The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to the grant of a variance for the installation of an onsite sewage disposal system ("OSDS") for his property on the Santa Fe River in Gilchrist County, Florida, in accordance with 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 Gilchrist County, Florida, more particularly described as Lot 4, Unit 4, Ira Bea's Oasis, a subdivision. The evidence is not clear concerning whether the plat of the subdivision was actually recorded, although the evidence and the Petitioner's testimony indicates that the lots in the subject subdivision were subdivided in 1965. The evidence does not clearly reflect whether the subdivision was ever platted, however. On April 2, 1990, the Petitioner filed an application for an OSDS permit regarding the subject property. The application was for a new OSDS on the above-described property; and the system was intended to serve a single- family residence, which the Petitioner desires to construct on the subject property for a vacation and retirement home. The proposed residence would contain three bedrooms and a heated or cooled area of approximately 1,100 square feet. In the permit application process, at the Respondent's behest, the Petitioner had a survey performed by Herbert G. Parrish, registered land surveyor. That survey, in evidence as the Respondent's Exhibit 1, reveals a benchmark elevation of 21.65 feet above mean sea level ("MSL"). The proposed installation site is at an elevation of 22.5 feet above MSL. A report by the Suwannee River Water Management District, which is admitted into evidence and was submitted to the Respondent by the Petitioner with the application for the OSDS permit, shows a ten-year flood elevation for the subject property, and River Mile 10 of the Santa Fe River, at 31 feet above MSL. Thus, the subject property is located beneath the ten-year flood elevation. The property is also located within the regulatory floodway of the Santa Fe River, as that relates to required engineering certification and calculations being furnished which will assure that if OSDS's are constructed employing mounding or sand filters, and like constructions, that such related fill deposited on the property within the regulatory floodway will not raise the level of the "base flood" for purposes of the rules cited hereinbelow. No evidence of such certification by an appropriately-registered engineer was offered in this proceeding concerning the installation of a mounded system and its effect on the base flood level. The surface grade level of the subject property at the installation site is 9.5 feet below the ten-year flood elevation. The grade elevation of the subject property is also .5 feet below the "two-year flood elevation", and the property has been flooded once in the past three years and has been flooded approximately four times in the past 15 years. It has thus not been established in this proceeding that the property is not subject to frequent flooding. On April 18, 1990, the Respondent denied the Petitioner's application for an OSDS permit by letter of that date. The Petitioner did not make a timely request for a formal administrative hearing to dispute that denial. The Petitioner maintained at hearing that this was, in essence, because the Respondent's personnel informed him that he should seek a variance instead, which is what he did. The testimony of Mr. Fross reveals, however, that, indeed, he was advised of his opportunity to seek a variance but was also advised of his right to seek a formal administrative hearing to contest the denial of the permit itself. Nevertheless, either through the Petitioner's misunderstanding of his rights or because he simply elected to choose the variance remedy instead, the fact remains that he did not timely file a petition for formal proceeding to contest the denial of the OSDS permit itself. Even had a timely petition for formal proceeding concerning the denial of the OSDS permit application been filed, the evidence of record does not establish the Petitioner's entitlement to such a permit. As found above, the property lies beneath the ten-year flood elevation and, indeed, lies below the two-year flood elevation, which subjects the property to a statistical 50% chance of being flooded each year. This and the other findings referenced above indicate that the property has not been established to be free from frequent flooding; and although appropriate "slight-limited" soils are present at the proposed installation site, those soils only extend 50 inches below the surface grade. That leaves an insufficient space beneath the bottom of the drainfield trenches where they would be located so as to have a sufficient volume and distance of appropriate treatment soil available beneath the drain field, if one should be installed. Below 50 inches at the subject site is a limerock strata which is impervious and constitutes a barrier to appropriate percolation and treatment of effluent waste water. Thus, for these reasons, especially the fact that the property clearly lies beneath the ten-year flood elevation and because adequate proof in support of a mounded system which might raise a septic tank and drainfield system above the ten-year flood elevation has not been adduced, entitlement to the OSDS permit itself has not been established. Concerning the variance application actually at issue in this proceeding, the Petitioner has proposed, in essence, two alternative systems. The Petitioner has designed, and submitted as an exhibit, a plan for a holding- tank-type- system. By this, the Petitioner proposes a 250-gallon holding tank, with a venting pipe extending approximately three feet above the level of the ten-year flood elevation, with an attendant concrete retaining wall and concrete base to which the tank would be securely attached. The Petitioner thus postulates that flood waters would not move or otherwise disturb the holding tank and that he would insure that the holding tank was pumped out at appropriate intervals and the waste there from properly deposited at a treatment facility located above the ten-year flood elevation. The precise method of such disposal and its location was not disclosed in the Petitioner's evidence, however. Moreover, the testimony of Dr. Hunter establishes that the deposition of waste water and human waste into the tank, either through pumping, or by gravity line, if the residence were located at an elevation above the inlet to the tank, might well result in a hydraulic condition which would cause the untreated sewage to overflow from the vent pipe of the tank. Moreover, such systems do not insure that public health, the health of the occupants of the site, and ground or surface waters will not be degraded since it is