The Issue The issue is whether Petitioner's request for a variance from agency rules governing daily domestic sewage flow so as to authorize an increase in the number of seats for his restaurant located in Howey in the Hills, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Fletcher C. Bishop, Jr., is the owner of a parcel of property located at Lot 22, Block C-2, Lakeshore Heights Subdivision, 102 South Palm Avenue, Howey in the Hills, Florida. The property consists of .0946 acre, or approximately one-tenth of an acre, and is one of several parcels located in Block C-2. Since January 1997, the property has been leased to Robert P. Jencic, who now operates a pizza restaurant on the premises known as Hungry Howies Pizza Shop. According to Jencic, he has a contract to purchase the property from Bishop at the end of his lease, or on March 1, 1998. Whether the property was actually purchased by Jencic on that date is not of record. Lakeshore Heights Subdivision is not served by a central wastewater treatment system; rather, each lot is served by a septic tank and drainfield system. Lot 22 adjoins several other commercial or business establishments situated on Lots 20, 21, 23, and 23A in the western half of Block C-2, and all share a common drainfield easement located to the rear of the lots. Except for Lot 20, all lots have tied into the drainfield and now use the easement for waste disposal purposes. Because they share a common easement, each lot has been allocated a portion of the easement for its respective septic tank and drainfield. In Petitioner's case, he has been allocated approximately 990 square feet. After Jencic signed a commitment in January 1997 to lease and purchase the property, he made extensive renovations in order to convert the property to a restaurant. On or about February 20, 1997, Jencic met with a representative of the Lake County Health Department, an agency under the direction and control of Respondent, Department of Health (Department). At that time, Jencic filed an application for a site evaluation concerning the replacement of the existing onsite sewage disposal system. The application noted that he intended to operate a pizza restaurant with 56 proposed seats. On February 21, 1997, a site evaluation was conducted by Robin Gutting, a Lake County Department of Health environmental supervisor. According to her report [t]he property size of 4120 square feet with available central water will allow a maximum 236 gallons of sewage flow per day . . . This will allow a 12 seat restaurant using single service articles and operating less than 16 hours per day. . . The size of the Onsite Sewage Treatment and Disposal System would be a minimum 900 gallon tank with 197 square feet of drainfield trench configuration. (emphasis added) Jancic received a copy of the report on or about March 12, 1997, and it clearly conveyed to him the fact that he could operate no more than 12 seats in his restaurant due to sewage flow limitations on his property. Despite being on notice that the restaurant would be limited to only 12 seats due to the lot flow restrictions, on March 19, 1997, Jencic filed an application with the Lake County Health Department for a construction permit to replace the existing septic tank with a 900 gallon septic tank, install a 900 gallon grease trap, and utilize a 197 square-foot primary drainfield and a 200 square-foot bed system. The application indicated that Jencic intended to operate a restaurant "for 12 seats, single service, open less than 16 hours per day." On May 28, 1997, Jencic's application was approved for "12 seats, single service, open less than 16 hours per day." After installing the new tank and grease trap, Jencic began restaurant operations subject to the above restrictions. After operating his pizza restaurant for a short period of time, Jencic determined that he could generate a profit only if the restaurant could be expanded to allow more seats, and he could use china and silverware (full service articles) rather than single service articles (throwaway utensils). To do this, however, he would need a larger sewage treatment system. By letter dated November 9, 1997, Jencic requested a variance from various Department standards for onsite sewage treatment and disposal systems so as to "increase the seating from 12 seats to a maximum of 36 seats and [authorize] the use of china, silverware, and dishes." Although the letter does not refer to any rules, the Department has treated the letter as seeking a variance from three of its rules found in Part I, Chapter 64E-6, Florida Administrative Code. First, Rule 64E-6.001(4)(c), Florida Administrative Code, provides that an establishment cannot exceed the lot flow allowances authorized under Rule 64E-6.005(7)(c), Florida Administrative Code. If the seating capacity in the restaurant were increased, Jencic would exceed the lot flow allowances in violation of this rule. Second, Rule 64E-6.005(7)(b), Florida Administrative Code, prescribes the manner in which a determination of lot densities shall be made. Among other things, daily sewage flow cannot exceed an average of 2,500 gallons per day per acre. The easement which Petitioner shares with other lots is far less than an acre, even counting the space allocated to the adjoining lots. Finally, Rule 