The Issue The issues are: (1.) Whether Respondents' request for variance from requirements of Rule Chapter 10D-6, Florida Administrative Code, should be granted. (2.) Whether Respondents are guilty of violation of certain provisions of Chapter 381 and Chapter 403, Florida Statutes, and Rule Chapter 10D-6, Rule Chapter 17-550, and Rule Chapter 17-555, Florida Administrative Code, regulating the operation of onsite sewage disposal systems.
Findings Of Fact Respondent V.M.P. Corporation (VMP) operates a lounge known as Stud's Pub in Jacksonville, Florida. Licensed for 75 seats, the lounge actually contains 50-55 seats and employs five people full time. Additionally, 10-15 independent entrepreneurs known as dancers may be present at times. The dancers are not employees of Respondents. Less than 25 people, other than patrons, are present at the facility at any time. Respondent Vincent M. Paul (Paul) owns the facility and the corporation. The lounge is on lots that were platted prior to 1972. Petitioner is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Petitioner pursuant to provisions of Section 381.0065(8)(a), Florida Statutes (1991). The lounge is serviced by a septic tank with a drainfield which is covered by an asphalt parking lot. The portion of the parking lot over the drainfield is bounded to the west by a dirt city street, to the north by other pervious surfaces, to the east by the lounge and to the south by the remainder of the asphalt parking lot. A sign on the premises which advertises the business is protected from automobile traffic by concrete barriers. The septic tank system and drainfield were installed prior to 1972 by a previous owner. Respondent Paul retrofitted the septic tank system after 1972. Respondent Paul was responsible for paving over the drainfield after he purchased the property. Petitioner's representatives inspected the lounge, determined the drainfield to be covered by the asphalt parking lot and requested Respondents to remove the asphalt covering. Respondents requested a variance pursuant to Rule 10D Administrative Code, for the asphalt covered drainfield and other deficiencies of the onsite sewage disposal system. Petitioner's review board recommended denial of the request on the basis that the variance would not constitute a "minor deviation" from rule requirements. Although the term is not defined by Petitioner's rule, Petitioner's usage of this term was the result of the consideration by Petitioner's review board of the application for variance within the context of Section 385.0065(8)(a), Florida Statutes, which authorizes Petitioner to grant variances only 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. Respondent has no record of failure of the septic tank or drainfield. Water samples from the onsite potable water well filed with Petitioner tested below detectable limits for nitrates and coliforms, the only parameters Petitioner is required to analyze. Respondents' records of water flow or usage from the well into the lounge show daily flow rates of between 320 and 580 gallons, with an average rate of between 450 and 480 gallons. Respondent Paul is responsible for the installation of an unpermitted chlorinator on the water supply system which provided actual flow information. The only onsite water well has no grout sealant. It is the only well of which the parties are aware that lies within 100 feet of the septic system. The potable water well is located approximately 42 feet from the edge of the covered drainfield. The well head does not extend above line surface and there is no concrete pad around the wellhead. The exact depth of the well is unknown, although the well is located upgradient of the drainfield and a nearby junkyard. Denial of the variance would require that Respondents uncover the drainfield since there is no practically available offsite sewage system currently available. Soil in the area of the drainfield is classified as well- draining sand. Due to the impervious surface covering the drainfield, Petitioner's representative was unable, during his inspection, to discern any symptoms of drainfield failure in the form of "blow field should be totally unobstructed to allow aerobic processes to take place in the drainfield which will permit the breakdown of contaminants. A portion of Respondents' 1200 gallon septic tank is located partially under and immediately adjacent to Respondents' facility. A dousing tank which retains liquid waste and operates as part of the septic system is also totally covered by the asphalt pavement. Although there has been no detectable failure of the system, every eight or nine months Respondents have the septic tank and dousing tank pumped out. The tanks never get full.
