The Issue The issue to be resolved in this proceeding concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit in consideration of the statutes and rules relating to approval of permits cited and discussed herein, or whether they are entitled to a variance from the strict requirements of those statutes and rules so as to allow the installation of the OSDS on their property near the Suwannee River. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners purchased real property located in Levy County, Florida, in 1967. That property is located in the unincorporated community of "Fowlers Bluff" on the east bank of the Suwannee River. The property is more particularly described as the west one-half of Lot 13, and the east three- quarters of Lot 14, Treasure Camp Addition, Unit 3. The lot in question is approximately 100 feet by 125 feet by 197 feet in size. There is adequate unobstructed area available for the subject system's installation, according to Respondent's Exhibit NO. 1 in evidence. The lot is part of a subdivision which was platted prior to 1956. The subject lot has available a potable water source from the public water system. Consequently, the lot is of sufficient size to meet the quarter-acre minimum requirement for the installation of septic tank and drain-field systems in situations where lots have potable water available from a public water system, which is the case in this circumstance. The effective soil depth at the drain-field installation site is greater than 42 inches below the bottom surface of the proposed drain-field trench or absorption bed location. That is, 72 inches of sand, which is a "slight limited soil" and appropriate for such installations, exist at the site. The wet season water table was shown to exist at 26 inches below the grade level. The wet season water table, pursuant to Rule 10D-6.047(2) Florida Administrative Code, must be at least 24 inches below the bottom surface of the drain-field trench or absorption bed. Consequently, the wet season water table in this situation is not sufficient in depth for the proposed installation to meet this provision of the Respondent's rules. The Petitioners seek to gain approval for a system to serve a single- family residence of approximately 2,000 heated and cooled square feet, with a "standard" 350 gallons per day sewage flow. The residence would contain three bedrooms, as presently envisioned. The Petitioners' Exhibit NO. 1 establishes a benchmark elevation for the grade level of the proposed OSDS installation site of 7.48 feet above mean sea level ("MSL"). The actual grade elevation is 0.8 feet below that benchmark elevation. That is, the elevation of the grade of the property is 6.72 feet above MSL at the proposed installation site., The ten-year flood elevation for the proposed installation site, however, is 9 feet above MSL, as verified by a report prepared by the Suwannee River Water Management District, admitted into evidence and which was submitted to the Respondent by the Petitioners in the application process. The property also lies within the regulatory floodway of the Suwannee R for purposes of Rule 10D-6.047(6), Florida Administrative Code. Testimony by Mr. Parker, as well as the Respondent's evidence through Mr. May, establishes that the property in the past has had approximately 30 inches of fill placed on it. Because of this, the grade level elevation is in fairly-close proximity to the ten-year flood elevation and because of the prevailing slight limited soil type down to a depth of six feet, the property was shown to be generally amenable to installation of a mounded septic tank and drain-field disposal system, which mounding could raise the property so that the bottom of the drain-field trench or absorption bed would not be within the ten- year flood elevation. As Mr. May indicated by letter dated March 1, 1990 to Mr. Parker, the lot could be filled utilizing slight limited soil so that a mound to contain the septic tank and drain field of no more than the required 36 inches, pursuant to Rule 10D-06.0493(b), Florida Administrative Code, might be utilized. That letter, in evidence, also indicates that if the lot, or a portion of it, is filled, the fill shall extend a minimum of 20 feet in all directions beyond the perimeter of the mound base. The lot was shown to be of sufficient size to accommodate such a perimeter area of fill. In that same letter, Mr. May advised Mr. Parker that he had the right to request a variance from the provisions of Chapter 10D-6 Florida Administrative Code, since his property, in Mr. May's view, did not meet the criteria in that regulatory chapter for the issuance of an actual permit. The record does not reflect that an actual variance application had been filed, however. It would thus seem that this property is amenable to a reasonable alternative solution to a conventional, subterranean septic tank and drain-field system by the use of the "mounding process". That alternative, however, pursuant to Rule 10D-6.047(6), Florida Administrative Code, would require the certification of a registered professional engineer to the effect that the installation of such a mound could be done ,in such a way as not to raise the "base flood" level. This is because the property lies within the regulatory floodway of the ,Suwannee River; and under the rule section cited last above, a `certification must be made that the base flood level will not be raised by such a mounded system installation for property lying in the regulatory floodway. The Petitioners adduced no such engineering testimony or evidence to establish that if the system were installed with the mounding process, the base flood level would not be raised. In addition to the evidence culminating in the above Findings of Fact, the Petitioners offered general testimony to the effect that they had purchased the property in question for purposes of both having a "retirement rest egg" and a place to live should they choose to live on the property. The Petitioners established that they, like numerous other OSDS permit applicants in similar proceedings, are undergoing a hardship because they purchased the property for residential purposes or for re-sale for residential purposes and cannot construct a residence and live on the property or sell it for that purpose because of the inability to obtain a permit. The Petitioners' proof, in terms of the variance criteria noted below, is inadequate to show that there are no alternative systems available which will adequately dispose of and treat the sewage to be expected, nor did the Petitioners establish that installation of the system presently proposed would only constitute a minor deviation from the requirements of the Respondent's OSDS permitting rules, in terms of having no adverse effect on the health of the Petitioners, the general public, or upon the surface or ground waters involved in the vicinity of the site. Although the Petitioners did not formally apply for a variance, no adequate proof in these two particulars was offered so as to justify the grant of a variance; however, it was established that the property was platted prior to 1972 for purposes of the relaxed consideration embodied in the variance rule and statute for this circumstance. The Respondent now asserts, however, that the Petitioners should not be 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's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems 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 application for the subject permit, without prejudice to a later application for a variance or a later application for an OSDS permit based upon additional and changed facts and circumstances. 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. 90-3695 The Petitioners submitted no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial. 10-11. Accepted. 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 Arnold G. Parker P.O. Box 467 Chiefland, Florida 32626 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, Florida 32609
Findings Of Fact The Petitioner is the owner of real property located in Dixie County, Florida, more particularly described as Tract 10, Suwannee Shores Run Subdivision. The property is approximately one acre in size and was purchased in December of 1989. The subdivision is unrecorded, and there was no testimony regarding a platting date thereof. On January 17, 1990, the Petitioner made an application for an OSDS permit for the aforesaid property. The application was for a new single-family mobile home system. The residence involved will contain two bedrooms and a heated and cooled area of approximately 480 square feet, with an approximate 300-gallon-per-day sewage flow. Upon receiving the application, the Department's local public health official informed the Petitioner that he would have to obtain a benchmark elevation for the surface of his property and also establish the ten-year flood elevation for the property. The Petitioner, therefore, obtained the services of a registered land surveyor, who established a benchmark elevation for the subject property of 19.23 feet above mean sea level ("MSL"). The mark is actually 6 inches above ground level. The actual elevation of the surface grade of the property at the proposed septic tank system installation site is 19 feet above MSL. The ground water level at the time of the evaluation of the site by the Department's personnel was 66 inches below the surface of the lot. The wet season ground water or water table level is 60 inches below the surface of the lot. The property is characterized by slight to moderate limited soils, consisting of fine sand from 6 inches depth down to 60 inches depth. The first 6 inches of soil near the surface of the property is organic in nature. The information, contained in a report promulgated by the Suwannee River Water Management District and submitted to the Department by the Petitioner with the permit application, shows that the ten-year flood elevation for the property in question is 23 feet above MSL. That ten-year flood elevation was not refuted. The property, thus, is located within the ten-year flood plain of the Suwannee River; and it is also located within the "regulatory floodway". There is not a central water system available to the property, and potable water for the subject dwelling will come from a well. In addition to lying beneath the ten-year flood elevation, the property lies within the regulatory floodway of the Suwannee River, as mentioned above. This means that if a mounded septic tank and drain-field system were installed, (which would likely result in appropriate treatment of the sewage effluent because of site conditions referenced herein); in order to install such a system, to raise the drain fields above the ten-year flood elevation, a certification by a registered engineer would have to be performed to establish that the installation of the required volume of fill dirt for the mounded system would not cause an elevation of the "base flood". No such engineering testimony or evidence was offered in this proceeding, however. Thus, this portion of Rule 10-6.047(6), Florida Administrative Code, has not been complied with. The OSDS could appropriately be installed from an environmental standpoint, given the depth of appropriate moderate to slightly limited soils prevailing at the site and the depth of the water table. The estimated wet season water table is 60 inches below the existing surface grade, and the normal water table is 66 inches below the surface grade. Although organic soil prevails for the first 6 inches at the site; below the first 6 inches, the soils are characterized as being fine sand. This soil type and condition, as well as the depth of the water table below the location of the drain field and septic tank site establishes that installation and operation of an OSDS in this location would likely be successful. Since the property and the installation site are beneath the ten-year flood elevation, however, a mounded system would have to be installed to raise the bottom of the drain-field trenches or absorption beds above that ten-year flood elevation referenced above. Thus, although a mounded system would appear to be feasible, the appropriate engineering testimony, with regard to its presence in the regulatory floodway, was not offered. Thus, the grant of the permit based upon mounding of the system as a reasonable alternative