The Issue Whether, on January 14, 1997, the Department of Health (Department or DOH), approved an alternative drainfield system for Plastic Tubing Industries, Inc. (PTI), consisting of a 9- pipe system on an equivalency of one linear foot of PTI's system to two square feet of mineral aggregate or one linear foot of PTI's system to three square feet of mineral aggregate.
Findings Of Fact The Parties Petitioner, Plastic Tubing Industries, Inc. (PTI), formerly Plastic Tubing, Inc., was originally formed in Florida in 1974. PTI manufactures plastic drain pipe and the fittings that accompany such pipe. Many of its products and processes are patented. In conjunction with its business, PTI has developed several alternative drainfield systems that utilize plastic tubing or corrugated pipe in lieu of a standard subsurface system made with mineral aggregate for septic tank drainfields. An alternative drainfield system substitutes pipe, or other materials, for aggregate (gravel or rock) used in traditional systems. Before installation in the State of Florida, PTI was required to obtain approval for its alternative drainfield system from the Department. See Fla. Admin. Code R. 10D-6.049, effective January 3, 1995, amended November 19, 1997, and February 3, 1999; and replaced with Fla. Admin. Code R. 64E- 6.009. The Department was, at all times relevant to this administrative proceeding, the state agency authorized to approve the use of alternative systems (to standard subsurface systems) in the State of Florida. Approvals of alternative systems were based on the Department's analysis of, in part, plans prepared by an engineer registered in the State of Florida and submitted by applicants. See Rule 10D-6.049.1 Septic Tanks and Drainfields "Alternative system" means "any approved onsite sewage treatment and disposal system used in lieu of, including modifications to, a standard subsurface system." Rule 10D- 6.042(3). "Standard subsurface drain field system" means "an onsite sewage system and disposal system drain field consisting of a distribution box or header pipe in a drain trench or absorption bed with all portions of the drain field side walls installed below the elevation of undisturbed native soil (see Figure 3)." Rule 10D-6.042(45). The primary purpose of any on-site septic tank system, and ultimately, the septic tank drainfield, is the storage and dispersal of wastewater until the soil can accept it. In other words, a drainfield is a transmission device that takes water and other liquids from a septic tank to the ground. Liquids leave the septic tank into the drainfield which is designed to store the liquid before letting it flow into the ground or soil. Mineral aggregate provides a conducive medium to spread and temporarily store the effluent. Storage capacity refers to the amount of effluent coming out of a septic tank that will be stored in the aggregate or aggregate alternative, here the pipes, until the ground will accept the effluent. Filtrative surface area refers to the openings (in the pipe or aggregate) that allow the water/effluent to leave the storage area and enter the soil. In the case of mineral aggregate, the openings between the aggregate provide an exit for the water/effluent into the soil. With respect to PTI's pipe product, the water leaves the holes in the pipes and travels through voids created from the ridges and valleys of the pipes and enters the soil. An alternative system is evaluated by how the alternative system compares in function (storage capacity and filtrative surface area) to mineral aggregate. In November 1998, the Department defined "reduction" for the first time to mean any change in the actual bottom area size of the drainfield or a change in the footprint of a drainfield. For example, if a product system is 33-inches wide, it would have a reduction because it is less than 36 inches wide. Prior to November 1998, reduction referred to a reduction in linear feet, rather than total trench area or footprint. Thus, if 80 feet of an alternative product could function as well as a 100-foot trench of aggregate, a reduction of 20 feet would occur. PTI did not ask for a reduction in drainfield linear footage, and in particular, regarding the 9-pipe system. The Approval Process On or about April 21, 1995, PTI submitted a letter to the Department which apparently requested approval "to utilize both the 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems." (Petitioner Exhibit 2.) This letter is not part of the final hearing record, but is reflected in the Department's May 24, 1995 letter from Paul Booher, P.E., to Fred Atchley, on behalf of PTI.2 (The quoted language is from the May 24, 1995 letter.) In the May 24, 1995, letter, the Department requested PTI to provide additional information to assist the Department in its evaluation of PTI's request. In part, the Department stated that there are three mechanisms that affect the performance of the infiltrative surface, i.e., chemical, biological, and physical, and that "[b]iological, and perhaps other physical (soil size) considerations, affect the performance of drainfield systems." By letter dated July 7, 1995, PTI's engineer, John E. Garlanger, Ph.D., P.E., a principal with Ardaman & Associates, Inc., provided PTI, to the attention of Mr. Atchley, a letter/report which responded to the Department letter of May 24, 1995. Dr. Garlanger stated in part: "As requested, Ardaman & Associates, Inc. has prepared cross-sectional drawings showing the dimensions associated with the installation of a 9- pipe and 13-pipe Rockless Drain Field System (PTI System) in both mound trench and subsurface trench drain field system." In addition to the letter/report, Dr. Garlanger provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. (Joint Exhibit 1.) The July 7, 1995, drawing depicts the 9-pipe system and 13-pipe system. The 9-pipe system consists of nine four- inch diameter corrugated polyethylene pipes. Four pipes are placed on top of five pipes and one of the four pipes is a distribution pipe. The nine pipes are bundled together, are 8.63 inches in height and 23.25 inches in width, and depicted within a two-foot wide trench. Note 4 of 6 on the drawing indicated that the "ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10 % DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES." (The same drawing also illustrates the 13-pipe system with six pipes placed on top of seven pipes and bundled. The 13-pipe system is 8.63 inches in height and 32.375 inches in width and depicted within a three-foot wide trench. Note 4 is also referenced. (Joint Exhibit 1.)) Dr. Garlanger provided six notes to the July 7, 1995 drawing, as follows: 1.) STORAGE VOLUME BENEATH BOTTOM OF 0.75- INCH DIAMETER PERFORATIONS IN DISTRIBUTION PIPE FOR 9-PIPE SYSTEM IS GREATER THAN 1180 in3/ft (5.1 gal/ft) [1190 in3/ft (5.2 gal/ft)] AND FOR 13-PIPE SYSTEM IS GREATER THAN 1690 in3/ft (7.3 gal/ft) [1710 in3/ft (7.4 gal/ft)]. THIS COMPARES WITH A STORAGE VOLUME OF 660 in3/ft (2.8 gal/FT) FOR CONVENTIONAL 2-FOOT WIDE AGGREGATE-FILLED TRENCH AND 1000 in3/ft (4.3 gal/ft) FOR A CONVENTIONAL 3-FOOT WIDE AGGREGATE-FILLED TRENCH. 2.) TOTAL AVAILABLE STORAGE VOLUME WITHIN 9-PIPE SYSTEM IS 1985 in3/ft (8.6 gal/ft) [2070 in3/ft (8.9 gal/ft)] AND WITHIN 13-PIPE SYSTEM IS 2910 in3/ft (12.6 gal/ft) [2980 in3/ft (12.9 gal/ft)]. THIS COMPARES WITH A TOTAL STORAGE VOLUME OF 1185 in3/ft (5.13 gal/ft) [1200 in3/ft (5.2 gal/ft)] FOR 2-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM AND 1790 in3/ft (7.75 gal/ft) [1800 in3/ft (7.8 gal/ft)] FOR A 3-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM. 3.) THE BOTTOM AREA AVAILABLE FOR FILTRATION IS GREATER THAN 160 in2/ft FOR THE 9-PIPE SYSTEM AND GREATER THAN 220 in2/ft FOR THE 13-PIPE SYSTEM. COMPARABLE BOTTOM AREAS FOR AGGREGATE SYSTEMS ARE 100 in2/ft FOR A 2- FOOT TRENCH AND 150 in2/ft FOR A 3-FOOT TRENCH. 4.) ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10% DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES. 5.) PERFORATIONS [IN DISTRIBUTION PIPE] ARE SPACED 4" ON CENTER. PERFORATION AREA IS 2.65 in2/LINEAL FOOT. 6.) EITHER OF THE UPPER PIPES IN THE DISTRIBUTION PIPE BUNDLE MAY BE USED FOR THE DISTRIBUTION PIPE. THE LOWER PIPE SHALL NOT BE USED FOR THE DISTRIBUTION PIPE. [THE DISTRIBUTION PIPE SHALL BE MARKED WITH A REFERENCE LINE TO ORIENT THE PERFORATIONS. THE DISTRIBUTION PIPE SHALL BE COUPLED BETWEEN EACH BUNDLE TO PROVIDE A CONTINUOUS LENGTH OF PIPE.] (The language appearing in brackets appears in the revised drawing, Joint Exhibit 2, submitted by PTI with Dr. Garlanger's December 8, 1996, letter, DOH Exhibit 4.) In his July 7, 1995 letter to PTI, Dr. Garlanger, in responding to Mr. Booher's letter of May 24, 1995, stated in part: Explain how the pipe bundles fulfill the requirement for a 12-inch deep drain field? Paragraph 10D-6.056(3)(e) requires the mineral aggregate material have a total depth of at least 12 inches and that the distribution pipe have a minimum of six inches of aggregate under the pipe. The purpose of the aggregate is to provide a highly conductive medium to spread and temporarily store the wastewater above the infiltrative surface between loading cycles. Twelve inches of mineral aggregate in a 2- foot wide trench can store approximately 5.25 gallons of wastewater per foot. Deducting the dead storage below the perforations in the distribution pipe, the total available storage in a conventional 2- foot wide trench drain is 5.13 gallons per foot and in a conventional 3-foot wide trench is 7.75 gallons per foot. The height of the 9-pipe and 13-pipe systems is 8.360 inches. The distance from the bottom of the trench to the bottom of the perforations in the distribution pipe is 4.836 inches. The total available water storage in a 9-pipe system after deducting the dead storage is 8.60 gallons per foot and in a 13-pipe system after making the same deduction is 12.58 gallons per foot. In both cases, the total available storage is greater for the PTI system. [See Note 2 above.] Note that the total available water storage capacity below the bottom of the perforations in the distribution pipe is also greater for the PTI System than for the aggregate system: 5.1 gal/ft for the 9-pipe system compared to 2.8 gal/ft for a conventional 2-foot wide trench and 7.3 gal/ft for the 13-pipe system compared to 4.3 gal/ft for the conventional 3-foot wide trench. [See Note 1 above.] Because the thickness of aggregate below the pipe is less than the minimum requirement of 6 inches, we are concerned about the distribution of the effluent over the infiltrative surface, especially since the sidewalls are such an integral part of the operation of the system. The hydraulic conductivity of both the aggregate system and the bundled pipe system is several orders of magnitude higher than that of the in situ sand that underlies the drain field. In both cases, but certainly for the PTI System, water flowing out of the perforations in the distribution pipe can spread out evenly across the infiltrative surface. The depth to which the water rises above the infiltrative surface depends primarily on the inflow rate