Recommendation Based on the foregoing, it is hereby Recommended that a final order be entered by Petitioner denying the variance requested by Respondent with exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent property, and, Further Recommended that such final order also assess Respondent Paul an administrative penalty of $500 for each of the four violations contained in the Administrative Complaint which were proven in this proceeding for a total of $2000, and a continuing assessment of $500 per day for each violation for a total of up to $2000 per day after first allowing Respondents a 60 day period within which to correct all four violations. DONE AND ENTERED this 3rd day of May, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 3rd day of May, 1993.
The Issue The issues in this case are: Whether Mr. Decker had an improperly maintained septic system on his property. Whether Mr. Decker illegally repaired his on-site sewage treatment and disposal system. Whether the Department of Health properly issued a citation to Mr. Decker for violation of Sections 381.0065(4) and 386.041(1)(b), Florida Statutes.
Findings Of Fact On April 25, 1997, an employee of the Department of Health, Volusia County Health Department, David Stark, inspected Mr. Decker's property known as Bulow Creek Farm. Mr. Decker provides low-cost rental housing on this property which utilizes an onsite well to provide drinking water. Mr. Stark observed a wet area in the ground with the smell of sewage near the building identified as Apartment Building C, which houses seven (7) apartments. Mr. Stark identified this area as a sewage leak. On May 28, 1997, Mr. Stark returned to Mr. Decker's property with another Volusia County Health Department employee, Ed Williams. They both observed a wet area in the ground with the smell of sewage in the vicinity of the septic tank serving Apartment Building C. Mr. Stark identified this area as a sewage leak. Mr. Stark issued a Notice of Violation (NOV) to Mr. Decker which stated the raw sewage leak was a sanitary nuisance and provided that Mr. Decker should have his drainfield repaired in accordance with the repair permit Mr. Decker had previously obtained from the Department. The NOV stated the repair should be completed no later than June 11, 1997. A repair permit is valid for a period of eighteen (18) months. Mr. Decker's permit expired on April 20, 1997. Repairs must be inspected by the Department as they are made. On June 13, 1997, Mr. Stark mailed Mr. Decker a letter reiterating the need for repair of his septic system and enclosed a Notice of Intended Action giving Mr. Decker a deadline of June 20, 1997 to make the needed repairs. Mr. Stark received a letter dated June 29, 1997, from Mr. Decker, informing him that Mr. Decker, himself, had repaired the drainfield for Apartment Building C. The letter described the new tank and drainfield which Mr. Decker had installed, and Mr. Decker stated his repair was a "cheaper version of what you wanted me to do in the first place." Mr. Decker had not sought the required inspections for the repairs which he had made to the septic system, and the repairs were not inspected and approved by the Department. The Department cited Mr. Decker for having an improperly built or maintained septic system, and for failing to repair the system in accordance with the terms of the permit. The citation levied a $500 civil fine for Mr. Decker's violation.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue a final order affirming the civil penalty against Mr. Decker and requiring Mr. Decker to repair his septic system according to permit. If Mr. Decker fails to effect the repairs, the Department should initiate action to abate this public health hazard. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue Whether the August 30, 1988 application of Petitioner James R. Regan for a permit to operate a wastewater (sewage) treatment facility should be granted in that Petitioner has provided reasonable assurances that the operation of the facility will not discharge, emit, or cause pollution in contravention of Department of Environmental Regulation standards or rules.