approach to successful treatment and disposal of the effluent in question has not been established. The Respondent, by letter of April 24, 1990, advised the Petitioner of the denial of the OSDS permit and also advised the Petitioner that he should pursue a formal administrative proceeding before the Division of Administrative Hearings, rather than file an informal variance application before the Respondent's own variance board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D-6.047(6), Florida Administrative Code, because the property was located within the ten- year flood elevation of the Suwannee River and because of the Respondent's interpretation of the effect of the Governor's Executive Order No. 90-14, which adopted by reference the Suwannee River Task Force recommendation that all such OSDS's be prohibited within the ten-year flood elevation. The Respondent thus declined to exercise its discretion, accorded it in the statute and rules cited hereinbelow, to entertain and consider a variance application. It was established that the lot in question is not subject to frequent flooding. However, because the surface grade is beneath the ten-year flood elevation, the bottom of the drain-field trenches or absorption beds would also be beneath the ten-year flood elevation, although the property is amenable to the installation of an effective OSDS otherwise because of the depth of the wet season water table and the types of soil prevailing at the site. The Petitioner established a hardship due to the fact that he has paid a substantial sum of money for the property and now is unable to develop it unless entitlement to an OSDS or some reasonable alternative is gained. No substantial proof of a truly-effective, reasonable alternative method of treating the effluent in question was established by the Petitioner. The Petitioner did establish, however, that a mounded system could be made to successfully operate, treat and dispose of the sewage effluent. A mounded system, however, would necessitate the required engineering certification and calculations before installation. No such effort has been made with appropriate engineering personnel and no evidence of such was adduced in this proceeding. The Petitioner has also raised the possibility that an aerobic septic tank and drain-field system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria, which break down and treat sewage at a faster, more effective rate than does the normal, anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal, subterranean anaerobic septic tank and drain-field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially an external electric motor and pump to force air into the system. This is disadvantageous in that if the equipment suffers a malfunction, the high level of treatment and disposal of the effluent is retarded. When the electric motor and/or pump malfunction and air is no longer injected into the septic tank to support the more active aerobic treatment bacteria, the system then ceases functioning as an aerobic system and becomes a simple anaerobic system using less effective anaerobic bacteria. In other words, it functions as a normal septic tank and drain-field system. If it has been installed in an area with marginal or deficient natural treatment conditions, such as inappropriate soils, high-water tables, or low surface elevations, beneath the ten-year flood elevation, for instance; the sewage, which is no longer being treated aerobically, can pose a threat to public health and the quality of the ground or surface waters involved at the site. The untreated or inadequately-treated sewage can rise to the surface of the property, back up in the residential toilets, or otherwise pollute ground or surface waters, if water table levels are too high. Thus, such systems would require inspection periodically to insure that they are in adequate working order, because if the mechanical system malfunctions, the system will continue to put effluent through its drain field, like a normal septic tank drain-field system, but without adequate treatment for a "low elevation" site such as this. In that circumstance, the occupants of the dwelling involved might not notice for long periods of time that the system is inoperative because it can continue to dispose of the effluent without it backing up into the residence. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that an aerobic system operates properly at all times was not established in this record, however. The Department does not have the regulatory authority at the present time to conduct such periodic inspections nor the personnel or funds to do so. Consequently, the Petitioner failed to establish that reasonable alternatives to the proposed conventional OSDS exist.
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 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact Accepted. Accepted, but irrelevant. Rejected, as immaterial. Rejected, as immaterial. Rejected, as immaterial and irrelevant. This is not a rule challenge proceeding, pursuant to Section 120.56, Florida Statutes. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-11. Accepted. Respondent's Proposed Findings of Fact 1-10. Accepted. 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 Richard Remington 165 Forest View Drive Land O'Lakes, FL 34638 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
The Issue The issues in this case concern the entitlement of Petitioners to the grant of a variance for the purpose of installation of an onsite sewage disposal system on property located in Dixie County, Florida. See Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact On April 27, 1989, the property which is at issue was deeded over to Diane H. and Charles A. Miller. The property is located in Dixie County, Florida, and contains 0.377 acres. On Nay 23, 1989, Petitioners were granted an easement for purposes of ingress and egress to and from the property. On May 4, 1989, under the signature of Diane H. Miller, a Petitioner in this case, an application was made for onsite sewage disposal at the aforementioned property. A copy of that application form may be found as Petitioners' exhibit No. 3 admitted into evidence. It states that this application is for a new system at lot No. 2, southwest corner, New Pine Landing Subdivision. Reference is also made to the directions to the property and suggestion that the property is located behind Nevin Kean Public Park [sic]. The warranty deed, a copy of which may be found as Petitioners' exhibit No. 1 admitted into evidence, describes the fact that the property is adjacent to Nevin Keen Public Park. The application form points out that this is a new system which is by type of residence "MH." It would contain two bedrooms and a heated or cooled area which is 12 feet by 60 feet. Also attached in Petitioners' exhibit No. 1 is a paper which purports to establish the benchmark elevation of the property as part of what that paper describes as the unrecorded subdivision at New Pine Landing. It speaks in terms of an elevation of 11.36 feet as allegedly surveyed by Herbert H. Raker. That information is hearsay and may not be used for purposes of fact finding in establishing the true elevation in an instance where Herbert H. Raker has not provided this explanation. See Section 120.58, Florida Statutes. As a consequence, there being no other explanation of the elevation, it is unknown. To the extent that it is accepted that there exists a New Pine Landing Subdivision, of which the Miller property is a part, evidence was not presented at the hearing which would establish the date upon which it was platted. Copies of the warranty deed and easement which were admitted into evidence do not indicate that the property is in New Pine Landing Subdivision, nor do they describe the date upon which the subdivision was platted, if ever. From the proof submitted, especially the warranty deed and easement, it does not appear that the parcel in question is part of a recorded subdivision. This coincides with representations by Ms. Virginia Sessions, whose daughter is Diane Miller. Ms. Sessions speaks in terms of this being an unrecorded subdivision and Petitioners' exhibit No. 4 admitted into evidence directed to Jermone Blake of the Dixie Public Health Unit on stationery of Suwannee River Water Management District refers to this location as New Pine Landing. Under the circumstances it is accepted that this parcel lies within an unrecorded subdivision known as New Pine Landing. There was a period of time during which the applicants did not receive a response from Respondent concerning the request for a permit to install the onsite sewage disposal system. Ms. Sessions testified that her daughter made a phone call to the Respondent to determine the status of the application and that the daughter reported that someone affiliated with Respondent said that Respondent would be getting back in touch with the applicants. This report by Mrs. Sessions of her daughter's remarks concerning a purported conversation between the daughter and the Respondent's employee is hearsay and may not be used to decide whether in fact there was a communication between the daughter and the Respondent. See Section 120.58, Florida Statutes. In any event, Mr. Blake communicated with Mrs. Sessions and informed Mrs. Sessions that the Petitioners would not be given a permit for installation of an onsite sewage disposal system and would need to file a request for variance from the requirements to obtain permission to install the onsite sewage disposal system. In furtherance of that instruction, the appropriate fee was paid and a form executed by Mrs. Sessions requesting a variance. A copy of that variance request may be found as Petitioners' exhibit No. 8 admitted into evidence. The date of that application was July 13, 1989. The form makes reference to the authority of the agency to examine the request for variance as being set forth in Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. The form points out to the applicants that the variance may not be granted unless: The Department is satisfied the stated hardship was not caused intentionally by the applicant. A reasonable alternative sewage treatment method is not available The sewage discharge will not adversely affect public health and/or significantly degrade ground or surface water quality. The application for variance makes reference to the New Pine Landing Subdivision. It states that the parcel in question is lot No. 2, and makes reference to a book and page number and a plat number and purported page number associated with the plat number allegedly pertaining to the subdivision. Competent evidence was not presented to establish that these references found on the application were correct portrayals of the recordation of the subdivision and plat number. See Section 120.58, Florida Statutes. Again, this leaves the record incomplete as to any recordation of the existence of the subdivision and a plat number associated with that subdivision. The application describes the reason for requesting a variance as related to the fact that the lot is in a flood area where more than 36 inches of fill dirt may not be added. Proof was not submitted at hearing concerning the exact nature of the property in question; however, Mrs. Sessions as the person who had applied for the variance and has a layperson's knowledge of the property in question, is entitled to depict the general nature of the property and her explanation that it is flood prone is accepted. How much fill dirt may be added to the property was not established by competent evidence. Under the instructions for the owner associated with the application for the variance, the applicants are told that they should provide any supportive material and documents to the County Health Unit in Dixie County, Florida. This entails submission of a site plan, site location and reference map. These details were not submitted with the application as far as the record reveals. More importantly they were not provided at hearing. The instructions call upon the applicants to satisfy the terms of Section 381.272(2) and (3), Florida Statutes, and to state the reasons for requesting the variance under the requirements of Chapter 10D-6, Florida Administrative Code. The applicants were told to explain why variance from the requirements would relieve or prevent excessive hardship and