very costly to pump such a tank out which would have to be done on a frequent basis. This leaves the possibility that the user of such a holding-tank-facility could surreptitiously drain the tank into nearby receiving waters or otherwise improperly empty the tank. Even though the Petitioner may be entirely honorable in his intentions and efforts in this regard and not violate the law and the rules of the above-cited chapter in his manner of disposal of the holding-tank effluent, there is no practical, enforceable safeguard against such illegal activity, especially if one considers that the property may later be conveyed to a different landowner and user of the system. The Petitioner also proposes in his testimony and evidence the possibility of using a nondischarging, composting-toilet-type system to handle sewage involving human excreta. Such a system has been shown by the Petitioner's evidence to adequately treat human sewage so that public health and the ground and surface waters involved in and near the site could be adequately safeguarded. The problem with such a system, however, is that the "gray water", that is, waste water from bathtubs, showers, lavatories and kitchens, cannot be disposed of in the composting-toilet system. Such gray water, which also contains viruses, coliform bacteria and nutrients, must be disposed of, according to the rules at issue, in an appropriate sewage disposal system, be it in a septic tank and drain field or through pumping to an appropriate disposal and treatment facility located above the ten-year flood elevation. The Petitioner's proof does not establish how such gray water could be appropriately and safely disposed of in the environmental and public health context at issue herein. Thus, the proposed alternatives suggested by the Petitioner's proof do not constitute minor deviations from the minimum requirements for OSDS's specified in Chapter 10D-6, Florida Administrative Code. Ironically, the composting-toilet system, coupled with a proper disposal system for household gray water, could constitute a reasonable alternative to a conventional system. Thus, the Petitioner's proof, itself, shows that a reasonable alternative may exist, which militates against the granting of the variance, although he did not prove how it could feasibly be accomplished. In summary, therefore, the Petitioner's proof failed to establish that no reasonable alternative exists and that the proposed system would only be a minor deviation from the minimum requirements of the Respondent's rules concerning OSDS's and their installation and operation. The Petitioner established that a reasonable alternative to a conventional OSDS might exist for purposes of granting an OSDS permit itself, had that issue been formally placed before the Hearing Officer, but did not prove how it could feasibly be accomplished and operated. This proof shows, however, that such a reasonable alternative might be found operable which, thus, fails to justify the granting of a variance based upon hardship. If the Petitioner could come forward with proof to establish the feasibility of disposal and treatment of the household gray water involved in an appropriate treatment and disposal site and facility above the ten-year flood elevation, in conjunction with use of a composting- toilet system, a later permit application might be entertained in which could be justified the granting of an OSDS permit.
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 by the Respondent denying the Petitioner's application for a variance from the statutory and regulatory requirements, cited above, for the issuance of permits. At such time as the Petitioner is able to show changed factual circumstances, as for instance, that a reasonable, feasible alternative system, which will adequately treat and dispose of all household waste water effluent in a manner comporting with the rules of Chapter 10D-6, Florida Administrative Code, a permit application should be entertained. DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4569 The Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact 1-16. Accepted. 17. Rejected, as not supported by the preponderant evidence of record. 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 Mark Moneyhan, pro se Route 3, Box 407 Perry, FL 32347 Frances S. Childers, Esq. Department of HRS District III Legal Office 1000 Northeast 16th Avenue Gainesville, FL 32609
Findings Of Fact During 1990, Respondent/Applicant, City of Lynn Haven, filed several applications with the Respondent, Department of Environmental Regulation, seeking the issuance of several permits to build a wastewater collection system and a two million gallon per day advanced wastewater treatment (AWT) plant. The proposed facility is intended to replace the wastewater treatment facility currently being used by the City of Lynn Haven. After a review of the applications the Department proposed several Intents to Issue covering the different aspects of the proposed projects. The Intents to Issue included: A) a variance and dredge and fill permit, pursuant to Sections 403.201, 403.918, 403.919, Florida Statutes, and Rule 17-312, Florida Administrative Code, authorizing a subaqueous crossing of North Bay (Class II waters) and installation of a force main (permit #031716641), B) a collection system permit, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-600 and 17-604, Florida Administrative Code, for the installation of approximately 11 miles of pipe from North Bay to the proposed treatment plant, C) a dredge and fill permit #031785181, pursuant to Sections 403.918, 403.919, Florida Statutes, and Rules 17-4, 17-312, Florida Administrative Code, authorizing 10 incidental wetland crossings associated with the collection system, and, D) a construction permit #DC03-178814, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-302, 17-600 and 17-611, Florida Administrative Code, authorizing the construction of a 2.0 mgd wastewater treatment plant. Sand Hill Community Improvement Association challenged the Department's Intents to Issue. The Sand Hill Community Improvement Association (Sand Hill) is an association composed of 74 formal members plus numerous supporters. Both members and supporters are residents who live near the site of the proposed Lynn Haven sewage treatment plant. They are sufficiently close to the plant site that construction of the proposed project could impact their property. The members are very concerned about any threat of pollution to the aquifer from the proposed plant since all of the members are dependent on private wells for their drinking water. Additionally, members of the association use the proposed site, as well as the associated wetlands, Burnt Mill Creek and the nearby lakes, for a