Findings Of Fact The sewage treatment plant that is the focus of this proceeding is "Weakley Bayou, Inc.," a corporation. The real property upon which it is located is owned by the wife of James R. Regan. Despite corporate status, Weakley Bayou, Inc. has been operated at the option and control of James R. Regan since its inception in the early 1970's. The permit application here at issue was made in Mr. Regan's name, and he has been treated as if he were the corporation throughout all stages of the permit process. Mr. Regan brought the Petition for Formal Hearing in his own name. He was also accepted as the qualified representative for himself and the corporation. "Weakley Bayou, Inc." is an aerobic gravity flow wastewater treatment plant located in Escambia County. In 1988 James R. Regan applied for a renewal of the operating permit for the facility. The Department of Environmental Regulation (DER) issued an Intent to Deny on December 16, 1988, based on agency perceptions derived from observations, monitoring of Petitioner- generated reports, and grab samples, that the facility did not meet the requirements set down in Rule 17-6 F.A.C. Specifically, the Intent to Deny focused on the following problems: A reclaimed water sample taken on December 6, 1988 revealed the facility was exceeding BOD5 (Biological Oxygen Demand) and TSS (Total Suspended Solids) limits in violation of specific condition number 17 of Permit Number D017-71682. The BOD5 was 232.8 mg/l and TSS was 1,430 mg/l. The same sampling showed the facility was exceeding 200/100 ml for fecal coliform in violation of specific condition number 17 of permit number D017-71682 and Rule 17- 6.180(1)(b)4.d., Florida Administrative Code. The fecal coliform was 79,000/100 ml. Ground water monitoring samples show the levels of nitrates in excess of 10 mg/l in well #l on two out of last four quarterly samples, which is in violation of Rule 17- 6.040(4)(q) paragraph 4.2, Florida Administrative Code. During the inspection on December 6, 1988, the sludge blanket in the clarifier was overflowing the weirs, solids had accumulated in the chlorine contact chamber and percolation ponds in violation of Rule 17- 6.110(3) and 17-6.180(2) (e) , Florida Administrative Code. Auxiliary electrical power is not provided as required by Rule 17-6.040(4) (c) and 17-6.110(3), Florida Administrative Code. The applicant was notified March 14, 1988, that emergency power would be required. During the period (1984-1988) that Petitioner's sewage treatment plant has been permitted by DER, it has been periodically inspected and the Petitioner's self-generated reports have been monitored. From time to time after inspections, Petitioner has been notified of pollution and contaminant hazards or violations pursuant to agency standards, which hazards or violations required corrections in order to retain his permit. Among these hazards and violations have been noted large sewage spills, overflows, poor equipment condition, and substandard plant operation. In most instances, Petitioner cooperated with DER and at least attempted to adjust the plant's operation to conform to the notifications. However, as of December 15, 1988, DER notified Petitioner of the following problems with the plant: sludge blanket in the clarifier overflowing the weir, solids accumulation in the chlorine contact chamber, solids accumulation in both percolation ponds, no auxiliary power on the site, and high levels of nitrates (6.9 ppm) in Monitoring well -1. DER's test of an effluent grab sample tested BOD at 232.8 mg/L and Total Suspended Solids (TSS) at 1430 mg/L. That is, samples taken by DER during an inspection indicated excessive levels of TSS, BOD, and fecal coliform, in violation of Chapter 403 F.S. and Chapter 17-6 F.A.C. Mr. Regan admitted that for approximately four years, broken and unrepaired pipes and fittings at his plant had caused sewage spills or overflows of approximately eight thousand gallons of sewage sludge. He contended that the surface enrichment around Monitoring Well #1 was caused by a separation of a two-inch PVC skimmer line which was corrected in March 1988. Although Mr. Regan established that the leak in the pipe had been repaired, the evidence does not permit a finding that this enrichment was solely from that source, that it will dissipate over a reasonable time, or that it has not polluted the ground water. 1/ Thus, there is no reasonable assurance that fixing the leak, by itself, protects the environment. Over a period of time, Petitioner's own groundwater monitoring reports showed excessive nitrate levels and these have worsened since late 1988, according to witness Ray Bradburn. Petitioner contended that a grab sample is not as accurate as a composite sampling. Although DER witnesses concur in this contention of Petitioner with regard to grab samples generally, and although one DER witness suggested that part of the December 1988 grab sample reading by itself would not cause him to deny the permit, no credible evidence disputes the accuracy of the December 6, 1988 grab sample as a grab sample.2/ Petitioner admitted that it was and continues to be his conscious management decision to keep the plant's auxiliary gasoline powered engine locked away from the plant site so as to discourage theft and vandalism, and so as to discourage childish curiosity which might expose Petitioner to liability. He was reluctant to secure the engine on the premises as a hedge against emergency shutdowns of the plant. Mr. Regan, upon advice of outside engineers, has attempted to correct many of the cited errors and omissions. However, notwithstanding the DER's express disapproval of such a method, Mr. Regan has instructed his plant operators to curtail the input of air from the plant's blower to the sewage at night so as to create a "belching" effect designed to clear out certain wastes and thereby attempt denitrification in the clarifier. DER witnesses did not explain in any detail why Regan's belching procedure was unacceptable except that addition of an expensive denitrification unit was preferable and constituted a "reasonable assurance," whereas Mr. Regan's method had not been demonstrated to be successful in the past. Mr. Regan, who bears the burden of proof in these proceedings, did not demonstrate that his "belching" system was a reasonable assurance of denitrification or offer expert witnesses to support such a theory. This sewage treatment plant is subject to a Notice of Violation which became final on September 21, 1989. 3/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the pending permit application. DONE and ENTERED this 31st day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 31st day of January, 1990.