to provide technical documentation to support the supposition that a variance would not likely result in pollution or impairment to public health. Written on the form submitted is the suggestion that this project is a variance from the requirements of Rule 10D-6.047(6), Florida Administrative Code, related to the 10 year flood event. The application points out the size of the parcel as being approximately .38 acres and the sewage flow anticipated is 250GPD. It points out that the drinking water supply is a private source. It points out that the type of residence is a single-family retreat that has two bedrooms. It describes the proximity to sanitary sewer as 13 miles and to public water supply as 7,500 feet. The distance to private wells is said to be 775 feet and to a stream 7,400 feet. The proposed system that the applicant has in mind is a septic tank and drain field that is mounded. The system is referred to as a subsurface septic tank and drain field with six inches of fill sand. Although the application describes that the water table during the wettest season of the year is below the ground surface by 36 inches and at the time testing was done that the water table was below the ground surface and "not found 72 inches," competent proof of these assertions was not presented in the course of the hearing. The description of the type of soil as being sand is accepted. Nothing more was revealed about the soil characteristics. The application points out that the 10 year MSL flood elevation is 14 feet and that the property elevation MSL is 11 feet. Competent evidence of those facts was not presented at hearing. Nor was there competent evidence of the adequacy of the surface water drainage at the property site. The application form points out that the Dixie County Health Unit recommended approval of the variance on July 13, 1989. That says that the property is in the Suwannee River floodway where maximum fill allowed is 36 inches and that mounds are subject to erosion and moving water. It is accepted that the property is in the area of the Suwannee River. The other facts that are suggested in these summary remarks were not established by competent evidence. The form reminds the county health unit that procedures associated with the variance requests must comply with Section 120.60, Florida Statutes. The county staff is instructed to list additional details in terms of the site evaluation and tell why standards cannot be met if that is the opinion held. It reminds them to reference the specific sections within Chapter 10D-6, Florida Administrative Code, and Section 381.272, Florida Statutes, that are involved with the variance request and state reasons why a recommendation of approval or disapproval is being made. The completed form is then submitted to the Environmental Health Program ten days prior to any scheduled Variance Review Board meeting date. Substantiating documents must be submitted in place of or in addition to the data just described to include the application for septic tank permit, denial letter and engineering report and USDA Soil Conservation Service reports. Based upon this record an engineer's report has never been submitted. More particularly, an engineer or acceptable substitute did not present evidence supporting the variance. Mrs. Sessions received an August 18, 1989 letter from Richard G. Hunter, PHD, Assistant Health Officer for Environmental Health. A copy of this may be found as Petitioners' exhibit number 5 admitted into evidence. It requests that additional information be provided to the Dixie County Public Health Unit associated with the date that the lot was subdivided from lot 2, if it was subdivided at one time. Mrs. Sessions testified that she responded to this request. The exact information that she provided was not presented at the hearing. Consequently, it is not clear whether the information that was presented satisfied that review group. Within the correspondence of August 18, 1989, is mention of the fact that the review group will consider the variance request at a September 7, 1989 meeting in Tampa, Florida, assuming that the information that had been requested was provided by August 28, 1989. On November 29, 1989, Kevin M. Sherman, PHD, M.P.H., Environmental Administrator, Environmental Health Programs wrote to Mrs. Sessions to advise her that the application for variance had been placed on a meeting agenda for December 7, 1989 in Sarasota, Florida. A copy of this may be found as Petitioners' exhibit No. 6 admitted into evidence. This is seen as an acceptance of the application for purposes of making a decision on the merits. Neither Petitioners nor someone representing their interests attended the December 7, 1989 meeting in Sarasota, Florida. On December 13, 1989, Dr. Hunter wrote to Mrs. Sessions to advise her that the request for variance had been rejected. A copy of this letter of rejection may be found as Petitioners' exhibit No. 7 admitted into evidence. It reminds the applicants that the purpose of the grant of a variance is for relieving or preventing excessive hardships where it can clearly be shown that the public health will not be impaired and where pollution of groundwater or surface water will not result. The basis of rejection was that the request was not considered to be a minor deviation from minimum requirements specified in Rule 10D-6.047(6), Florida Administrative Code. The letter of rejection advised Petitioners of their right to a hearing. That request for hearing was made on January 11, 1990, within the 30 days allowed for making such requests. Testimony presented by Alma Walker did not establish the nature of the New Pine Landing Subdivision and whether it had been recorded or not and the date that the property may have been platted. Mrs. Walker talked with a person within the Dixie County Health Unit whose name is Frost. This gentleman told Mrs. Walker that the case had been referred for a hearing and that the applicants should continue to pursue that matter. His secretary made some remark to Mrs. Walker concerning the impression that six inches of fill is less than allowed for septic tanks. This representation is not considered to be competent evidence as to the amount of acceptable fill. Mrs. Walker's comments concerning the applicants seeking a new benchmark from a surveyor and the suggestion that the surveyor gave this information to Mr. Frost is hearsay and does not establish the fact that a surveyor presented a new benchmark for the property to Mr. Frost. Nonetheless, following this circumstance Mrs. Walker spoke to Mr. Frost about the survey to establish benchmark and was told by Mr. Frost that the applicant still could not get a permit because of not meeting the requirements of the 10 year floodplain. Petitioners' exhibit No. 4 admitted into evidence attempts to describe the impression of the application for a variance as held by the Suwannee River Water Management District. It is hearsay and may not be used to find facts in that competent evidence about the opinion of the Suwannee River Water Management District as to the acceptability of the variance request was not presented at hearing.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which denies Petitioners request for a variance from the requirements to obtain a permit for onsite sewage disposal. DONE and ENTERED this 8th day of June, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 8th day of June, 1990. APPENDIX CASE NO. 90-1204 The following discussion is made of the fact finding suggested by the parties. Petitioners' Facts Paragraph 1 is subordinate to facts found. Paragraph 2 is subordinate to facts found with the exception of suggestion that a benchmark elevation was determined. No competent evidence was presented to establish the benchmark elevation. Paragraph 3 is subordinate to facts found in the sense that it is acknowledged that an application for onsite sewage disposal system permit was made. Proof was not established that all necessary information required by law was presented with the application. Paragraph 4 with its discussion of the significance of information provided by the Suwannee River Water Management District is not accepted to the extent that it attempts to describe the entitlement to a permit based upon remarks made by the Suwannee River Water Management District. The issue of whether adequate reasons were given for denying the permit application was not noticed for consideration at the final hearing and to the extent that that issue has any relevance in considering the variance request Petitioner's have failed to demonstrate any prejudice to their cause in pursuing the variance request. Paragraphs 5 and 6 are subordinate to facts found. The indication in paragraph 7 that Petitioners were having to reapply for a variance does not coincide with the understanding of this process in which the facts tend to establish that the initial variance request was processed to conclusion. In Paragraph 8 the idea of reapplication is rejected as is the contention that there was a failure in the explanation as to the reasons why the variance was denied. The explanation was adequate to notice the Petitioners of the reasons which the agency had in mind in denying the variance application. Respondent's Facts Paragraphs 1-7 are subordinate to facts found. Paragraph 8 constitutes a conclusion of law. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esquire Department of Health and Rehabilitative Services District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32601 Michael Smith, Esquire Post Office Drawer 579 Perry, FL 32347 =================================================================
Findings Of Fact V.M.P. Corporation operates a facility known as Stud's Pub in Jacksonville, Florida. Vincent M. Paul owns the facility and the corporation. The facility is on lots that were platted prior to 1972. Respondent is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Respondent pursuant to provisions of Chapter 381, Florida Statutes. Section 381.0065(8)(a), Florida Statutes (1991) specifically provides: The department may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the department is satisfied that: The hardship was not caused intentionally by the action of the applicant; No reasonable alternative exists for the treatment of the sewage; and The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972. Rule 10D-6.045(3), Florida Administrative Code, is the portion of the rule which is the subject of this proceeding and, in pertinent part, reads as follows: Upon consideration of the merits of each application and the recommendations of the review board, the Deputy Secretary for Health or his designee has discretionary authority to either grant a variance as requested, grant a provisional variance or deny the variance request. A variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where proper use of the onsite sewage disposal system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public. An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters. Variances shall only be granted to the permit applicant and are not transferable to other persons unless specifically authorized by the department as a stipulation of the variance approval. . . . (emphasis added). The rule also tracks the language of Section 381.0065(8)(a), Florida Statutes (1991), and requires that "special consideration" be given to those lots platted prior to 1972 in those instances where soil conditions, water table elevation and setback provisions are deemed by Respondent to be "satisfactory." While minor amendments to the rule were made March 17, 1992, the substantive content of Rule 10D-6.045(3), Florida Administrative Code, has remained virtually unchanged since February 5, 1985. Two adjective modifiers in the rule, the terms "minor" and "excessive" which respectively modify the terms "deviation" and "hardship", have not been formally defined by Respondent in the rule. Respondent's rationale for this failure, as professed in the testimony of Respondent's policy representative at the final hearing, was to permit Respondent's review board maximum freedom to evaluate and consider the merit of each application for variance on an individual basis within the statutory authority of Section 385.0065(8)(a), Florida Statutes, i.e., variances may be recommended by the board where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated.
