Findings Of Fact The property upon which Petitioner seeks a variance from the normal requirements for attaining a permit to install an on-site sewage disposal system is found in Leon County, Florida. Specifically, it is located at Lot 4, Block A, Killearn Lakes Unit I. The relative position of this lot in the subdivision is depicted within Petitioner's Exhibit 1 and Respondent's Exhibit 2 admitted into evidence. Respondent's Exhibits 3 through 5 are photographs of the site. Petitioner intends to construct a 1,200 square foot residence. As the photographs depict, some preparation has commenced to the extent of lot clearing and other site work where the home would be constructed. Killearn Lakes Unit I is a pre-1972 subdivision. When the development commenced, it was anticipated that a community sewer system would be utilized, as contemplated by the plans submitted in April, 1971. Subsequently, some lots within the Killearn Lakes Unit I were allowed to be developed with the use of on-site sewage disposal systems, namely septic tanks. There are 150 lots in that category. In 1979, with the advent of certain rules under Chapter 10D-6, Florida Administrative Code, the development was allowed to proceed on the basis of four septic tanks per acre. Over time, Killearn Lakes Unit I experienced a history of failures with on-site sewage disposal systems. The failures were promoted by problems with the "sheet flow" drainage system and its patterns of dispersion of storm water runoff, problems of soil permeability and abnormally high wet season water tables, referred to as perched water tables. This resulted in sewage backing up into homes and flowing out onto the ground in the yards of the residences, into streets and onto adjacent neighbors' lots. The problems experienced were widespread within the Killearn Lakes Unit I. This seepage of raw sewage presented a health hazard, as it would on any occasion. Among the residences confronted with this dilemma was Lot 5, Block X, adjacent to the subject lot. Persons residing in that home had to undertake alternative means of on-site sewage disposal to have that system function properly. This included relocation of the apparatus, mounding, use of an aerobic system, and use of pumps to insure that the waste being disposed did not back up into the conveniences within the home. Witnesses who appeared at the hearing described the series of corrections in some detail. Those witnesses included a former owner of that residence and others who had a technical understanding of the problems in that system. The problems in Killearn Lakes Unit I related to on-site sewage disposal systems became so extreme that the Leon County Commission declared a moratorium on the installation of on-site septic tanks in that development. This occurred in 1987. In order to better understand the problems in the Killearn Lakes subdivision, to include Killearn Lakes Unit I, a study was commissioned. That report is referred to as Killearn Lake Waste Water Disposal Study of June, 1987. A copy of the report is found as Respondent's Exhibit 6 admitted into evidence. It was prepared for the Leon County Board of County Commissioners and prepared by the Leon County Public Health Unit with the assistance of the Leon County Department of Public Works, Leon County Building Department, Ochlockonee River Soil and Water Conservation District, Northwest Florida Water Management District, Tallahassee-Leon County Planning Department, Florida Department of Health and Rehabilitative Services, and Florida Department of Environmental Regulation. Some of the highlights of that report concerned the observation that the septic tank systems do not work adequately and that the more systems that are placed the greater the problems. It noted that the nature of the drainage system in this area is a contributing factor to the failures. The soil's poor permeability, relating to the Dothan series of soils in the area which have slow permeability, contributed to the problem. Perched water tables were found above the expected levels for the wet season water tables. They also presented a problem, as did excessive slopes in some areas. In particular, it was noted that 80% of the lots sampled in Killearn Lakes Unit I had severe limitations on the use of on-site sewage disposal systems. Ninety-three per cent of the lots sampled in Block X received excess runoff from other lots and roads at higher elevations. It was noted that French or curtain drains alone would not significantly reduce perched water table complications because of the low permeability of the soils. It was reported that the overall housing density of Killearn Lakes is not particularly high, but the individual lots are small, approximately 1/4 acre in size. This, taken together with the fact that the "sheet flow" concept of storm water management contemplates that the runoff will cascade across the terrain conforming to its contours, means that some small lots will be inundated. This uncontrolled runoff contributes to septic tank problems in that the tanks fail when the soils around them become saturated. The report notes that if there was a different designed drainage system, the impact on septic tanks would be less. The report notes that if something is not done to modify storm water runoff, drainage problems will persist. Consequently, septic tank failures will continue to occur. Concerning the water tables, the soil testing, which was done in Killearn Lakes Unit I, in which the predominant soil is Dothan type, demonstrated that the borings which located mottling of the soils at the expected level of the wet season water table were inaccurate. These indicators did not correspond to reality in that the true water tables were found 12-20 inches above the expected level of the average high water, as seen in the mottling. This phenomenon was revealed in 42% of the lots evaluated which had Dothan soils. The report recommended, among other measures, that no new sewage disposal system permits be issued in Killearn Lakes Unit I until a storm water system had been constructed and demonstration made that the system would collect storm water and thereby lower the perched water table on specific lots under review. The ultimate response to the question of permits for on-site sewage disposal systems in Killearn Lakes Unit I was spoken to in a Resolution of July 14, 1987 entered by the Leon County Board of County Commissioners. A copy of the resolution may be found as Respondent's Exhibit 1 admitted into evidence. It was resolved that the permits for on-site septic disposal systems be reviewed by the Leon County Public Health Unit on a case-by-case basis in accordance with criteria announced at Chapter 10D-6, Florida Administrative Code. This effectively lifted the moratorium. The subject request for installation of an on-site sewage disposal system was reviewed in keeping with the policy decision set forth in the resolution. Respondent's Exhibit 6 admitted into evidence includes a copy of a survey made by the Homeowners' Association for Killearn Lakes, also admitted as Petitioner's Exhibit 1. As part of the study commissioned by the Leon County Board of County Commissioners, it has some relevance in portraying the dimensions of the problem. Those dimensions are better understood by resort to the color scheme which is found in Petitioner's Exhibit 1. It depicts the problem lots in red color, those lots without problems in green color, and the lots upon which no report was made in orange color, as well as vacant lots, to include the subject lot, which have no color scheme. This latter category indicates no participation in the survey. The door-to-door personal survey conducted by Rod Moeller and testified about at hearing does not diminish the impression of the seriousness of the problem with on-site sewage disposal system failures in Killearn Lakes Unit I, which the 1987 study by the Leon County Board of County Commissioners identified. This survey by Mr. Moeller was in a limited area, more specifically related to the portion of Killearn Lakes Unit I nearby the subject lot. The findings of the 1987 study commissioned by the Leon County Board of County Commissioners are accepted as accurate. Eanix Poole, Administrator of Environmental Health for the State Health Office testified at the hearing. He pointed out that the failure rate in the subdivision under question for on-site sewage disposal systems is 25%, as contrasted with the statewide rate of less than 1/2%. He identified the fact that those failures relate to backups within the home and seepage onto the ground. He verified that these events constitute health problems, especially given the number of failures. He sees the lot in question here as being particularly vulnerable to problems given the drainage patterns and its location at the bottom of two hills. The lot in question receives runoff from the two adjacent lots as well. Mr. Poole sees the subject lot as more vulnerable in the wet season and does not believe that any alternatives that are available for placement of the system on the site would sufficiently alleviate the potential failure of the system to make it a successful arrangement. What he sees is a lot in the path of a natural drainage of tremendous quantities of storm water runoff, coupled with poor soil conditions related to soil absorption or permeability in an area where on-site sewage disposal systems have failed. He remarks that dry soils are needed to treat the sewage and that treatment cannot take place in a saturated soil environment. The effects of seepage of the sewage, according to Mr. Poole, is one which can degrade ground water. Mr. Poole is also concerned that the installation of the proposed on-site sewage disposal system above ground will have an adverse impact on the adjacent lots, one of which has already experienced problems. That refers to Lot 5, Block X. These observations by Mr. Poole, as reported, are accepted. Raymond Collins, an environmental administrator with the Respondent's health program office, also testified at the hearing. He is intimately aware of the problems in Killearn Lakes Unit I. Those problems began to occur in the winter of 1986 and continued into 1987. This related to problems with toilets and the seepage of effluent which was running onto people's property and into the streets. He notes a similar failure rate in Killearn Lakes Unit I to that observed by Mr. Peel when contrasted with the experience statewide. In the aforementioned period he received calls and reports from homeowners concerning system failures. In effect what was happening was that the on-site drain fields in Killearn Lakes Unit I would not accept more input and the raw sewage would bubble up and leach out onto the ground. He personally observed a dozen sites which had failures. He was responsible for the coordination of the July, 1987 study which has been mentioned. As a result of that study one of the steps which he took was to advise that staff investigating the permit application requests should elevate the estimation of the wet season water table by 12-20 inches. Mr. Collins agrees with the recommendation of the individual who was assigned to evaluate the application for permission to install an on-site sewage disposal system at the subject lot, who recommended that the application be turned down. Mr. Collins' description of the experience at Lot 5, Block X, related to his knowledge that the initial system had been replaced with an aerobic system, which also proved