only other central sewer line in the vicinity is on Lee Vista Boulevard, but it is 1.1 miles west of Petitioner's land. In June, 1990, Petitioner's engineering consultant submitted a request for a permit to install two septic tanks on Petitioner's property. The capacity of the two septic tanks would be 1000 gallons with a drainfield of 417 square feet elevated at least 36 inches above grade. The site plan, which was noted as subject to change, showed one septic tank and drainfield located near the front of the property and the other in the center of the property between the two warehouse buildings. Representatives of the Orange County Health Department found several problems with the request. By letter dated July 3, 1990, the Orange County Health Department noted that, contrary to information contained in the application, the wet season water table was only about 12 inches, not 36-48 inches, from the bottom of the drainfield. Thus, the size of the required fill- pad would preclude locating the septic tank in the middle of the property. More relevant to the present case, the letter asks Petitioner to advise when the property was rezoned from agricultural to industrial. The letter concludes by advising that, if the Health Department determined that it was necessary to apply for a variance, Petitioner would have to submit a $150 fee. By letter dated July 17, 1990, Petitioner's engineer enclosed a check for $150 and requested a variance. By letter dated July 23, 1990, the Orange County Health Department returned the check and requested the additional information concerning the rezoning. By letter dated August 20, 1990, Petitioner's engineer again enclosed a check for $150 and requested a variance. On August 22, 1990, Petitioner executed an application for a variance from Chapter 10D-6 on the grounds of hardship. The request is for two 1000-gallon septic tanks. By letter dated September 26, 1990, Respondent acknowledged Petitioner's request for a variance from the requirements of Chapter 10D-6 and advised that the request had been placed on the agenda of the Variance Review Group, which was meeting on October 4, 1990. The Variance Review Group met and recommended that the variance be granted. However, by letter dated October 24, 1990, Respondent advised Petitioner that the request for variance was denied. The reason for the denial was that recent legislation prohibited septic tanks in areas rezoned from agricultural to industrial uses after July 5, 1989. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.) Section 381.272(9) provides in relevant part: No construction permit may be issued for an on-site sewage disposal system in any area zoned or used for industrial or manufacturing purposes, or its equivalent, where a publicly owned or investor-owned sewage treatment system is available, or where a likelihood exists that the system may receive toxic, hazardous, or industrial waste. In areas which are either zoned, rezoned, platted, or subdivided for industrial, manufacturing, or equivalent purposes after July 5, 1989, the department shall not authorize onsite sewage disposal system construction. The two sentences set forth in the preceding paragraph are not in conflict. The first sentence applies to all land. The second sentence applies a more stringent requirement to land first zoned for industrial or manufacturing uses after July 5, 1989. Petitioner's land was first zoned for industrial use after July 5, 1989. Thus, Respondent lacked the authority to authorize the use of a septic tank on Petitioner's land.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health Rehabilitative Services enter a final order denying Roy Rumpza's request to permit the installation of two septic tanks on this property. ENTERED this 21 day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 21 day of June, 1991. COPIES FURNISHED: Charles G. Stephens Messer, Vickers, et al. Bayport Plaza, Suite 1040 6200 Courtney Campbell Cswy. Tampa, FL 33607 Sonia Nieves District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson St. South Tower, Suite 5827 Orlando, FL 32801 Linda K. Harris, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in this case is whether the Department of Environmental Protection (DEP or the Department) should allow the City of Tallahassee to revise its domestic wastewater facility permits for Thomas P. Smith Water Reclamation Facility (TPS) and Lake Bradford Road Wastewater Treatment Plant (LBR).