The Issue The issue to be resolved in this proceeding concerns whether an on-site sewage disposal system ("OSDS") construction permit should be issued to the Petitioner based upon the question of whether the property lies within the ten- year flood elevation of the Suwannee River, and if so, whether an appropriate system can be designed which will remove the system an adequate distance above the ten-year flood elevation level and thus comply with Rule 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Allyn B. Giffin, wishes to construct a vacation-type, part-time residence on his lot lying in Dixie County, Florida, in the vicinity of the Suwannee River. The subject proposed disposal system site lies at the Suwannee River Water Management District's river mile no. 50 and the ten-year flood elevation for that site and river mile is 21 feet above mean sea level ("MSL"). The property also lies within the "regulatory floodway" of the Suwannee River, as regulated by the Suwannee River Water Management District, and may require a "works of the district" permit. The elevation of the surface grade at the subject site is approximately 17 feet, 7 inches above MSL, as shown by the survey of Herbert Raker, a certified land surveyor. Because the property lies within the regulatory floodway of the Suwannee River, the pertinent rule requires that an engineer certify that any mounding of the system to raise it above the flood plain and the regulatory floodway level will not cause any alteration in the base flood level in that regulatory floodway of the Suwannee River. Aside from being within the regulatory floodway and beneath the ten- year flood elevation, the property is amenable to the type of subsurface septic tank and drain-field system proposed. The water table at the time of the site evaluation performed by Mr. Fross, of the Department was 72 inches below the existing surface grade. Based upon mottling in the soil, the estimated wet season water table was 42 to 48 inches below surface grade. Since the surface grade elevation at the proposed site is 17 feet, 7 inches, and the ten-year flood elevation is only 21 feet, it was shown to be quite feasible to elevate the septic tank system in a filled mound and mound pad, such that the entire system could be raised the required regulatory distance above the ten-year flood elevation level. Mr. Ted Biddy was accepted as an expert witness in the field of civil engineering with emphasis on sanitary system engineering. He testified on behalf of the Petitioner. Mr. Biddy has designed a sewage disposal system for the Petitioner, which design is admitted into evidence, which is designed to be constructed and to operate above the ten-year flood plain elevation found above. The system is called a "mounded balancing system". It will consist of a raised earthen pad with a raised mound on top of that pad containing the septic tank and drain-field system at an elevation sufficient to maintain the required regulatory differential between the bottom elevation of the drain-field trenches and the ten-year flood elevation. This system was established by Mr. Biddy's testimony to avoid any deleterious effect on public health and environmental safety which might be posed by the sewage effluent entering the system if it were placed below the existing surface grade of the lot in question. The water table elevation is at a minimum of 42 inches below the surface grade of the lot; and if the proposed system were raised above the ten- year flood elevation, the bottom grade of the drain-field trenches would be at least five feet above the surface grade elevation of the lot at the proposed installation site, plus an additional 42 inches above the wet season water table level established by the testimony of Mr. Fross, who did the site evaluation for the Department. It was thus established that such a mounded system will meet all of the parameters contained in Chapter 10D-6 and, specifically, Rules 10D- 6.044-049, Florida Administrative Code, the rules as they applied at the time of application and hearing. Dr. Richard Hunter, testifying as an expert witness for the Department, had not seen this design until the day of the hearing. Upon reviewing it, he agreed that if such a system were installed on the lot in question, it would meet all of HRS regulatory parameters and would be permittable, at least for a two-bedroom dwelling. Mr. Biddy further established that even with a three-bedroom dwelling, as originally proposed by the Petitioner, because it would only have intermittent, occasional use as a vacation retreat, the sewage loading would be substantially less than would the loading from a normal three-bedroom, full-time residence. It is also true, as found above, that the property is in the regulatory floodway of the Suwannee River. Because of this, the Department's rule requires that an engineer certify that installation of such a mounded system will not raise the base flood level of the so-called "100 year flood". This is a balancing system, as described by Mr. Biddy, which involves the removal of approximately 877 cubic yards of fill material from the site or that portion of the site which lies within the regulatory floodway. This is an amount exactly equal to the required amount of fill to construct the mounded system, as proposed. Because of this, the addition of the 877 cubic yards of fill material for the mounded system will not cause additional displacement and resulting raising of the base flood level. Thus, the Department's rule in this regard will be complied with. This is because the fill material will replace an equal amount of material excavated from the lot in that portion below the regulatory floodway level, which excavated material will be removed from the regulatory floodway entirely, thus resulting in no net gain of fill material within the regulatory floodway and, therefore, no additional displacement or elevating of the base flood level. In summary, it has been demonstrated that the addition of the mounded system, as proposed by the Petitioner through the testimony of Mr. Biddy, will not pose any environmental hazards or any potential harm to public health and safety and will result in the sewage disposal system proposed being installed at an elevation properly above the ten-year flood elevation of 21 feet above MSL. The Department has interpreted the Executive Order of the Governor, 90-14, purporting to prohibit such systems beneath the 10-year flood elevation of the Suwannee River as requiring strict prohibition of such systems in those circumstances when it carries out its enforcement of the requirements of Rule 10D-6.047(6), Florida Administrative Code, the rule applicable to this permit application, hearing and circumstances. Further, the Petitioner has agreed to limit the size of his dwelling to a two-bedroom dwelling instead of a three- bedroom dwelling.
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 issued by the Department of Health and Rehabilitative Services granting a permit to the Petitioner, Allyn B. Giffin, authorizing the installation of an on-site sewage disposal system in the manner and under the conditions enumerated in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 29 day of May, 1992, 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 day of May, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4424 Petitioner's Proposed Findings of Fact 1-7. Accepted. Respondent's Proposed Findings of Fact The Respondent submitted no proposed findings of facts. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Conrad C. Bishop, Jr., Esq. P.O. Box 167 411 N. Washington Street Perry, FL 32347
The Issue The issues to be resolved in this proceeding concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit concerning property they own located in the vicinity of the Suwannee River in Dixie County, Florida. A related issue concerns whether the Petitioners are entitled to seek a variance from the permitting statute and rules at issue in view of Executive Order 90-14 issued by the Governor on January 1, 1990. The Department takes the position that this removes its discretion to consider variance requests for proposed OSDS installations for sites which lie beneath the ten-year flood elevation of the Suwannee River. See Rules 10D-6.043 through 047, Florida Administrative Code, and Section 381.272, Florida Statutes.
