The Issue The issues are: (1.) Whether Respondents' request for variance from requirements of Rule Chapter 10D-6, Florida Administrative Code, should be granted. (2.) Whether Respondents are guilty of violation of certain provisions of Chapter 381 and Chapter 403, Florida Statutes, and Rule Chapter 10D-6, Rule Chapter 17-550, and Rule Chapter 17-555, Florida Administrative Code, regulating the operation of onsite sewage disposal systems.
Findings Of Fact Respondent V.M.P. Corporation (VMP) operates a lounge known as Stud's Pub in Jacksonville, Florida. Licensed for 75 seats, the lounge actually contains 50-55 seats and employs five people full time. Additionally, 10-15 independent entrepreneurs known as dancers may be present at times. The dancers are not employees of Respondents. Less than 25 people, other than patrons, are present at the facility at any time. Respondent Vincent M. Paul (Paul) owns the facility and the corporation. The lounge is on lots that were platted prior to 1972. Petitioner is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Petitioner pursuant to provisions of Section 381.0065(8)(a), Florida Statutes (1991). The lounge is serviced by a septic tank with a drainfield which is covered by an asphalt parking lot. The portion of the parking lot over the drainfield is bounded to the west by a dirt city street, to the north by other pervious surfaces, to the east by the lounge and to the south by the remainder of the asphalt parking lot. A sign on the premises which advertises the business is protected from automobile traffic by concrete barriers. The septic tank system and drainfield were installed prior to 1972 by a previous owner. Respondent Paul retrofitted the septic tank system after 1972. Respondent Paul was responsible for paving over the drainfield after he purchased the property. Petitioner's representatives inspected the lounge, determined the drainfield to be covered by the asphalt parking lot and requested Respondents to remove the asphalt covering. Respondents requested a variance pursuant to Rule 10D Administrative Code, for the asphalt covered drainfield and other deficiencies of the onsite sewage disposal system. Petitioner's review board recommended denial of the request on the basis that the variance would not constitute a "minor deviation" from rule requirements. Although the term is not defined by Petitioner's rule, Petitioner's usage of this term was the result of the consideration by Petitioner's review board of the application for variance within the context of Section 385.0065(8)(a), Florida Statutes, which authorizes Petitioner to grant variances only where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated. Respondent has no record of failure of the septic tank or drainfield. Water samples from the onsite potable water well filed with Petitioner tested below detectable limits for nitrates and coliforms, the only parameters Petitioner is required to analyze. Respondents' records of water flow or usage from the well into the lounge show daily flow rates of between 320 and 580 gallons, with an average rate of between 450 and 480 gallons. Respondent Paul is responsible for the installation of an unpermitted chlorinator on the water supply system which provided actual flow information. The only onsite water well has no grout sealant. It is the only well of which the parties are aware that lies within 100 feet of the septic system. The potable water well is located approximately 42 feet from the edge of the covered drainfield. The well head does not extend above line surface and there is no concrete pad around the wellhead. The exact depth of the well is unknown, although the well is located upgradient of the drainfield and a nearby junkyard. Denial of the variance would require that Respondents uncover the drainfield since there is no practically available offsite sewage system currently available. Soil in the area of the drainfield is classified as well- draining sand. Due to the impervious surface covering the drainfield, Petitioner's representative was unable, during his inspection, to discern any symptoms of drainfield failure in the form of "blow field should be totally unobstructed to allow aerobic processes to take place in the drainfield which will permit the breakdown of contaminants. A portion of Respondents' 1200 gallon septic tank is located partially under and immediately adjacent to Respondents' facility. A dousing tank which retains liquid waste and operates as part of the septic system is also totally covered by the asphalt pavement. Although there has been no detectable failure of the system, every eight or nine months Respondents have the septic tank and dousing tank pumped out. The tanks never get full.
Recommendation Based on the foregoing, it is hereby Recommended that a final order be entered by Petitioner denying the variance requested by Respondent with exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent property, and, Further Recommended that such final order also assess Respondent Paul an administrative penalty of $500 for each of the four violations contained in the Administrative Complaint which were proven in this proceeding for a total of $2000, and a continuing assessment of $500 per day for each violation for a total of up to $2000 per day after first allowing Respondents a 60 day period within which to correct all four violations. DONE AND ENTERED this 3rd day of May, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1993.