and the hydraulic conductivity of the organic mat that forms on the bottom of the trench. Because of the differences in porosity between the two systems, the water increases in depth faster in the aggregate system than in the PIT System. However, the ultimate depth of water for a given inflow rate will be roughly the same for both systems, i.e., when inflow equals outflow. The only difference between the two systems is in the volume of water that is stored in the trench during each loading period; the PTI System stores more. There should be no significant difference in the effect of the sidewalls on the infiltrative capacity of the two systems. The effect of increasing sidewall seepage on the overall hydraulic performance of a drain field system is not large. For a 2-foot wide trench, increasing the sidewall seepage by raising the water depth from 5 to 6 inches increases the peak infiltration rate by less than 7 percent. The corresponding increase for a 3-foot wide trench is less than 5 percent. State the area per lineal foot of bundle that constitutes the infiltrative surface. The surface area at the bottom of the trench that is available for filtration of suspended solids in the effluent is greater than 160 in2/lineal foot for the 9-pipe system and greater than 220 in2/lineal foot for the 13-pipe system. This compares with 100 in2/lineal foot for a 2-foot wide aggregate-filled trench and 150 in2/lineal foot for a 3-foot wide aggregate-filled trench. [See Note 3 above.] (The underlined portions are inquiries made by Mr. Booher. The language in brackets refers to the "Notes" mentioned above.) DOH Exhibit 3 is a copy of Dr. Garlanger's July 7, 1995, letter, which also contains Mr. Booher's comments of August 14, 1995. It is noted that Dr. Garlanger discusses the calculations which appear in Notes 1, 2, and 3, in that portion of Dr. Garlanger's letter/report recited above. Mr. Booher also made notations on the July 7, 1995, drawing, with respect to, among other things, the Notes. Material here, beside Note 3, Mr. Booher wrote "Gravel Shadow? @ .35% open." (Joint Exhibit 1.) Mr. Booher also noted on Dr. Garlanger's July 7, 1995, letter/report "disagree" and other notations with respect to Dr. Garlanger's explanation under the subject discussed in Note 3 above, and under the heading "State the area per lineal foot of bundle that constitutes the infiltrative surface." (Emphasis in original.) (See Finding of Fact 16, p. 13.) On October 15, 1996, Mr. Booher requested additional information from Mr. Atchley, as follows: Per our conference call yesterday please provide the following for approval of the rockless pipe drainfield: A written request. Drawings showing the distribution and void pipe locations. Indicate the pipe bundle configurations. If you intend to use the notes on drawing 95-104 titled "Installation guidelines-Multi-pipe rockless drainfield system" please fully include and explain the calculations, including drawings with the areas calculated shown by shading. Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined, percent used for pipe shadowing and how determined. If the distribution pipes are of different material than the void pipe please so indicate. Reference the applicable ASTM standard for all materials. Below item 6, the following handwritten note (by Mr. Booher) appears: "Fred-Don't get optomistic [sic]-we are attempting to define 'gravel equivalent.'" (Joint Exhibit 5.) In response to Mr. Booher's October 15, 1996, request for additional information, on December 8, 1996, Dr. Garlanger provided a two-page letter, and Attachment 1 to Mr. Atchley. Attachment 1 provided "Calculations for Storage Volumes and Infiltration Areas for Multi-Pipe Rockless System and Conventional Gravel Drain." Material here, Attachment 1 contained a summary of Dr. Garlanger's conclusions (and the actual calculations) comparing PTI's multi-pipe system, 9-pipe and 13-pipe, to 24 and 36-inch wide gravel-filled trenches, regarding three parameters: storage volume below holes in the distribution pipe; filtration area; and total storage volume in the system. The specific calculations and illustrations are provided, including "area and volume calculations," in Attachment 1 on pages 1-10. (DOH Exhibit 4 and Joint Exhibit 4.) Dr. Garlanger also provided comparison calculations responding to item 4 in Mr. Booher's October 15, 1996 letter (see Finding of Fact 18) as follows: Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined. The comparison calculations are presented in Attachment 1. The gravel porosity was calculated based on a typical dry density for loosely placed FDOT No. 57 stone of 110 pcf and a specific gravity for limestone of 2.8, resulting in a calculated porosity of approximately 35 percent. For a conventional gravel-filled trench, the area available for filtration was calculated as the total area of the gravel times porosity, i.e., the percent assumed for gravel shadowing was 100-35=65 percent. For the multi- pipe rockless drain, the contact between the bottom of each pipe and the ground surface was taken as 2 inches per lineal inch of pipe which provides sufficient bearing area to support the overburden pressure. Computation of equivalent storage in the gravel assumed a minimum of 6 inches of No. 57 stone beneath the invert of the pipe and a distance of 0.83 inches from the invert of the pipe to the bottom of the drain holes. (Emphasis added.) (Mr. Booher's request is underlined before Dr. Garlanger's response.) Dr. Garlanger also provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. This drawing reflects general revisions of October 11, 1995, and December 6, 1996, to the original drawing dated July 7, 1995, which accompanied Dr. Garlanger's July 7, 1995, letter to Mr. Atchley. See Findings of Fact 14-15. Six "Notes" were presented in the December 6, 1996, drawing revisions, with some changes made to Notes 1, 2, 5, and 6 which do not appear to be material. See Finding of Fact 15. No changes are made to Notes 3 and 4. Material here, Note 3 pertains to "the bottom area available for filtration" and Dr. Garlanger's calculations showing the 9-pipe system comparing more favorably (equal to or greater) to a 24 and 36-inch (two and three feet wide, respectively) wide aggregate (gravel) trench without any changes in response to Mr. Booher's August 14, 1995, comments and October 15, 1996, request for additional "comparison calculation" and explanation regarding "gravel shadowing." (Notes 1-3 are derived from the calculations appearing in Attachment 1, pages 1-9.) Dr. Garlanger's submissions indicated that one linear foot of the 9-pipe system is equal to or greater than three square feet of gravel. Also, the representation that the 9-pipe system fits within a 24-inch trench does not relate to equivalency. See Finding of Fact 36. Dr. Garlanger's December 8, 1996, letter, with Attachment 1, and the revised drawing, were forwarded to Mr. Booher with a cover letter from Mr. Atchley, dated December 11, 1996. Mr. Atchley stated in his letter: Enclosed are the drawings and calculations you requested. The "numbers" add up favorably. I look forward to your response and anticipated approval based on this information. Please notice the difference in volume (total capacity), porosity and filtrative surface area. Based on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time. We do ask that the bed installation constraint be removed from our acceptance letter. There seems to be more and more bed type installations even though the FAC 10D-6 clearly states that a trench system is the preferred method. Consequently, we will be requiring that certified installers of our systems employ a method of back filling that will insure against collapse of any part of the system. This method would also have to provide within reason, a guaranty against operating any equipment onto the drain field area until sufficient cover has been established. After 10 to 12 inches of cover has been established we ask them to mark the bed area with stakes and flagging to serve as a warning to other sub-contractors such as the sod installers and the finished grade tractor operator. If there are any questions please call me at (407) 298-5121. (On January 13, 1997, Mr. Atchley also sent Mr. Booher a similar letter, but also included some additional data regarding 1996 sales, including but not limited to average system size per square foot, the number of active installers, installations per month.) On January 14, 1997, Mr. Booher issued the following approval letter to Mr. Atchley: Dear Mr. Atchley: We have reviewed the engineering drawings dated 07/07/95 with revision 2 dated 12/06/96 and data prepared and sealed by Ardaman & Associates dated December 8, 1996, and received in this office on December 16, 1996. Your request for alternative drainfield system approval letters dated December 11, 1996, and January 13, 1997, have also been reviewed. The PTI nine pipe bundle and PTI thirteen pipe bundle Multi-Pipe Rockless Drainfield Systems are hereby approved for use in the State of Florida. We have concerns about the total effective sidewall contact surface area, especially when systems are installed with no fall. We also have concerns regarding the structural integrity of the pipe bundle systems when used in large bed applications. Nevertheless, approval is granted based on the design and recommendations submitted by your professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations. Except as herein noted, all systems shall be installed in accordance with sections 381.0065-381.0067 Florida Statutes, and all rules in Chapter 10D-6, Florida Administrative Code (FAC). All installations shall be sized and installed meeting all rules in Rule 10D-6, FAC and shall also meet the following conditions: All licensed septic tank contractors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. Both the 9 and 13 pipe bundle systems can be installed in subsurface, filled, or mound trench or bed systems. In bed systems the maximum centerline to centerline spacing of the distribution pipe shall be 36 inches. The distribution piping may be used to house low pressure distribution networks. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or any other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer or the registered septic tank contractor if an engineer didn't design the system is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions please call us at (904) 488-4070. (Emphasis added.) This letter was accompanied by a facsimile sheet which indicated, in part, that the Department intended to "notify the 67 counties within the week." On January 29, 1997, Mr. Booher authored an Interoffice Memorandum which was issued from John Heber, Chief, On-Site Sewage Program, Mr. Booher's supervisor at the time, to the County Health Department Director/Administrator. (Joint Exhibit 11.) This Interoffice Memorandum provided in part: The PTI 9 pipe and 13 pipe "Multi- Purpose Rockless Drainfield Systems" have both been given alternative systems approval for use in Florida. The systems are to be installed in accordance with drawing file number 95- 104 dated 07/07/95, revision 2 dated 12/06/96, copy attached. Except as hereby noted, systems shall be installed in accordance with sections 381.0065 - 381.0067, Florida Statutes, and all rules in Chapter 10D- 6, Florida Administrative Code (FAC). The following conditions apply: The 9 pipe system shall be rated at 1 linear foot equals 2 square feet of drainfield area. The 13 pipe system shall be rated at 1 linear foot equals 3 square feet of drainfield area. The 9 pipe and 13 pipe bundle systems may be installed in subsurface, filled or mounded trench or bed applications. Dosing will be acceptable when used to overcome a gravity situation. Pressurized systems shall be designed and installed in accordance with Chapter 10D-6, Florida Administrative Code. Please be reminded that certain pressurized dosing systems must be designed by engineers registered in the State of Florida. For designs requiring the use of smaller diameter pipe (either screw joint or glue joint), the 9 pipe and 13 pipe systems distribution pipe shall house the pressurized pipe system. All licensed septic tank contactors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or an other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer (or the registered septic tank contractor if an engineer does not design the system) is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions, please call me or Paul Booher, P.E., at (904) 488-4070, or SC 278-4070. (Emphasis in original.) On March 13, 1998, the Department issued a document entitled "Onsite Sewage Treatment and Disposal Systems Alternative Drainfield Products." This document describes several product names including PTI's product as follows: "PTI 'NPRDS' 9 ea.- 2-tier 13 ea.-2-tier." The engineer of record is listed as Ardaman and Associates, and the type of permit issued is referred to as "Alternative Status" along the same line as "PTI 'MPRDS"" and "No reduction in area" along the line "9 ea.-2 tier." Mr. Everson may have seen this chart prior to seeing the November 27, 2000, chart mentioned below. But, the mention of no reduction would have been consistent with his understanding that reduction referred to a reduction in linear feet and PTI did not request a reduction in linear feet. On November 27, 2000, an employee of the Department prepared a similar chart which included a description of product names and included the same PTI product. However, under the heading "Type of Permit Issued and Sizing Criteria," the following language appears: PRODUCT NAME DESCRIPTION SUBMISSION DATE APPROVAL DATE CPHU NOTIFICATION DATE ENGINEER OF RECORD TYPE OF PERMIT ISSUED and SIZING CRITERIA *** *** *** *** *** *** PTI "MPRDS" 9 ea.-2 tier 12/06/96 12/14/96 01/15/97 Ardaman and Associates 1 linear foot of product = 2 sq ft of mineral aggregate 13 ea.-2 tier 1 linear foot of product = 3 sq ft of mineral aggregate On February 26, 2001, the Department issued a similar chart which contained the same information regarding PTI as the November 27, 2000, chart, which appears above. All of the charts were designed to provide guidance to the local health departments regarding the alternative drainfield systems approved in the State of Florida and the ratings, e.g., equivalency, assigned to each. See Findings of Fact 26-28. The November 27, 2000, and February 26, 2001, charts described PTI's 9-pipe system approved by the Department on a one-to-two square foot equivalency to mineral aggregate. In late 2000, while working with a Department representative on an industry presentation, Mr. Everson, vice president of PTI, discovered the November 27, 2000, chart mentioned above. Mr. Everson believed this representation to be incorrect and reported it to Michael Maroschak, the president of PTI. Discussions transpired between representatives of PTI and the Department. Ultimately, the Department implicitly decided that the Department had approved PTI's 9-pipe system, consistent with these charts. On March 18, 2003, the Department advised PTI in writing that it "stands by its previous decisions on the matter." PTI then filed its Petition challenging this agency action. Resolution of the Controversy PTI has developed various pipe configurations to serve as alternative drainfield systems. PTI requested the Department to approve its 9-pipe and 13-pipe bundle Multi-Pipe Rockless Drainfield Systems in or around April of 1995. The 9-pipe system is the subject of this proceeding. As early as May 1995, the Department understood that PTI requested approval to utilize both PTI's 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems. Over the course of over a year and a half, in support of its approval request and in response to questions posed by the Department, PTI, by and through Dr. Garlanger, PTI's registered Professional Engineer, submitted an engineering drawing (signed and sealed), as revised, and specific specifications and calculations to indicate that one linear foot of the 9-pipe system compared favorably, on paper, with a conventional three-foot wide, 12-inch deep (three square feet) aggregate system. The Department raised questions regarding PTI's proposal to which PTI, and specifically Dr. Garlanger, responded. During the approval process, the Department raised issues related to "gravel shadowing" and Dr. Garlanger's calculations regarding the "bottom area available for filtration." See, e.g., (DOH Exhibit 3, p. 2; Joint Exhibit 1.) Dr. Garlanger responded to these inquiries. See, e.g., (DOH Exhibits 3 and 4; Joint Exhibits 1 and 2.) Dr. Garlanger has been a registered Professional Engineer in the State of Florida since 1974 and has served as vice-president for Ardaman & Associates and chief engineer since 1975. He was accepted as an expert in the areas of hydrology, hydro-geology, and geotechnical engineering. Dr. Garlanger prepared and signed and sealed the engineering drawings and all comparative data submitted by PTI with its approval request. Dr. Garlanger's engineering drawings, including the "Notes" as revised, and calculations indicated favorable (equal to or greater than) comparisons of one linear foot of PTI's 9- pipe system with two and three square feet of aggregate (gravel). The fact that the 9-pipe system fits within a 24-inch or two-foot wide trench does not affect its equivalency to three square feet of aggregate (gravel) with respect to the three parameters in Notes 1-3 and in the calculations referred to in Attachment 1. See Finding of Fact 22. During the final hearing, the Department, consistent with written comments made during the approval process, suggested that the "gravel shadowing" or "a shadowing technique" that occurs with alternative systems to compare their infiltrative surface area (bottom area available for filtration) to aggregate, has never been used by the Department "as an evaluator." Mr. Booher3 explained that this technique "reduces the size of the actual area, the length times the width of the drain field [sic], by a cross sectional area of interrupting gravel, saying the actual absorption area is reduced as a result of the gravel that is sitting on the infiltrative surface and reduces the total area, absorptive area, to about one-third of the actual total area. And that's what [he] disagree[s] with." Mr. Booher also stated that he would not approve a 9- pipe system at a three square-foot equivalent because of biological loading. He explained his position in some detail. In the May 24, 1995, letter to PTI, the Department stated that it was "interested in verifying that the drainfield environment will support aerobic treatment over the long term." This question expressed the Department's concern regarding "biological loading and problems that can develop. Dr. Garlanger responded to this inquiry and his explanation was accepted by Mr. Booher "because everyone claims it." See (DOH Exhibit 3; Petitioner Exhibit 2, p. 3.) The Department also contended that it did not approve PTI's request because PTI did not ask for a "reduction." Mr. Booher explained during the final hearing that Dr. Garlanger's drawings (Joint Exhibits 1 and 2) referred to "the 9-inch pipe and the 24-inch trench and the 13-inch pipe and the 36-inch trench because that note 4 says that if you put them in accordance with this document, then you will be a full 24-inch, 9-inch, 24-inch equivalent and 36-inch, 13-pipe equivalent" and that he "needed to restrict [his] review to no reduction in area." Mr. Booher also commented on Note 3, for which he disagreed during the approval process. It did not matter to Mr. Booher that Dr. Garlanger used "the shadow masking technique because [PTI] was not asking for any reduction." He considered Note 3 as "just more information, as opposed to an evaluation for determination of the sizing." In other words, according to Mr. Booher, the Department's approval letter of January 14, 1997, did not address the idea of using the 9-pipe system in a 36-inch trench" because PTI "asked for no reduction." 4 The Department's position is also based, in part, on Mr. Atchley's cover letters of December 11, 1996, and January 13, 1997, in which Mr. Atchley, referring to Dr. Garlanger's drawings and calculations, that "[b]ased on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time." The weight of the evidence indicates that the reference to the "40%" pertains to the 13-pipe system, which would have been a large reduction, and not the 9-pipe system. The 9-pipe system qualified for only a minimal reduction which was not requested. Also, PTI did not request a reduction in linear feet. There is a conflict in the evidence regarding what PTI requested. Mr. Atchley opines that PTI did not request approval of the 9-pipe system such that one linear foot of product is equivalent to three square feet of aggregate. Mr. Booher agrees and also opines that the Department did not approve this configuration. Mr. Everson takes the opposite view as does Dr. Garlanger. The conflict is resolved in PTI's favor. While Mr. Booher's comments appearing of record, regarding PTI's request for approval and the Department's approval, and which were explained more fully during the final hearing, are credible, the fact remains that the Department granted approval "based on the design and recommendations submitted by [PTI's] professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations." (Joint Exhibit 6.) The Department did not take exception in its approval letter, as it did during the final hearing, to PTI's submissions by Dr. Garlanger, PTI's professional engineer.5 Dr. Garlanger's submissions and his explanation of his submissions are credible. The weight of the evidence indicates that PTI requested approval for and the Department approved PTI's 9-pipe system on an equivalency of one linear foot of product to three square feet of mineral aggregate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order concluding that Plastic Tubing Industries, Inc.'s 9-pipe bundle Multi-Pipe Rockless Drainfield System, such that one linear foot of PTI's 9-pipe system is equivalent to three square feet of mineral aggregate, is approved for use in the State of Florida. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003.