Findings Of Fact The Petitioners purchased real property approximately two miles downstream on the Suwannee River from the point where U.S. Highway 19 crosses the Suwannee River in Dixie County, Florida. They purchased the property on June 6, 1986. The property is located upon a canal which ultimately connects with the Suwannee River. The purchase price of the property was $15,000.00. The applicants paid $3500.00 as a down payment and thereafter have made payments on a Purchase Money First Mortgage in the amount of $255.83 per month. They purchased the property as an investment and as a place to construct a vacation home in the future. On or about February 1, 1990, the applicants filed an application to install an OSDS with the Dixie County Unit of the Florida Department of Health and Rehabilitative Services. An application for a variance from the permitting rules regarding installation and operation of OSDS's was also submitted. The applicant, Ricky R. Robson, applied for the variance apparently because his neighbor, the owner of the adjacent lot, had previously sought and obtained a variance the year before, authorizing him to construct a "mounded OSDS" on his property. The Petitioners, as required by the Department, obtained the services of a registered land surveyor, Herbert C. Parrish, Jr., to perform an elevation survey of the property and the installation site. That elevation survey was submitted with the application documents and showed the surface grade elevation of the installation site to be 11.8 feet above MSL. The Petitioners were also required by HRS to obtain a determination of the ten-year flood elevation for the property from the District. The initial report obtained from the District indicated that the elevation of the ten-year flood plain at the location of the Petitioners' property was 15 feet above MSL. On or about February 23, 1990, the Dixie County Environment Health Officer made an on-site inspection of the property. This inspection included soil borings and a general inspection of the property. The soil borings performed did not reveal the presence of any soil type which would preclude the installation of an OSDS. No vegetative species indicative of frequent flooding were noted. Nevertheless, the health officer determined that the property was subject to "frequent flooding" based upon the District's flood elevation report concerning the ten-year flood elevation. Therefore, the Petitioners' application for an OSDS permit was denied on that basis and on the health officer's belief that Executive Order 90-14 prohibited further construction of OSDS's, including mounded systems within the ten-year flood elevation. In his testimony at hearing, however, Mr. Fross acknowledged that his earlier reference to "frequent flooding" was in error and, indeed, the site is not subject to frequent flooding. The Petitioners elected not to pursue the application for variance after they were informed by the Environmental Health Officer that pursuing such a variance would be futile. This was because no further variances were to be considered or granted by the Department due to the perceived effect of the Governor's Executive Order 90-14 referenced above. That Executive Order adopted, by reference, the "Suwannee River Task Force" recommendation and precluded the installation of OSDS's below the ten-year flood elevation because of risk to health and to ground or surface waters. Subsequent to the initial denial of the application, the Petitioners supplied more detailed information regarding the location of their property to the District and the District issued an amended flood elevation determination indicating that the actual ten-year flood elevation at the location of their property is 14.64 feet above MSL. It has been established in this proceeding that that is the ten-year flood elevation at the Petitioners' property and installation site. There is, thus, a 2.84 foot difference between the surface elevation of the Petitioners' installation site and the ten-year flood elevation. The installation site is characterized by slight-limited soils, consisting of fine sand extending at least 72 inches below the surface grade of the installation site. Additionally, the wet season water table was found to be at least 72 inches beneath the surface grade of the property. Thus, in terms of soil characteristics and water table elevations, the site is certainly appropriate, under the guidelines contained in the rules cited herein, for installation of a conventional subterranean septic tank and drain field system, but for the deficiency under Rule 10D-6.047, Florida Administrative Code, concerning the bottom surface of the drain field or absorption beds being beneath the ten-year flood elevation. The Petitioners have proposed an alternative solution to the problem involving the surface elevation of the property. That solution would involve the installation of a mounded system which would raise the bottom surface of the drain field trenches or absorption beds above the ten-year flood elevation. The Petitioners, in essence, propose to accomplish this by compliance with Rule 10D- 6.049, Florida Administrative Code, which contains specifications and requirements concerning installation of a base filled area surrounding a mound and requirements concerning placement of the septic tank and drain field within that mound. Given the requirements of that rule which limits the mound to a 36- inch height, but allows a base pad of fill of appropriate soils to be placed beneath the mound before its construction, it is obvious, given the 2.84 foot differential between the surface grade of the installation site and the ten-year flood elevation, that installation of such a mounded system would amount to a feasible alternative OSDS which will raise the drain field trench bottoms above the ten-year flood elevation. In conjunction with the six feet of appropriate soil above the wet season water table, this will assure that public health and ground or surface waters are not harmed or degraded by the installation and operation of such a system. Rule 10D-6.047 clearly envisions that installation of such fill, including a mound for such a system, can be accomplished where it references the "final lot elevation at the site of the proposed system installation . . .", as does Rule 10D-6.049, Florida Administrative Code, where it provides detailed specifications regarding construction of mounded systems and references them as "alternative systems." It should be pointed out, however, that although such a system has been established to be a reasonable alternative OSDS within the meaning of the subject rules at issue, Rule 10D-6.047 proceeds to require that the installation of such a mounded system on property which lies within the regulatory flood way requires a certification of an engineer, registered in the State of Florida, to the effect that the installation of the fill and mound will not serve to alter the "base flood". That engineering evidence and certification has not been adduced in the proof in this proceeding, even though the District, as well as the Department, has approved the installation of such a system on the Larry Gilbert lot, immediately adjacent to the Petitioners' lot, without requiring a "works of the District permit" from the District. The approval of such a similar system on the property with similar elevation immediately adjacent to the subject property might indicate that the Department has a policy of interpreting its rules to allow such mounded systems on property within the ten- year flood elevation, provided that such mounds raise the drain fields above the ten-year flood elevation. It has not been proven, however, that the fact that the District did not require a "works of the District permit" should be and has been interpreted in the past to be equivalent to the engineer's certification required by Rule 10D-6.047. Consequently, a grant of an OSDS permit for such an alternative system for these Petitioners should be conditioned on the provision of such engineering certification, calculations and data to the Department. The Petitioners' property is designated as Lot 24 of Highpoint Suwannee River Front Estates, a platted subdivision. The adjacent lot is Lot 23, owned by Larry Gilbert. The ground elevation of the Gilbert lot is approximately identical to the elevation of the Petitioners' lot. On or about July 14, 1988, Mr. Gilbert made an application to the Department for installation of an OSDS upon his property. The District, in that same month, issued a letter finding that the Gilbert lot was not subject to frequent flooding. The District also indicated in that letter that the installation of 42 inches of suitable soil on the lot would be sufficient for the installation of a mounded in-ground OSDS and that installation of such a system would not violate District rules regarding construction of obstructions in the regulatory flood way. Based upon that information, Mr. Gilbert was able to obtain a variance from the Department's variance board permitting him to install what is known as a "National Sanitation Foundation class I aerobic treatment system" on the property. After obtaining that variance, Mr. Gilbert requested an informal hearing before a Department Hearing Officer regarding the variance board's denial of his request to construct a conventional, but mounded, in-ground OSDS. Following that informal hearing, the Hearing Officer recommended that Mr. Gilbert be permitted to construct a traditional in-ground OSDS utilizing only 36 inches of fill. That informal order was adopted by HRS in a Final Order; and the 36-inch mounded system was constructed upon the Gilbert property, adjacent to the subject property and passed the Department's final inspection.
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 in this proceeding granting the Petitioner an OSDS permit authorizing construction of a mounded septic tank and drain-field system, in accordance with the requirements of Rules 10D-6.046, 10D- 6.047, 10D-6.049, Florida Administrative Code, and in accordance with the conditions discussed and found hereinabove. DONE and ENTERED this 7th day of March, 1991, in Tallahassee, 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 7th day of March, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-18. Adopted. Respondent's Proposed Findings of Fact 1-17. 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 Robert Moeller, Esq. P.O. Drawer 1419 Cross City, FL 32628 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
Findings Of Fact Petitioners purchased property in New Smyrna Beach, Florida to build a home. The property, which was platted in the 1940's measures 50 feet by 200 feet. The east side of the property (50') is located on Engram Road. The northern 200 feet and western 50 feet of the property is waterfront, situated on a tidal inlet from the Indian River. The Indian River contains the last remaining Class II waters in Volusia County. Class II waters in Florida are waters in which the state allows shellfish harvesting for public consumption. As the last remaining Class II waters in the county, the area requires special protection from all possible sources of pollution and negative environmental impact, including sewage outflow. According to the Petitioner, the seller of the property indicated to Petitioners that the property had been approved for constructing a home. The seller substantiated his assertion with a letter from the Volusia County Planning and Zoning Department stating that a county variance had been granted to construct a single family dwelling on this property, subject to certain conditions. The county approval letter specified the required use of an aerobic wastewater treatment system. The Petitioners were unaware of the state regulations and standards for onsite sewage disposal systems. The Petitioners hired a builder who applied to the HRS Volusia County Public Health Department for a septic tank permit. The permit was denied because the proposed septic tank system violated 50 foot set back required of sewage treatment systems from Class II waters. The proposed drainfield was located within 28 feet of the mean high water line, and because of the configuration of the lot and its depth of only 50 feet the proposed site cannot meet the state standard. The Petitioners' builder subsequently applied to the state Department of Health and Rehabilitative Services for a variance from the code standards in order to obtain the septic tank construction permit. The state denied the variance stating that the "request was not considered to be a minor deviation from the minimum requirements". The Petitioners received no notification of the time and place of the Variance Review Board's meeting because the variance application was submitted by their builder. Petitioners had no opportunity to personally address the Variance Board when their application was being considered. A sewer line is located within 1000 feet of the property and a sewage grinding and pumping system could be installed to pump sewage from the site to the sewer line. Such a system, costs approximately the same amount as an onsite system. A grinding and pumping system is an economically reasonable alternative to permit development of the lot.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, the arguments of the parties, it is therefore RECOMMENDED: That the request for a variance be DENIED. DONE and ENTERED this 2nd day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 132 Winewood Boulevard Tallahassee, FL 32399-0700 Jerome and Bernice Massel 6426 Engram Road New Smyrna Beach, FL 32169 Charlene J. Petersen, Esquire HRS-District 4 P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue Whether or not Petitioners' application for an on-site sewage disposal system (OSDS) permit should be granted.