to be an inadequate on-site sewage disposal system. In 1988, he went to the home of the person living on that lot, and the aerobic system was not working. There was a light rain on that day, and there were problems in the drain-field area. When a soil boring was made to a depth of two feet effluent poured out. The perched water table had risen to a point in the bottom of the drain field, such that when a hole was punched, it provided a conduit for pressure to be relieved. The drain field that was experiencing this problem was not the original drain field. It was a replacement drain field. The drain field being observed was in the front of the lot, right below the ground. The suggestion to alleviate the problem was to move the drain field to the side of the yard and elevate it and install a series of small-diameter pipes. A pump was also needed to move effluent into the drain field, thus, avoiding a backup of the system into the home. He is unaware of any recent failures in the system at Lot 5, Block X. Mr. Collins emphasized the need for soil to remain unsaturated to provide effective treatment and that 24 inches of unsaturated soil is the minimum amount which would be acceptable. Mr. Collins commented about the nature of the subject lot and the fact that other lots drain through it. Mr. Collins commented that the design of the proposed septic tank does not assure success in the treatment of the waste disposed. Unlike the expert of the Petitioner, Mr. Peel, the problem is not that solids are blocking up the system. It is the failure of the soils to accept the volume of water which is being released from the chambers of the septic tank into the drain field. Mr. Collins does not believe that the use of water-saving appliances in addition to the limited size of the home to be built on the subject lot, installation of an aerobic system, and installation of an above-ground system, as proposed, would be successful and not pose a health risk from system failure. The problems would continue to be drainage patterns and poor soils. His remarks, as reported, are accepted as accurate. Terese A. Hegg, Environmental Specialist I with the Respondent's Leon County Public Health Unit, reviewed the application for variance to install the on-site sewage disposal system. She was familiar with the history of problems in Killearn Lakes Unit I before undertaking this assignment and has made more than 50 evaluations in that development. She observed that the "sheet flow" drainage of storm water does not provide reasonable management because it does not drain normally. She is aware that the wet season water table is as much as 20 inches above the normal indicators, as seen through mottling. Her analysis of this site is under the auspices of those requirements announced in Chapter 10D-6.044, Florida Administrative Code, having in mind that the subdivision plat was made before 1972. This includes an examination of the soil characteristics, history of flooding, and water table evaluations. At this site, she noted the poor permeability of the soil. She did soil borings to confirm the nature of the soils and to identify the water table. She took into account the abnormal perched water table that is above what the mottling would indicate as being the wet season water table. Ms. Hegg is concerned that the system on the adjacent lot, which is now functioning adequately, would not function adequately if the subject system was installed. She noted that the drainage pattern from the neighboring lots was toward the subject lot and that water would come from the left and the right lots adjacent to this lot, corresponding to Lots 5 and 3 as you face them. The drainage pattern would then proceed beyond Lot 4 and into a green area. In making her assessment of this application, she was aware of the problems with the on-site sewage disposal system at Lot 5, Block X. The appearance of saturated soil in the entire length of the boring and standing water on the lot is an indication of problems with percolation. The effluent will flow out and onto the ground if these soils are saturated. From her observations and based upon the history of Killearn Lakes Unit I and its failures regarding on-site sewage disposal systems, Ms. Hegg does not believe that the proposed system would successfully address sewage treatment and would promote a risk of on-site sewage disposal system failures for adjacent lots. Ms. Hegg acknowledged that the storm water flows could be diverted; however, she points out that the subsurface water cannot be diverted. Her account of this site and the acceptability of the request for variance as reported is accepted as accurate. Given the soil conditions and the wet season water table expected at this site, the proposed system will not present an adequate unsaturated soil depth for treatment of the sewage and untreated sewage may be expected to seep or leach out onto the ground. On May 22, 1990, Mr. Collins had written to Dr. Richard G. Hunter, Assistant Health Officer for Environmental Health, recommending the denial of the variance request. A copy of that correspondence may be found as Respondent's Exhibit 7 admitted into evidence. It details reasons which are similar to those described in this Recommended Order. As a consequence, even though the Advisory Review Variance Board had looked with favor upon the request for variance, that variance was denied by action of Dr. Hunter on May 30, 1990, which relied upon the insights of Mr. Collins, as described in his May 22, 1990 correspondence. A copy of the letter of denial may be found as Respondent's Exhibit 8 admitted into evidence. The purpose of this hearing was not to examine whether Respondent had abused its discretion in denying the variance. The reason for the hearing was to allow the parties to present their points in an adversarial setting, which allowed each party to explain its viewpoint anew. That was done, and the analysis provided by this recommended order ensued. In deciding the facts, these representations have been made with due regard to the remarks of James Earl Peel, an expert in the design of on-site sewage disposal systems, who had on his staff, Gary L. Wood, P.E. His methods in analyzing the issue of the suitability of the installation of an on-site sewage disposal system at the subject site do not coincide with the methods contemplated in Chapter 10D-6, Florida Administrative Code, which controls. This is especially significant in his approaches to soil characteristics and location of the wet season water table. As noted above, his belief that the problem is one of distribution of solids from the septic tank into the drain field overlooks the more significant problem of water volume discharge from the septic tank into the drain field. In fact, Mr. Peel indicated that he is unfamiliar with the requirements of septic tank design, as described in Chapter 10D-6, Florida Administrative Code. On balance, Mr. Peel's reports, in Petitioner's Exhibits 3 and 4 admitted into evidence and his in-hearing testimony, do not persuade that the system he recommends can be successfully operated at the subject site. His presentation and the overall presentation of Petitioner do not create a reasonable expectation that the system will not fail and create health hazards for the residents of Lot 4, Block X, and others in the vicinity. It is recognized that this lot owner faces a hardship that was not caused by Petitioner. It is also recognized that, pursuant to the stipulation of the parties, there is no intention by any entity to install a community system of sewage disposal. It is further recognized that there are no alternative methods that would seem to be successful in addressing the problem of the treatment of the sewage, as related in the previous findings. On the other hand, the discharge that could be expected from this subject system would bring about a condition in which the effluent presented a health risk to this applicant and other members of the public and has the potential to significantly degrade the ground or surface waters, although this latter circumstance has not been documented on other occasions and was not found to exist in the July, 1987 study commissioned by the Leon County Board of County Commissioners. In that report, it was specifically found that the surface water had not been compromised by the on-site sewage disposal system failures described in the overall report.
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 Petitioner's request for variance from permit requirements and permission to install an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I. DONE AND ENTERED this 20th day of November, 1990, in Tallahassee, Leon County, 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 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4456 The following discussion is given concerning the proposed facts of the parties: In the discussion of the testimony of Mr. Poole, the relevant portions of that testimony are reflected in the facts found in this recommended order. Under the heading of testimony said to be attributable to Ms. Hegg, at paragraph 1, while it is recognized that a system might be installed that might not call for diversion of storm water onto adjacent neighbors' properties, the problem on site would remain and would be sufficient reason to reject the application. Moreover, it is not clear that it is the intention to install a system that would divert storm water from adjacent properties. Paragraph 2 under this heading is rejected in its notion that storm water would not have an influence on the proposed system. Paragraph 3 is rejected. Paragraphs 4 and 5 do not lead to the conclusion that sufficient unsaturated soils would be available for the treatment of disposed sewage during the wet season, nor does the representation at paragraph 6. Paragraph 7 under that heading is contrary to facts found. The paragraphs under the reference to James Earl Peel, in those five paragraphs, while accurately portraying the opinion of Mr. Peel and Mr. Wood, does not lead to the conclusion that the application should be granted. Under the heading "Rod Moeller" in the first paragraph, the information provided at hearing and under weather reports does not satisfactorily establish what the rainfall circumstance may have been at the subject property 72 hours before January 24, 1990, as referred to in paragraph 1, nor can it be said that the rain experienced in the overall area contemplated by the attached weather report to the argument by Petitioner was a 25-year storm event. The comment at paragraph 3 under this category that the on-site sewage disposal systems in neighboring lots are functioning fine since modifications in the advent of hurricane "Kate" is contrary to facts found. Under the heading "Ray Collins" in paragraph 1, this proposed fact has no relevance in that the question is the appropriate function within Killearn Lakes Unit I, not at an undisclosed site away from that area. Respondent's Facts These facts are subordinate to facts found. Copies furnished to: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rod Moeller, Authorized Representative Mallard Cove Construction 14261 Buckhorn Road Tallahassee, FL 32312 John L. Pearce, Esquire HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A Tallahassee, FL 32399-2949
The Issue The issue in this case is whether the Variance Review and Advisory Committee and the Department of Health had just cause to disapprove Petitioner's application for a variance.