The Issue The issues are whether Respondent violated Florida Administrative Code Rules 64E-6.022(1)(b)2., 64E-6.022(1)(d), and 64E-6.022(1)(p) by repairing an onsite sewage disposal system without a permit, resulting in missed inspections, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with enforcing the statutory and regulatory provisions pertaining to the practice of septic tank installations and repairs in Florida. See § 381.0065(3), Fla. Stat. (2003). Repair of onsite sewage treatment and disposal systems must be performed under the supervision and control of a registered septic tank contractor. Respondent is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc., having been issued the registration number SR00011389. Respondent has 15 years of experience in the field of septic system construction and repair. The qualifying registered septic tank contractor for Simmons Septic and Tractor Service, Inc., is Joey Wayne Simmons. The qualifying registered septic tank contractor for AA Septic Tank Service, Inc., is Billy Wayne Joyner. However, Mr. Simmons, Mr. Joyner, and Respondent work closely together, sometimes working together on a job and/or acting as the qualifying registered septic tank contractor on each other's behalf. On September 2, 2003, the septic disposal system at the residence of Jack Young was not functioning properly. Mr. Young contracted with one of the above-referenced septic tank services to repair the system. On September 2, 2003, Respondent and another employee of All Florida Septic Tank Service, Inc., along with two employees from AA Septic Tank Service, Inc., went to Mr. Young's residence to repair Mr. Young's onsite sewage disposal system. No one applied for a permit to make any repairs to Mr. Young's system. With Respondent acting as the registered septic tank contractor, the men used a backhoe to dig up the septic tank, which was buried three feet in the ground. Respondent then repaired the pump and ran a new one and one-quarter force main line to the existing header because the old line had been compromised by roots. Respondent also cleaned roots from inside the distribution box. Respondent then sealed the tank and directed the men to cover it up. No one called Petitioner's local office, the Duval County Health Department, to request an inspection of the repair before covering the tank. The work on Mr. Young's septic system involved the replacement of an effluent transmission line. It required a permit because it constituted more than a minor repair to the pump and distribution box. Respondent should not have performed the work without a permit from the Duval County Health Department. Because there was no permit, there was no request for inspection by the Duval County Health Department. When the work was completed, Mr. Young gave Respondent a check in the amount of $1,000, payable to Mr. Simmons. The check reflected payment for repair to the filter bed, otherwise known as the drainfield. Respondent indicated his receipt of the check by signing the AA Septic Tank Service, Inc.'s Daily Truck Log and Maintenance Report. In February 2004, Mr. Young's septic system began to fail once again due to root blockage in the lines. Respondent advised Mr. Young that a permit would be required in order to make any further repairs. Mr. Young refused to pull a permit or to pay for any additional costs. On February 17, 2004, Mr. Young contacted Petitioner to report the failure of his system's drainfield. On February 18, 2004, Petitioner's inspector confirmed that Mr. Young's drainfield had failed and was causing a sanitary nuisance. During the hearing, Respondent admitted that there are no disputed issues of material facts in this case. He stated that he agreed with everything. However, he did not agree that the work he performed for Mr. Young required a permit from and inspections by Petitioner's Duval County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, finding that Respondent violated the standards of practice and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2005. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 West Beaver Street Jacksonville, Florida 32220 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John A. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner, George H. Hopper, submitted an application for a license to operate a Class "C" wastewater treatment plant to the Respondent on or about April 8, 1977. On November 28, 1977, the Respondent issued a letter of intent to deny the license. This letter of intent was subsequently modified by a letter to petitioner from Respondent dated January 4, 1978. The Respondent, in the above-referenced correspondence, based its letters of intent to deny the Petitioner a Class "C" wastewater treatment plant operator's license based upon two primary grounds. Those grounds are as follows: "This Department has concluded that you have not fulfilled the actual experience requirement of section 17-16.03(2)(b), Florida Administrative Code (F.A.C.), as defined by section 17-16.02(8) F.A.C." (See letter dated November 28, 1977.) "In addition to the above referenced deficiency in actual work experience, it has been noted that you have not completed an approved course related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code." (See letter dated January 4, 1978.) Respecting the second allegation, Petitioner presented testimony during the course of the hearing which, in fact, indicates that he did complete an approved coarse related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code. Additionally, Petitioner presented a diploma supporting this contention. This certificate reflects the fact that the Petitioner satisfactorily completed the course on "Operation of Wastewater Treatment Plants" on or about May 2, 1977. Based thereon, and the testimony of Respondent's certification officer, Robert W. Hall, to the effect that the Respondent did comply with the Code requirement which mandates completion of an approved course related to wastewater treatment plant operation, that ground is no longer a basis for the denial of Petitioner's certification. Petitioner testified, and the other documentary evidence introduced during the coarse of the hearing indicates, that Petitioner was employed from January, 1975, through December 25, 1975, as administrator of the Margate Utility Authority. From December 25, 1975, through February 15, 1976, the Petitioner was employed in a position other than as administrator, his resignation being effective on February 15, 1976. Accordingly, the Petitioner was employed at the Authority for a period in excess of one year. What is at issue, is the Respondent's contention that the Petitioner was not actually performing duties tantamount to fulfillment of the actual experience requirement of Section 17-16.03(2)(b), Florida Administrative Cede, inasmuch as his duties as an administrator were more in the nature of being in charge of the facility, with little practical experience as the term "experience" is meant in Chapter 17 of the Florida Administrative Code. Additionally, it was noted that the Petitioner was re-employed by the City of Margate as a supervisor. During the hearing, the Petitioner outlined his duties as an administrator which included being in charge off the overall operation of the wastewater treatment plant. Petitioner testified that when he was first employed at the Margate Utility Authority, the wastewater treatment plants were not operational. He testified that a water-sewer moratorium had been placed by the Board of Health, citing approximately five violations. Petitioner testified that he instituted numerous changes in the operations of the wastewater treatment facilities which included hiring a contractor to supervise deficiencies in the wastewater treatment plant and its injector systems which were over-pressurized. He testified that within approximately two months of his employment with the Authority, he was able to correct approximately 80 percent of the problems and was able to again make the treatment plant operational. Petitioner testified that he normally worked a five day week; however, he was on duty in excess of forty hours weekly for the resolution of all daily operational problems. Evidence introduced during the course of the hearing reveals that the wastewater treatment facility here involved is fully automated and that the operators have very little to do in terms of manual tasks. In this regard, the Petitioner testified that he was on duty at the facility throughout his employment during the period January, 1975, through December, 1975, to operate the wastewater treatment plant. Additionally, the Petitioner testified that his office, as an administrator, was located in close proximity to the wastewater treatment facilities and he was available to in fact operate the wastewater treatment plant, as needed. Finally, Respondent's certification officer, Robert W. Hall, testified that in his opinion, being available to operate as opposed to actual operation is what is required by the actual experience requirements of the Florida Administrative Code. Based thereon, I shall recommend that the Respondent withdraw its notice of intent to deny Petitioner's application for a Class "C" wastewater treatment plant operator's license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That Petitioner's application for a Class "C" wastewater treatment operator's license be GRANTED. RECOMMENDED this 8th day of May, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Russell L. Forkey, Esquire 3081 East Commercial Boulevard Fort Lauderdale, Florida 33308 Randall E. Denker, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Respondent should be required to obtain a current operating permit for his aerobic treatment