variety of recreational purposes, including hunting, fishing, hiking, bird-watching, boating and swimming. Given these facts, the Association has standing to challenge the Department's Intents to Issue involved in this case. The City of Lynn Haven is located on a peninsular section of the south shore of North Bay and, except for its connection to the land, is surrounded by environmentally sensitive Class II or Class I waters. Lynn Haven's existing wastewater treatment plant was poorly designed, has not worked properly, and is old and outdated. The plant is permitted to treat up to 950,000 gallons per day. However, the existing plant is currently exceeding its originally permitted treatment limits and is treating in excess of 1,200,000 gallons per day. The sewage only receives secondary treatment, Secondary treatment is the minimum state standard for wastewater treatment. The secondarily treated wastewater is pumped several miles to a spray irrigation site located in the eastern portion of the City. The sprayfield site has never worked properly due to a high groundwater table and a confining layer of soil, both of which prevent the effluent from percolating into the ground. Because the sewage effluent cannot percolate into the ground, the existing operation frequently results in direct runoff into a ditch which empties into North Bay, a Class II waterbody. Such discharge of wastewater effluent into Class II waters is prohibited by Department regulations. 1/ At this time, the existing wastewater treatment facility is in violation of both DER and EPA standards and is under enforcement action by both agencies. The existing facility is currently operating without a permit and the Department has advised Lynn Haven that the existing facility as it now operates can not be permitted. In fact, all the parties agree that the City is in serious need of a wastewater treatment facility which works and does not pollute the environment. However, the parties disagree over the method by which proper wastewater treatment could be accomplished by Lynn Haven. Since 1972, the City, through various consultants and with the aid of DER, has reviewed approximately 40 alternatives for wastewater disposal. After this review, the City of Lynn Haven selected the alternative which is the subject of this administrative hearing. The alternative selected by the City of Lynn Haven consists of the construction of a proposed advanced wastewater treatment (AWT) plant and distribution system. The new plant will be on a 640 acre parcel of property located approximately 12 miles north of Lynn Haven. The location of the new plant will necessitate the rerouting of the wastewater from the old plant to the new plant by construction of a new transmission line approximately 12 miles north of the City across North Bay and parallel along State Road 77. 2/ The treatment process proposed for use in the new AWT plant is known as the AO2 process. The process is patented. The AO2 treatment process primarily consists of biological treatment with settling and filtration. The treatment process also includes a chemical backup treatment to further reduce phosphorus if necessary. The evidence demonstrated that this type of facility has been permitted by the Department in at least five other wastewater facilities throughout the state. The treatment facility will have a two million gallon per day, lined holding pond on site for the purposes of holding improperly treated wastewater for recirculation through the proposed facility. Any excess sludge generated by this treatment process would be routed to lined, vacuum-assisted, sludge drying beds. The sludge would then be transported offsite to a permitted landfill for disposal. The evidence demonstrated that this treatment process would not produce any objectionable odors. Once the wastewater is treated, it will be disinfected by chlorination to eliminate pathogens. The chlorination process is expected to meet state standards. After chlorination, a dechlorination process would occur to remove any chlorine residuals which would have a harmful affect on the environment. The treated wastewater would then be re-aerated and discharged through the distribution system indirectly into a wetland located on the 640 acre parcel of property. The quality of the treated wastewater is expected to meet the advanced wastewater treatment (AWT) standards. These standards are five milligrams per liter total suspended solids (T.S.S.), five milligrams per liter BOD, three milligrams per liter nitrogen (N), one milligram per liter phophorus (P). Ph will be in the range of six to eight units on an average annual basis and can be adjusted up or down if necessary to meet the ph levels of the ecology into which the wastewater ultimately flows. This effluent quality is approximately five times cleaner than secondarily treated effluent. Additionally, as a condition of the draft permit, the proposed facility would be operated by a state-licensed operator and would be routinely monitored to insure that the treated wastewater effluent meets advanced wastewater treatment standards. Given these facts, the evidence demonstrated that the applicant has supplied reasonable assurances that the plant will perform as represented and that the effluent will meet the state standards for advanced wastewater treatment. As indicated earlier, the site for the proposed AWT plant contains approximately 640 acres and is located approximately 12 miles north of Lynn Haven in an area known locally as the Sand Hills. The City specifically purchased this parcel of property for the construction of the proposed wastewater treatment plant. The plant itself would be located in the northeast corner of the property. The 640 acre site was previously used for silviculture. The entire area is currently planted in pines except for a low area that is dominated by a pristine, woody wetland system of titi. The titi wetland is approximately 212 acres in size and generally runs through the center of the property from the northeast to the southwest. The wetland is low in acidity, with an estimated ph between 4 and 5. The site consists of hilly, mineralized soils. The soils within the forested wetland are organic in nature. Based on the evidence at the hearing, there does not appear to be any significant confining layers of soil which would prevent the treated wastewater from percolating in the soils and draining towards the wetland and ultimately into Burnt Mill Creek, a Class III waterbody. Once the effluent leaves the plant, it would go through a distribution system. The proposed distribution system will consist of six, 500 foot long, 12 inch diameter perforated pipes. Each 500 foot section of pipe has 100 one and one-half inch orifices which will