Findings Of Fact The Department of Health (DOH) is the agency responsible for oversight of the on-site sewage treatment and disposal systems program and the Variance Review and Advisory Committee which meets monthly to recommend agency action on variance requests pursuant to Chapter 381, Florida Statutes. In August 1999, Petitioner applied to the DOH for a second variance to extend a variance previously granted in June 1999, to use an existing septic system for six months. Petitioner's application for the second variance stated that county sewer would be available in 2001, and she would be required to hook into the sewer. Therefore, Petitioner wanted an extension to continue using the existing undersized septic system until the sewer was available. She also attached water usage records for June 1998 through July 1999, for her property. Petitioner owns the commercial property served by the septic system and located on Howland Boulevard in Deltona, Florida. The property consists of a strip mall with five offices and one restaurant. The property originally contained six office spaces in 1990, when Petitioner applied for a permit to install a septic system to handle the building's sewage flow. See Petitioner's Exhibit No. 1. Petitioner was granted a construction permit for the septic system on August 14, 1990, which contained the statement: "no food service operations permitted in this building." Prior to May 1999, Petitioner leased an office in her commercial property to Milagros Martinez to operate a sandwich shop. Ms. Martinez applied to DOH for approval to use Petitioner's existing septic system to handle her sandwich shop sewage, and was denied because of increased water use and septic system demands of a restaurant. Petitioner's septic system contains a 750-gallon tank with 162 square feet of drainfield. In order to handle the additional sewage generated by the sandwich shop, the Florida Administrative Code requires a 1350-gallon tank and a drainfield of 787 square feet. There is enough room on Petitioner's property to install a separate septic system to handle the sewage generated from the sandwich shop. Petitioner applied to DOH for her first variance in May 1999, requesting to utilize the septic system to handle the waste from the sandwich shop. Petitioner appeared before the DOH Variance Review and Advisory Committee in June 1999. The committee recommended, and DOH concurred, to approve the first variance with four provisos. See DOH Exhibit No. 2. The four provisos were: The applicant shall obtain and maintain an annual onsite sewage treatment and disposal system operating permit in accordance with subsection 64E-6.003(5), F.A.C. The owner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the onsite sewage treatment and disposal system at least once per month or more frequently as necessary. This variance allows operation of the sandwich shop for no more than six months. During that six months, the applicant shall take all necessary steps to increase the capacity of the system to accommodate the additional 230-gallon sewage flow from the sandwich shop. At the end of the six months, the system shall be in compliance or the sandwich shop shall be closed and remain closed until compliance is achieved. The four provisos were additionally explained to Petitioner in a letter dated July 14, 1999, from Sharon Heber, Director of the DOH Environmental Health Division. See DOH Exhibit No. 1. Petitioner accepted the provisions of the first variance on July 20, 1999. See DOH Exhibit No. 4. Petitioner does not have a current annual on-site sewage treatment and disposal system operating permit as required by the first proviso. Petitioner did not contract with a licensed septic tank contractor to inspect and service her system at least once per month as required in the second proviso. Petitioner called a contractor to inspect her system four times in the six-month period since the first variance was granted. Within six months, Petitioner did not take the necessary steps to increase the capacity of her septic system to handle the additional flow as required by the third proviso of the first variance. The system is not in compliance and the sandwich shop is not closed as stated in the fourth proviso. In August 1999, Petitioner filed for a second variance requesting that the first variance be extended until year 2001. That is the date the county plans to install a sewer line on Howland Boulevard in Deltona, which will serve her commercial property. She submitted a letter from the Volusia County Public Works Service Center stating that the "sewer service is planned to be available sometime in the year 2001." See Petitioner's Exhibit No. 4. The Variance Review and Advisory Committee considered Petitioner's request at their September meeting. The variance committee unanimously denied Petitioner's request for a second variance. The Petitioner's system was not designed to handle an increased amount of sewage flow, and that it would eventually collapse or fail. The committee's approval of the first variance was to allow Petitioner adequate time to install the necessary septic system for the restaurant, and not put Petitioner in the position of telling her tenant she could not open her restaurant. See DOH Exhibit No. 5. When Petitioner's existing system fails, sewage will pond on the ground. The ponding fluid will consist of raw sewage. The leaking/ponding sewage may seep into the groundwater and then into drinking water aquifers. In the right conditions, this pollution can cause the spread of waterborne diseases such as typhoid and cholera, or viral infections, such as hepatitis A or polio.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order affirming the decision of the Variance Review and Advisory Committee and the Department of Health to disapprove Petitioner's second variance application. DONE AND ENTERED this 17th day of April, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2000. COPIES FURNISHED: Connie Biancardi 2820 Howland Boulevard Deltona, Florida 32725-1606 Charlene J. Petersen, Esquire Department of Health Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns a parcel of land in Palm Beach, County on which is housed Petitioner's paving and landscapping business and which is zoned for industrial use. Petitioner intends to install a manufactured building for use as an office. To provide sewage treatment for the bathroom of the office, Petitioner had a septic tank designed and applied for a septic tank permit which was denied as was its variance request. As a result of a complaint, Petitioner was inspected in August, 1988, by the Palm Beach County Department of Environmental Resources Management and by the Florida Department of Environmental Regulation. Both inspections yielded citiations for soil contamination by oil and other hazardous waste. Petitioner represented that most of the infractions had been rectified by the date of the hearing in this matter and pledged full cooperation with the County and State rules. To oversee the operation of the business and assure that no further problems arose, Petitioner decided to establish its office on site. The closest sewage treatment plant is at full capacity and does not intend to provide service to the parcel in the near future. The adjoining properties are serviced by septic tanks. As such, the proof did not demonstrate that alternative methods of waste disposal were available to the site However, as part of its business operation, Petitioner does minor repair of its equipment on site and may include oil changes and other such services. Although Petitioner does not intend to pollute the groundwater and intends to use the proposed septic tank for office use only, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of its equipment could result in the disposition of prohibited hazardous waste into the groundwater. Further, the proof failed to demonstrate that the septic tank would be protected from use by those who handled the hazardous waste. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner and the proof failed to demonstrate reasonable alternatives of waste disposal, the potential for an adverse affect of the operation to the groundwater is great. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions or whether the property was platted prior to 1972. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Hattie Parker 160 Toneypenna Drive Jupiter, Florida 33468 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be determined by this Order is whether the Request for Administrative Hearing filed by Petitioner with the Department of Environmental Protection (“DEP”) on February 15, 2013, was timely1/ and, if not, whether the application of the doctrine of equitable tolling would serve to relieve Petitioner of the consequences of having failed to file a petition for hearing within the time allotted by applicable notice provisions.