Findings Of Fact Petitioners, Paula and David Caywood, are the owners of Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. The subject lot is situated within the ten year flood plain of the Suwannee River Basin. On August 13, 1990, Petitioners filed an application with Respondent to install an OSDS to service a two-bedroom home which they desired to place on the subject lot. As an attachment to their OSDS application, Petitioners introduced a copy of a survey of their lot which was prepared by Walton F. Poppell, a Florida registered land surveyor who holds registration number 2940. The ground elevation for the ten year flood plain for the subject area where Petitioners propose to install their OSDS is 68.0 ft. A review of the land survey presented by Petitioners indicate that the proposed OSDS would be at a ground elevation of 63.8 ft. and when completed would be placed at a ground level of 65.64 ft. or 2.36 ft. below the elevation of the ten year flood plain. Although the Petitioners lot is not subject to frequent flooding, since the surface grade is beneath the ten year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten year flood elevation. Petitioners have not applied for a variance to install their OSDS within the ten year flood plain of the Suwannee River Basin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioners application to install an OSDS to service a two-bedroom home on Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February, 1991. COPIES FURNISHED: David and Paula Caywood 9320 Horizon Drive Springhill, Florida 34608 John L. Pearce, Esquire HRS District II Legal Office 2639 N. Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Respondent Harper Brothers, Inc., operates a farming and limestone mining operation in Lee County, Florida. It has filed a surface water management permit application for a project to be operated as an adjunct to the mining operation at Green Meadows Mine owned by Harper Brothers. The Respondent Harper Brothers retained consultants in the general fields of engineering, hydrology, surface water management and hydraulics to assist in the formulation of a surface water management plan for the development and operation of their mining site. As a culmination of this effort, Respondent Harper Brothers filed its application for a surface water management system, and permit therefor, with the district. The SFWMD (District), upon receiving applications for surface water management systems and related permits evaluates water quantity, quality and various environmental concerns related to water resources mandated by Chapter 373, Florida Statutes, Chapter 40E, Florida Administrative Code and Chapter 17-3, Florida Administrative Code. Such an application must meet district criteria contained in the statutes and rules in order for the surface water management permit to be issued. The district's staff makes a recommendation to its governing board for approval or denial of such permits, and often with related conditions attached. In the instant case, after review of the various water quality and environmental criteria, the recommendation of the governing board of the agency was for approval of the permit with certain conditions. THE PROJECT The project which is the subject matter of this proceeding is a rock mining operation for the mining of limestone in Lee County, Florida. The application is for the construction and operation of a surface water management system to serve a 405-acre mining operation which, in essence, involves the management of the water produced by "de-watering," or pumping-out of the active rock pit, through use of a retention area, dykes, pumps, culverts and a weir structure; with a view toward keeping the water pumped from the pit (dewatering water), and stormwaters which fall on the site, contained in a retention area which has been designed to retain all the dewatering discharge. The only water discharge envisioned off the site represents the volume of stormwater which falls thereon. The stormwater which would be discharged off the site is that water which actually falls as rain onto the retention area as well as stormwater that is pumped into the retention area from the pit through the use of the two existing dewatering pumps. During excavation of the rock pit, water is discharged from the pit into the on-site retention area through use of these two pumps. An existing weir structure allows some water from the retention area to flow through a ditch to a small lake on the Respondent Harper Brothers' property. Water from the lake is used at the rock mine and some existing farmland of Harper Brothers is supplied irrigation water from it. At present, some farmland is supplied irrigation water through a pump from the retention area and some receives irrigation from the mine pit itself through another pump. The remaining water discharged from the mine pit is held in the retention area where it infiltrates into the ground. The retention area will be surrounded by 3.5-foot high by 12-foot wide dykes. Along the south side of the retention area a double dyke system is proposed. The outer dyke will also be utilized as a road and varies from three to four feet in height with a top width of 36 feet, which will be paved. Stormwater discharged from the retention area would flow through an outfall structure located at a crest elevation of 26.75 feet, National Geodetic Vertical Datum (NGVD). The controlled elevation in the retention area is 26.3 feet NGVD which is maintained by a 3.83-foot wide "bleeder notch." Discharge from this structure would then be routed westward between double dykes under the Harper Brothers' "north-south road" down a swale on the north side of its entrance road to "no-name" slough, the ultimate "receiving waters." It was established by expert witness Missimer, for Respondent Harper Brothers, that the dewatering discharge which would be held in the retention area will infiltrate into the ground at a rate of approximately 43,000 gallons per day per acre per a one-foot elevation in water level. The rate of infiltration in the ground is directly proportional to the "head" increase so that for a two-foot water level with the resulting increased pressure or "head," the infiltration rate would be 86,000 gallons per day per acre. Based on the presently permitted maximum monthly withdrawal rate, at a point of equilibrium would be reached at a water depth in the retention area of 1.3 feet, whereby the rate of water pumped into the retention area equals the rate of infiltration into the ground without considering additionally any evaporation into the atmosphere. Thus, the bleeder notch would be set at the above elevation so that all dewatering discharges from the mine (which may contain rock and other sediments) are effectively retained on site. PRE-DEVELOPMENT VS. POST-DEVELOPMENT DISCHARGES The SF design criteria contained in Chapter 40E, Florida Administrative Code, the applicability of which is not in dispute in this proceeding, provides that the volume of stormwater discharged from such a project cannot exceed the volume of such discharges from the same surface area in its pre-development condition. The development referred to in this instance is, of course, the development of the mine and the related retention area and other water management installations or "improvements." Expert witnesses Glaubitz and Serra testifying for the Respondent Harper Brothers and SFWMD established that the quantity of pre-development discharge from the subject site or surface area, was calculated based upon a "design storm event." This means that the pre-development discharge from the Harper Brothers' mine site was calculated, based upon reviews of the watershed boundary, the slope, the vegetation types, and the hydrologic length of the watershed in the geographical area, as well as through the use of aerial photography and U.S. Geological Survey maps, to show the amounts of surface and stormwaters discharged from this site, or its pre-development surface area, during a 25-year, 3-day duration storm event, meaning a storm lasting for a duration of three days of rain of a severity that has been experienced, according to meteorological records, an average of once in 25 years in the subject geographical area. Based upon these calculations of pre-development discharge rate or volume during a 25-year, 3-day storm event, the pre- development discharge from the Harper Brothers' mine site was calculated to be a volume of 10 cubic feet of water per second (cfs). "Post-development discharge" is the rate of discharge taking into account the same 25-year, 3-day storm event, which is allowed to discharge off the project site after development is completed. The calculation of post- development discharge was computed by taking into account such factors as soil storage capability, stage discharge and calculation of the amount of retention or detention of storm water required on the site. Thus, the calculated post- development discharge of stormwater from the site as it is proposed to be designed, is nine cubic feet per second during such a 25-year, 3-day severe storm, which capability is designed into the proposed project. Thus, the post- development discharge of stormwater off the project site does not exceed, and in fact is less than, the pre-development discharge of stormwater from the site. Included within the calculations by these two experts, concerning post-development volume of stormwater to be discharged, is an analysis of the quantity of water to be retained in the retention area of the proposed project. The discharge from the retention area is controlled by the above-mentioned weir and bleeder notch. The retention area proposed by the applicant is to be used both for discharge of dewatering water from the mine pit (under the previously issued industrial water permit) as well as for retention of stormwater. This weir and bleeder notch is designed to be at an elevation which only allows discharge of a volume of water representing the volume of stormwater entering the retention area over a given period of time, and not the dewatering water from the site, which may contain rock, dust in suspension, and other sediments. The previous permit granted to the applicant, as well as the permit sought in this proceeding, would require (as all parties agree) that the dewatering volume of water, representing the water pumped from the mine pit, will totally remain on the site. The project as designed is reasonably assured to be capable of retaining all such dewatering mine pit water on-site. One critical factor considered in determining the design and site for the retention area (155 acres) and in setting the bleeder notch elevation for discharge of stormwater volume, is the infiltration rate from the retention area into the ground beneath it. The Respondent Harper Brothers established (through these uncontradicted expert witnesses) that the infiltration rate is 43,000 gallons per day per acre of the retention area for a one-foot elevation of water in that retention area. One of the factors computed into the infiltration rate calculation is the "transmissivity rate." The transmissivity rate is 200,000 gallons per day per foot in the shallow or surface aquifer at the project site. Petitioner's expert, Mr. Bruns, conceded that if that rate is correct, as it was established to be, that the post-development volume of discharge leaving the project site would not exceed the pre-development volume of discharge, if the maximum pumpage rate into the retention area from the pit did not exceed 8.5 million gallons per day, and it is so found. Parenthetically, it should be noted that the Petitioner presented no testimony of its own concerning infiltration rates or transmissivity rates. Neither did the Petitioner's