discharge the treated effluent onto an eight foot wide concrete pad. This concrete pad will dissipate the effluent's energy, prevent erosion at the orifice site and insure that the effluent sheetflows onto and eventually into the sandy soils of the plant site and ultimately into the receiving wetland. The distribution pipes are located around the east, north and western portions of the receiving wetland and are variously set back from the receiving wetland approximately 80 to 200 feet. The distribution system is designed with valves to allow for routing of flow to different branches of the system if it is determined through long term monitoring that there is a need to allow for any of the receiving wetland to dry out. None of the distribution branches are located in any jurisdictional wetlands of the State of Florida. The receiving wetland will receive a hydraulic loading rate of approximately 1.8 inches per week once the new advanced wastewater treatment plant is operating at capacity. Both the surface waters and groundwaters on the 640 acre parcel flow from northeast to southwest across the property. The evidence clearly demonstrated that any treated wastewater discharged on the site would move down hill by surface or groundwater flows towards the wetlands in the central portion of the property and eventually discharge into Burnt Mill Creek located at the southwest corner of the parcel. The evidence demonstrated that it would be highly unlikely for the surface or groundwater to move in any other direction and would be unlikely for the surface or groundwater to move towards any residents located to the north or east of this parcel. Evidence of the topography and its relatively sharp gradient clearly demonstrated that the treated wastewater discharged in the northeast corner of this site would not result in any significant still water ponding and would exit the site at the southwest corner of the property in approximately 14 hours. The evidence did demonstrate that, depending on the wetness of the weather, there may likely be certain times of the year when a flowing type of ponding would occur. However, this wet weather ponding was not shown to be of a duration which would impact to a significant degree on the flora and fauna of the area or increase the number of disease bearing mosquitoes in the area. As indicated earlier the treated effluent from the proposed AWT plant will flow into Burnt Mill Creek. Burnt Mill Creek will ultimately carry the treated wastewater approximately 11 miles down stream to North Bay. The City can directly discharge up to two million gallons per day of AWT water into Burnt Mill Creek without violating state water quality standards. Therefore, the volume of wastewater discharged into Burnt Mill Creek should not have significant impacts on surface and ground water quality. Moreover, Chapter 17-611, Florida Administrative Code, authorizes the discharge of up to 2 inches per week to receiving wetlands provided wastewater is treated to AWT standards. The evidence demonstrated that this rule was developed as an experimental effort to determine if wetlands could be appropriate areas for wastewater effluent to be either discharged or treated. These state limits were intended to be very conservative limits and were designed to insure that the impacts to receiving wetlands would be minimal. The evidence and testimony demonstrated that the receiving wetland system involved in this case should not be adversely impacted beyond those limits set forth in Section 17-611.500, Florida Administrative Code, for flora, fauna, macroinvertebrates, fish or vegetation and will meet all standards set forth in Chapter 17-611, Florida Administrative Code. However, it should be noted that the wetland/wastewater program is highly experimental and very little is known about the actual impacts of wetland/wastewater systems since facilities similar to the one proposed by Lynn Haven have not yet been placed in service. The evidence did show that there would be some long term impacts to flora and fauna in the wetland area primarily due to ponding, changed ph and the introduction of nutrients and pollution in the form of the effluent. However, the regulation does allow for some change within a receiving wetland and the evidence did not demonstrate that these changes would be significant or detrimental. Petitioners' own witness concluded that other deep wetland treatment systems are doing a very good job in meeting state water quality standards. Although Petitioners' expert noted potentially adverse impacts to flora and fauna from other wastewater treatment systems, these other systems were slow moving, impoundment-type systems that are not similar to the wastewater/wetlands system proposed by the City of Lynn Haven. The Lynn Haven system is designed for percolation and sheetflow, not ponding. Though there should be some expected changes, no evidence was provided that the receiving wetlands for the Lynn Haven facility would be affected to the extent there would be violations of any standard as set forth in Chapter 17-611, Florida Administrative Code. In essence, the legislature has determined that such experimentation with wetland areas is appropriate, albeit, even with the conservative limits of DER's rule, may prove to be a mistake. This facility is designed to fit within that rule and in fact is probably the best technology available for use in a wetland/wastewater situation. Finally, in order to avoid any potential impacts on the area which may over time become significant an approved monitoring program for surface water quality and affects on flora and fauna, as well as a groundwater monitoring program are required as conditions of the permit. The groundwater monitoring program has been designed to monitor any potential long term impacts to groundwater. With these protections there should not be any significant adverse impacts to surface or groundwater quality and the applicant is entitled to a construction permit for the AWT plant and distribution system. Lynn Haven's sewage would reach the proposed AWT plant through a transmission line. The transmission line would run from Lynn Haven's existing wastewater treatment plant across North Bay and through the unincorporated area of South Port. The Southport area is not sewered and utilizes individual septic tanks for its sewage. The transmission line would be constructed entirely in state road right-of-way. The line would terminate at the 640 acre site described above. A new, variable speed pumping station would be constructed adjacent to the old wastewater treatment plant. From this pump station, a 24 inch line would be constructed on City right-of-way up to the south shore of North Bay. At this point, the transmission line would be