64E-6.008(1), Florida Administrative Code, provides that minimum design flows for systems serving a structure shall be based on the estimated daily sewage flow as determined by Table I of the rule. That table specifies an estimated daily sewage flow of 20 gallons per seat for restaurants using single service articles only and operating less than 16 hours per day. Therefore, a 12-seat restaurant with those operating characteristics would require a system that could handle at least 240 gallons of sewage flow per day. The table further provides that a restaurant operating 16 hours or less per day with full service will generate an estimated sewage flow of 40 gallons per seat. Thus, a restaurant with up to 36 seats, as Jencic has requested, would require a system handling at least 1,440 gallons of sewage flow per day. In order to qualify for a variance, an applicant must show that (a) the hardship was not caused intentionally by the action of the applicant; (b) no reasonable alternative exists for the treatment of the sewage; and (c) the discharge from the onsite sewage treatment and disposal system will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. In its letter denying the variance, the Department asserts that Jancic has failed to show that items (a) and (c) have been satisfied. Jencic, who recently immigrated to this country, will suffer considerable financial hardship if the request for a variance is denied. Indeed, he demonstrated at hearing that his life savings have been invested in the restaurant, and his parents have placed a substantial mortgage on their property to assist him in his endeavor. If he does not purchase the property as required by his contract, he will be forced to restore the property to its original condition at great expense. In short, given his investment in renovations and equipment, unless the restaurant is expanded, he fears he must file for bankruptcy. Both parties agree that Jancic will suffer a hardship if the variance is not approved. However, Jancic was aware of the lot flow limitations before he made application to replace the existing septic tank in March 1997, and well before he began operating the restaurant in May 1997. Unfortunately, then, it must be found that the hardship was intentionally created by Jencic's own actions. If the variance were approved, it would result in a much larger amount of sewage being discharged into the easement, which could not handle that amount of flow. This in turn could cause the system to fail, thus creating a sanitary nuisance and the leaching of sewage into the groundwater. In this respect, Jancic has failed to show that the discharge will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. Jencic offered into evidence a summary of his water usage during a representative period in 1997. That document indicated that metered water usage was approximately 3,000 to 4,000 gallons per month, even when he temporarily (and without authority) expanded his restaurant to 24 seats during a recent two-month period to test water consumption at the higher seating capacity. However, because the sewage strength of a restaurant is far greater than that of a residence, a sewage system must be sized on estimated waste flow, and not metered water flow rates. Therefore, the fact that Jancic's monthly metered water usage is less than 4,000 gallons is not relevant to a determination of the issues. The same finding must be made with respect to Jancic's well-intentioned efforts to decrease water flow by installing high pressure toilets and timed spring systems on his hand sinks. Jencic also requested that he be allowed "spike time" during the hours of 11:30 a.m. to 1:00 p.m. and 6:00 p.m. to 7:30 p.m., which are his peak hours of the day. In other words, the undersigned assumes that he is asking that consideration be given to the fact that he has virtually no business during the other hours of the working day, and that the flow during the peak hours alone would not be excessive on a daily basis. However, the Department's rules are calculated to maximum usage, and thus a "spike" allowance is not allowed.
Recommendation Based on the foregoing 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 11th day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert P. Jencic 102 South Palm Avenue Howey in the Hills, Florida 34737 Marya Reynolds Latson, Esquire Post Office Box 2408 Ocala, Florida 34478 James Hardin Peterson, III, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Department of Transportation, pursuant to its decision to procure certain sewer line cleaning equipment, issued an Invitation to Bid to potential vendors of such equipment. The specifications in that Invitation to Bid which are at issue in this proceeding concern the specified ability of the machine being proposed to vacuum gutters while being driven or, that is, in motion. The other specification at issue was that the machine had to be a standard production model with five of such machines in service for one year prior to May 1988. The sewer line cleaner specified had to have a nine cubic yard capacity. The bids were received, including that of Vac-Con, Inc. and Jet Vac Sanitary Service. The bid results were posted on June 3, 1988, noticing the Department's intent to award the contract for the nine cubic yard