Findings Of Fact By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2). After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor). The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor). The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront). Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor). In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick). There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil. The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3). Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling) The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront) The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor). There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6). The parties stipulated prior to the hearing to the following: The project complies with local zoning laws; and The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses. DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301. SHARYN SMITH Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 George G. Collins, Jr., Esquire Post Office Box 3686 Vero Beach, Florida 32960 Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioners purchased property in New Smyrna Beach, Florida to build a home. The property, which was platted in the 1940's measures 50 feet by 200 feet. The east side of the property (50') is located on Engram Road. The northern 200 feet and western 50 feet of the property is waterfront, situated on a tidal inlet from the Indian River. The Indian River contains the last remaining Class II waters in Volusia County. Class II waters in Florida are waters in which the state allows shellfish harvesting for public consumption. As the last remaining Class II waters in the county, the area requires special protection from all possible sources of pollution and negative environmental impact, including sewage outflow. According to the Petitioner, the seller of the property indicated to Petitioners that the property had been approved for constructing a home. The seller substantiated his assertion with a letter from the Volusia County Planning and Zoning Department stating that a county variance had been granted to construct a single family dwelling on this property, subject to certain conditions. The county approval letter specified the required use of an aerobic wastewater treatment system. The Petitioners were unaware of the state regulations and standards for onsite sewage disposal systems. The Petitioners hired a builder who applied to the HRS Volusia County Public Health Department for a septic tank permit. The permit was denied because the proposed septic tank system violated 50 foot set back required of sewage treatment systems from Class II waters. The proposed drainfield was located within 28 feet of the mean high water line, and because of the configuration of the lot and its depth of only 50 feet the proposed site cannot meet the state standard. The Petitioners' builder subsequently applied to the state Department of Health and Rehabilitative Services for a variance from the code standards in order to obtain the septic tank construction permit. The state denied the variance stating that the "request was not considered to be a minor deviation from the minimum requirements". The Petitioners received no notification of the time and place of the Variance Review Board's meeting because the variance application was submitted by their builder. Petitioners had no opportunity to personally address the Variance Board when their application was being considered. A sewer line is located within 1000 feet of the property and a sewage grinding and pumping system could be installed to pump sewage from the site to the sewer line. Such a system, costs approximately the same amount as an onsite system. A grinding and pumping system is an economically reasonable alternative to permit development of the lot.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, the arguments of the parties, it is therefore RECOMMENDED: That the request for a variance be DENIED. DONE and ENTERED this 2nd day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 132 Winewood Boulevard Tallahassee, FL 32399-0700 Jerome and Bernice Massel 6426 Engram Road New Smyrna Beach, FL 32169 Charlene J. Petersen, Esquire HRS-District 4 P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issue is whether Respondent should be required to obtain a current operating permit for his aerobic treatment unit and have a $500.00 fine imposed for violating an agency rule for the reason cited in the Citation for Violation issued by Petitioner on December 1, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this dispute, Petitioner, Department of Health (Department), has alleged that Respondent, Dr. Anthony Massaro, a retired public health physician, failed to obtain an annual operating permit for an aerobic treatment unit (ATU) located at his residence at 3402 North Oceanside Boulevard, Flagler Beach, Florida. The Flagler County Health Department (Health Department) is charged with the responsibility of issuing such permits. That department is under the direction and control of Petitioner. While Respondent readily admits that he failed to obtain a permit, he contends that he was misled by the Health Department when he first installed an ATU at his residence; the Health Department is not enforcing the law regarding ATUs and thus another system would be more appropriate; and the law, as he interprets it, allows him to install another type of on-site sewage disposal unit on his property. Respondent purchased his property in Flagler County in 1997. The property is located in Ocean View Estates Subdivision (subdivision), which has an Urban Single-Family Residential District (R-1b) zoning classification under the Flagler County Land Development Code (Code). Section 3.03.05A of the Code requires that owners within the R-1b classification use "public or community water and sewer facilities," but makes an exception for "[s]mall R-1b subdivisions, fifty (50) lots or less, utilizing a public community water system," in which case residents "may utilize Class I aerobic onsite sewage disposal systems." Further, "[t]he use of individual onsite sewage disposal systems must be consistent with adopted county policies and standards." Because the subdivision has 50 lots or less, and public or private sewer facilities were not available in the area, the subdivision's Plat Agreement recorded in 1995 provided that "[i]ndividual aerobic onsite sewage disposal systems are to be permitted and constructed as each lot is developed." Another type of onsite sewage disposal system is the anerobic system, which has a septic tank and larger drainfield, is far less expensive, but does not conform with "county policies and standards" in this locale. Thus, this type of system requires a variance from the zoning regulations before one can be installed in the subdivision. Even so, Respondent says "all" of his neighbors have installed such a system. Because of the Plat Agreement, the zoning restriction, the difficulty in obtaining a variance, and the lack of a sewer line, Respondent had no choice except to use an ATU system for his residence. This meant that he had to apply for a permit from the Health Department. Once a permit is obtained and an ATU installed, the owner must renew his operating permit annually at a cost of $150.00, and he must enter into a maintenance agreement with a licensed contractor. The $150.00 fee is used to defray the costs incurred by the Health Department in making quarterly inspections and performing annual sampling and laboratory analysis of effluent. The record does not reflect precisely when a sewer line became operational across the street from Respondent's property, but the sewer project was accepted "for service" in April 1998, or before Respondent's ATU was installed in August 1998. Had Respondent known this, he would have obviously chosen that option rather than an ATU. The evidence reflects that in November 1997 Respondent made application for an ATU with the Health Department, a permit was issued in December 1997, and the system was installed and approved in August and September 1998, respectively. In early April 1998, the Health Department was advised by the private utility company that it would accept new sewer connections in a service area that included Respondent's home. However, Health Department representatives made no mention of this to Respondent since they were under the impression that he desired to use the ATU option, they do not normally "counsel" applicants on onsite sewage disposal system options, and Respondent had made no inquiry. Disclosure of this fact would have saved Respondent considerable money (and grief) in the long run; unfortunately, however, while good public relations would dictate otherwise, the Health Department had no legal obligation to do anything other than process the pending application. Likewise, it has no obligation in law to now pay the costs for Respondent to hook up to the line because of its non-disclosure. Respondent has now invested more than $5,000.00 in his ATU. This type of system is operated by a compressor in Respondent's garage, which must be run 24 hours per day, and is very noisy. Because of this, Respondent understandably wishes to change to an anerobic system, which has a traditional septic tank, larger drainfield, no unsightly "mound" in the yard, no annual permits, and is far cheaper than an ATU. Also, it does not require a noisy motor to sustain operations. However, this type of system is prohibited by the Code except where a variance from Flagler County (County) has been obtained. It appears to be unlikely that Respondent can obtain a variance from the County. Because Respondent's property is so low in relation to the sewer line, to achieve the proper gravity, he must install a lift station and pay a connection fee, both totaling $3,540.00, before hooking up to the sewer system. Given these costs, and the considerable investment he already has in an ATU, Respondent does not consider this to be a viable alternative. Respondent pointed out that, despite the requirement that they do so, many ATU owners in the County are not running their systems 24-hours per day because of the noise from the compressor. He also pointed out that the Health Department has consistently found numerous violations of such systems during its inspections. He further asserted that while the $150.00 annual fee is to defray certain sampling and laboratory analysis costs associated with inspecting ATUs, the Health Department has done neither on his ATU. Finally, Respondent pointed out that prior to 1999 the regulations were enforced by sampling the compliance of a very small percentage of total ATU systems (ten percent), rather than all systems, in the County. Given these considerations, Respondent concludes that ATUs are the least effective way to treat sewage, and that existing laws and regulations have not been enforced. Assuming these allegations to be true, and they were not seriously disputed, they are legitimate concerns. However, until the law is changed, they do not constitute a lawful basis for allowing Respondent to switch to an anerobic system. Respondent further contended that under his interpretation of the general law, which was not fully understood by the undersigned, he is not required to use an ATU. But local zoning regulations clearly require that he do so, and until the state or local regulations are changed or waived, he cannot use an anerobic system. Finally, Respondent has cooperated with the Department throughout this process. With his lengthy public health background, Respondent initiated this action with good intentions, seeking to point out the flaws in the ATU systems, and to remedy a problem which