reduced in size to 20 inches and would be embedded approximately three feet below the Bay bottom. An additional variable speed pumping station would be located approximately half way along the 12 mile route of the transmission line to insure adequate pressure to pump wastewater to the new wastewater treatment plant. The pumps are to be employed to insure that the wastewater is continuously pumped uphill to the new site so that waste does not set, become septic, and create odor problems. The pumps are equipped to provide for chemical control of odor if necessary. Also, as a condition of the permit, the pumping stations are required to have backup power supplies should power be lost to the stations. The pumping stations and backup power supplies are to be tested monthly and the pumps are required to be continuously monitored by radio telemetry to insure they are operating properly. Additionally, the City of Lynn Haven will be required, as a condition of the permit, to visually inspect the entire length of the wastewater transmission line three times per day. The portion of the transmission line which would cross North Bay is approximately 3000 feet in length and would be constructed of high density polyethylene pipe (HDPE) with a wall thickness of one and one-half inches. HDPE pipe is used to transport materials such as hazardous wastes where leakage is not permissible. This type of pipe is virtually inert in that it is highly resistant to corrosion and other chemical reactions. It is also impact resistant and has a very high tensile strength. The pipe comes in 40 foot segments and is heat welded (fused) together. This type of joint significantly reduces the chance of any leakage. In fact, leakage around pipe joints is more likely to occur with other types of pipe and pipe connections. HDPE pipe is currently carrying wastewater across Watson Bayou in Bay County, Florida. 3/ There have been no reported problems with leaks or breaks occurring in the pipe crossing Watson Bayou. Given these facts, the probability of the proposed HDPE pipe leaking or breaking is extremely low, albeit not impossible, and such pipe appears to be the best material available for constructing a wastewater treatment transmission line across protected waters of the State. As a condition of the construction permit, the portion of the transmission line crossing North Bay will be required to have isolation valves at each end so that the pipe may be completely isolated in the event that it needs repair. The underwater portion of the line would be visually inspected by a diver twice per year and the line would be pressure tested before being placed into service. Additionally, pressure tests would be performed once a year. The construction permit also requires Lynn Haven to periodically inject dye into the proposed transmission line to check for any small leaks that may not otherwise be detected. Finally, the HDPE pipe would also be equipped so that television cameras could be inserted into the pipe to routinely inspect the interior of the pipe. In the event the HDPE portion of the transmission line would need to be repaired, the line could be immediately, temporarily repaired by a dresser coupling. A permanent repair could then be made in less than 24 hours once the material and equipment were staged at the site. The City intends to locally stockpile all necessary parts and equipment to effect any required repair to prevent any delay beyond four days. Permanent repairs would be accomplished by floating the line to the surface. The area needing repair would be cut out and a new section would be put in place by heat fusion. The line would then be pressure tested to insure the absence of leaks and placed back into service. During this process, the line would be taken out of service by the isolation valves and flow would be diverted to the eight million gallon holding ponds at the City of Lynn Haven's existing facility. These holding ponds can hold four days worth of wastewater from the City of Lynn Haven. Lynn Haven is required, as a condition of the construction permit, to have this reserve capacity as well as have a contractor on standby to make any repairs in the event such repairs are necessary. All of the technical specifications for the transmission system and the operating conditions imposed on it are designed to insure that the system does not fail or develop any leaks which could impact receiving waters, including North Bay. Given the permit conditions, the required inspections for leaks, the sound engineering design and quick repair methods proposed, the evidence demonstrated that the probability of any leak occurring in the portion of the transmission line crossing North Bay is extremely low and that if such a leak does occur any potential harm to the environment will likely be limited and quickly eliminated. The evidence demonstrated that the design of the transmission line and permit conditions provide reasonable assurances that the transmission line will meet or exceed the Department standards set forth in Chapter 17-604, Florida Administrative Code. Therefore, the applicant has provided reasonable assurances that the transmission line/collection system will not violate Department standards or rules and the applicant is entitled to a permit (permit #CS03-178910) for the proposed collection system. In addition to requiring a construction permit/collection system permit for the wastewater transmission line, the line will also require dredge and fill permits and a variance for crossing waters of the state. There are ten incidental crossings of state waters and one major crossing o f North Bay. Of the ten incidental crossings, two are over small creeks (Scurlock and Little Burnt Mill) These two incidental creek crossings will be accomplished by placing the transmission line (ductile iron pipe) on top of pilings placed in the water. Best management practices such as turbidity curtains and other erosion control practices are proposed and required by the permit to minimize construction impacts on water quality. The only impacts to wetland resources would be from the placement of the pilings. The evidence demonstrated that any impact would be minimal and not significant. The evidence did not demonstrate that the aerial crossings would have any long term water quality or environmental impacts. The remaining eight incidental crossings of waters of the state consist of small, seasonally wet ditches which would be traversed by trenching and burying the transmission line. Again, turbidity controls such as curtains and hay bales would be employed to protect water quality. The evidence did not demonstrate that any significant long term or short term impacts to resources of the state would occur. The evidence