The Issue The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER 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 9th day of November, 1994.
Findings Of Fact On or about December 28, 1987 Hy Kom filed with the Department an application for a permit to construct a .0126 MGD Advanced Waste Water Treatment Plant on Emerson Point, Snead Island in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Terra Ceia Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Tampa Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Manatee River in Manatee County. The waters of Terra Ceia Bay have been designated Outstanding Florida Waters (OFW) by the Department. On or about April 27, 1989 the Department issued a Notice of Permit Denial concerning Hy Kom's permit application. The parties stipulate the Intervenor, Manasota-88, has standing to intervene as a party Respondent and to object to the issuance of the permit. Petitioner's evidence can best be summarized by what was not submitted. First, the expert witness called to identify the application had not prepared any part of the application or verified any of the studies presented therein. Similarly Petitioner's expert on the proposed treatment plant did not testify that Petitioner was committed to using this plant, or that the construction of the plant and the operation of the plant would comply with statutory and rule requirements. The only witness called by Petitioner to testify to the effect the discharge from the proposed advanced waste water treatment plant would have on the receiving waters was also Respondent's expert; and this witness testified that the effluent discharge from this proposed plant would have an adverse effect on the receiving waters, would seriously degrade the receiving waters as a nursery habitat for both crustacea and fishes endemic to the area, and that no reasonable assurances that this would not happen were ever presented by the Petitioner. This witness further testified that no discharge into these receiving waters would be acceptable not only because of the nitrogen level (which was the most significant reason for denying the permit) but also because even a discharge of absolutely pure water would upset the salinity of the receiving waters at the critical time the receiving waters act as a marine nursery.
Recommendation It is RECOMMENDED that a Final Order be entered denying the application of Hy Kom Development Company, for a permit to construct and operate an advanced waste water treatment facility at Emerson Point, Snead Island, Manatee County, Florida. DONE and ORDERED this _15th_ day of September, 1992 in Tallahassee, Leon County, Florida. COPIES FURNISHED: JAMES W. STARNS ESQ 501 GOODLETTE RD SUITE D-100-24 NAPLES FL 33940 W DOUGLAS BEASON ESQ ASST GENERAL COUNSEL K. N. AYERS 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 _15th_ day of September, 1992. DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 THOMAS W REESE ESQ 123 EIGHTH ST N ST PETERSBURG FL 33701 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER SECRETARY DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue The issue in this case is whether a variance for a reduced setback of four feet from Petitioner's well to a building pad treated with pesticide should be denied by the Department of Health.
Findings Of Fact Petitioner resides on property consisting of 7.5 acres at 3665 Darby Road, New Smyrna Beach, Volusia County, Florida. Since Petitioner receives no public utility service at his home, he has a septic system and potable drinking water well on his property. However, Petitioner's family does not drink the water from the well. The family purchases bottled water for drinking purposes. The well water is used for other household purposes, such as cleaning and bathing. There are other locations on Petitioner's property for a well. The evidence demonstrated that Petitioner has or had alternative locations for the well. Petitioner built a 1681 square foot barn utilizing an old concrete foundation from a previous barn. Petitioner's well is located in the southwest corner of the old barn's foundation and four feet from the new barn's foundation. The building plans for the barn, submitted to Volusia County, clearly indicated the location of Petitioner's well within four feet of the new barn's foundation. Even with this information Volusia County issued a building permit for the new barn. There were other locations for the barn on Petitioner's property which Petitioner would have utilized had he known of the setback requirements when he first permitted his barn. Volusia County required the new barn's foundation to be elevated. In order to elevate the sub-floor for the new barn's foundation, Petitioner placed a layer of visqueen on the sub- floor, or old concrete floor of the old barn, then added a layer of sand and poured concrete on top of the sand layer. The sand layer is encased in concrete. The concrete encasement does not necessarily prevent leaks from above given the porous nature of concrete. Additionally, the condition of the old barn floor, i.e. whether it has cracks, is not known. The Volusia County building code requires that the soil under a foundation be treated for termites. After Petitioner's contractor added the sand layer, he spread one four-pound bag of 90 percent Sevin dust, a common garden pesticide, on top of the sand. The application rate was within normal application rates for the barn area. The Sevin dust was not applied with any pressure to force penetration into the soil. More than seven days later the contractor poured the new concrete foundation on the pesticide-treated sand layer. The label on the Sevin dust package indicates that 10 percent Sevin dust may be applied to vegetables up to the day of harvest and in some instances 3 to 7 days before harvest, depending on the type of crop. However, the package does not indicate that a treated crop is edible for human consumption without first washing the crop or other processing of the crop. Therefore, a lack of danger from contamination has not been shown. Indeed, the evidence did not show that health would not be adversely affected by use of Petitioner's well given this major deviation from the setback requirements and the soil in the area. A Volusia County building inspector informed Petitioner's contractor that the close proximity of Petitioner's potable well to the area treated with pesticide was a violation of state health codes and could not be approved because the well did not meet the requirement of having a 25-foot separation from soil treated with pesticide. The contractor informed Steve Baur, a Department of Health employee, about the violation. The deviation of 21 feet from the 25-foot setback requirement is a major deviation. Petitioner applied to DOH for a variance to allow him to utilize his potable drinking water well. Petitioner's variance application was denied by the variance committee and Dr. Sharon Heber, Department of Health Environmental Health Director, for the following reasons: Section 64E-8.009(2), F.A.C., allows the granting of variances to 'prevent excessive hardship only in cases involving a minor deviation from established standards when the hardship was not intentionally caused by the applicant, where no reasonable alternative exists, and where proper use of the system will not adversely affect public health.' According to information supplied by the Volusia County Health Department, the treated slab is located 4 feet from the existing well. This is a major deviation from the established standards. The well completion report for the existing well indicates coarse shell starting at 10 feet and continuing down to 60 feet. This material provides no filtration and/or confinement for the pesticide.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order denying Petitioner's request for a variance. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 14th day of June, 2000. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Edward N. Pollack 3665 Darby Road New Smyrna Beach, Florida 32168 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Langue, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether the objections of the City of Pembroke Pines and the Green Meadows Civic Association to South Broward Utility, Inc.'s, proposal to extend its water and sewer service area should be sustained.