Findings Of Fact The Parties Petitioner, SRQUS, LLC, is an active Florida, limited- liability corporation, and is the owner of submerged lands and adjacent upland property contiguous to Sarasota Bay. Petitioner is a closely held entity, the only members being Achim and Erika Ginsberg-Klemmt. Respondent, Department of Environmental Protection, is an agency of the State of Florida having jurisdiction for permitting Municipal Separate Storm Sewer Systems (MS4), including duties as a federally-approved state program for the implementation of the Federal National Pollutant Discharge Elimination System (NPDES) Program, pursuant to authority conferred under section 403.0885, Florida Statutes. Respondents, Sarasota County, City of Sarasota, City of Venice, Town of Longboat Key, and Department of Transportation (“DOT”) (collectively the “Applicants”) are responsible for certain existing stormwater point-source discharges to waters of the state from those portions of MS4 facilities owned or operated by one or more of the individual Applicants. The DEP issued a notice of proposed agency action to issue a renewal of an existing MS4 Permit to the Applicants. On January 30, 2013, Sarasota County arranged for the notice to be published in the Sarasota Herald-Tribune, which is a newspaper of general circulation in Sarasota County. The notice provided as follows: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF INTENT TO ISSUE PERMIT AND REQUEST FOR ADMINISTRATIVE HEARING The Department of Environmental Protection gives notice of its intent to issue a permit to Sarasota County, 1660 Ringling Boulevard, Sarasota, Florida 34236 within its jurisdiction and including the following co- permittees: Florida Department of Transportation District One, Town of Longboat Key, City of North Port, City of Sarasota, and City of Venice, for renewal of a Municipal Separate Storm Sewer System [MS4] permit. Any person whose substantial interests are affected by the proposed permitting decision of the Department may petition for an administrative hearing in accordance with Sections 120.569 and 120.57 of the Florida Statutes (F.S.). The petition must contain the information set forth below and must be filed (received) in the Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. Petitions must be filed within fourteen days of publication of this public notice or within fourteen days of receipt of the notice of intent, whichever occurs first. A petitioner must mail a copy of the petition to the applicant at the address indicated above, at the time of filing. The failure of any person to file a petition [or a request for mediation, as discussed below] within the appropriate time period shall constitute a waiver of that person?s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-5.207 of the Florida Administrative Code. A petition must contain the following information: The name, address and telephone number of each petitioner, the Department Permit Number and the county in which the MS4 is located; A statement of how and when each petitioner received notice of the Department?s action; A statement of how each petitioner?s substantial interests are affected by the Department?s action; A statement of the material facts disputed by the petitioner, if any; A statement of facts that the petitioner contends warrant reversal or modification of the Department?s action; A statement of which rules or statutes the petitioner contends require reversal or modification of the Department?s action; and A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the final action of the Department may be different from the position taken by it in the notice of intent. Persons whose substantial interests will be affected by any such final decision of the Department on the permit revision have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above. Mediation under Section 120.573, F.S. is not available for this proceeding. The permit application file and supporting data are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, NPDES Stormwater Section, 2600 Blair Stone Rd. Room 560, Tallahassee, Florida 32399-2400, phone number (850) 245-8430. Date of pub. January 30, 2013. Because a portion of the Town of Longboat Key extends into Manatee County, the Town of Longboat Key arranged for the notice to be published in the Bradenton Herald, which is a newspaper of general circulation in Manatee County. The notice was published on February 4, 2013. The substance of the notice, except for the date of publication, was identical to that published in the Sarasota Herald-Tribune. Neither Petitioner, nor its representatives, saw either of the published notices prior to the filing of the Petition. On or about February 8, 2012, as a result of the filing of a pre-hearing stipulation in related litigation involving an Environmental Resource Permit (“ERP”) issued by the Southwest Florida Water Management District (“SWFWMD”), Petitioner became aware of the existence of the MS4 Permit. Erika Ginsberg-Klemmt obtained a copy of the permit online, and on February 12, 2013, sent an e-mail to employees of the DEP Ft. Myers? office expressing her general concern with water quality from the disputed stormwater outfall. She expressed her belief that Sarasota County was in violation of the existing MS4 permit, and requested that the recipients of her e-mail “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in the past.” The e-mail did not request any information regarding the MS4 Permit renewal application, nor did it request any information regarding notices or deadlines related to the application. On February 13, 2013, Christopher Wright, a consultant for Petitioner, called the DEP to gather information and do some “legwork” related to Petitioner?s challenge to the SWFWMD?s ERP. The purpose of the call was to determine if information submitted to the DEP in conjunction with the MS4 application, particularly drainage basin maps, could have been of use in the SWFWMD litigation. Mr. Wright spoke with DEP employee, Heather Ritchie, regarding the drainage basin maps that had been submitted to the DEP. During the course of their discussion, Ms. Ritchie advised Mr. Wright that a Notice of Intent to issue the MS4 Permit had been issued by the DEP. However, Ms. Ritchie did not know when Sarasota County had published the notice or when the deadline for challenging the proposed agency action was to run. In short, Ms. Ritchie expressed to Mr. Wright that “she didn?t know what the status of things were.” The discussion then went back to the primary substance of the call, which was watersheds and discharge points. Ms. Ritchie agreed to provide Mr. Wright with an electronic copy of a drainage map from the MS4 Permit file. At 12:43 p.m., on February 13, 2013, Ms. Ritchie sent a map to Mr. Wright via e-mail, and indicated that “[i]f you have additional questions or comments, you may call or e-mail me.” Later on the afternoon of February 13, 2013, Mr. Wright decided that he should ask Ms. Ritchie for a copy of the Notice of Intent. At 5:59 p.m., on February 13, 2013, after the close of business for the day, Mr. Wright wrote to Ms. Ritchie thanking her for her “rapid response to my inquiry today,” and providing her with comments on various basin areas and discharge structures. Mr. Wright concluded his e-mail by stating that “at this time I would also like to request a copy of the Notice of Intent to Issue the MS4 Permit.” The next morning, February 14, 2013, Ms. Ritchie provided Mr. Wright with the Notice of Intent to Issue the MS4 Permit as requested. Later that morning, Mr. Wright inquired as to the time for filing a challenge to the permit. Ms. Ritchie replied at 2:34 p.m. that afternoon that the MS4 Permit “was publicly noticed by the county on January 30th with a 14 day window. The window closed yesterday.” There is no evidence that Ms. Ritchie had any specific information as to the date of publication or the deadline for filing a challenge prior to that communication with Mr. Wright. Petitioner filed the Petition on February 15, 2013. The disputes identified in the Petition were directed exclusively at a 46-acre drainage basin in downtown Sarasota, and a related discharge structure that discharges stormwater from the basin to Sarasota Bay just south of the intersection of U.S. Highway 41 and Fruitville Road. The disputed basin and discharge point are located in Sarasota County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Environmental Protection, issue a final order dismissing Petitioner?s Request for Hearing and Amended Petition for FLS000004-004 on the ground that the Petition was not timely filed. DONE AND ENTERED this 18th day of October, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2013.
The Issue The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit ("OSDS") authorizing installation of an on-site sewage disposal system for property the Petitioner owns near the Suwannee River in Gilchrist County, Florida, in consideration of the relevant provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code, and whether the Petitioner should be entitled to pursue a variance from the permitting statute and rules embodied in that chapter of the code.
Findings Of Fact The Petitioner owns certain real property located in Gilchrist County, Florida on the east bank of the Suwannee River, adjoining the river. The property is more particularly described as Lot 9, Block B, Two River Estates. The property was purchased on January 3, 1985 and was platted as a subdivision on January 5, 1959. The lot in question upon which the OSDS would be installed should a permit be granted, is approximately one acre in size. On April 30, 1990, the Petitioner made application for an OSDS seeking authorization to install such a conventional septic tank and drain-field system for disposing and treating household sewage effluent on the subject property. The system would be designed to serve a single-family residence, containing approximately two bedrooms, and approximately 1,200 heated and cooled square feet of living space. Upon making application, the Petitioner was informed that he would have to obtain a surveyed elevation of his property, as well as the ten-year flood elevation for his property for the river mile of the Suwannee River at which his property is located. The Petitioner consequently retained Herbert H. Raker, a registered land surveyor, who surveyed the elevation for his property. Mr. Raker established a bench mark elevation of 29.24 feet above mean sea level ("MSL"). The site of the proposed OSDS installation on that lot has an elevation at the surface grade of 28.5 feet. The subsurface of the lot at the installation site is characterized by appropriate, "slight-limited" soil extending 72 inches below the surface grade of the lot. The wet season water table is 68 inches below the surface grade of the lot. Consequently, there is more than adequate slight-limited soil to handle disposal and treatment of the sewage effluent from a single-family residence, such as is proposed, since the wet season water table is 68 inches below the surface of the property. Thus, a more than adequate treatment space and appropriate soil beneath the bottom surface of any proposed drain field to be installed at the site would exist so as to comply with the pertinent rules cited herein. The problem with a grant of the subject permit consists only of the fact that the property lies beneath the ten-year flood elevation, that is, it is approximately 1.5 feet beneath that elevation. The Suwannee River Water Management District report submitted to the Respondent agency by the Petitioner in the application process for the OSDS permit (in evidence) reveals that the ten-year flood elevation for the property in question is 30 feet above MSL. The soils prevailing at the proposed installation