none of his neighbors apparently have. Given these considerations, a civil penalty should not be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order sustaining the charge in the Citation for Violation and requiring that Respondent obtain an annual permit for his ATU. A civil penalty is not warranted. DONE AND ENTERED this 20th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Dr. Anthony Massaro 3402 North Oceanside Boulevard Flagler Beach, Florida 32136 Amy M. Jones, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact B. D. Taylor, Respondent, is the owner of a wastewater treatment facility near Panama City, Florida, which serves a community of some 125-150 mobile homes at Lane Mobile Home Estates. The facility has a 24,000 gallons per day capacity to provide secondary treatment of wastewater with percolating ponds. It was first permitted in 1971 upon construction and has been in continuous operation since that time. In 1980 Respondent employed the services of a consultant to apply for a renewal of its temporary Permit to operate a wastewater treatment facility. This application stated the temporary operating permit (TOP) was needed to give Respondent time to connect to the regional wastewater treatment facility. The schedule contained in the following paragraph was submitted by Respondent at the time needed to accomplish this objective, Following inspection of the facility, a TOP was issued December 5, 1980 (Exhibit 1), and expired January 1, 1983. TOPs are issued to facilities which do not comply with the requirements for Wastewater treatment. Exhibit 1 contained a schedule of compliance to which Respondent was directed to strictly comply to stop the discharge of pollutants from the property on which the facility is located. These conditions are: Date when preliminary engineering to tie into regional will be complete and notification to DER. July 1, 1981; Date when engineering to tie into regional system will be complete and notification to DER - June 1, 1982; Date construction application will be submitted to phase out present facility - March 1, 1982; Date construction will commence - June 1, 1982; Date construction is to be complete and so certified - October 1, 1982; and Date that wastewater effluent disposal system will be certified "in compliance" to permit - January 1, 1903. None of these conditions or schedules has been met by Respondent. The regional wastewater treatment facility was completed in 1982 and Respondent could have connected to this system in the summer of 1982. This wastewater treatment facility is a potential source of pollution. The holding ponds are bordered by a ditch which is connected to Game Farm Greek, which is classified as Class III waters. The size of Game Farm Creek is such that any discharge of pollution to this body of water would reduce its classification below Class III. On several occasions in the past there have been breaks in the berm surrounding the holding ponds which allow the wastewater in the holding ponds to flow into the ditch and into Game Farm Creek. Even without a break in the berm, wastewater from these holding ponds will enter Game Farm Creek either by percolation or overflow of the holding ponds caused by the inability of the soil to absorb the effluent. On January 28, 1983, this facility was inspected and the results of the inspection were discussed with the operators of the facility. The plant was again inspected on February 8 and February 18, 1983. These inspections disclosed solids were not settling out of the wastewater in the settling tanks; inadequate chlorination of the wastewater was being obtained in the chlorination tanks; samples taken from various points in the system, the ditch along side the holding tanks and in Game Farm Creek, disclosed excess fecal coliform counts; and that very poor treatment was being afforded the wastewater received at the plant as evidence by high levels of total Kejhdal nitrogen and ammonia, high levels of phosphates, high biochemical oxygen demand, and low levels of nitrates and nitrites. In July, 1983, in response to a complaint about odors emanating from the plant, the facility was again inspected. This inspector found the aeration tanks anaerobic, effluent had a strong septic odor, the clarifier was cloudy, the chlorine feeder was empty, no chlorine residual in contact tank, final effluent was cloudy, both ponds were covered with duckweed and small pond was discharging in the roadside ditch (Exhibit 14) Expenses to Petitioner resulting from the inspections intended to bring Respondent in compliance with the requirements for wastewater treatment facilities are $280.32 (Exhibit 9)
Findings Of Fact The Respondents, Frank L. Reppa and Denise J. Reppa, own and reside in their dwelling located at 3863 Plumosa Drive, St. James, Florida. The property is a narrow canal front lot. All lots in the area are small and narrow and the dwellings thereon, mostly mobile homes, are placed closely together. On January 11, 1988, as the result of a nuisance complaint by the Reppa's next door neighbor, Stephen E. Havig, an Environmental Specialist with the Lee County Health Department, a part of the State of Florida DHRS, inspected the property in question and observed that effluent from the Respondents' drain field, a malodorous liquid, had run from Respondent's property down onto the driveway of their neighbors. On January 13, 1988, he returned to the property and spoke with Mrs. Reppa who admitted to living on the property. He again observed that the drain field in the Reppas' septic system was heavily saturated and had failed. Effluent was coming to the surface due to the high water table resulting from heavy recent rains and the failure of the system, and there was still a sewage odor to the effluent. The effluent showed in stains on the neighbor's drive. Mr. Havig told Mrs. Reppa that the problem had to be corrected as it