Findings Of Fact South Broward Utility, Inc. (South Broward), is a corporation engaged in the business of providing water and wastewater service to the public in Broward County, Florida. That business is subject to regulation by the Florida Public Service Commission (PSC). South Broward's water and wastewater treatment facilities are located in the Town of Davie, and it currently provides water and sewer services to residents of that municipality. Included within the area of the Town of Davie currently served by South Broward are the lands bordered on the north by Sterling Road, the south by Sheridan Street, and the west by Dykes Road (S.W. 160th Avenue). On February 4, 11, and 18, 1989, South Broward published a notice of extension in the Florida Lauderdale News/Sun-Sentinel, a daily newspaper of general circulation published in Broward County, Florida, in accordance with Rule 25-30.030(2), Florida Administrative Code. The notice provided that South Broward would file an application with the PSC pursuant to Section 367.061, Florida Statutes, to amend its certificates of public convenience and necessity to allow South Broward to provide water and sewer service to the east half of Section 5, Township 51 South, Range 40 East, Broward County, Florida. Such area may commonly be described as those lands lying immediately west of Dykes Road to S.W. 166th Avenue, and from Stirling Road on the north to Sheridan Street on the south. On February 24, 1989, South Broward mailed a copy of the aforementioned notice to all local, county and state governmental agencies and all other persons required by Section 367.041(4), Florida Statutes, and Rule 25-30.030(2), Florida Administrative Code. Objections to the notice were filed with the PSC by the City of Pembroke Pines (Pembroke Pines) and the Green Meadows Civic Association (Green Meadows). In its objection, Pembroke Pines contended that it had invested over 30 million dollars to expand its municipal water and sewer service west to the Conversation Area from Sheridan Street on the north to Pembroke Road on the south, that this expansion project was anticipated to provide water and sewer service for its existing municipal boundaries as well as the area proposed to be served by South Broward, that it was preparing an annexation report for the proposed area, and that if South Broward's application were approved it would be precluded from servicing its own residents should annexation occur. At hearing, the proof demonstrated that Pembroke Pines had expanded its municipal water and sewer service such that its water and wastewater treatment plants and related facilities have adequate present capacity to meet the current and anticipated future water and wastewater needs in the disputed service area. The Pembroke Pines water lines are currently located on the south side of Sheridan Street, which street forms the southerly boundary of the disputed service area. Its wastewater treatment lines are, however, located approximately one and one-half miles south of Sheridan Street and would require several months and considerable expense to extend them to the disputed service area. Notably, however, no proof was offered that Pembroke Pines had any current intention to annex the disputed service area, or that it had otherwise evidenced any intent to, or taken any action to, provide service to the area. Green Meadows is an association of residents of this area of unincorporated Broward County, some of whom reside within the service area in dispute. The gravamen of Green Meadows' objection is its concern that sewer lines for a centralized sewer system would leak into its member's ground water supply, and that the increase in population density caused by a centralized water and sewer system would adversely affect the area's ecosystem. Neither Green Meadows nor Pembroke Pines contended, however, that the subject extension of service would violate any land use plan, zoning ordinance or other state or local law, and no credible proof was offered that, if built consistent with existent law, the sewer lines would adversely impact the ground water supply or ecosystem. Until recently, all of the lands lying in the disputed service area were located in unincorporated Broward County. However, in September 1988 a parcel of approximately 15 acres which abutted Dykes Road was annexed into the Town of Davie, and in May 1989 a parcel of approximately 80 acres, which abutted the previously annexed parcel on the east, Sterling Road on the north, and S.W. 166th Avenue on the west, was annexed into the Town of Davie. These lands comprise approximately 30 percent of the lands within the disputed service area, and it is the desire of the Town of Davie that water and sewer service to such lands be provided by South Broward. To date, South Broward has entered into a developer's agreement with the owner of the 80-acre parcel to provide such services, and is in the process of executing such an agreement with the owner of the 15-acre parcel. Pembroke Pines does not object to South Broward's expansion into these areas. As to the remaining acreage within the proposed service area, the owners of the vast majority of those lands have expressed a preference for South Broward to provide water and sewer service to their properties, and South Broward has expressed its desire and ability to provide such services. South Broward's water plant has an existing capacity of 500,000 gallons per day (GPD), and has sufficient capacity to address the current need for water service in the proposed area. Upon completion of its current expansion, which is anticipated in October 1989, South Broward's water plant will have a capacity of 1,250,000 GPD, and adequate capacity to address any future demand for water service in the proposed area. South Broward's wastewater treatment plant, with a capacity of 500,000 GPD, currently has sufficient capacity to satisfy the present and future demand for such services in the proposed area. An expansion of that plant is expected to be in service by 1991, which will double the plant's capacity and provide additional capacity. Currently, South Broward has water and sewer lines adequate to serve the proposed area in place, and located under Dykes Road at the eastern edge of the service area. Such lines are adequate to meet all present and anticipated future needs for such service in the area, and the water lines are adequate to provide fire protection to the area. South Broward has the present financial, managerial, operational, and technical ability to provide the present and anticipated needs for water and wastewater service in the proposed area, and the public interest will be best served by the extension of South Broward's water and wastewater systems to that area. Such expansion will not be in competition with or a duplication of any other system in the area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the objections filed by Pembroke Pines and Green Meadows be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1988. APPENDIX The proposed findings of fact filed by South Broward are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 3. Addressed in paragraph 4. Addressed in paragraph 5. 5-10. Addressed in paragraph 9. 11-14. Addressed in paragraphs 10-13. 15 & 16. Addressed in paragraphs 6 and 7. Addressed in paragraph 13. To the extent pertinent, addressed in paragraph 8. Addressed in paragraph 8. 20 & 21. Addressed in paragraph 13. The proposed findings of fact filed by the PSC are addressed as follows: 1 & 2. Addressed in paragraph 3. Addressed in paragraph 9. Addressed in paragraph 3, and paragraphs 2 and 3 of the conclusions of law. Addressed in paragraph 8. 6-12. Addressed in paragraphs 9-13. Addressed in paragraph 7. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 12. COPIES FURNISHED: Mitchell S. Kraft, Esquire Josias & Goren, P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 32308 Deborah Simone, President Green Meadows Civic Association 5831 S.W. 162nd Avenue Fort Lauderdale, Florida 33331 James L. Ade, Esquire Martin, Ade, Birchfiled & Mickler, P.A. 3000 Independent Square Post Office Box 59 Jacksonville, Florida 32201 Randy Frier, Esquire Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 Mr. Steve Tribble, Director Records and Reporting Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 David Swafford, Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870 Susan Clark General Counsel Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870
The Issue Whether the August 30, 1988 application of Petitioner James R. Regan for a permit to operate a wastewater (sewage) treatment facility should be granted in that Petitioner has provided reasonable assurances that the operation of the facility will not discharge, emit, or cause pollution in contravention of Department of Environmental Regulation standards or rules.
Findings Of Fact The sewage treatment plant that is the focus of this proceeding is "Weakley Bayou, Inc.," a corporation. The real property upon which it is located is owned by the wife of James R. Regan. Despite corporate status, Weakley Bayou, Inc. has been operated at the option and control of James R. Regan since its inception in the early 1970's. The permit application here at issue was made in Mr. Regan's name, and he has been treated as if he were the corporation throughout all stages of the permit process. Mr. Regan brought the Petition for Formal Hearing in his own name. He was also accepted as the qualified representative for himself and the corporation. "Weakley Bayou, Inc." is an aerobic gravity flow wastewater treatment plant located in Escambia County. In 1988 James R. Regan applied for a renewal of the operating permit for the facility. The Department of Environmental Regulation (DER) issued an Intent to Deny on December 16, 1988, based on agency perceptions derived from observations, monitoring of Petitioner- generated reports, and grab samples, that the facility did not meet the requirements set down in Rule 17-6 F.A.C. Specifically, the Intent to Deny focused on the following problems: A reclaimed water sample taken on December 6, 1988 revealed the facility was exceeding BOD5 (Biological Oxygen Demand) and TSS (Total Suspended Solids) limits in violation of specific condition number 17 of Permit Number D017-71682. The BOD5 was 232.8 mg/l and TSS was 1,430 mg/l. The same sampling showed the facility was exceeding 200/100 ml for fecal coliform in violation of specific condition number 17 of permit number D017-71682 and Rule 17- 6.180(1)(b)4.d., Florida Administrative Code. The fecal coliform was 79,000/100 ml. Ground water monitoring samples show the levels of nitrates in excess of 10 mg/l in well #l on two out of last four quarterly samples, which is in violation of Rule 17- 6.040(4)(q) paragraph 4.2, Florida Administrative Code. During the inspection on December 6, 1988, the sludge blanket in the clarifier was overflowing the weirs, solids had accumulated in the chlorine contact chamber and percolation ponds in violation of Rule 17- 6.110(3) and 17-6.180(2) (e) , Florida Administrative Code. Auxiliary electrical power is not provided as required by Rule 17-6.040(4) (c) and 17-6.110(3), Florida Administrative Code. The applicant was notified March 14, 1988, that emergency power would be required. During the period (1984-1988) that Petitioner's sewage treatment plant has been permitted by DER, it has been periodically inspected and the Petitioner's self-generated reports have been monitored. From time to time after inspections, Petitioner has been notified of pollution and contaminant hazards or violations pursuant to agency standards, which hazards or violations required corrections in order to retain his permit. Among these hazards and violations have been noted large sewage spills, overflows, poor equipment condition, and substandard plant operation. In most instances, Petitioner cooperated with DER and at least attempted to adjust the plant's operation to conform to the notifications. However, as of December 15, 1988, DER notified Petitioner of the following problems with the plant: sludge blanket in the clarifier overflowing the weir, solids accumulation in the chlorine contact chamber, solids accumulation in both percolation ponds, no auxiliary power on the site, and high levels of nitrates (6.9 ppm) in Monitoring well -1. DER's test of an effluent grab sample tested BOD at 232.8 mg/L and Total Suspended Solids (TSS) at 1430 mg/L. That is, samples taken by DER during an inspection indicated excessive levels of TSS, BOD, and fecal coliform, in violation of Chapter 403 F.S. and Chapter 17-6 F.A.C. Mr. Regan admitted that for approximately four years, broken and unrepaired pipes and fittings at his plant had caused sewage spills or overflows of approximately eight thousand gallons of sewage sludge. He contended that the surface enrichment around Monitoring Well #1 was caused by a separation of a two-inch PVC skimmer line which was corrected in March 1988. Although Mr. Regan established that the leak in the pipe had been repaired, the evidence does not permit a finding that this enrichment was solely from that source, that it will dissipate over a reasonable time, or that it has not polluted the ground water. 1/ Thus, there is no reasonable assurance that fixing the leak, by itself, protects the environment. Over a period of time, Petitioner's own groundwater monitoring reports showed excessive nitrate levels and these have worsened since late 1988, according to witness Ray Bradburn. Petitioner contended that a grab sample is not as accurate as a composite sampling. Although DER witnesses concur in this contention of Petitioner with regard to grab samples generally, and although one DER witness suggested that part of the December 1988 grab sample reading by itself would not cause him to deny the permit, no credible evidence disputes the accuracy of the December 6, 1988 grab sample as a grab sample.2/ Petitioner admitted that it was and continues to be his conscious management decision to keep the plant's auxiliary gasoline powered engine locked away from the plant site so as to discourage theft and vandalism, and so as to discourage childish curiosity which might expose Petitioner to liability. He was reluctant to secure the engine on the premises as a hedge against emergency shutdowns of the plant. Mr. Regan, upon advice of outside engineers, has attempted to correct many of the cited errors and omissions. However, notwithstanding the DER's express disapproval of such a method, Mr. Regan has instructed his plant operators to curtail the input of air from the plant's blower to the sewage at night so as to create a "belching" effect designed to clear out certain wastes and thereby attempt denitrification in the clarifier. DER witnesses did not explain in any detail why Regan's belching procedure was unacceptable except that addition of an expensive denitrification unit was preferable and constituted a "reasonable assurance," whereas Mr. Regan's method had not been demonstrated to be successful in the past. Mr. Regan, who bears the burden of proof in these proceedings, did not demonstrate that his "belching" system was a reasonable assurance of denitrification or offer expert witnesses to support such a theory. This sewage treatment plant is subject to a Notice of Violation which became final on September 21, 1989. 3/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the pending permit application. DONE and ENTERED this 31st day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.