unit and have a $500.00 fine imposed for violating an agency rule for the reason cited in the Citation for Violation issued by Petitioner on December 1, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this dispute, Petitioner, Department of Health (Department), has alleged that Respondent, Dr. Anthony Massaro, a retired public health physician, failed to obtain an annual operating permit for an aerobic treatment unit (ATU) located at his residence at 3402 North Oceanside Boulevard, Flagler Beach, Florida. The Flagler County Health Department (Health Department) is charged with the responsibility of issuing such permits. That department is under the direction and control of Petitioner. While Respondent readily admits that he failed to obtain a permit, he contends that he was misled by the Health Department when he first installed an ATU at his residence; the Health Department is not enforcing the law regarding ATUs and thus another system would be more appropriate; and the law, as he interprets it, allows him to install another type of on-site sewage disposal unit on his property. Respondent purchased his property in Flagler County in 1997. The property is located in Ocean View Estates Subdivision (subdivision), which has an Urban Single-Family Residential District (R-1b) zoning classification under the Flagler County Land Development Code (Code). Section 3.03.05A of the Code requires that owners within the R-1b classification use "public or community water and sewer facilities," but makes an exception for "[s]mall R-1b subdivisions, fifty (50) lots or less, utilizing a public community water system," in which case residents "may utilize Class I aerobic onsite sewage disposal systems." Further, "[t]he use of individual onsite sewage disposal systems must be consistent with adopted county policies and standards." Because the subdivision has 50 lots or less, and public or private sewer facilities were not available in the area, the subdivision's Plat Agreement recorded in 1995 provided that "[i]ndividual aerobic onsite sewage disposal systems are to be permitted and constructed as each lot is developed." Another type of onsite sewage disposal system is the anerobic system, which has a septic tank and larger drainfield, is far less expensive, but does not conform with "county policies and standards" in this locale. Thus, this type of system requires a variance from the zoning regulations before one can be installed in the subdivision. Even so, Respondent says "all" of his neighbors have installed such a system. Because of the Plat Agreement, the zoning restriction, the difficulty in obtaining a variance, and the lack of a sewer line, Respondent had no choice except to use an ATU system for his residence. This meant that he had to apply for a permit from the Health Department. Once a permit is obtained and an ATU installed, the owner must renew his operating permit annually at a cost of $150.00, and he must enter into a maintenance agreement with a licensed contractor. The $150.00 fee is used to defray the costs incurred by the Health Department in making quarterly inspections and performing annual sampling and laboratory analysis of effluent. The record does not reflect precisely when a sewer line became operational across the street from Respondent's property, but the sewer project was accepted "for service" in April 1998, or before Respondent's ATU was installed in August 1998. Had Respondent known this, he would have obviously chosen that option rather than an ATU. The evidence reflects that in November 1997 Respondent made application for an ATU with the Health Department, a permit was issued in December 1997, and the system was installed and approved in August and September 1998, respectively. In early April 1998, the Health Department was advised by the private utility company that it would accept new sewer connections in a service area that included Respondent's home. However, Health Department representatives made no mention of this to Respondent since they were under the impression that he desired to use the ATU option, they do not normally "counsel" applicants on onsite sewage disposal system options, and Respondent had made no inquiry. Disclosure of this fact would have saved Respondent considerable money (and grief) in the long run; unfortunately, however, while good public relations would dictate otherwise, the Health Department had no legal obligation to do anything other than process the pending application. Likewise, it has no obligation in law to now pay the costs for Respondent to hook up to the line because of its non-disclosure. Respondent has now invested more than $5,000.00 in his ATU. This type of system is operated by a compressor in Respondent's garage, which must be run 24 hours per day, and is very noisy. Because of this, Respondent understandably wishes to change to an anerobic system, which has