Findings Of Fact The City of Tallahassee owns and operates a sanitary sewer wastewater collection system that collects and processes everything that is discharged to the City's sanitary sewer collection system. The City's collection system has approximately 900 miles of gravity pipes and 100-200 pumping stations serving approximately 230,000 customers. The City's sanitary sewer wastewater treatment facilities include TPS, LBR, the Tram Road Reuse Facility, the Southeast Farm, and the Southwest Sprayfield. Petitioner resides at 198 Mount Zion Road in incorporated Wakulla County. He contends that the revised permits will result in environmental degradation of Wakulla Springs and the Wakulla River. The City's Sanitary Sewer Treatment System TPS, located at 4505 Springhill Road, is the City’s primary wastewater treatment plant, with a design treatment capacity of 26.5 million gallons per day (MGD). The annual average amount of sewage treated at TPS over the past five years is approximately 17.5 MGD, leaving approximately 9 MGD of unutilized treatment capacity. LBR is an older treatment facility with design treatment capacity of 4.5 MGD. LBR is located at 1815 Lake Bradford Road, approximately 3 miles from TPS. Pipes connect LBR to TPS. Design treatment capacity is the amount of sewage that a treatment facility can adequately handle over a period of time and still easily meet environmental performance standards required for treating wastewater. If a treatment facility reaches its design treatment capacity on an annual average basis, it becomes more difficult to adequately treat wastewater to environmental standards. As currently permitted, the combined effluent from TPS and LBR is transmitted to the Southeast Farm or to the Southwest Sprayfield for agricultural reuse. The biosolids from both TPS and LBR are treated at TPS. The Southeast Farm is a 4,000-acre restricted access reuse facility, with approximately 1,900 acres of non-edible crops under slow-rate irrigation. Reclaimed water that meets DEP's Part II Reuse Standards (Part II reclaimed water), as set forth in Florida Administrative Code chapter 62-610, which apply to slow-rate irrigation of non-edible crops, can be used at the Southeast Farm. Applicable requirements include basic level disinfection and secondary treatment. The Southwest Sprayfield is a 65-acre area at the TPS facility also available for land application of Part II reclaimed water. The Tram Road Reuse Facility, with a capacity of 1.2 MGD, provides public access reuse water meeting Part III Reuse Standards (Part III reclaimed water), as set forth in chapter 62-610, to customers in the Southwood area of Tallahassee. Under chapter 62-610, Part III standards apply to application in areas accessible to the public. Among other things, tertiary treatment and high level disinfection are required. The History of the Advanced Wastewater Treatment (AWT) Project On February 11, 2004, the City applied to DEP to renew its permit to operate the TPS domestic wastewater treatment plant and associated sprayfields. DEP issued its intent to renew the permit on February 13, 2006. Petitioner, along with others, filed petitions for an administrative hearing in March 2006 to contest the renewal permit. The common element emphasized in all of the petitions was a concern that the proposed permit did not adequately protect Wakulla Springs from environmental degradation resulting from nutrients in the effluent applied at the City's sprayfields. In 2006 and 2007, the Florida Geological Survey, the United States Geological Survey, and others conducted studies that traced groundwater flow paths from the Southeast Farm sprayfield to Wakulla Springs. The studies determined that there is a greater hydraulic connection between the Southeast Farm and Wakulla Springs then previously understood. As a result, the City agreed to settle the cases and propose advanced wastewater treatment (AWT) upgrades to its facilities. On December 19, 2006, the parties to the administrative proceeding entered into a Settlement Agreement. The Settlement Agreement was the basis for what the City would include in amended permit applications for TPS and LBR and articulated the process by which DEP would review the amended applications for those facilities. Under the terms of the Settlement Agreement, the City committed "to filing an amended permit application" in which it would seek authorization to "upgrade its entire wastewater treatment system" to meet AWT standards. The permit application would request authorization to implement certain "physical upgrades" at the TPS and LBR treatment plants to meet the specified treatment standards with "continued utilization of the Southeast Sprayfield and Southwest Sprayfield" for land- application of the treated wastewater, and with certain operational changes in the sprayfields and a commitment to evaluate other wastewater reuse opportunities. The Settlement Agreement provided that "[t]he City's amended application will also commit to develop and utilize other additional public access reuse sites in appropriate areas in order to reduce the hydraulic loading at the Southeast Sprayfield and Southwest Sprayfield and distribute the public access reuse water." Under the Settlement Agreement, the City also agreed to propose a