did demonstrate that the applicant has provided reasonable assurances that water quality standards would not be violated in regards to these 10 incidental water crossings. Likewise, the evidence demonstrated that the construction of these 10 incidental water crossings would not be contrary to the public interest. Therefore, the applicant is entitled to issuance of a dredge and fill permit (permit #031785181) for these 10 water crossing. However, a much harder question arises in relation to the dredge and fill permit and the variance required for the 3,000 foot segment of the wastewater transmission line which crosses North Bay. Pursuant to Rule 17- 312.080(7), Florida Administrative Code, permits for dredging and filling activity directly in Class II waters which are approved for shellfish harvesting by the Department of Natural Resources (DNR) shall not be issued. The reason for the rule is that any pollution caused by dredging and filling and, as in this case, the permanent placement of a sewage pipe in food producing waters could potentially have catastrophic effects on more than just the environment but on local employment in the shellfish industry and the quality of food available to the State. Put simply, the Department has determined by enacting its Rule that the public interest in food producing waters far outweighs any other consideration or criteria under Sections 403.918 and 403.919, Florida Statutes, in determining whether dredging and filling should take place in Class II, shellfish waters. In other words, it is not in the best interest of the public to allow dredging and filling so that a pipe carrying raw sewage can be placed in shellfishing waters. However, irrespective of this determination, the Department believes that, pursuant to Section 403.201(1)(c), Florida Statutes, it may grant a variance from its rules to relieve a hardship. As indicated earlier, North Bay is a Class II waterbody, conditionally approved for shellfishing. North Bay, therefore, falls within the Rule's prohibition against dredging and filling in Class II waters and the City is required to demonstrate the presence of a hardship in order to vary the Rule prohibition and obtain a dredge and fill permit for the North Bay crossing. On issues involving variances, the Department employs a two step analysis. The first part of the analysis is whether a hardship is present and the second is whether, if the variance were granted, would it result in permanent closure of Class II shellfish waters. The Department correctly recognizes that the question of whether a hardship exists is a question of fact and is determined on a case-by-case basis. Surprisingly, in a kind of "what we don't know can't hurt" posture the Department reviews a request for a variance standing alone based on the application as it is presented and does not require analyses of other possible alternatives to the granting of a variance. However, the existence of any alternatives, costs of any alternatives, timeliness of any alternatives, problems with any alternatives, whether an alternative represents a short term or long term solution to a given problem and the implementability of any of the alternatives are all factors utilized by the Department in determining whether or not to grant a variance. The Department's policy of non- review makes no sense, either factually or statutorily, when the Department is faced with varying a prohibition it created in its own rules. Similarly, the Department's policy of not requiring other alternatives to be examined before granting a variance goes against the fact that an applicant has the burden to establish entitlement to a permit and, in the case of a hardship variance, that a hardship exists because reasonable alternatives to granting a variance are not available. 4/ Likewise, the second part of the Department's hardship analysis relating to the permanent closure of shellfishing waters makes no sense given the fact that a non-permanent closure of shellfishing waters may have the same or just as serious effect on employment in the shellfishing industry, the loss of income due to an inability to earn a living in that industry and health risks posed by contaminated seafood. Temporary loss of income or a livelihood can, for all practical purposes, have consequences to the persons directly affected by a temporary closure of shellfishing waters similar in nature those caused by the permanent closure of shellfishing waters. The same can be said for health risks posed by a contaminated food supply. Rule 17-312.080(7), Florida Administrative Code, does not contain any exceptions for the temporary closure of shellfish waters. Nor is the rule limited to instances of permanent closure. Permanent closure is simpy not required in order to support a hardship under Section 403.201, Florida Statutes. Moreover, neither step in the Department's two-step analysis is included in any Rule promulgated by the Department. 5/ Without such a Rule, it is incumbent upon the Department or the applicant to demonstrate the underpinnings for this non-rule policy. No such evidence was presented at the hearing. In fact, the evidence presented at the hearing affirmatively demonstrated that the Department's non-rule policy violated both its own rules and the statute under which it is trying to proceed. As indicated, the issue of hardship is a question of fact and involves a weighing of all the facts and cicumstances involved in this project. In this case, there are shellfishing areas located close to the proposed location of the transmission line. North Bay is sometimes closed to shellfish harvesting by the Department of Natural Resources. These closures generally occur during wet weather conditions and are due to stormwater runoff and the failure of septic tanks in Southport. 6/ Additionally the current Lynn Haven system also contributes to the closure of North Bay. No competent, substantial evidence was provided that issuance of the permit and variance would result in the permanent closure of shellfish waters. The location of the proposed transmission line would be several hundred feet west of the Bailey Bridge embedded in the Bay floor. 