expert Mr. Bruns make any calculations of quantity of discharge from the site in either a pre-development condition or post-development condition, nor was a water management or hydrologic study of the drainage basin (approximately 6 square miles) made by Petitioner's expert witness, to assist in analyzing quantity of discharge. Under certain hypothetical conditions it would be possible for dewatering discharge water from the mine, as a volume of water, to be discharged, commingled with stormwater discharge, from the retention area. Thomas Missimer, testifying as an expert witness in the fields of hydrology and water quality for Harper Brothers, was uncontradicted. His studies and calculatiops in evidence established that, with regard to the infiltration rate downward into the soil under the retention area, and the amount of water pumped into the retention area, that equilibrium is reached when pumping into the retention area reaches 8.5 million gallons per day. That is, approximately 8.5 million gallons per day infiltrate downward into the soil and thus leave the retention area and thus an 8.5 million gallon pumpage rate per day would result in a static water level in the retention area, aside from evaporation. If the Respondent pumped in excess of this figure, which might be possible under its present mine dewatering industrial use permit, then the pumpage figure might exceed the equilibrium figure and cause the volume of water discharged off the site to exceed that volume which only represents stormwater. Accordingly, the parties stipulated that the maximum daily pumpage rate of 8.5 million gallons per day would be included as a condition in the permit, if it were issued to the Respondent, such that, based upon the uncontradicted infiltration data, that the limitation to a maximum pumpage rate into the retention area of 8.5 million gallons per day from the mine pit, would be permissible. In view of this stipulation, Petitioner withdrew its contention that the post-development volume of discharge water leaving the site would exceed the pre-development volume of discharge. It was thus shown that at the maximum pumpage rate of 8.5 million gallons per day no mine dewatering discharge (as a volume of water) will leave the retention area. NON-ALTERATION OF HISTORICAL DRAINAGE PATTERNS The Petitioners also contend that the supposed alteration of historical drainage patterns by this development at the site will cause additional flooding to the Petitioner's access road to their property (residence and nursery) by the road known as Mallard Lane. In that connection, the historic pattern of stormwater discharge off the project site or its geographical area, is figured into the analysis of pre-development water volume discharge versus post-development discharge. This project, like others of its type, is mandated by the rules at issue to not alter the pre-development patterns of water discharge off the site area so as to adversely affect the property and landowners off the site. Although the pre-development discharge is generally observed and calculated by looking at a site before the development involved in a permit application takes place, in the instant case, Harper Brothers, Inc., by the authority of its previously issued dewatering and industrial water use permit had already initiated its mining operation and so pre-development conditions as they relate to this permit were not directly, physically observable. Accordingly, a hydrologic study of the drainage basin in which this project is located was performed, and, in conjunction with the use of aerial photography and U.S.G.S. quadrangle maps, the perimeter of the basin was determined and an analysis of the historical pattern of flow in the drainage basin was done. The general flow of water in the drainage basin historically is from northeast to southwest, with an ultimate discharge into the "no-name" slough, a "cypress head" or slough which generally flows in a westerly and southwesterly direction from the area immediately adjacent to the project site. Internally within this drainage basin, some old pre-development north/south dykes have blocked some of the westerly flow which historically existed at the site, thereby causing some of the water to flow in a northwesterly direction until it reaches the northern end of the north/south dykes, thence returning to the generally southwesterly drainage pattern, ultimately ending up in the slough system. A small area of farm fields was located north of the east/west access road to the site, and southerly of an existing east/west line of farm dykes, and may have drained in a southerly direction before development. There is currently no information and no evidence of record concerning how this farm field area was drained. The drainage from this area now, however, is insignificant and is calculated at approximately one cubic foot per second as a maximum rate. As the calculated post-development discharge from this project site is approximately 9 cubic feet per second, even if it be assumed that the drainage from the old farm field should be added to the post-development discharge rate from the project site itself, such an addition would only equal and not exceed the historic, pre-development discharge rate of ten cubic feet per second. The flows in a southerly direction are currently blocked by the east/west access road to the Harper Brothers' site, used by Harper Brothers. In a predevelopment condition however, the same situation existed since the southerly flow was similarly blocked by farm dykes which existed in the pre- development condition. The proposed facility is designed to have stormwater which falls on the entire project site to be pumped into the retention area. The volume of stormwater permitted to be discharged will discharge from the retention area via the above-mentioned outfall structure and will be routed westward through the double-dyke system down a drainage swale on the north side of the entrance road, and ultimately into the no-name slough. Thus, the historic drainage pattern of the basin from the northeast to the southwest will not be significantly altered by the project as designed and proposed. The project generally preserves this historic drainage pattern by discharging the drainage within the basin into the "no-name" slough as occurred in the pre-development condition which, when the above-described pre-development and post-development discharge rates are compared reveals that there will be no adverse alteration in terms of either a dearth of or excess of water supply to this natural slough system. The Petitioner's access road, North Mallard Lane, running from north to south, accessing Petitioner's property west of the project site, is indeed subject to inundation, but was subject to such inundation in the pre-development condition of the project site. This is because the slough crosses this access road. Since the post-development condition does not alter the historic patterns of drainage to any significant degree, and does not represent an alteration in the volume of discharge from the project site area over that in the historic, pre-development condition, no additional flooding to the Petitioner's access road will be caused as a result of the project installation and operation. The flooding being caused to the Petitioner's access road, indeed was shown to be related in part to culverts of insufficient size installed by Lee County, so that water tends to stand on the road surface as opposed to draining under and away from it. NON-ALTERATION OF THE pH OF RECEIVING WATERS It is undisputed that the subject project, like all such projects, under the permitting authority of SFWMD, must meet state water quality criteria contained in Chapter 17-3, Florida Administrative Code. The design of such a surface water management system must include "best management practices" (BMP's) in order to satisfy the district's design criteria. BMP's are techniques which are incorporated into the design of such a system to enhance water quality such as the use of swales, retention ponds, and gravity structures. Given that the project will utilize a retention area, grassed swales and other well accepted water management structures, the design was shown to comport with "best management practices." Water quality measurements for the only water quality parameter in dispute, that of pH, were taken on the project site using standard, accepted scientific methods and U.S. Geological Survey Water Quality Standard sampling techniques. The tests revealed a pH in the retention area itself of 7.91 pH units. The pH in the pit area was 7.8 pH units and in the off-site water in the slough, the pH was 7.3 units. The water discharge from the retention area would be a combination of stormwater (rain water) which is approximately 6 pH units in the geographical area involved, and the retention area water at approximately 7.8 pH units. The precise pH of this discharge water would depend on the quantities of water from each source, but was shown to be almost neutral or approximately at a pH of 7. Thus, the discharge from the retention area of the commingled dewatering and stormwater, if such occurs, will not alter the receiving waters one full pH unit. Upon issuance of the permit, the applicant will still have to comply on a continuing basis with the water quality parameters of Chapter 17-3, Florida Administrative Code, and the staff of SFWMD will continue water quality monitoring after the permit is issued. There has thus been no showing that commingling of dewatering water and stormwater in the retention area and the discharge of such commingled waters to the receiving waters of "no-name" slough would affect the pH of that receiving water in a manner to exceed existing, permissible pH parameters and adversely affect water quality. Expert witness Serra testifying for the district as well as for Harper Brothers, has studied similar mining operations. Such operations, utilizing similar water management procedures, have not caused any water quality violations related to discharges of commingled dewatering and stormwater, including no violations of the pH parameters. Finally, near the conclusion of the proceeding, Petitioner, in effect, abandoned its dispute regarding the issue of compliance with the pH water quality parameter.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the South Florida Water Management District authorizing issuance of a surface water management permit to the applicant herein for the proposed surface water management system, imposing upon the applicants the limiting and special conditions enumerated in the district staff report depicted in Exhibit 2 and incorporated by reference herein, and additionally, those two special conditions set forth immediately above. DONE and ENTERED this 17th day of August 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 17th day of August 1984. COPIES FURNISHED: W. E. Connery Gulf Hydro-Farms, Inc. Post Office Boa 148 Estero, Florida 33928 John A. Noland, Esquire Post Office Box 280 Fort Myers, Florida 33902 Michael S. Tammaro, Esquire South Florida Water Management District Post Office Box "V" West Palm Beach, Florida 33403-4238 John R. Maloy, Executive Director South Florida Water Management District Post Office Box "V" West Palm Beach, Florida 33402
The Issue The issues are whether the Consent Order entered into between the Department of Environmental Regulation (DER) and Kenneth Acre (Acre) is an appropriate settlement of the violations addressed therein and whether Acre is entitled to construction permit number IC35-190005 for an Industrial Waste Disposal Facility. The Bradys assert that the Consent Order is not a reasonable exercise of DER's enforcement discretion and that the permit should be denied.