specific implementation schedule for enumerated physical upgrades to the LBR and TPS treatment facilities and a schedule of specific nitrogen reductions that would occur over time. More specifically, the amended application would propose achieving a nitrogen concentration of 12.0 milligrams per liter (mg/L) within six months after DEP issued amended permits and further reductions over time that would conclude in meeting 3.0 mg/L within six years. In January 2007, the City submitted amended permit applications as agreed in the Settlement Agreement. On January 29, 2008, DEP issued Permit Nos. FLA010139 (for TPS) and FLA010140 (for LBR), and corresponding Administrative Orders AO051NW (for TPS) and AO050NW (for LBR), which authorized continued operation of the TPS and LBR facilities with substantial modifications to the existing treatment systems and gradual reductions in nitrogen concentrations, as well as other requirements, in accordance with the Settlement Agreement. The permits incorporated by reference the corresponding administrative orders which, among other things, established a schedule for achieving compliance with the permit conditions. All parties to the Settlement Agreement agreed that the permits and administrative orders issued by DEP were consistent with the Settlement Agreement. No party challenged the permits or asserted that they did not adequately implement the Settlement Agreement. Under the January 2008 permits and administrative orders, the City is required to: reduce nitrogen levels incrementally down to 3 milligrams per liter (mg/L) by 2014; meet concentration limits for total phosphorous, carbonaceous biochemical oxygen demand, and total suspended solids by 2014; produce all Part III quality reclaimed water; and upgrade its biosolids processing to produce all Part AA biosolids. The AWT Project has a total budget of $227 million. At the time of issuance of January 2008 permits and administrative orders, the effluent applied at the Southeast Farm had a concentration of 13 mg/L of total nitrogen. Under the compliance schedule in the January 2008 permits and administrative orders, total nitrogen concentrations cannot exceed: 12 mg/L annual average daily flow (AADF) beginning in July 2008; 9 mg/L AADF beginning in January 2011; 6.5 mg/L AADF beginning in January 2013; and 3 mg/L AADF beginning in January 2014. In light of these nitrogen reductions, it has been projected that the nitrate load to the land surface at the Southeast Sprayfield will be reduced to approximately 98,000 kilograms per year in 2018, compared with a high of approximately 600,000 kilograms per year in the 1980s. By way of comparison, it has been projected that the nitrate load from septic tanks will be approximately 350,000 kilograms per year in 2018. With regard to biosolids (the solid material separated from the sewage stream during the wastewater treatment process), the January 2008 permits and administrative orders eliminated the City's authorization to land-apply Class B biosolids. All biosolids are required to meet Class AA requirements, with off- specification material sent to an appropriately licensed landfill for disposal. The elimination of land application of Class BB biosolids reduces the nitrate load to the land surface by approximately 200,000 kilograms per year. The January 2008 permits and administrative orders also required the City to undertake a Reuse Feasibility Study and submit the study to the Department. The City did so in 2009. In addition, the January 2008 permits and administrative orders authorized new public access reuse service areas. More specifically, the TPS permit authorized the new public access service area identified as R-006 and the LBR permit authorized R-005. Geographically, the R-005 and R-006 service areas are identical. The permits do not require the City to develop additional reuse sites or additional reuse customers. The LBR permit states that "[t]he construction date of R-005 is to be determined following a feasibility study to ascertain the demand, potential users, and costs for the system," and that "[r]eclaimed water in excess of the demand by the new Part III Reuse Area, can be stored in the Reclaimed Water Storage Tank or diverted to an existing Part II slow-rate restricted access system, the Southeast Farm . . . ." The TPS permit states that the new service area, users, and demand for R-006 "are to be determined." The City's Reuse Feasibility Study did not commit to any specific outcomes concerning development of additional reuse sites or additional reuse customers. While the study recognized the potential environmental benefits of additional reuse sites, it also indicated that "[t]he combined possible impact of the Unified Stormwater Rule and [Total Maximum Daily Load] requirements should be evaluated prior to the implementation/design of any reuse system." The City