7/ The proposed alignment of the transmission line through North Bay is in an area which is relatively biologically unproductive. The proposed placement of the transmission line avoids the few grassbeds that exist in the nearshore shallow areas except for approximately 200 square feet of grass. During construction of the line, these grasses would be removed immediately before the line is placed in a trench and then would be promptly replanted in the same area. The evidence demonstrated that the affected areas of grass should be able to reestablish itself. The evidence further demonstrated that there would not be any long term adverse impacts to these aquatic resources and there should not be any significant long term impacts on the balance of any aquatic life which may exist on the bay bottom. Water quality during construction will be protected by use of turbidity controls to control sediments. Therefore, any short term impacts on aquatic resources are likely to be insignificant. Concerns about long term adverse impacts to Class II waters are greatly reduced by the type of pipe and conditions in the permit which require that the transmission line be routinely inspected and tested to insure that there is no leakage and that in the unlikely event the line should need to be repaired, the line could be easily isolated and quickly repaired. The evidence showed that, to completely avoid Class II waters, the line could be moved several miles to the west or east of the line's proposed location or be placed over or under the Bay. If the line was moved west to the extent that it was in Class III waters, it would be over 40 miles long and would more than double the cost of the project. If the line was moved several miles to the east, it would go through the Deer Point Lake Watershed. The watershed is a Class I water supply for Bay County. Clearly, moving the line either west or east is not practical nor realistically feasible. Tunneling under North Bay would be very risky and is not technically feasible. The length of the tunnel would require steel pipe to be used. If tunneling could be done at all steel pipe would not provide the level of protection afforded by the HDPE pipe proposed by Lynn Haven. Placing the transmission line on pilings for an aerial route over North Bay is uneconomical and would create a potential hazard to navigation. Moreover, an aerial crossing would not solve any pollution problems should the transmission line leak or break and would also still involve a variance request since it would be necessary to dredge and fill in Class II waters for the placement of pilings or supports. Put simply, the evidence, showed that there was no realistic way to avoid Class II waters in North Bay given the location of the proposed wastewater treatment facility. A location which the City knew would require a hardship variance from the rule prohibition of dredging and filling in Class II, shellfishing waters. A hardship which the City created by site selection and which it hoped to overcome by strenuous permit conditions and futuristic speculative benefits to unsewered areas of the County. The existing treatment facility is operating in violation of both EPA and DER requirements, has been issued a notice of violation, is nonpermitted and is destined to be operating under a consent order. The system is hydraulically overloaded, handling approximately 1.2 million gallons per day while its rated capacity is 950,000 gallons per day. Refurbishing Lynn Haven's existing wastewater treatment facility would not be viable since the plant has outlived its useful life, is of a very poor design and probably could not be made to function within Departmental standards and water quality standards. The existing sprayfield does not function and results in overland flow of effluent which discharges to Class II waters. The high water table and presence of a semiconfining layer on the Lynn Haven peninsula virtually guarantee such discharges. Further, the plant only provides secondary treatment. Put simply, Lynn Haven needs another method of handling its sewage. The only remaining alternative to a Bay crossing is to tie into the existing Bay County system and any AWT wastewater treatment plant Bay County may build in the future. 8/ The existing Bay County system provides at most only secondary treatment. The Cherry Street facility, which is part of that system, functions essentially as a lift station rather than a treatment facility. The Military Point Lagoon portion of the system is nonpermitted and is operating under a consent order and has been the subject of enforcement action. The Department has an extensive agreement with Bay County requiring a significant and long term series of actions to deal with their wastewater treatment system. The modifications or improvements to the Bay County system to provide advanced treatment are not imminent and the final system conditions cannot now be determined as they will depend in large measure upon data and analysis remaining to be collected. Currently, the existing Bay County system processes a significant amount of industrial discharge and has a problem with phenols most likely due to industrial waste from two discreet industrial facilities in the County. 9/ However, all of Bay County's wastewater system problems are reasonably solvable and will be corrected in the near future, if they have not already been corrected. Additionally, the amount of sewage Lynn Haven would be sending into the current Bay County system probably would not significantly impact that system and its problems or the County's ability to solve those problems. The County is willing to accept Lynn Haven's sewage into its system and future AWT system. The connection into Bay County's system is a viable alternative currently in existence. Moreover, as indicated, Bay County has a long range plan to build an advanced wastewater treatment plant. As yet the plan remains "just a twinkle in the County's eye" and has not progressed to the design stage. However, this plan, of necessity, will eventually become reality in the next 5 to 10 years. The estimated cost to a Lynn Haven user for the Bay County conceptual system will be $25.00 per month in lieu of $15.00 for the proposed Lynn Haven system. These estimates are at best speculative. However, this cost estimate is not excessive given the fact that a Lynn Haven user lives in an environmentally sensitive area and a Bay County hook-up would eliminate the need to run a sewer pipe through food producing, Class II waters. 10/ Based on these facts, the evidence demonstrated that it was feasible for Lynn Haven to hook into Bay County's wastewater system without creating any more environmental impacts than that system is already experiencing and must solve and which, to a significant degree, have already been solved by Bay County. Given the existence of this alternative to crossing food producing waters and the fact that any future benefits are just as likely to be provided just as quickly by the County through AWT facilities, the applicant has failed to demonstrate the necessity for crossing North Bay and failed to demonstrate entitlement to a hardship variance for that crossing. Therefore, the applicant is not entitled to either a dredge and fill permit or variance for the proposed North Bay crossing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, recommended that the Florida Department of Environmental Regulation enter a final order issuing permit applications CS03178910, DC03178814, and 031785181, and denying the variance and permit number 031716641. RECOMMENDED this 27th day of November, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 27th day of November, 1991.