sewer line cleaner to Vac- Con, Inc. Jet Vac Sanitary Service timely filed a formal protest of that intended bid award on June 17, 1988. The Petitioner's formal protest was transmitted to the Division of Administrative Hearings and duly came on for hearing. The Petitioner is contending that the Vac-Con model V290 storm sewer line cleaner does not meet the specifications in the Invitation to Bid because it will not vacuum gutters while in motion in the configuration set forth in Vac-Con's published specifications for its standard models. It asserts, in conjunction with this argument, that the alternative configuration proposed by Vac-Con would in effect render this a nonstandard production model of which Vac- Con has not had five in service prior to May 1988, which would represent a departure from the bid specifications and thus result in a non-responsive bid. The Respondent, however, contends that the alternative configuration proposed by Vac-Con is merely an options package to an existing standard production model machine and thus is in conformance with the specification. The Respondent has been advised by Vac-Con that the V290 machine will perform as specified and that at least five machines have been so configured and have been in service for the required one year or greater period. It is stipulated that Jet Vac Sanitary Service was the next lowest bidder after Vac-Con and has standing to protest the Intent to Award. Jet Vac was a responsive bidder. It is also stipulated that the configuration of the model V290 depicted in Vac-Con's promotional material itself will not meet the specifications set forth in Respondent's Invitation to Bid. The dispute is whether the Vac-Con machine, as optionally modified, as proposed by Vac-Con, meets the specification concerning the machine being a standard production model. In response to the Invitation to Bid, Vac-Con, Inc. submitted a bid for its Vac-Con model V290. It accompanied that bid with a written statement of the model specifications which coincided with the specifications required by the Invitation to Bid. It specified, that is, that it would comply with the requirement that the vehicle be able to vacuum gutters while being driven in motion. Jet Vac in turn submitted a bid which was responsive, but it was not the lowest bid. Vac-Con, Inc., in other bids submitted in the past year as well as in its advertising literature, describes the V290 model of sewer line cleaner as one in which the vacuum compressor is driven by the truck engine, that is the engine which provides the motive power to the vehicle. In order to operate the vacuum compressor as described in that literature, the rear axle of the truck has to be disengaged, with the result that the unit cannot vacuum and drive at the same time. This configuration of the V290 model which has the vacuum being operated by the truck engine or chassis engine, is the normal type of unit offered by Vac-Con in its vehicle demonstrations and literature, as recently as one week prior to trial. In order for the V290 to comply with the bid specifications at issue, it must be reconfigured so that the vacuum compressor is run by an auxiliary engine and not the motive power engine. The power available to operate the vacuum compressors which vacuum trash from gutters and so forth, would be reduced from the chassis engine which, in the normal configuration of that model, operates the vacuum compressors. The reconfiguration whereby the vacuum compressors would be run off the auxiliary engine, and not the motive engine, would require a reversal of the V-belt drives used by the normal unit. This alternate configuration would be obvious to the casual observer. The intent of the term "standard production model" in the specifications at issue is to ensure that a machine purchased will have ready availability of manufacturer's replacement parts out of stock. This serves to prevent the purchaser from having to do development work on new models which are not in standard production runs and do not have inventories of spare parts in the manufacturer's stock as yet. Because the alternate configuration of the unit, whereby it would vacuum while moving, running its vacuum equipment off of its auxiliary engine, requires new engineering and reevaluation of the power of the V290's auxiliary motor, the specification language requiring a "standard production model" and requiring that five such units be operational in the field, requires in this instance that five units in the alternate configuration at issue be found to have been in satisfactory field service for one year. The written description submitted by Vac-Con, Inc. in response to the bidding documents, describes a machine which complies with the specification requiring the ability of the machine to vacuum while it is in motion. That description was specially prepared for purposes of this bid. Indeed it is not a machine represented, at the time of the bid, in the company's advertising literature, catalog data or other published brochures and like sources of information in order to verify that indeed Vac-Con did have five units in the alternative configuration in satisfactory service. The Department's representative, Mr. Burt, telephoned individuals whose names had been supplied him by Vac-Con as being persons who could