a traditional septic tank, larger drainfield, no unsightly "mound" in the yard, no annual permits, and is far cheaper than an ATU. Also, it does not require a noisy motor to sustain operations. However, this type of system is prohibited by the Code except where a variance from Flagler County (County) has been obtained. It appears to be unlikely that Respondent can obtain a variance from the County. Because Respondent's property is so low in relation to the sewer line, to achieve the proper gravity, he must install a lift station and pay a connection fee, both totaling $3,540.00, before hooking up to the sewer system. Given these costs, and the considerable investment he already has in an ATU, Respondent does not consider this to be a viable alternative. Respondent pointed out that, despite the requirement that they do so, many ATU owners in the County are not running their systems 24-hours per day because of the noise from the compressor. He also pointed out that the Health Department has consistently found numerous violations of such systems during its inspections. He further asserted that while the $150.00 annual fee is to defray certain sampling and laboratory analysis costs associated with inspecting ATUs, the Health Department has done neither on his ATU. Finally, Respondent pointed out that prior to 1999 the regulations were enforced by sampling the compliance of a very small percentage of total ATU systems (ten percent), rather than all systems, in the County. Given these considerations, Respondent concludes that ATUs are the least effective way to treat sewage, and that existing laws and regulations have not been enforced. Assuming these allegations to be true, and they were not seriously disputed, they are legitimate concerns. However, until the law is changed, they do not constitute a lawful basis for allowing Respondent to switch to an anerobic system. Respondent further contended that under his interpretation of the general law, which was not fully understood by the undersigned, he is not required to use an ATU. But local zoning regulations clearly require that he do so, and until the state or local regulations are changed or waived, he cannot use an anerobic system. Finally, Respondent has cooperated with the Department throughout this process. With his lengthy public health background, Respondent initiated this action with good intentions, seeking to point out the flaws in the ATU systems, and to remedy a problem which none of his neighbors apparently have. Given these considerations, a civil penalty should not be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order sustaining the charge in the Citation for Violation and requiring that Respondent obtain an annual permit for his ATU. A civil penalty is not warranted. DONE AND ENTERED this 20th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Dr. Anthony Massaro 3402 North Oceanside Boulevard Flagler Beach, Florida 32136 Amy M. Jones, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
Findings Of Fact The Respondents, Frank L. Reppa and Denise J. Reppa, own and reside in their dwelling located at 3863 Plumosa Drive, St. James, Florida. The property is a narrow canal front lot. All lots in the area are small and narrow and the dwellings thereon, mostly mobile homes, are placed closely together. On January 11, 1988, as the result of a nuisance complaint by the Reppa's next door neighbor, Stephen E. Havig, an Environmental Specialist with the Lee County Health Department, a part of the State of Florida DHRS, inspected the property in question and observed that effluent from the Respondents' drain field, a malodorous liquid, had run from Respondent's property down onto the driveway of their neighbors. On January 13, 1988, he returned to the property and spoke with Mrs. Reppa who admitted to living on the property. He again observed that the drain field in the Reppas' septic system was heavily saturated and had failed. Effluent was coming to the surface due to the high water table resulting from heavy recent rains and the failure of the system, and there was still a sewage odor to the effluent. The effluent showed in stains on the neighbor's drive. Mr. Havig told Mrs. Reppa that the problem had to be corrected as it was a violation of the law to allow it to remain. In response, Mrs. Reppa indicated they had no money to effect the repairs and because of that, Mr. Havig, who could have cited them immediately, indicated he would return to his office to see if they could be given some additional time to have the work done. After checking with his supervisor, Mr. Havig, on the same day issued an "Official Notification of Insanitary Nuisance" and a "Notice of Intended Action", both of which were sent by Certified Mail and receipted for by Mrs. Reppa on January 19, 1988. The Notice gave the Reppas until January 28, 1988 to correct the problem. On January 14, 