Findings Of Fact Background Acre owns and operates an animal research facility in Eustis, Florida. Acre performs research trials on dogs using a USDA approved heartworm medication sold under the brand name of Heartguard, the chemical name of which is ivermectin. Acre is not in the business of testing or manufacturing new drugs. The Consent Order To handle the waste generated by the animals at the facility, Acre initially constructed a conventional septic tank system. Prior to construction, Acre contacted the Lake County health department to inquire about permitting and was told that he did not need a permit for his facility. With that information, he continued with the project. Subsequently, DER became aware of the facility and notified Acre that a DER industrial waste permit was required and that he should cease the discharge into the septic tank until such a permit was obtained. Acre complied with DER's instructions and plugged the septic tanks. Since the time the septic tanks were plugged, the waste has been collected by Roto Rooter on a periodic basis and disposed of offsite. Acre entered into a Consent Order with DER to resolve the alleged past violation for not obtaining a permit and paid of penalty of $600 as required by DER. The Consent Order is a reasonable and appropriate settlement of the violations alleged therein. The Disposal System Acre has applied for a permit to construct and operate an evapotranspiration disposal system to dispose of the waste from his facility on site. The proposed system is essentially a modified septic tank system using a lined drainfield to capture and hold the liquid waste, allowing it to transpire from the grass or otherwise evaporate into the atmosphere and preventing any discharge to groundwater. The waste will be discharged to a series of modified septic tanks which will provide treatment beyond that of a traditional septic tank system and will reduce the amount of total suspended solids. The first septic tank accepts the waste and provides initial treatment through natural settling of solids. The waste then passes through a filter device and travels by gravity flow to the second septic tank. From the second tank it flows through a second filter device and into a dosing tank. The dosing tank is basically a small holding basin with a pump that disperses the waste to the drainfield in incremental amounts. The dosing tank contains several float mechanisms which monitor the level of liquid in the tank. When the water level in the dosing tank reaches a certain level, one such float mechanism turns on the pump to transport the liquid to the drainfield. The waste is then pumped from the dosing tank through a closed pipe to one of two evapotranspiration cells where it is distributed through a number of perforated pipes. The Evapotranspiration Cells The perforated pipes are situated in a gravel bed approximately 24 inches in depth. On top of the gravel bed is a clay soil mix approximately 15 inches deep. The clay soil mix absorbs the liquid waste in the gravel bed by drawing it up through the process of capillarity. Once the liquid is in the upper clay soil layer, it is evaporated. Grass is planted on top of the soil mix as an additional method for dissipation of the waste. The liquid waste is absorbed by the roots of the grass and transpired through the grass leaves. The clay soil mix in the top layer of the system is relatively impervious. The impervious nature of the soil mix along with a three percent surface slope will prevent rain water from entering the evapotranspiration cells and impacting the effective operation of the system. The entire drainfield has a double liner: one PVC plastic liner and a 6" clay layer. These two liners will ensure that no discharge to groundwater will occur from the system. System Capacity It is estimated that the Acre facility will produce approximately 520 gallons per day (GPD) of waste to be handled by the system. The drainfield is designed to handle twice the volume that will be discharged by the Acre facility and is therefore more than adequate to assimilate the waste received into the system. The drainfield is composed of two independent cells so that loading of each cell will be rotated. Once one cell receives its maximum capacity, the loading of that cell will cease in order to allow that cell to assimilate the waste through evapotranspiration. In this manner, the first cell is permitted to "rest" while the second cell receives further loading from the dosing tank. Safety Features Although the proposed disposal system is innovative in design, it incorporates several safety features which will ensure that no overflow of waste will occur. First, a float mechanism in the dosing tank is designed to trigger an alarm in the event the water level in the dosing tank gets too high. If that occurs, the alarm provides a flashing light as well as a horn which will notify the operator of a problem. Once the float reaches this warning level, the system will automatically shut down, thus preventing further waste from entering the system. Second, each evapotranspiration cell is equipped with a similar device which will automatically close off the dosing tanks and prevent further discharge into the cells in the unlikely event the system were to become too saturated to accept further loading. Finally, the double lined drainfield provides an additional safety measure which will prevent any discharge to groundwater. The numerous permit conditions requiring periodic monitoring of water quantity and quality in the system itself as well as the groundwater in the vicinity of the system provide ample assurance that the system will not pose a threat to the state's water resources. Ivermectin Although the proposed system will not discharge to groundwater, DER required the applicant to determine the amount of ivermectin in the wastestream. Ivermectin binds tightly to soil and does not dissolve in water. A sample of the wastestream from the Acre facility was collected by Bionomics Laboratory, Inc., and analyzed by Analytical Development Corporation using the analytical procedure designed by Merck scientists. The results of this analysis show that the concentration of ivermectin in the Acre wastestream ranges from .6 to 6.1 parts per trillion (ppt). The publication submitted to the Department by Acre entitled, Chapter 11, "Environmental Aspects of Ivermectin Usage in Livestock: General Considerations" by Halley, Nessel and Lu, from William C. Campbell, Ivermectin and Abamectin, documents the results of studies designed to determine whether using ivermectin in animals would result in any harmful or undesirable effects on the environment through excretion in the feces. This publication indicates that: Ivermectin is relatively immobile in soil and will not readily translocate into groundwater. Ivermectin is rapidly decomposed by sunlight and therefore will not accumulate in soil when administered to livestock. Ivermectin has no effect on earthworms at a concentration in soil of 12 parts per million (ppm). (This concentration is approximately two million times higher than that of the Acre waste stream.) Aquatic organisms such as water fleas and fish are highly sensitive to ivermectin toxicity. However, ivermectin is not toxic to the most sensitive species, the Daphnia magna, at a concentration of 0.01 parts per billion (ppb). Ivermectin concentrations in cattle feedlot runoff was less than the no-effect level of 0.01 ppb for Daphnia magna and therefore should cause no adverse environmental effects in surface or subsurface waters. The highest concentration of ivermectin found in the Acre waste stream is 6.1 ppt (or .006 ppb), which is less than the 0.01 ppb non-toxic level for the most sensitive aquatic species. Based on the concentration of ivermectin found in the Acre waste stream and the fact that ivermectin binds tightly to soil, the discharge from the Acre facility would not cause any adverse environmental impact, even if it were discharged to groundwater. Bradys' case Bradys submitted no evidence to show that the Consent Order is not an appropriate settlement of the violations alleged therein. They submitted no evidence that the septic tanks were improperly plugged. Brady offered no expert testimony in support of their claim that the facility had caused an adverse impact to groundwater or that the proposed system would cause any threat to groundwater quality. Bradys apparent concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding. Their concern that the lining of the drainfield could leak is unsupported by competent evidence. Bradys learned immediately prior to hearing that DER had changed its position and intended to issue the permit. Their failure to present any relevant evidence that the Consent Order was insufficient or that the proposed facility would violate any applicable DER rules or criteria and their ill- prepared participation in the hearing was in part the result of DER's late change in position. Bradys' participation in this proceeding was not shown to be frivolous.
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 and therein: Ratify the terms of the Consent Order as reasonable. Grant Acre construction permit number IC35-190005 for an Industrial Waste Disposal Facility, subject to the special conditions set forth in DER Exhibit 1. RECOMMENDED this 22nd day of July, 1992, 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 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NOS. 91-2608, 92-0958 AND 92-0959 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 Petitioners, Bradys 1. 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: 6 & 7(8) and 15(10). 2. Proposed findings of fact 1-5, 16, 27, 28, 31, 36-42, 44, 46-49, 51, 52, 54, 57-59, 61, and 62 are subordinate to the facts actually found in the Recommended Order. 3. Proposed findings of fact 8, 10-14, 17, 19-21, 26, 29, 30, 32, 33, 35, 43, 53, 55, and 56 are irrelevant. Proposed findings of fact 9, 18, 22-25, 45, and 50 are unnecessary. Proposed findings of fact 34 and 60 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents, Acre and DER 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: 1-44(1-44). Proposed findings of fact 45 and 46 are unsupported by the competent and substantial evidence. COPIES FURNISHED: Carlyn H. Kowalsky, Attorney at Law Bogin, Munns & Munns 250 North Orange Avenue 11th Floor-P.O. Box 2807 Orlando, FL 32802 Douglas MacLaughlin, Attorney at Law Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Martha Hunter Formella Attorney at Law FOLEY & LARDNER Post Office Box 2193 Orlando, FL 32802-2193 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