commissioned the 1.2 MGD Tram Road public access reuse facility in 2008 and is currently expanding the distribution system from that facility. The City has no means to require customers to accept reuse water. At present, the City's 1.2 MGD Tram Road public access reuse facility is approximately ten percent utilized. The Permit Revisions The City filed applications in December 2008 requesting minor revisions to the January 2008 permits and corresponding administrative orders for LBR and TPS. The City requested a 12-month extension of the compliance schedule for upgrading biosolids treatment equipment; a six-month extension for construction of the treatment trains; and a 24-month extension on completion and start-up of the LBR facility. The requested revisions were largely a result of damage to the City's system from Tropical Storm Fay. The City did not request any changes to the environmental performance requirements contained in the 2008 permits. In March 2009, DEP issued a Consolidated Notice of Permit Revision approving the City's applications for minor revisions. No third party challenged those revisions. The City applied for the minor permit revisions at issue in this proceeding on March 24, 2010. The City requested the following revisions to the compliance schedules: (1) a 12-month extension to install the new biosolids dryer; (2) a 12-month extension to each of the installation dates for the new treatment trains; and (3) indefinite deferral of the construction upgrades at LBR. The City also identified differences in the final design from what was outlined in the TPS Preliminary Design Report submitted to DEP in 2007. On May 14, 2010, Petitioner filed a complaint in circuit court asserting that the Settlement Agreement was still a controlling document that prohibited revisions to the permits unless the City first obtained Petitioner's agreement in writing. On January 25, 2011, the court entered a final summary declaratory judgment finding that the December 2006 Settlement Agreement "is moot having been satisfied upon the issuance of the permits and administrative orders at issue." With regard to the revisions at issue in this proceeding, the City's request to indefinitely defer the upgrades at LBR is based on: (1) the City's re-assessment of forecasted wastewater flow projections; (2) updated cost projections for the upgrades at LBR; and (3) a technical evaluation concluding that the City can achieve the 4.5 MGD of treatment capability previously provided by LBR through more cost-effective means at future date. More specifically, in 2009, the City analyzed its forecasted flow projections for its wastewater treatment system. Based on that analysis, the City determined that, for planning purposes: (1) the per capita to daily wastewater flow rate should be adjusted downward from 100 to 94 gallons per capita per day; and (2) the population forecasts should be reduced based on the latest population forecasts prepared by the Tallahassee-Leon County Planning Department. Given these new population growth and water use rate projections, the City determined that the 4.5 MGD treatment capacity of the smaller LBR facility is not necessary at this time. The 26.5 MGD TPS facility has the capacity to handle and meet all of the area wastewater needs for the reasonably foreseeable future. The City's wastewater flow projections were independently confirmed and represent sound engineering practice. In addition, as the engineering efforts progressed on the AWT project, the City identified that, as an alternative to upgrading LBR to AWT, the same treatment capacity and treatment levels could be achieved at TPS at a savings of over $30 million. The City has proposed that it will move forward with design, permitting, and construction of the additional 4.5 MGD of capacity at TPS in the future, closer to the time when the capacity is needed. The City requested the 12-month extension to install the new biosolids dryer because of financial and construction scheduling concerns. Similarly, the 12-month extension to the treatment train construction schedule is a result of construction schedule projections from the project contractor showing completion of the upgrades outside of the current dates in the TPS permit and administrative order. The identified design differences from the preliminary design report are largely a result of additional knowledge gained as the design of the Project progressed. Several of the revisions relate to upsizing infrastructure at TPS to allow for future capacity increases at TPS to replace the treatment capacity associated with the LBR facility if and when that capacity is needed. The City did not ask to alter the total nitrogen reduction requirements in the January 29, 2008, permits and administrative orders. Thus far, the City has achieved the total nitrogen reductions ahead of schedule, reaching an annual