site, the great depth of the wet season water table, and the fact that the lot is approximately one acre in size and above the minimum size requirements for the installation of an OSDS, all militate in favor of a grant of the permit, except for the basis for its denial initially, that is, that it is simply beneath the ten-year flood elevation for purposes of the prohibition contained in Rule 10D-6.047, Florida Administrative Code. Although located within the ten-year flood elevation, the site is not located within the regulatory flood way so that if a mounded system or other raised OSDS alternative system were proposed and installed, an engineer's certification would not be required regarding the issue of raising the base flood level by the deposition of fill at the installation site for purposes of Rule 10D-6.047(6), Florida Administrative Code. There is no central water system available to the property; however, although there was conflicting testimony about the distance the proposed installation site would be from a neighbor's potable water well, the testimony of the Petitioner is accepted as being most certain in establishing that more than the required distance from that potable water well exists between it and the proposed septic tank and drain-field installation site, since the Petitioner established that approximately 110 feet is the actual separation distance. The Petitioner purchased the property to construct a single-family residence for himself and his family. He expended a substantial sum of money for the property and is unable to use it for its intended purpose without the subject permit or at least a variance so as to authorize him to install an OSDS. The Petitioner offered no concrete proposals or plans for an alternative system which might reasonably accomplish treatment and disposal of the sewage effluent in question without harm to ground or surface waters or the public health. No substantial proof was offered of a system which would either dispose of and treat the effluent at a location above the ten-year flood elevation or, if still below it, would adequately treat and dispose of the effluent sewage to safeguard the public health and the ground or surface waters involved, such that its existence slightly beneath the ten-year flood elevation would only be a "minor deviation" from that portion of the permitting rules. In point of fact, it would seem that a mounded system would be feasible on a lot this size, especially in view of the fact that the bottom surface of the proposed drain-field trenches or absorption beds would only have to be raised slightly over 1.5 feet from the surface grade of the subject lot and installation site in order to comply with the ten-year flood elevation parameter, which was the only basis for denial of this permit application. No proof was offered concerning how such a mounded system would be designed, installed and otherwise accomplished, however. Upon denying the initial application for the OSDS permit, the Respondent advised the Petitioner that he should pursue a formal administrative hearing process rather than make application for a variance and proceed through the internal variance board mechanism operated by the department in order to obtain a variance from the requirements of Rule 10D-06.47(6), Florida Administrative Code. The Respondent advised the Petitioner of this because the subject property was located within the ten-year flood elevation of the Suwannee River; and as the Respondent interpreted the Governor's Executive Order Number 90-14, which incorporated by reference the "Suwannee River Task Force Report" commissioned by the Governor, the Order absolutely prohibited the granting of any variances authorizing installation of OSDS's beneath the ten-year flood elevation of the Suwannee River or the granting of any OSDS permits themselves authorizing such installations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 5th day of March, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The Petitioner did not file a Proposed Recommended Order. Respondent's Proposed Findings of Fact 1-10. Adopted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Gary Wilson P.O. Box 2061 Lake City, FL 32055 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
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
The Issue The issues to be resolved in this proceeding concern whether the Respondent violated Chapters 381 and 386, Florida Statutes, specifically Sections 386.041, 381.0061, 381.065, and 386.03, and Rules 10D-6.043(2) and 10D-6.0571. If the Respondent committed the charged violations, it must be determined whether a fine should be imposed and the amount of any such fine.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the installation and continued maintenance of OSDS's, within the guidelines of the statutes and rules cited below. In the event violations of the rules regarding the safe operation and maintenance of OSDS's are detected, HRS has the authority to require correction of the unsafe, human-health conditions involving such systems and to impose penalties for the failure to adequately correct such unsafe health situations. In order to secure enforcement of the statutes and rules concerning the installation and operation of OSDS's, HRS has the authority to issue Administrative Complaints initiating formal enforcement proceedings such as the one at bar. The Respondent is a citizen of the State of Florida and owns the property located at 835 N.W. 109th Drive in Gainesville, Alachua County, Florida. The Respondent owns and operates an OSDS on that property which serves her personal residence for the on-site containment, disposal and treatment of sewage generated by that residence. In the spring of 1992, the Respondent detected problems with the OSDS on her property. The problems were noticed because of a difficulty in flushing the toilets in her home and the unusual greening of the grass in a pattern of rows above the septic tank's drain field. The abnormal greening of grass in this pattern indicates that the OSDS is malfunctioning by allowing incompletely treated sewage effluent (waste water) to escape upward towards the surface of the ground instead of percolating in a downward direction into the underlying soil, for appropriate filtration and treatment, which is the pattern of effluent disposal if such a system is operating correctly. Mr. Ron Meyers of Meyers Septic Tank Company was contacted for correction of the problem by the Respondent. On April 15, 1992, he applied for an OSDS repair permit to the Alachua County Public Health Unit of HRS on behalf of the Respondent. The permit application described that the repairs for which authority was requested would be to the existing system which was a below-ground-level septic tank and drain-field system (conventional system) in the Respondent's front yard. Mr. Dennis Chesky is an environmental specialist with the HRS Health Unit for Alachua County. He conducted a site inspection of the OSDS site on April 16, 1992 and determined that a repair of the existing system would not result in compliance with the applicable standards of Chapter 10D-6, Florida Administrative Code cited below. He made a determination that a mounded drain- field system would be required in order to comply with HRS rules. HRS rules require that when repairs are made to an existing OSDS and inspection reveals that proper percolation and other indicia of soil-borne treatment of the effluent will not be adequately performed in accordance with HRS rules, then alterations to the OSDS, including the requirement of a mounded drain-field system, so as to acquire a sufficient treatment zone of appropriate fill soil, can be imposed. Mr. Chesky had noted that a sanitary nuisance existed due to insufficiently treated effluent escaping to the ground surface and pooling on the surface of the ground, rather than percolating downward below the drain field, as a properly operating system would perform. In accordance with the permit application and the results of Mr. Chesky's inspection, a repair permit with specifications requiring a mounded septic tank and drain-field system was issued by Mr. Chesky on April 16, 1992. The permit required the system to be installed in the Respondent's front yard. Because such a mound in the Respondent's front yard would destroy the aesthetic character of the Respondent's property and landscaping, Mr. Meyers requested, on the Respondent's behalf, that the permit be modified to allow installation of the mounded system in the backyard of the Respondent's property. On April 22, 1992, this request was granted by Terry Shipley, Mr. Chesky's supervisor, and the relocation was duly noted on the permit. The permit issued was valid for a period of ninety (90) days. The letter transmitting the permit to the Respondent informed the Respondent, as permittee, that she had ninety (90) days to correct the problem which caused the need for the repair permit. The letter also advised the Respondent that if a sanitary nuisance was present on the property, the problem should be rectified as expeditiously as possible. The permit expired without the repairs having been performed. Mr. Shipley, therefore, directed that a member of his staff visit the Respondent's home to inspect the situation. Mr. Paul Meyers visited the Respondent's home on July 22, 1992 and noted that raw sewage was still existing on the surface of the ground in the form of waste water from the septic tank. Mr. Meyers took photographs of that condition. The photographs were introduced into evidence. One photograph depicted that an area of the ground at the end of the drain field had collapsed or subsided, leaving a hole through which waste water was seeping to the ground surface. Mr. Meyers thereupon issued a notice to abate a sanitary nuisance on July 23, 1992. It was received by the Respondent on August 1, 1992. On August 3, 1992, the problem still existed with effluent being observed on the surface of the site by Mr. Chesky. On August 25, 1992, he returned to the site and observed evidence that a large area of the front yard, over the drain-field location, had been disturbed. He determined that the ground and the grass had been disturbed in such a way that repairs had obviously been made to the existing drain field. This was contrary to the permit that had been issued, which had required that a mounded system be installed as a means of effecting necessary repairs. The repaired area had been covered without notification of the repair to HRS. A notice of intended action was issued on September 16, 1992 and received by the Respondent on September 19, 1992. This notice gave the Respondent three (3) days to take action toward correcting the problem. The Respondent was thus advised that if the problems and violations were not corrected, then an Administrative Complaint seeking imposition of a fine would be issued. Within several days of receipt of that notice, the Respondent's husband called Mr. Shipley and Ms. Wilson of HRS to advise them that repairs had been delayed by the necessity of removing some trees in the backyard of his property where the mounded system would have to be placed. The Petersons were also having difficulty securing the necessary financing to pay for the installation of the mounded system required by HRS during the summer and early fall of 1992. Although Mr. Peterson advised HRS of the delay caused by the necessity to remove some trees with attendant expense, apparently HRS was not advised of the financing problem at that time, although the Respondent's testimony shows it to be the case. During this period of time, on September 22, October 1, and October 22, 1992, inspections by HRS revealed that the problem of effluent escaping on the surface of the ground had not yet been corrected. Since repairs