The Issue Is Petitioner guilty of violations of Rule 64E-6.022(1)(p), Florida Administrative Code, improper installation or repair of on-site sewage disposal system, and Rule 64E-6.022(1)(l), Florida Administrative Code, gross negligence and incompetence which causes monetary harm to a customer as charged in the Citation for Violation dated April 4, 2000, and if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Pursuant to Section 381.0065, Florida Statutes, the Department has the authority and jurisdiction to regulate the construction, installation, modification, abandonment or repair of on-site sewage treatment and disposal systems (used interchangeably with "septic tank" or "drainfield" throughout this Recommended Order). Septic tank repairs may be made only by individuals who have qualified with and are licensed by the Department and subject to the standards of ethics and competence established by Department rules. See, Section 489.553(3), Florida Statutes (1999). At all times material to this action, Petitioner has been registered with the Department as a septic tank contractor and serves as Vice President of Sales for Allstate Septic Tank Company (Allstate). Allstate is owned by Jack Dunn (Dunn). Petitioner has been employed by Allstate since 1982. At the time Petitioner commenced her employment with Allstate, the company was owned by an individual who sold the business to Dunn in 1995. From 1982 to 1995 when Dunn acquired the business, Petitioner worked as Allstate's office manager. Dunn, not Petitioner, has final authority over how Allstate's work is performed and what accommodations, if any, will be made with dissatisfied customers or with regulatory authorities. At all times material to this case, Cheryl and Kelly Sadar (Owners) owned and resided in a home at 1770 SW 30th Place, Ft. Lauderdale. Like the other homes in this neighborhood, Owners' property relied upon an on-site drainage and sewage system. The drainfield at the Owners' property had been replaced in 1988 and had operated without problem until December 1998. In December 1998, Cheryl Sadar called Allstate and asked the Company to "check out" odors coming from the grass lawn on Owners' property. Pursuant to that request, Petitioner and Dunn visited the Owners' property. In January, 1999, Allstate pumped the Owners' septic tank and told Mrs. Sadar that if the pumping did not work, it would be necessary to replace the existing drainfield. Pumping did not work and in March 1999, the Owners authorized Allstate to replace the existing drainfield with a new drainfield system. Petitioner and Dunn differ from the Owners in their testimony regarding what, if any, requirements Allstate sought to impose upon the Owners in order to assure that the drainfield to be installed by Allstate would work properly, and what, if any, limits the Owners placed upon Allstate's ability to exercise professional judgment as to where the drainfield should be installed. For example, Petitioner claims that Owners forbade Allstate the use of the eastern border of Owners' property because they wanted to store a boat there. Department witnesses deny that Owners ever sought to impose such a restriction. The parties also disagree as to the significance of certain restrictions which the parties agree were in fact imposed. For instance, there is no dispute that Owners were unwilling to cut down a favorite oak tree, despite Allstate's recommendation that they do so. But the parties differ in their recollection of what, if anything, was said to Owners about the impact of that decision upon Petitioner's ability to deliver a working drainfield. The factual disputes regarding limitations allegedly placed upon Petitioner by Owners are resolved in favor of the Department. Having considered the demeanor of the witnesses during their testimony, together with all of the facts and circumstances surrounding the dealings of the witnesses, the undersigned concludes that Owners placed no restrictions upon Allstate in the performance of its contract, save the requirement that the favorite oak tree be left standing. In that instance, the undersigned concludes that the Owners testified truthfully that Allstate informed them that the new drainfield may need to be replaced as soon as a decade after its installation if the oak tree remained, and Owners accepted that particular risk. There was undisputed testimony that other homes in the Owners' neighborhood have drainfields adjacent to mature oak trees, and that proximity has never been known to cause a drainfield failure within months of installation. It is not believable that Owners allowed Allstate to install a drainfield with knowledge that Allstate expected the system to fail within months if the oak tree was not removed. Similarly, there was no evidence, save for the testimony of Petitioner and Dunn, that Owners ever owned a boat, or had plans to buy one. Indeed, Gerald Timmons, who replaced the failed Allstate drainfield with a system which was operating without problems through the date of the hearing, testified that Owners made no attempt to restrict the location of the drainfield, and that he in fact installed his system over the eastern border of the property where Petitioner claimed Owners had denied access. By contract dated March 1, 1999 (Composite Exhibit 17, "the contract"). Allstate undertook to provide a new drainfield to Owners for the price of $2,300.00. Pursuant to the contract, Petitioner undertook to provide the Department with information required to secure necessary Department permits. In the permit application, Petitioner misrepresented the condition of the ground below the drainfield as having suitable soil conditions for the proposed work. In fact, the opposite was true. The presence of the pre-existing drainfield rendered the site unsuitable and indeed, doomed to fail. The site evaluation provided by Petitioner represented an adequate amount of sand in the drainfield area and an observed water table depth of 48 inches below the existing grade. Unrebutted expert testimony demonstrates that these representations could not possibly have been true, due to the presence of the pre-existing drainfield which Petitioner failed to excavate prior to installing a new system directly on top of the pre-existing drainfield. Petitioner testified that she personally probed five feet down the center of the area where the Allstate drainfield was to be placed but found no sign of the pre-existing drainfield which was there. This testimony is belied by the more credible the testimony of the Department's experts, who agreed that if Petitioner's account of her probe were accurate, the pre-existing drainfield would necessarily have been discovered. Petitioner's permit application inaccurately represented the amount of available space for the installation of a drainfield as being limited to 375 square feet. In fact, the owners' property would accommodate a 523 square foot drainfield. The separation between the bottom of the Allstate drainfield system and the water table depth required for the competent installation of a drainfield was not met by Petitioner. The parties expended a great deal of time establishing the hard feelings between Owners and Allstate and between Department officials and Allstate, particularly its owner Dunn. Witnesses aligned with both sides testified at length to various incidents of boorish behavior by Allstate employees and by the Owners. Similarly, there appears to be a history of distrust between at least some Department officials and Dunn, which was exacerbated between November 1999 and March 2000, when the efforts by the Department to mediate the dispute between Allstate and Owners were unsuccessful. Unquestionably, relations between Allstate and Owners deteriorated rapidly upon the failure of the drainfield, but the various exchanges of angry words and the Department's unsuccessful effort to persuade Allstate to partially compensate Owners have no relevance to the question of whether Petitioner did or did not commit the violations alleged in the Administrative Complaint, and have not been considered by the undersigned in resolving those issues. In this case, Allstate did not provide Owners with a written guarantee of its work, and there is no legal requirement that it do so. Neither did Allstate provide Owners with any written disclaimers or instructions for using the system or warnings that certain types of activities would cause the system to fail. Allstate company policy permits the installation of drainfield systems even in cases where Allstate believes the system is not likely to work. The Petitioner's installation was completed in March 1999 and Owners paid Allstate the $2,300.00 contract price. Beginning in the fall of 1999, Owners began to experience problems with the Petitioner's drainfield. Owners contacted Allstate, which rejected Owners' request that it take corrective action. Owners also contacted the Department, which made efforts to mediate between Owners and Allstate. The evidence is inconclusive as to why the Department's mediation efforts failed. At one point, Allstate seemed agreeable to making a partial refund to Owners, but later Dunn changed his mind. However, Allstate and Petitioner have always asserted that the failure of the drainfield was entirely the fault of the Owners. Indeed, throughout the history of Allstate's dealings with Owners, throughout the final hearing and in Petitioner's proposed Recommended Order, Petitioner has offered a variety of theories as to why her work failed. One suggestion was that the use of a lawnmower contributed to the drainfield's failure. Petitioner also insisted that Owners used too much water, causing hydraulic overload and precipitating the failure of Petitioner's system. Petitioner asserts that Owners' water usage increased by 8.85 percent from March 1999 when Petitioner's system was installed to November 1999, when the system began to fail. And in its Proposed Recommended Order, Petitioner asks for the first time that the undersigned take judicial notice that on October 19, 1999, Hurricane Irene "swept through the Fort Lauderdale area", leaving substantial rainfall-related damage in its wake; however, no evidence was offered linking the rains of Hurricane Irene to Owners' drainfield failure. The unanimous weight of expert opinion, save that of Allstate's owner Dunn, is that the various theories advanced by Petitioner as reasons for the failure of her work--singly or in combination--are insufficient to explain the sequence of events at the Owners' property as it relates to the problems they experienced with the Allstate drainfield system. By March 2000, it was clear that the Allstate-installed drainfield had failed. Jerry's Septic Tank Service and its owner, Gerald Timmons, were engaged by the Owners to evaluate the situation and make necessary repairs. A repair permit was issued to Jerry's by Department on March 13, 2000, and work was commenced. Almost immediately it became apparent that an old drainfield was located immediately beneath the Petitioner's drainfield. Jerry Timmons immediately called Owners to notify them of this finding. Owners, in turn, called Department official Jay Morgenstern to advise of Timmons' discovery. Allstate was also informed of the discovery of the preexisting drainfield. Petitioner