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
Findings Of Fact The Petitioner is a special tax district created by special act of the Florida Legislature. Chapter 71-822, Laws of Florida. The district covers approximately seventy-two square miles in northern Palm Beach County and southern Martin County, Florida. Petitioner's purpose is to provide water, sewer, drainage and solid waste services within the district. In conformity with its powers, the Petitioner operates an advanced waste water treatment plant on property which it owns in northern Palm Beach County. Petitioner has secured appropriate permits from DER in order to construct and operate the treatment plant. The treatment plant is among the most advanced in southeastern Florida. It has a four million gallon daily capacity, which could be increased to an eight million gallon capacity. In treating waste water the plant utilizes filtration, disinfection, retention in a holding pond, and discharge into a remote off-site area. The present discharge system is to pump effluent from the retaining pond through a canal or drainage system to a recharge or discharge lake which is located approximately three miles north and west of the treatment plant. This is known as the western discharge system, and was installed at a cost of approximately one million dollars. Due to the large amounts of pumping activity, it is an expensive system to utilize. Through its instant application, the Petitioner is seeking a permit allowing it to discharge effluent on-site. Effluent would flow into percolation ponds that have already been constructed. Effluent would settle in the ponds, and eventually would percolate through the soil. This system would he less expensive to operate than the western discharge system. Petitioner is interested in experimenting with the amount of waste water treatment that can be obtained through action of vegetation in the percolation ponds upon the effluent. Such a natural system, if it operated effectively, could save the Petitioner additional money in treating waste water by reducing the need for chemical treatment. Petitioner's waste water treatment presently results in a discharge of effluent which within some parameters meets even drinking water standards. The Petitioner's system very effectively treats bio-chemical oxygen demand ("bod"), suspended solids, nitrogen, and phosphorus in the effluent. Reports have been submitted by the Petitioner to DER which indicate that the system does not meet DER's standards for advanced waste water treatment. Samples upon which these reports were based were taken at a point in the system before the effluent was subjected to the action of the retention pond and the subsequent bumping into the western discharge system. Samples taken beyond the retention pond indicate that DER's standards are met for "bed", suspended solids, total nitrogen, and total phosphorus. The Intervenor owns property adjacent to the Petitioner's waste water treatment plant. The Intervenor operates a well field and drinking water treatment plant on the property, and provides drinking water to residents of the Town of Jupiter and surrounding communities from the well field. The Intervenor acquired its treatment plant, and surrounding well fields from a private utility company. The Petitioner was aware of the well field when it purchased the property upon which it presently operates its waste water treatment plant. While the Petitioner's plant adequately treats waste water in terms of "bod", suspended solids, total nitrogen, and total phosphorus it does not treat the waste water for heavy metals, pesticides, or viruses. These are common elements found in waste water effluent in the south Florida area. The Petitioner's proposal is to discharge its effluent into on-site ponds. The effluent would then percolate into the ground. The retention ponds are located at a distance from 1200 to 1600 feet from the nearest of the Intervenor's wells. Water which percolates from these ponds would flow directly toward the wells, and would eventually find its way into the wells. The flow from the retention ponds to the wells would be increased due to the draw-down effect that the wells have on the surrounding water table. As water is drawn from the wells, the adjoining water table becomes depressed in the area of the wells, and water from the surrounding area flows more rapidly into the area of the wells. Heavy metals will not be filtered out as a result of retention or percolation. Heavy metals in the effluent would eventually find their way into the Intervenor's well fields. Estimates as to the amount of time that it would take for water from the percolation ponds to reach the wells varied from four months to six years. The longer estimate appears the more reasonable; however, the evidence is conclusive that eventually waters from the percolation ponds would reach the wells, and that heavy metals in the water would not be filtered out. The Petitioner proposes to obviate any problems with heavy metals reaching the well fields by operating testing wells between the percolation ponds and the well fields. If any heavy metals were detected in the ground water, Petitioner would again use the western discharge system rather than the percolation ponds. While this would prevent increased contamination of the wells, contamination that had already reached the test wells would reach the Intervenor's wells. It was suggested that the percolation ponds could be drawn down in order to reverse the flow of ground water back into the percolation ponds, thence to be pumped through the western discharge system. In order to accomplish this, however, the percolation ponds would have to be more than forty feet deep, which they are not. The effect of heavy metals intruding into the Intervenor's water supply could be to increase the cost of treatment, or to render the wells unfit for use. Uncontaminated drinking water supplies are rare in the northern Palm Beach County area, and the expense of finding a new water supply is difficult to calculate.
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. 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: Lee B. Sayler, Esquire 50 South U.S. Highway One Suite 303 Jupiter, Florida 33477 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 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.
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