was a violation of the law to allow it to remain. In response, Mrs. Reppa indicated they had no money to effect the repairs and because of that, Mr. Havig, who could have cited them immediately, indicated he would return to his office to see if they could be given some additional time to have the work done. After checking with his supervisor, Mr. Havig, on the same day issued an "Official Notification of Insanitary Nuisance" and a "Notice of Intended Action", both of which were sent by Certified Mail and receipted for by Mrs. Reppa on January 19, 1988. The Notice gave the Reppas until January 28, 1988 to correct the problem. On January 14, 1988, Mr. Havig again talked with Mrs. Reppa, telling her what he was sending and advising her how she could get the problem fixed. When he again went out to the property on January 28, 1988, he noted that the property had dried out due to a lack of rain. However, he could see no evidence that any repairs had been effected. He returned to the property on February 1, 1988 after a rain and observed that the problems had reoccurred. Mr. Havig again spoke with Mrs. Reppa on February 8, 1988, at which time she advised him the problem was to be repaired, but they were without funds to pay for it. At that time, Mr. Havig gave the Reppas three weeks to have the work completed with a contractor to be retained within one week. When he spoke with Mrs. Reppa on February 16, 1988, she stated she was still having trouble getting a contractor. She had contacted one contractor who looked at the system on February 15, 1988 and who proposed to remove the washing machine from the drain system. When Mr. Havig talked with Mrs. Reppa on February 19, 1988, she indicated she would have to discuss the matter with her husband. Mr. Havig stated at that time that the Department would have to proceed with enforcement action if work was not started on the correction by February 22, 1988. No corrective action was taken by the Reppas and the Administrative Complaint was filed as a result. DHRS considers it important to properly dispose of effluent because, since it contains human waste, it carries bacteria, viruses and a danger of parasites. Agency policy requires that the septic system be continually monitored and that the tank be pumped and the drain field be repaired when necessary. The Department has no funds available to assist those who cannot afford to make repairs. In order to be properly processed, effluent drainage from septic tanks needs a minimum of two feet of soil between the discharge outlet of the tank and the water table. The soil acts as a filter to remove harmful organisms and contaminants from the effluent before it reaches the water table. A high water table, due to heavy rains or other causes, prevents this filtration and causes the effluent to come to the surface. The situation is correctable. Two methods of correction are: 1) elevate the system above the water table, or 2) remove the saturated soil and replace it with a good grade of sand. In October, 1985, another complaint against the Reppas, relating to the same situation, was filed with DHRS. At that time, the Reppas paid $650.00 to have the system repaired by an individual who replaced the drain field, drawing it away from adjoining property and toward the road. Though the contractor assured them this would fix the problem, wash water would continue to come to the surface. As a result, Mrs. Reppa has refrained from washing clothes at her home and takes them to the laundry in town. Because of the actions they have taken, such as having the drain field expanded and moved, the pumping out of the septic tank in January, 1988, and the cessation of washing clothes at home, Mr. and Mrs. Reppa are convinced the system is not overflowing and that the water on the neighbor's property is the accumulation of surface water drainage when it rains. The Reppa property is higher than the neighbor's property and Mrs. Reppa believes that rain water drains down there. The new part of the drain field works and the water in question, she feels, cannot be effluent. The evidence of record, however, indicates to the contrary and that it is waste effluent. Inquiry by the Reppas indicates that it would take $750.00 more to fix the system and the Reppas do not have that money. They are still paying back the money they borrowed from Mrs. Reppa's parents to make the first repairs. Mr. Reppa is a commercial fisherman whose income has been substantially reduced due to the restrictions placed on the taking of redfish. Many neighbors in the area, according to the Reppas, discharge sewage directly into the abutting canal and allow wash water to run out onto the ground. The Reppas cannot comprehend why these individuals, mostly three month winter visitors, are not cited while they, full time residents, are.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that an administrative fine of $50.00 per day be assessed against the Reppas for the violation established, said fine to be effective upon entry of a Final Order herein, with provision that the fine be remitted upon satisfactory proof that the violation has been corrected. Recommended in Tallahassee, Florida this 24th day of August, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Eugenie G. Rehak, Esquire Staff Attorney Department of Health and Rehabilitative Services Post Office Box 06085 Ft. Myers, Florida 33906 Frank Lee Reppa, pro se Denise J. Reppa, pro se 3863 Plumosa Drive St. James, Florida 33986 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact J. Armand Martin is the owner of a lot located in Pasco County, Florida, which includes an island surrounded by a body of water known as Sleepy Lagoon and a 15-foot strip of land on the mainland. This case arose out of Martin's efforts to develop this lot and construct a personal residence on the island. Residential dwellings surround the lagoon and Martin's