and Dunn each conversed with Jerry Timmons about the pre-existing drainfield adjacent to the Allstate drainfield. At all times after Allstate was notified of the failure of its system, Allstate and Petitioner continued to maintain that the failure was the fault of the Owners, not Allstate, and that the preexisting drainfield either was not there in March 1999 or was not discoverable by Allstate. Morgenstern personally conducted an inspection and verified Timmons' finding that old drainfield material was clearly visible. Thereafter, the Department issued the Citation for Violation. The services provided by Petitioner in March 1999, constitute an improper and incomplete repair and installation. The improper, incomplete services provided by Petitioner in March 1999, resulted in Owners being required to expend $2,800.00 for the services of Jerry's Septic Tank to excavate the pre-existing drainfield, along with the defective Allstate system, and to provide a functioning septic tank system, in addition to the $2,300.00 previously paid to Allstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Petitioner guilty of the unlawful conduct alleged in the Administrative Complaint and disciplining her therefor by fining her in the total amount of $1,000.00. DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Florida. FLORENCE SNYDER RIVAS 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 19th day of October, 2000. COPIES FURNISHED: Judith C. Elfont, Esquire Department of Health 2421-A Southwest Sixth Avenue Fort Lauderdale, Florida 33315-2613 William E. Stacey, Jr., Esquire 320 Southeast 9th Street Post Office Box 460053 Fort Lauderdale, Florida 33346 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A-02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue This case concerns a dispute between the Petitioner and Respondent on the question of whether a certain underground utility operated by the Petitioner, namely a sanitary sewer force main, unreasonably interfered with the construction of an additional lane on the west side of Pasadena Avenue, between Huffman Way and Matthews Road in the City of South Pasadena, Florida. See Section 338.19, Florida Statutes. If it is found that the utility unreasonably interfered with the road construction, then a decision must be reached on the propriety of the $21,604.45 charge which the Respondent has placed against the Petitioner for the removal of the underground utility at the instigation of the Respondent. See Section 338.20, Florida Statutes.
Findings Of Fact The Petitioner in this action, City of South Pasadena, is a municipal corporation located in Pinellas County, Florida. The Respondent, State of Florida, Department of Transportation, is a governmental department within the State of Florida, which has, among other functions, the construction and maintenance of roadways within the State. This dispute arises between the parties based upon the Department of Transportation's decision to construct an additional lane on the west side of Pasadena Avenue, between Huffman Way and Matthews Road in the City of South Pasadena, Florida, and the associated removal of an underground utility which was owned and operated by the City of South Pasadena. The underground utility was a sanitary sewer force main. In the absence of the removal of this utility by efforts of the Petitioner, the Respondent had those utilities removed at a cost of $21,604.45, of which $14,666.95 was acknowledged by the City as representing a reasonable cost of removing the utilities in question, should removal be found to be necessary. The remaining $6,937.50 is contested by the City as being an unreasonable cost of removal, even if it is determined that it was necessary to remove the utilities in the first instance. The facts reveal that as early as 1975, the Department of Transportation was desirous of knowing of the existence and whereabouts of underground utilities in the City of South Pasadena along Pasadena Avenue from Corey Causeway to the south to Park Street in the north. Petitioner's Exhibit No. 26, dated October 18, 1975, is a letter from the district utility engineer of the Respondent addressed to an official in the City of South Pasadena indicating possible improvements from Corey Causeway to Park Street along Pasadena Avenue and requesting information about the possible necessity to relocate or adjust utilities in the area of the proposed highway construction. Again, on July 1, 1977, in anticipation of the improvements to Pasadena Avenue in the aforementioned area, subject to funding, the Respondent requested the City to identify its utilities which might require relocation or readjustment in view of possible highway construction. A copy of correspondence addressed from the district utility engineer of the Respondent to a City official which deals with this subject matter may be found as Respondent's Exhibit No. 3, admitted into evidence. The private consulting engineers and architects employed by the City responded to this request by correspondence of August 22, 1977, a copy of which may be found as Respondent's Exhibit No. 2, admitted into evidence, and it had attached certain drawings indicating the location of utilities; however, those drawings did not depict the subject sanitary sewer force main between Huffman Way and Matthews Road. The drawings may be found as Respondent's Exhibit No. 1, admitted into evidence. The sanitary sewer force main had been placed there sometime in the period of the years 1971 and 1972, and was to be found anywhere from ten (10) inches to three (3) feet underground. Both the Petitioner's Exhibit No. 18 and the Respondent's Exhibit No. 4 demonstrate that the sewer force main was within the "right-of-way" granted to the State of Florida, Department of Transportation. The two exhibits spoken to are site plans depicting the "right- of-way" limits. Although the parties entered into a relocation agreement for utilities along Pasadena Avenue above the disputed area (see Petitioner's Exhibit No. 17, admitted into evidence), they did not have an agreement to relocate the utility in dispute. By September 5, 1978, the Respondent had decided to undertake project No. 15590-3609 which was to construct a third lane from Huffman Way to Matthews Road along Pasadena Avenue, as a traffic aid. This is evidenced by Petitioner's Exhibit No. 14, correspondence carrying the date September 5, 1980, from the resident engineer of the Department of Transportation to the district design engineer in the Department. Final plans on the overall Pasadena Avenue work referred to the construction of the third lane premised upon available construction funds, as shown in Petitioner's Exhibit No. 19, admitted into evidence. On October 24, 1978, Pinellas County, Florida, in the person of the Board of County Commissioners, by resolution, authorized the utilization of secondary gas tax funds to extend the Pasadena Avenue project to accomplish the lane construction. A copy of this resolution may be found as Petitioner's Exhibit No. 15 admitted into evidence. This item's expansion of the lane was advertised for bid on March 28, 1979, and on September 15, 1980, construction was commenced. As stated before, at the time the construction began, there was no written agreement between the parties to remove the sanitary sewer force main and indeed the Department of Transportation was without knowledge of the existence of that utility, although employees of the Department of Transportation and their private contractor for the project had encountered a "valve box" associated with the sanitary sewer system prior to the commencement of construction and had concluded that the possibility existed that the "valve box" apparatus might be removed without hindering the road construction. There is some dispute between the parties on the question of the point in time at which the officials within the City of South Pasadena learned of the installation of the third lane. The Department of Transportation claims that a preconstruction conference dealing with the overall work to be done on Pasadena Avenue made mention of the disputed item as early as May 8, 1979, and that officials for the City were in attendance. Again at a meeting in March, 1980, the Department urges that the project at issue was discussed. The officials for the City dispute this, and after considering the testimony of both parties, it can not be concluded that the City specifically knew of the construction in March of 1980. Nonetheless, in late September, 1980, the City clearly became aware of the project and the Department of Transportation learned of the unpermitted sanitary sewer force main within the "right-of-way" between Huffman Way and Matthews Road in the third lane expansion of Pasadena Avenue. Sometime around September 23, 1980, the construction company's underdrain crew came in contact with the sanitary sewer line, and the line was found to be an interference with the road construction. At that point, the contractor removed the work crews and did not return until November 7, 1980, at a time when they worked through November 17, 1980, achieving job items that did not conflict with the sanitary sewer line. This work could have been achieved at anytime after September 23, 1980. The Department of Transportation gave the contractor the premission to remove the underground utility line on December 5, 1980, and in between December 10, 1980, and December 17, 1980, the utility line was removed. On December 22, 1980, the contractor resumed the construction of the roadway known as the south bound extension between Huffman Way and Matthews Road. Around September 25, 1980, the City of South Pasadena was made aware of the conflict between the road construction and the sewer main, and the fact that the road construction could not be completed without the removal of that line. Having discovered the conflict between the main and the road construction and the fact of the road construction between Huffman Way and Matthews Road, the City Council held a meeting on September 29, 1980, at which time discussion was held on the removal of the subject sanitary sewer force main and the cost to be incurred by the City. An excerpt of the minutes of that meeting may be found as Petitioner's Exhibit No. 3, admitted into evidence, a copy. On September 30, 1980, the Mayor of the City of South Pasadena, by correspondence, a copy of which may be found as Petitioner's Exhibit No. 1, admitted into evidence, transmitted copies of resolutions Nos. 174 and 175 of the City of South Pasadena, copies of which may be found as Petitioner's Exhibits Nos. 4 and 5, respectively, and through these resolutions voiced the opposition of the City of South Pasadena to the road widening. On October 1, 1980, the consulting engineer for the City of South Pasadena wrote to the Department of Transportation indicating his opinion that the extension under construction was "an unnecessary extension of the present project." A copy of that correspondence may be found as Petitioner's Exhibit No. 2, admitted into evidence. There followed correspondence from the Deputy District Engineer for operations of the Department of Transportation by a letter dated October 10, 1980, addressed to the Mayor of the City of South Pasadena. That correspondence acknowledges the receipt of