average below 9 mg/L (the currently applicable interim limitation) more than one year ahead of the January 2011 compliance deadline. The City has not asked to change any of the other environmental performance requirements in the TPS and LBR permits and administrative orders. The permit revisions at issue do not ask to change the presently-permitted hydraulic loading rates at the Southeast Farm or Southwest Sprayfield. The Department issued its Consolidated Intent to Issue Minor Permit Revisions on April 7, 2011. The City published newspaper notice of the Department's Consolidated Notice of Intent in the Tallahassee Democrat on April 9, 2011. Effects of the Permit Revisions The City provided reasonable assurances that, with the requested revisions, it will continue to efficiently and reliably meet the environmental performance requirements in the January 2008 permits and administrative orders. The City provided reasonable assurances that the permit revisions will not adversely affect the City's compliance with the nitrogen concentration limits and other environmental performance requirements in the January 2008 permits and administrative orders, or increase hydraulic loading rates. Biowin modeling demonstrated that the nitrogen limits and other concentration limits in the January 2008 permits and administrative orders can be achieved despite deferring upgrades at LBR and postponing the construction of the treatment train upgrades by 12 months. The City provided reasonable assurances that the permit revisions at issue will not increase the nutrient concentrations or the volume of effluent applied at the City's Southeast Farm or Southwest Sprayfield. For this reason, it is not necessary to conduct studies evaluating the impacts of these permit revisions on Wakulla Springs. The permit revisions will not impact Wakulla Springs or the Wakulla River. The deferral of upgrades at LBR will not result in an increase in effluent applied at the Southeast Farm or Southwest Sprayfield. Whether or not the City upgrades at LBR, the unutilized Part III reuse water would have to be transported to the Southeast Farm for agricultural reuse, which is authorized by the existing LBR permit. The deferral of upgrades at LBR will not hinder the City's ability to provide public access reuse water. By September 2011, the City will produce Part III public access reuse water from TPS just as it would have at LBR. The required water quality will be available should customers be identified in the future. Regardless whether the reuse apply comes from LBR or TPS, the City will need to install new public access reuse distribution facilities when customers are identified. The distance between TPS and LBR does not affect the City's ability to provide public access reuse water when customers are identified. Depending upon where a future reuse customer is located, it could prove easier and more cost- effective to provide the reuse water directly from TPS. If a new customer is identified near the LBR facility, the existing pipes connecting TPS and LBR can be used to deliver the reuse water to the LBR facility for ultimate distribution to the reuse customer. The City provided reasonable assurances that the 12-month extension in the deadline for installation of the biosolids dryer will not have any adverse environmental consequences for Wakulla Springs. The City has purchased the new biosolids dryer, and it has been delivered to the site. The City's existing biosolids dryer is performing well and making Class AA biosolids. In the infrequent cases when the existing dryer is not performing as desired, the City disposes of the off-specification biosolids in an appropriately-licensed landfill in accordance with the 2008 permit requirements. F. Petitioner's Contentions Petitioner essentially raised two issues in this proceeding: (1) the proposed revisions to the permits are substantial revisions rather than minor revisions; and (2) the City has not provided reasonable assurance that the proposed permit revisions (in particular, delaying compliance schedules for treatment process upgrades, abandoning commitments to treatment process upgrades, and retreating from the commitment to reduce hydraulic loading of up to 4.5 MGD) will not "cause or exacerbate" pollution of Wakulla Springs and the Wakulla River. Regarding the first issue, the proposed revisions extend compliance dates and are not expected to lead to a substantially different environmental impact. In any event, DEP processed the minor permit revisions at issue using essentially the same process used for substantial permit revisions. For example, the Department requested additional information prior to deeming the application complete and required newspaper publication of its proposed agency action with actual notice to interested parties. With the exception of the application fee, the minor revision