island. In order to build a residence on the island, Martin had to install a septic tank. To install a septic tank Martin had to apply for a permit to install an individual sewage disposal system. It was Martin's original intent to locate the sewage treatment facility on the mainland and pipe the sewage over the bridge he planned to build to access his island. Martin made application for the required septic tank permit to the Pasco County Health Department. The inspector from the Pasco County Health Department was taken aback by the situation she encountered when she did the preliminary inspection and called in her supervisor, Donald Van Kampers, for assistance. Van Kampers eventually inspected the island and suggested that Martin put his individual sewage disposal system on the island itself, pointing out that because the island was so low the installation would probably have to include a sand filter system and possibly a chlorinating system. Van Kampers also advised Martin that he would have to seek a variance from the Staff Director of the Health Program Office pursuant to Rule 10D-6.21, Florida Administrative Code, because the island was so narrow that the system would be within 50 feet of the lagoon's waters contrary to Rule 10D-6.24(4), Florida Administrative Code. Martin received assistance from Van Kampers on his application for the variance. This application called for the filing of a site plan drawn to scale. In addition to being surrounded by Sleepy Lagoon, Martin's island circumscribes a small body of water variously referred to as a pond, lagoon and even "wetlands." Martin transmitted to Van Kampers a surveyor's drawing of his island which did not show the island's own small body of water. In an effort to assist Martin, Van Kampers filled in the proposed location of Martin's house and the individual sewage disposal system (septic tank with sand filter) on this surveyor's drawing, attached it to Martin's request for a variance and forwarded it to the Staff Director for the Health Program Office together with a recommendation of approval by the Pasco County Health Unit. This drawing did not show the body of water on the island. The Staff Director forwarded the application to the Review Committee which he appoints to review applications for variances. There is no evidence that Martin saw this drawing prior to the Review Committee's approval of the variance which, with the affirmative recommendation of the Pasco County Health Unit, was summarily granted. Subsequently, several of the residents surrounding Sleepy Lagoon and Martin's island became concerned about the potential problems which Martin's individual sewage disposal system would have on their lagoon, its environment and its ecology. Their complaints eventually came to the attention of the Staff Director of the Health Program Office, who in turn forwarded the matter to John Heber, the Department's representative to the Review Committee, for investigation. Heber conducted a personal inspection of Martin's island and compared it with the drawing filed by Van Kampers in Martin's behalf. Heber found that according to the drawing the individual sewage disposal system would be located in the middle of the water on Martin's island. Having made this discovery, Heber initiated actions which resulted in the Issuance of an Administrative Complaint to have the variance issued Martin rescinded. The Administrative Complaint alleged that Martin had "misrepresented" facts on his application for the variance by not showing the water on his island. Martin made a timely request for a formal hearing on the allegations. Martin did not fill out the drawing which accompanied his application. It was filled out by Van Kampers, who did not draw in the island's water and put the individual sewage disposal system in the middle of where the water is currently located. Van Kampers and his supervisor, both of whom visited the island, did not consider the water on the island subject to the rules which call for the reporting of lakes, streams or canals. See Rule 10D-6.23(2)(a), Florida Administrative Code. In regard to their classifications of surface waters, they are the officials charged under the regulatory scheme with determining when applicants must seek a variance. Applicants must seek a variance when, like Martin, their septic tanks are too close to certain surface waters. See Rule 10D-6.24(4), Florida Administrative Code. Clearly, they determine when a permit will be issued, when an applicant is required to seek a variance, and what waters must be reported on the scale drawing. In the instant case they classified Sleepy Lagoon as protected waters requiring Martin to seek a variance and the water on the is land as unprotected waters not requiring their inclusion on the drawing, because they determined the water was not a lake, stream or canal. The facts show that this water is not a lake, stream or canal. Under the Department's policy a sewage system can only be constructed as drawn and presented in the application for a variance. If the system in question were constructed, it would require the filling of the area where the water is located. The drawing accurately reflects the post-construction situation with the water not shown.
Recommendation The foregoing Findings of Fact and Conclusions of Law show J. Armand Martin did not misrepresent his application; therefore, the facts of the allegation are not proven, and the variance should not be revoked. DONE and ORDERED this 3rd day of April, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1981. COPIES FURNISHED: Barbara Dell McPherson, Esquire Department of HRS 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 Mr. J. Armand Martin 4 Sunset Boulevard Bailey's Bluff Tarpon Springs, Florida 33589
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue Whether Respondent committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.