Resolutions Nos. 174 and 175, and states the Department of Transportation's intention to proceed with the construction. A meeting was held between the City and the Department of Transportation on October 14, 1980, at which meeting the City indicated that they did not intend to pay the cost of relocating the sewer force main. On October 22, 1980, the Deputy District Engineer for the Department of Transportation, by correspondence with attachments, a copy of which may be found as Petitioner's Exhibit No. 10, admitted into evidence, wrote to the Mayor of the City and referred to the attached Sections 338.17 through 338.20, Florida Statutes, on the subject of the responsibility of the utility owner to relocated or adjust utilities that conflict with road improvements within a public "right- of-way." That correspondence asked that the City adjust, at the earliest date possible, the utilities in conflict to allow the conclusion of the construction. The correspondence closed by indicating the availability of officials within the Department of Transportation to meet with City officials to clarify the adjustments to be made. On October 31, 1980, the Petitioner was informed by registered letter that it was directed to remove, relocate or adjust the subject utility and granted twenty (20) days to request a hearing on the question of that disposition of the utility, and by doing so alluding to the opportunity for hearing before the Division of Administrative Hearings. Finally, the correspondence noted that failure to request a hearing would promote action by the Department of transportation. By correspondence dated October 31, 1980, a copy of which is admitted as Petitioner's Exhibit No. 9, the Mayor of the City of South Pasadena wrote the Department of Transportation and stated that the City of South Pasadena would not take any action to remove the force main, for reason that there was no budgetary provision for that expense in the City's 1980-81 budget. This lead to the removal of the underground utilities by the contractor employed by the Department of Transportation to construct the road improvements. The underground utility was an unreasonable interference found in the "right-of-way" at the location where the additional lane was being constructed between Huffman Way and Matthews Road on Pasadena Avenue and the necessity to remove it was not discovered until the project was underway, and in that respect, its removal was coincidental and not incidental to the construction. It having been determined that it was necessary to remove the utility, there remains in contest the $6,937.50 charge for removal. These removal charges are reflected in Petitioner's Exhibit No. 7, a copy of the statement of charges drawn by the contractor and forwarded to the Department of Transportation. On the second page of that document, which was admitted into evidence, are found Items 2, 3 and 4. Item 2 is a charge in the amount of $4,000.00 entered by the contractor due to the necessity to stop the paving operation when they encountered the sanitary line, and to remove the asphalt crew and, in turn, bring the asphalt crew back to conclude the work. Item 3, constitutes a charge of $937.50 for the rental of barricades from September 23, 1990, to November 6, 1980, and from November 17, 1980, to December 18, 1980. Item 4 speaks of setback charges caused by "long delay and waiting for the City of S. Pasadena and the DOT to resolve the force main matter-2 months field office expense and job overhead $1,000.00" and indicates cost of $2,000.00. Other than this summary explanation of the charge found in the document, no other indication was given as to the meaning of Item No. 4 and consequently, its true meaning is not understood.
Recommendation Based upon a full consideration of the Findings of Fact and Conclusions of Law reached herein and in keeping with the terms and conditions of Sections 338.19 and 338.20, Florida Statutes, it is RECOMMENDED: That the charges as set out in the Conclusions of Law section of this Recommended Order, which have been allowed, be upheld as an assessment against the City of South Pasadena, Florida, occasioned by the necessity to remove a sanitary sewer force main along Pasadena Avenue between Huffman Way and Matthews Road. 3/ DONE and ENTERED this 31st of March, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of March, 1981.
The Issue The issue in this case is whether the Department of Health (Department or DOH) should fine the Petitioner, Jeffery Benefield, $500 and require him to move the drainfield of his onsite sewage disposal system so that no part of it is within ten feet of the potable water line of his neighbors, the Intervenors, Robert and Wanda Schweigel.
Findings Of Fact The Petitioner's home at 10920 Lake Minneola Shores Road (Lake County Road 561-A) was built in 1977. It included an onsite septic tank and drainfield sewage disposal system. On March 31, 2003, the Petitioner personally applied for a permit to repair his existing sewage disposal system by replacing the drainfield. His application did not identify any potable water lines. Department personnel evaluated the site and calculated system specifications, and the Department issued a construction permit on April 3, 2003, based on the estimated size of the existing system. To replace the existing drainfield and meet specifications, 375 square feet of drainfield was required. However, the Petitioner wanted to add 125 square feet to what was required by the specifications, which is acceptable so long as required setbacks are maintained. The Petitioner's drainfield was replaced by a licensed contractor on April 29, 2003. Some work may have been done the following day to complete the job, but it appears that the contractor called for the final inspection on April 29, 2003. On inspection, it was clear that the new drain line closest and (like the other three) parallel to the property line was less than ten feet from a water line, riser, and spigot on the neighboring property, which was owned by Robert and Wanda Schweigel. Specifically, the closest of the new drain lines was estimated to be just five feet from the Schweigels' water line, riser, and spigot. (The next closest was just under ten feet from the Schweigels' water line, riser, and spigot.) As a result, the Department disapproved the installation. The Petitioner disputed the disapproval, initially contending that the Schweigels' water line, riser, and spigot did not convey potable water. It was decided that the new drainfield should be covered while pending a decision as to whether the water line was potable. By the end of July 2003, the Department decided that the Schweigels' water line was indeed potable. In that approximate time frame, the Petitioner's contractor offered to pay to have the Schweigels' water line "sleeved" to a distance at least ten feet from the nearest portion of the Petitioner's drainfield.2 He believed that solution would be much simpler and less costly than moving the Petitioner's drainfield to a distance at least ten feet from any part of the Schweigels' potable water line. This alternative was presented to the Schweigels in that approximate timeframe, but they refused (and continue to refuse.) In August 2003, the Petitioner took the position that, regardless whether the Schweigels' water line was potable, the Petitioner's new drainfield was in the same location as the existing drainfield, and the part of the water line closest to the new drainfield (i.e., the part including the riser and spigot) was not there until after the middle of April 2003 and was recently installed either just before or while the Petitioner's new drainfield was being installed. The evidence was not clear as to the configuration and precise location of the drain lines in the Petitioner's original drainfield. However, it appears to have had three drain lines emanating from the septic tank, starting in the direction of the Schweigels' property and then curving away in the direction of Lake Minneola, which is behind the Petitioner's and the Schweigels' properties, before terminating. The replacement drainfield had pipe emanating from the septic tank and running towards the Schweigels' property line before making a 90-degree turn towards the lake before connecting to the middle of a header pipe. Connecting to the header pipe are four equally-spaced drain lines, one on either end of the header pipe and two in between, that are perpendicular to the header pipe and parallel to each other and to the Schweigels' property line (and potable water line) and run towards the lake. As indicated, it was not clear from the evidence precisely where all of the old drain lines were located, or how close they got to the Schweigels' property (and potable water line.) However, it does not appear that they got as close as two of the four new drain lines in the replacement system. See Petitioner's Exhibits 13 and 21. There was conflicting evidence as to when the Schweigels' potable water line was installed. It is clear from the evidence that there are now three "T's" off the water line from the potable water source near the street. One "T- off" leads to near the front corner of the house, one leads to the middle of the side of the house, and one leads to near the rear corner of the house. The line then extends past the last "T" to the location of the water riser and spigot. The Petitioner's evidence proved that the water line riser and spigot now within ten feet of the Petitioner's drainfield were not there either in May 1999 or on April 14, 2003. But the Schweigels maintained, and the evidence as a whole was persuasive, that the potable water lines currently in place were installed in 1996 or 1997, but were cut and moved to enable the Schweigels to install footers for construction of a concrete privacy wall in approximately 1999. After installation of the footers, the water line had to be moved several inches closer to the Schweigels' house when replaced, and the "T's" were reconnected to the line. In approximately April 2003, the water line riser and spigot were damaged (the evidence was not clear how) and had to be replaced. The evidence was that the Schweigels got a permit to build their privacy wall but did not get a permit for the plumbing work that was necessary in conjunction with the installation of the footers for the wall. Although it appears from the evidence that a plumbing permit was required, the Schweigels did not think a separate plumbing permit was necessary. It is not found that the Petitioner participated in this proceeding for an "improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order that the Petitioner pay a $500 fine and either: (1) pay the reasonable cost of having the Schweigels' potable water line "sealed with a water proof sealant within a sleeve of similar material pipe to a distance of at least 10 feet from the nearest portion of the system," so long as no portion of the Schweigels' potable water line "within 5 feet of the drainfield shall be located at an elevation lower than the drainfield absorption surface"; or (2) move or relocate his drainfield to meet the setback requirements of the current Rule 64E-6.005(2)(b). DONE AND ENTERED this 15th day of February, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 15th day of February, 2005.