was processed in the same manner as a substantial revision. Petitioner made no demonstration that he was adversely affected by the distinction between a minor and major permit revision. With regard to Petitioner's second issue, Petitioner put on no testimony or evidence demonstrating adverse impacts associated with the permit revisions at issue. Two hydrogeologists testified regarding groundwater studies they conducted in 2006 and 2007, which identified a connection between the City's Southeast Sprayfield and Wakulla Springs. As a result of this work, the City agreed to the more stringent AWT standards in the 2008 permits and administrative orders. This testimony did not address whether the permit revisions at issue would adversely affect Wakulla Springs or Wakulla River. Petitioner did not demonstrate how the permit revisions at issue would impact Wakulla Springs. The permit revisions will not increase the hydraulic loading at the Southeast Farm or change the quality of the effluent being applied for irrigation at the Southeast Farm. Petitioner's contentions that delaying the schedule for treatment upgrades at TPS and deferring upgrades at LBR will impact Wakulla Springs or the Wakulla River are not supported by the evidence. Deferring the upgrades at LBR and delaying the schedule for the treatment upgrades at TPS, as proposed in the minor permit revisions, will not adversely impact the City's ability to meet the environmental performance requirements in the existing permits and administrative orders. Petitioner's contention that the minor permit revisions will adversely impact Wakulla Springs and the Wakulla River because they represent a retreat from a commitment to reduce the hydraulic loading at the Southeast Farm by 4.5 MGD is unsupported by the evidence. Petitioner's argument is based on his assertion that the January 2008 permits and administrative orders require the City to divert 4.5 MGD of effluent from the Southeast Farm by distributing all of the treated wastewater from LBR to public access reuse customers. The January 2008 permits and administrative orders authorized a new public access reuse area; they did not require the City to locate sufficient public access reuse customers to take all or any portion of the 4.5 MGD from LBR. Moreover, reuse water is as readily accessible from TPS as from LBR. Petitioner relies on the following clause in the attachment to the LBR administrative order (AO050NW) to support his argument that the permit revisions will increase hydraulic loading at the Southeast Farm: "All or part of the influent flow can be directed to the T.P. Smith Water Reclamation Facility or Treatment." Petitioner argues that this authorization implies that the City cannot direct flow from LBR to the Southeast Farm beyond the 36-month compliance timeline in the LBR administrative order. This argument ignores the plain language of the LBR permit itself, which expressly allows land application at the Southeast Farm of all effluent from LBR in excess of public access reuse demand. Petitioner also relies on language in the 2006 Settlement Agreement as imposing an obligation on the City to identify additional public access reuse customers. The 2006 Settlement Agreement was fulfilled upon issuance of the permits and administrative orders in January 2008 and is now moot. Further, the permits and administrative orders do not impose public access reuse requirements on the City beyond submittal of the Reuse Feasibility Study.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order issuing the minor permit revisions at issue in this case. DONE AND ENTERED this 5th day of October, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2011. COPIES FURNISHED: Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Francine M. Ffolkes, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James S. Alves, Esquire Brooke E. Lewis, Esquire Hopping, Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Joseph Glisson 198 Mount Zion Road Wakulla, Florida 32327
The Issue This case arises out of the Petitioner's objection to the issuance of a septic tank permit for property adjacent to his lot in Panama City Beach, Florida. The sole issue before the Hearing Officer, as alleged by Petitioner's pleading, is whether the applicant's permit for septic tank should be denied on the basis that it is in violation of Rule 10D-6.24, Florida Administrative Code, which requires that no septic tank be placed within 75 feet of a private water supply well. On November 15, 1982, by certified mail, the Bay County Health Department notified Petitioner of its intent to grant a permit for a septic tank at 6713 Gulf Drive, Panama City Beach, Florida. Thereafter, on December 13, 1982, Respondent filed a petition for formal proceeding, objecting to the issuance of the aforementioned permit and requesting a formal hearing. Pursuant to notice, a