1988, Mr. Havig again talked with Mrs. Reppa, telling her what he was sending and advising her how she could get the problem fixed. When he again went out to the property on January 28, 1988, he noted that the property had dried out due to a lack of rain. However, he could see no evidence that any repairs had been effected. He returned to the property on February 1, 1988 after a rain and observed that the problems had reoccurred. Mr. Havig again spoke with Mrs. Reppa on February 8, 1988, at which time she advised him the problem was to be repaired, but they were without funds to pay for it. At that time, Mr. Havig gave the Reppas three weeks to have the work completed with a contractor to be retained within one week. When he spoke with Mrs. Reppa on February 16, 1988, she stated she was still having trouble getting a contractor. She had contacted one contractor who looked at the system on February 15, 1988 and who proposed to remove the washing machine from the drain system. When Mr. Havig talked with Mrs. Reppa on February 19, 1988, she indicated she would have to discuss the matter with her husband. Mr. Havig stated at that time that the Department would have to proceed with enforcement action if work was not started on the correction by February 22, 1988. No corrective action was taken by the Reppas and the Administrative Complaint was filed as a result. DHRS considers it important to properly dispose of effluent because, since it contains human waste, it carries bacteria, viruses and a danger of parasites. Agency policy requires that the septic system be continually monitored and that the tank be pumped and the drain field be repaired when necessary. The Department has no funds available to assist those who cannot afford to make repairs. In order to be properly processed, effluent drainage from septic tanks needs a minimum of two feet of soil between the discharge outlet of the tank and the water table. The soil acts as a filter to remove harmful organisms and contaminants from the effluent before it reaches the water table. A high water table, due to heavy rains or other causes, prevents this filtration and causes the effluent to come to the surface. The situation is correctable. Two methods of correction are: 1) elevate the system above the water table, or 2) remove the saturated soil and replace it with a good grade of sand. In October, 1985, another complaint against the Reppas, relating to the same situation, was filed with DHRS. At that time, the Reppas paid $650.00 to have the system repaired by an individual who replaced the drain field, drawing it away from adjoining property and toward the road. Though the contractor assured them this would fix the problem, wash water would continue to come to the surface. As a result, Mrs. Reppa has refrained from washing clothes at her home and takes them to the laundry in town. Because of the actions they have taken, such as having the drain field expanded and moved, the pumping out of the septic tank in January, 1988, and the cessation of washing clothes at home, Mr. and Mrs. Reppa are convinced the system is not overflowing and that the water on the neighbor's property is the accumulation of surface water drainage when it rains. The Reppa property is higher than the neighbor's property and Mrs. Reppa believes that rain water drains down there. The new part of the drain field works and the water in question, she feels, cannot be effluent. The evidence of record, however, indicates to the contrary and that it is waste effluent. Inquiry by the Reppas indicates that it would take $750.00 more to fix the system and the Reppas do not have that money. They are still paying back the money they borrowed from Mrs. Reppa's parents to make the first repairs. Mr. Reppa is a commercial fisherman whose income has been substantially reduced due to the restrictions placed on the taking of redfish. Many neighbors in the area, according to the Reppas, discharge sewage directly into the abutting canal and allow wash water to run out onto the ground. The Reppas cannot comprehend why these individuals, mostly three month winter visitors, are not cited while they, full time residents, are.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that an administrative fine of $50.00 per day be assessed against the Reppas for the violation established, said fine to be effective upon entry of a Final Order herein, with provision that the fine be remitted upon satisfactory proof that the violation has been corrected. Recommended in Tallahassee, Florida this 24th day of August, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Eugenie G. Rehak, Esquire Staff Attorney Department of Health and Rehabilitative Services Post Office Box 06085 Ft. Myers, Florida 33906 Frank Lee Reppa, pro se Denise J. Reppa, pro se 3863 Plumosa Drive St. James, Florida 33986 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