had not been visibly commenced by the time of the last inspection on October 22, 1992, HRS elected to seek imposition of a fine and issued an Administrative Complaint to the Respondent, which was received by the Respondent on November 5, 1992. The Complaint sought a fine in the amount of $200.00 per day dating from the receipt of the Administrative Complaint until the date the violation was corrected. The Respondent obtained a second contractor to begin construction of the required mounded system which was completed on November 10, 1992. The contractor on that day called for an inspection by HRS. The inspection was conducted on November 12, 1992, but final approval could not be issued although all essential work was completed because the required sodding and stabilization measures had not yet been completed on the surface of the mound. Final approval was granted on November 17, 1992 by HRS. Installation of a new below-ground, drain-field system, as originally requested, similar to the one which was already installed and malfunctioning, would have cost approximately $1,000.00. The mounded system required by HRS' permit, pursuant to the relevant rules cited below, cost approximately $5,000.00. In addition to the approximate $5,000.00 expended for the installation of the mounded system, the Respondent had to expend approximately $7,000.00 related to tree removal and re-landscaping of their yard to repair damage caused by installation and the requirement to install a facility to pump sewage from the front yard outlet to the mounded system in the backyard. The Respondent apparently attempted to repair the existing below-ground system after receiving the notice regarding sanitary nuisance in August of 1992 in order to avoid the high costs related to the mounded system. The effluent pooling on the ground surface, as it was on the Respondent's property at times pertinent hereto, can pose a threat to public health. In order to adequately treat sewage effluent, it must filter in a downward direction through at least 24 inches of suitable soil medium in order to be sufficiently decontaminated. Improperly treated effluent on the surface of the ground can cause the transmission of human pathogens to persons who come into contact with the effluent in and near the area of the discharge. There is no evidence to indicate that any such harm came to any specific persons or to the public's health generally, in the subject situation. Ms. Wilson, the supervisor responsible for issuance of the Administrative Complaint, decided to seek a fine of $200.00 per day after considering both the aggravating and mitigating factors set forth in the statutory authority cited herein, contained in Chapter 381, Florida Statutes. HRS has fining authority in the amount of up to $500.00 per day for each of the claimed violations. The unrefuted evidence establishes that the violations occurred and persisted over the period time described in the above Findings of Fact. In fairness to the Respondent, however, it should be pointed out that the Respondent and her husband were not in Florida for most of the summer of 1992 because their work required them to be in Dallas, Texas. Even so, they had secured the services of an OSDS contractor to attempt to alleviate the problem. Due no doubt to the high cost and their reluctance to be encumbered by it, they delayed actual installation of the mounded system, however. It is also true that they had difficulties obtaining financing for such a costly system but ultimately did so and satisfactorily completed the work. They ultimately expended approximately $14,000.00 for all phases of the work involved, including site preparation, re-landscaping and related expenses. They have thus have undergone a severe cost burden to alleviate the inoperable condition of the previous OSDS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by HRS imposing a fine in the amount of $500.00 against the Respondent. DONE AND ENTERED this 3rd day of September, 1993, 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 3rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7376 Petitioner's Proposed Findings of Fact 1-15. Accepted. 16. Rejected, as immaterial in this de novo proceeding. 17-25. Accepted. Respondent's Proposed Findings of Fact Accepted, although the evidence does not reveal the bank's posture with regard to ownership of the property. Rejected, as contrary to the preponderant weight of the evidence. Rejected, as to its material import because the repairs and installation were not effected until after the issuance of the Administrative Complaint. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed. Accepted, but not materially dispositive of the issues presented. Accepted. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph J. McMurphy, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue Gainesville, Florida 32609 Robert Peterson 835 Northwest 109th Drive Gainesville, Florida 32606
The Issue The first issue is whether Petitioner, Jacqueline M. Lane (Lane) has standing. The second issue is whether International Paper Company (IP) provided reasonable assurances it has the ability to meet the conditions of the existing industrial wastewater permit for the wastewater treatment facility at the paper mill in Cantonment, Florida, pursuant to Rule 62- 620.340(3), Florida Administrative Code. A final issue is whether Lane litigated this matter for an improper purpose.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: The Parties The Department is charged with the responsibility for determining whether to approve the Application for transfer of permit number FL0002562-002-IWF/MT from Champion to IP. IP is a corporation authorized to do business in the State of Florida. IP operates a bleach kraft fine paper mill in Cantonment, Florida, formerly operated by Champion. Lane is a citizen of the State of Florida who lives on Perdido Bay. Application for Transfer of Industrial Wastewater Permit Number FL0002526-002-IWF/MT In June 2000, IP notified the Department it was acquiring Champion as a wholly owned subsidiary. IP took over operation of the facility in Cantonment on January 1, 2001. At that time, the companies had fully merged. On January 19, 2001, IP timely submitted an Application for Transfer of a Wastewater Facility or Activity Permit (Application) and advised the Department that "the permittee name for the pulp and paper mill in Cantonment, Florida[,] has been changed from 'Champion International Corporation, Inc.' to 'International Paper Company.'" Several wastewater permit- related documents were submitted to the Department as part of this name change. The Department processed IP's Application to transfer the facility's permit pursuant to Rule 62-620.340(3), Florida Administrative Code. "The parties agree that this matter is controlled by Rules 62-4.120 and 62-620.340, F.A.C., regarding the transfer of the permit. The parties [did not agree] upon what conditions of the combined permits are applicable to determine whether the Department has received 'reasonable assurances that the conditions of the permit will be met.' Rule 62-620.340(3), F.A.C." Rule 62-620.340(3), Florida Administrative Code, provides: "The Department shall allow the transfer under subsection (2) of this section unless it determines that the proposed permittee cannot provide reasonable assurance that conditions of the permit will be met. The determination shall be limited solely to the ability of the proposed permittee to comply with the conditions of the existing permit, and it shall not consider the adequacy of these permit conditions." (Emphasis added). This proceeding does not involve an enforcement action or consideration of whether the wastewater permit, and related documents, should be renewed. Champion's renewal application is under consideration by the Department. The parties agree that the documents described in Findings of Fact 10-19, infra, set forth the conditions of the permit number FL0002526-002-IWF/MT at this time. These documents are listed below: November 15, 1995, DEP Order (combining the NPDES permit and the State- issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) January 3,1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit December 1, 1989, DER Consent Order December 12, 1989, DER Variance The Permit(s), Consent Order, Variances, and Related Permit Documents Before May 1, 1995, in order to operate the wastewater treatment facility at the mill in Cantonment, both state and federal permits were required. The Department or its predecessor agency, the Department of Environmental Regulation (DER), issued state permits pursuant to Sections 403.08 and 403.088, Florida Statutes, and applicable rules. The United States Environmental Protection Agency (EPA) issued federal National Pollutant Discharge Elimination System (NPDES) permits pursuant to 40 Code of Federal Regulation Section 124.15. As a result of EPA's delegation of its NPDES authority to the Department in 1995, only one permit is now required. The 1995 Memorandum of Agreement between EPA and the Department does not allow the Department to modify a permit that has been administratively continued. Modifications to permit limits have to be made through the permit renewal process. On or about January 3, 1983, the EPA issued a NPDES permit to St. Regis Paper Company, authorizing discharge from the facility, located at the paper mill in Cantonment to the receiving waters named Eleven Mile Creek (creek). This NPDES permit contains the federal permit conditions applicable at this time. (EPA has since used the facility as a benchmark model to develop effluent guidelines for its new cluster rule.) On December 1, 1989, the DER entered into a Consent Order with Champion International Corporation. This Consent Order was issued as a result of Recommended and Final Orders issued in Perdido Bay Environmental Association, Inc. et al. v. Champion International Corporation and Florida Department of Environmental Regulation, 12 F.A.L.R. 126 (DER Nov. 14, 1989). This Consent Order allowed the continued operation of the facility. As a compliance requirement, a study report was required to include "an evaluation of technologies and treatment alternatives . . . to determine the most environmentally sound and practicable means to correct identified water quality violations caused by Champion." The studies required by the Consent Order are needed to pinpoint sources of pollutants in the creek and Perdido Bay (bay). The Consent Order has no expiration date although it is tied to the temporary operating permit (TOP) which had an expiration date of December 1, 1994. Extensive studies have been submitted to the Department pursuant to paragraph 14.A. of the Consent Order, which are necessary to trigger "the final compliance plan." This has been an ongoing process since the Consent Order and TOP were issued. The conditions in the Consent Order and TOP apply at this time. Various discharge limitations and monitoring requirements are set forth in the TOP. On December 13, 1989, DER issued a TOP, Number IT17- 156163, to the facility, which was issued in conjunction with the Consent Order. The TOP expressly relies on the Consent Order for authorization. It contains the effective state permit conditions at this time. On December 8, 1989, DER issued a Variance from water quality standards for color (transparency), iron, zinc, and the general water quality criterion for specific conductance. The standards in the Variance are part of the TOP and are effective at this time. The mill no longer needs the Variance for iron and zinc. As to those parameters, it currently operates at lower levels than under the Variance. On November 15, 1995, the Department combined the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. The TOP and NPDES permit were