formal hearing was held at which the Petitioner testified on his own behalf and also called Paul Miller, an Environmental Sanitarian for the Bay County Health Department as a witness. Respondents called as witnesses Michael Sarra, Bay County Health Department, William Curtis Wright, and Thomas F. Gladstone. Petitioner offered and had admitted two exhibits and Respondents offered and had admitted three exhibits. The Petitioner, subsequent to the formal hearing, filed with the undersigned Hearing Officer two late-filed exhibits. No permission had been granted or requested at the formal hearing for the filing of late-filed exhibits and, therefore, those exhibits were neither considered nor utilized as a basis for the Findings of Fact or Conclusions of Law in this Recommended Order. Petitioner submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact are not adopted herein, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact On or about June 15, 1982, Mr. Dewayne Dilmore, by and through his contractor, Tom Gladstone, applied for a septic tank permit for a new residence located at 6713 Gulf Drive, Panama City Beach, Florida (See Petitioner's Exhibit B). After a required change in the design drawings reducing the structure from a 3-bedroom to a 2-bedroom residence, the application was determined to be in compliance with all statutory and regulatory requirements and was approved by the Bay County Health Department. Petitioner, Samuel M. Torrence, owns a residence at 6715 Gulf Drive, Panama City Beach, Florida. This home is west of and contiguous to Mr. Dilmore's lot. In response to a Notice of Intent to issue a septic tank permit for the adjacent lot, 6713 Gulf Drive, Mr. Torrence objected on the grounds that such septic tank would be located within 75 feet of his private water supply well. Prior to the June 15, 1982, application by Mr. Dilmore, there was an existing septic tank on Mr. Dilmore's lot. This septic tank had been on the lot since April, 1961. The Petitioner's home at 6715 Gulf Drive was constructed in 1968 or 1969. 4 The replacement septic tank on the applicant's lot will be located farther from the Petitioner's property than the existing septic tank. The testimony of Paul Miller and Michael Sarra, along with the approved application, establish that the application of Dewayne Dilmore and the proposed replacement septic tank meet all requirements of Rule 10D-6.24, Florida Administrative Code, and Florida Statute 381.272(1982). Approximately two years ago, Mr. Torrence had his home at 6715 Gulf Drive hooked into city water, and has no private well hooked up to any of the pipes of his home. Although the Petitioner contended that the replacement septic tank would be within 75 feet of a private well on his property, there was no evidence in the record of the specific location on his property of a private well or any measurements he had made. The evidence does not show that there is in fact a private well within 75 feet of the location of the replacement septic tank. The Department of Health and Rehabilitative Services has an established policy of grandfathering existing septic tanks, and this policy permits the septic tank on the Dilmore property as a replacement of an existing septic tank regardless of whether said tank would be located within 75 feet of a private water supply well on the Petitioner's property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is:: RECOMMENDED: That the permit for septic tank be issued and Petitioner's request to halt issuance should be denied. DONE and ENTERED this 12 day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS 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 12 day of May, 1983. COPIES FURNISHED: Samuel M. Torrence Post Office Box 7106 Dothan, Alabama 36302 John Pearce, Esquire Department of HRS 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Mr. Mike Sarra and Mr. Paul Miller Bay County Health Department Post Office Box 1728 Panama City, Florida 32402 Mr. David H. Pingree Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner owns a tract of land shaped in a truncated right triangle with the width at the base of 208.7 feet, the length at the altitude of 406.9 feet, and the width at the truncation of 50 feet (Exhibit 1). The tea of this tract is 1.208 acres. Petitioner has lived on this property for nine years with a private well and septic tank without experiencing any difficulty with the septic tank. Some years back Petitioner converted stables on the property into a one bedroom guest house and installed a septic tank for this guest house. Petitioner proposes to construct a residence in the southeastern corner of his property for his daughter and her husband and needs a septic tank permit before a building permit will be issued. The drain field for the proposed septic tank would be located more than 200 feet from any existing well.