administratively continued when renewal applications were filed. The Department will transfer to IP the permit documents described in Finding of Fact 9, supra. The Department will also transfer the pending permit renewal applications filed by Champion. Wastewater Treatment Facility at the Paper Mill in Cantonment, Florida In the past, Champion owned and operated a 1400-ton per day bleach and kraft pulp and paper mill in Cantonment. The operation is now conducted by IP. The paper mill treats its effluent from industrial activities at an on-site wastewater treatment facility (facility). Stormwater that falls on the industrial portion of the mill is also processed through the facility. The mill is required to and takes monthly samples from the creek for a few parameters, e.g., DO and pH, to provide data to the Department for use in developing possible changes to effluent limitations in a final compliance plan. There is an installed structure that continuously measures the flow of the effluent at the end of the facility's treatment system. This point, i.e., where the flow is measured, is called the Parshall Flume which is the compliance point for the facility. The effluent at Parshall Flume is automatically sampled each day, analyzed, and reported on a monthly basis to the Department. The analyses are reviewed and compared to the effluent limitations for a particular permit. The treated effluent is discharged from the Parshall Flume through a pipe to natural wetlands. In this wetland area, the treated effluent combines with several streams, non- processed stormwater, and runoff from land south and west of the facility. Runoff from residential areas and areas west of the mill, including the City of Cantonment, also flows into this area. The IP mill is not the only source of discharge into this area. After passing through the natural wetlands, the treated effluent runs through a pipe that discharges into the creek from below the surface. This point is about a half-mile from the facility. It is called the "boil" because the water from the pipe boils up into the creek. The "boil" is not a compliance point. On occasion, a Department inspector has taken water samples at the boil. Each time, his sampling has shown water quality standards were met at the boil. At the boil, the water flowing into the creek from the pipe contains treated effluent and drainage from areas not associated with the mill. From the boil, the creek flows a distance of fourteen miles to Perdido Bay (the bay). At the boil, there is also stormwater runoff and drainage from residential areas flowing into the creek in addition to the water from the pipe. Along the sides of the creek to the bay is a large drainage basin, which includes agricultural and residential runoff that flows into the creek. The boil, which is non-processed stormwater of the creek, could be contaminated from non-IP sources. Sources of pollutants in the bay include residential and agricultural stormwater runoff, Perdido River, and the creek. The Escambia County Utility Authority (ECUA) also has a treatment plant that has a discharge into the bay. Saltwater intrusion and runoff from development are additional sources of pollutants in the bay. Lane takes samples at the boil and most recently in May and June of 2001. Her measurement of dissolved oxygen (DO) was approximately 2.6 and for specific conductance, between 1600 and 2000. Lane also samples the water at a bridge (279A) two miles down the creek from the boil. Lane testified regarding bacteriological quality at the boil or further down stream, that fecal coliforms, including the bacteria Klebsiella, were present. Lane is not a certified sampler. She does not have the required quality control/quality assurance program. Lane does not know the Department requirements to sample dissolved oxygen. She could not describe an approved standard for such sampling. Surface Water Quality Standards Unless otherwise provided through relief mechanisms, discharges into surface waters must meet the minimum water quality standards set forth in Rules 62-302, Florida Administrative Code. Relief mechanisms include variances, consent orders, and temporary operating permits. The Department has issued variances, consent orders, and temporary operating permits to allow permit holders time to respond to changes in water quality standards and related regulations that reflect changes in understanding of environmental impacts to water bodies. Permit Conditions The permit conditions do not require compliance with all the water quality criteria in Chapter 62-302, Florida Administrative Code, for water quality parameters. The Department has not yet agreed on "final treatment solutions" it can require under the Consent Order. See, e.g., Finding of Fact 49. Specific deviations from the surface water quality standards in Chapter 62-302, Florida Administrative Code, are authorized by the Consent Order, TOP, variance, and NPDES permit. The specific effluent discharge limitations in the TOP and NPDES permit, are for BOD5, TSS, iron, specific conductance, pH, and zinc. (The reference to condition 12 in paragraph 25 of the TOP has not been amended.) Several of the effluent limitations (e.g., specific conductance) were granted by the Variance. Paragraph 26 of the TOP specifies the monitoring and frequency requirements for the monitoring at the Parshall Flume. This monitoring information can be used by the Department to pinpoint sources of pollutants in the creek and in order to establish numerical, water-quality based effluent limitations for those sources. General Condition 5 of the TOP does not per se impose on the mill the duty to meet all water quality standards in Chapter 62-302, Florida Administrative Code. The TOP authorizes "a certain amount of pollution" and "certain relief." The TOP further established a "compliance schedule" for Champion to study the impacts of the discharge. However, the Department rules allow for reopening of the TOP and changing the permit conditions to reflect new evidence causing a concern regarding pollution. Here, the Department has not reopened the TOP. The permit, including the TOP and Consent Order, allows the mill a period of time to come into compliance with all minimum water quality standards. When a final permit is eventually issued, the facility will have to meet these standards absent some express relief mechanism at that time. IP Provided Reasonable Assurances of Its Ability to Meet Permit Conditions The Department employee who reviewed IP's Application to transfer the permit is an expert in environmental engineering. At the time he reviewed the Application, he was familiar with the existing permit conditions. As part of his review, he ascertained whether IP was satisfying the conditions of the permit and determined it was. The Department reviewed IP's annual report and other corporate brochures as part of its processing of the transfer Application. Information in these documents revealed IP has obtained other Federal-type NPDES permits for other companies at several other facilities. The Department was familiar with IP's local management at the Cantonment facility when it processed the transfer Application. IP brings considerable "capability and talent" to the mill. The Department performed inspections during the last six (6) months and was familiar with the facility and wastewater system. IP is an international company with greater financial resources than Champion. It has approximately $30 billion in annual sales. Champion, in comparison, generated about $5 billion a year. It is clear that that the operation of the mill and the facility would have less capital and financial support without IP. Since June 2000, IP has worked with the Department in a continuation of the Department's concept of relocating the facility's discharge to wetlands. The plan considers removal of the facility's treated effluent from the creek to wetlands on IP's land and effectively eliminates it as a point source discharge and removes the discharge from the creek. IP will have a greater ability than Champion to meet permit conditions due to greater financial sources, technical staff, and resources. IP's management is committed to resolving water quality issues like specific conductance and is willing to resolve outstanding water quality issues in the bay and creek. In the view of the former Northwest District Director who worked on water quality issues at the facility for twelve years ending March 31, 2001, the current plan to discharge to wetlands will be implemented and allow compliance with all water quality standards. He also opines that IP has the ability to comply with water quality standards under the plan to discharge to wetlands. In the Department's view, IP has provided reasonable assurances that it has the ability to meet the existing conditions of the permit sought to be transferred. IP Complies with Permit Conditions as Evidence of Ability According to the Department's expert, Mr. William A. Evans, a professional engineer with a Master's degree in civil engineering and an expert in environmental engineering, there have been no verifiable violations of permit conditions and no exceedances since January 2000, before IP took over operations of the mill. On the other hand, Mr. Evans, in reviewing a discharge monitoring report for IP for April 2001, advised, during cross-examination, that there appeared to be "an apparent violation, exceedance of the permit" for specific conductance pursuant to the 1500 micromhons per centimeter limit in the EPA's version of the permit. However, the Variance, which is part of the Application, was granted "because there is no practicable means known or available for the adequate control of the pollution involved," i.e., specific conductance. The Department applies the limit of 2500 micromhos per centimeter set forth in the Variance for specific conductance, which is a reasonable interpretation of the permit documents. When the permit documents, including the Variance are read in this light, IP is in compliance with this limit. IP is in compliance with the Consent Order, NPDES permit, and Variance. In making this finding, the undersigned is mindful of Lane's arguments and facts presented. The issue here is not black or white; violation or no violation. As noted by Mr. Evans: This permit is recognized since '89 is [sic] not meeting water quality standards. It has all these documents because it doesn't. And they're still working under those. And the Department agrees with Ms. Lane that they are not meeting water quality standards in the creek. And we're working under these documents to make improvements. And so is Champion and so is IP. But they are not, in our opinion, violating the conditions of the permit. There [sic] are complying with studying it, meeting the interim limits that are set forth in the permit. And that is what the Statutes require when a facility can not meet all the standards of a permit. The Department, while considering the renewal application, has not approved it yet because they have not received reasonable assurances that new permit conditions can be met. Champion, and now IP, are facing the continuing challenge of satisfying, among other requirements, water quality standards, which takes time, money, and know-how. The Department rightly believes that IP can best meet this challenge. The Department's review of the monthly monitoring reports submitted by the mill since Champion was purchased reveals the facility has complied with permit conditions. The most recent monthly report was submitted May 23, 2001, and includes data through April 2001. During inspections at the facility since June 2000, the Department found no violations of permit conditions. The mill, under IP's operation, has not exceeded the fecal coliform conditions of its permit. The mill has no significant contribution to fecal coliform in the creek because it treats its own domestic sewage and meets the fecal coliform limit at the compliance point. Runoff along the creek from agricultural and domestic sources could contribute to fecal and total coliform in the creek. The Department enforces the "more stringent" pH condition in the 1989 TOP and Variance which is controlling over the less stringent standard in the 1983 NPDES permit. The pH limit in the NPDES permit is 6.0-9.0. The Department reasonably interprets the freshwater stream pH rule to mean enforcement is not required if the permittee meets the range in the rule (6.0-8.5), more stringent than the 9.0 limit in the NPDES permit. The facility's pH data satisfies this range. If the Department were to enforce a limit of 6.5, instead of 8.5, IP has the ability to meet the lower limit by installing one of several available technologies to control the pH levels. IP's current proposal includes one of these technologies. The biological integrity provision in the Consent Order requires studies on biological components of the creek and pH impacts this condition. Permit Conditions Affecting the Creek and Bay The permit does not require the facility to meet all the minimum surface water quality standards of Chapter 62-302, Florida Administrative Code, in the creek and bay. That is because of the relief mechanisms in the Consent Order, TOP, NPDES permit, and Variance. The Consent Order provides a time frame for the facility to come into compliance with water quality standards in the creek and bay. In terms of the Consent Order, the Department considers IP to be at the paragraph 14.A. step of the compliance schedule since the Department has not yet "resolved or agreed on the final corrective action required under this [C]onsent [O]rder." The Department considers the facility to be in compliance with permit conditions because it is "working under a complying [sic] schedule and an order or a temporary operating permit." See Finding of Fact 49. As long as IP is meeting the "interim limits that are set forth in the permit," it is not violating conditions of the permit. The Department is aware of water quality exceedances from the standards in the creek and bay caused by the mill. This data was reported in the "fifth year surveys." This information serves as a basis for making improvements and finding "a new solution for the effluent as required by the consent order." See Finding of Fact 49. Proposal for Joint Project with ECUA IP and the ECUA are working with the Department on a plan than would result in the discharge of IP's treated effluent to wetlands, thereby removing the effluent from the creek. IP's financial capability, size, and technical human resources make this plan feasible. IP will propose a plan to satisfy the Consent Order which consists of three parts: upgrading IP's industrial wastewater treatment facility; allowing ECUA to locate an advanced domestic wastewater treatment plant on its land; and disposing the treated effluent from both facilities to wetlands on IP's land through a pipeline. The proposed plan to discharge the facility's treated effluent to wetlands is a suitable solution that will allow the mill to meet minimum water quality standards. Lane has no objection to the plan to discharge to wetlands. It will resolve all her water quality issues. She believes the plan, similar to a prior plan, is "feasible." Standing and Improper Purpose Lane admits the Department is not making any changes to existing permit conditions before transferring it to IP. Lane agrees that changing the name on the permit from Champion to IP has no adverse affect on her. Lane brought this proceeding because she is dissatisfied with the manner in which the Department is enforcing conditions in the facility's permit. According to Lane, "They haven't done their duty." Her main complaints are with the Department's failure to enforce the permit conditions and the lack of a permit that makes the permit holder comply with Florida law. Lane feels that Champion violated permit conditions in the past, and IP is currently violating permit conditions and, as a result, the permit should not be transferred because a decision to transfer is an implicit finding of compliance. In this light, Lane argues that past performance can be an indication of future ability or lack thereof. Lane acknowledges that in order to add conditions to the existing permit, the Department must provide notice to the mill and give it a chance to meet the proposed conditions. She further admits the Department has not provided such notice. Lane proved that the environmental situation attending Champion's, and now IP's, operation of the mill and the wastewater facility has been and is less than optimum and in need of positive changes. The Department agrees and so does IP. Lane's personal observations of the condition of the creek and bay are documented. However, Lane did not prove that she will suffer an "injury in fact" if the permit and related documents are transferred to IP. Lane is not otherwise substantially affected by the Department's decision to approve the transfer. Lane's evidence did not rebut IP and the Department's proof that IP has the ability to comply with the permit conditions. The preponderance of the evidence shows that the environment in and around the mill and the facility has a better opportunity for improvement if IP takes control of the mill and facility. On the other hand, based on this record, Lane did not bring this case for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Lane lacks standing to challenge the transfer of industrial wastewater permit number FL0002526-002-IWF/MT to IP because Lane did not prove that her substantial interests were being determined by the Department's transfer of the permit from Champion to IP; IP provided reasonable assurances it has the ability to comply with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT; IP has complied with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT, as the Department construes those conditions, since assuming control of the mill on January 1, 2001; and Lane did not participate in this administrative proceeding for an improper purpose. DONE AND ENTERED this 24th day of August, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 24th day of August, 2001. COPIES FURNISHED: Jacqueline M. Lane 10738 Lillian Highway Pensacola, Florida 32506 Terry Cole, Esquire Patricia A. Renovitch, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 301 S. Bronough Street, Fifth Floor Tallahassee, Florida 32302-1110 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to a variance for installation of an on-site sewage disposal system ("OSDS") for property located near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as Lot 4, Wonderland Subdivision. The property is approximately 60 by 150 feet in size and was purchased in 1982 for a price of $9,000.00. It is presently appraised at $11,000.00; however, if an OSDS could be permitted and installed, the property would appraise for approximately $22,000.00. The lot was platted in 1957. On October 19, 1989, the Petitioner made an application for a variance from the OSDS permit requirements for the property. The application form indicated, and the Petitioner intends, that this would be a new system for a single-family residence. The residence would contain two bedrooms and would produce approximately 250 gallons per day of sewage flow. The Petitioner desires to construct a residence on the property to have a pleasant place to live and is suffering a hardship because of the investment which he has made in the property, which is of no use to him if he cannot obtain the subject permit or variance and install the OSDS so that he can construct his residence. Alternatively, he is unable to sell the property readily without the ability to obtain an OSDS permit or variance for the property. At the behest of the Respondent in the permit application or variance application process, the Petitioner obtained a survey of the property by a registered land surveyor (see Petitioner's Exhibit No. 2 in evidence). That survey resulted in a benchmark elevation being established of 12 feet above mean sea level ("MSL"). The site of the proposed OSDS installation is 11.71 feet above MSL. The ten-year flood plain elevation for this property is 16 feet above MSL, as verified by records of the Suwannee River Water Management District in evidence without objection. The property is also located within the regulatory floodway of the Suwannee River. Although the Petitioner acknowledged in a general way that he would be amenable to consideration of various alternative types of systems involving piping of sewage effluent to an appropriate upland disposal and treatment area, the use of chemical toilets or other appropriate non-discharge types of treatment and disposal systems, no concrete evidence was adduced from the Petitioner to establish that such are or are not reasonable alternatives to the conventional subterranean septic tank and drainfield type of disposal system with which the variance application is concerned. Consequently, the Petitioner's proof does not establish that no reasonable alternatives exist in order to secure the grant of a variance nor did the Petitioner's proof establish that the type of system proposed would not pollute the ground or surface waters or pose a threat to public health in terms of the standard subterranean OSDS or any alternative systems which the Petitioner might theoretically employ, including the types mentioned above. The Petitioner's proof simply did not establish that installation of a standard subterranean OSDS would only pose a minor deviation from the permitting statute and rules cited herein nor did the Petitioner establish that no reasonable alternatives exist to the establishment of a standard OSDS, as that relates to the substantiality of the hardship which the Petitioner is experiencing in not getting the OSDS originally requested permitted; and the Petitioner did not establish that any system proposed would not pose a threat to public health or pollute ground or surface waters. In summary, the Petitioner did not establish that a sufficient hardship is experienced, because reasonable alternatives have not adequately been explored and considered by the Petitioner nor made a part of the subject of Petitioner's proof nor has the Petitioner established that a grant of a variance would involve only a minor deviation from the permitting statute and rules standards because it has not been proven that the public health nor the ground or surface waters would not be adversely affected. Finally, because the property is located in the regulatory floodway of the Suwannee River, under Rule 10D- 6.047(6), Florida Administrative Code, before a mounded or filled OSDS could be permitted and installed, which is one alternative under consideration, a registered professional engineer must certify that the mounding of the system and installation of fill in the regulatory floodway area would not cause elevation of the "base flood" of the Suwannee River. No such engineering evidence or testimony has been adduced iii this proceeding; therefore, such an alternative system cannot herein be recommended for approval.
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 a variance from the statutory and regulatory requirements for an OSDS permit. DONE AND ENTERED this 10th 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, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3111 Respondent' Proposed Findings of Fact: All of Respondent's proposed findings of fact are 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 Marilou Clark Suwannee Plantation Realty Rt. 3, Box 73 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609