verify that the alternative, which could vacuum in motion with the vacuum blower run off the auxiliary engine, was indeed in service. Using these names supplied him by Vac-Con and names of persons some of those people in turn gave him, who had such altered machines operating in satisfactory service, Mr. Burt telephoned each of the individuals whose names had thus been furnished by Vac-Con and its customers. He thus confirmed that there were indeed at least five units in service in the field, for at least one year, which had the ability to vacuum gutters while in motion, with the vacuum equipment being operated by the auxiliary engine on the machine. The Department has a policy of relying upon the representations of its suppliers. It does not inspect each piece of equipment before it writes a purchase order after awarding a bid. It instead reserves the right to reject any piece of equipment that does not meet specifications, after purchase. The Department does not wish to get into an adversary relationship with its suppliers and, in turn, vendors typically do not want an adversary or unfavorable relationship with the Department and do not want future disqualifications from bidding based upon any lack of integrity or misrepresentations in responding to bid specifications. Accordingly, the representations made on the bidding document have historically been quite accurate and have a high degree of probability of reliability. Hence, the Department has not, in the exercise of its discretion, followed a policy of physically inspecting each piece of equipment and independently verifying its existence or capabilities. It rather has effectively, in the past, relied upon the vendor's representations regarding the capacities or capabilities of equipment. In fact, the Department has neither the staff nor the time to make any further pre-award investigations, especially due to the nationwide market and indeed, to some extent, international market, in which it seeks to procure equipment of all sorts. In any event, being satisfied that the equipment would perform as represented and verifying that at least five such configured machines were in active field service for a year or more, the Department concluded that, in the exercise of its discretion, that the specifications had been adequately responded to and that the award should be made to Vac-Con as lowest, most responsive bidder. Insufficient proof to the contrary was offered at the hearing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered awarding the contract for Florida DOT Bid Number MY3188B5 to Vac-Con, Inc. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1988. COPIES FURNISHED: Ray Heath William B. Singleton Jet Vac Sanitary Services Post Office Box 186 New Smyrna Beach, Florida 32070 Bruce A. Campbell, squire Senior Litigation Attorney Office of General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Kaye N. Henderson, P.E., Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Respondents, Frank L. Reppa and Denise J. Reppa, own and reside in their dwelling located at 3863 Plumosa Drive, St. James, Florida. The property is a narrow canal front lot. All lots in the area are small and narrow and the dwellings thereon, mostly mobile homes, are placed closely together. On January 11, 1988, as the result of a nuisance complaint by the Reppa's next door neighbor, Stephen E. Havig, an Environmental Specialist with the Lee County Health Department, a part of the State of Florida DHRS, inspected the property in question and observed that effluent from the Respondents' drain field, a malodorous liquid, had run from Respondent's property down onto the driveway of their neighbors. On January 13, 1988, he returned to the property and spoke with Mrs. Reppa who admitted to living on the property. He again observed that the drain field in the Reppas' septic system was heavily saturated and had failed. Effluent was coming to the surface due to the high water table resulting from heavy recent rains and the failure of the system, and there was still a sewage odor to the effluent. The effluent showed in stains on the neighbor's drive. Mr. Havig told Mrs. Reppa that the problem had to be corrected as it was a violation of the law to allow it to remain. In response, Mrs. Reppa indicated they had no money to effect the repairs and because of that, Mr. Havig, who could have cited them immediately, indicated he would return to his office to see if they could be given some additional time to have the work done. After checking with his supervisor, Mr. Havig, on the same day issued an "Official Notification of Insanitary Nuisance" and a "Notice of Intended Action", both of which were sent by Certified Mail and receipted for by Mrs. Reppa on January 19, 1988. The Notice gave the Reppas until January 28, 1988 to correct the problem. On January 14, 1988, Mr. Havig again talked with Mrs. Reppa, telling her what he was sending and advising her how she could get the problem fixed. When he again went out to the property on January 28, 1988, he noted that the property had dried out due to a lack of rain. However, he could see no evidence that any repairs had been effected. He returned to the property on February 1, 1988 after a rain and observed that the problems had reoccurred. Mr. Havig again spoke with Mrs. Reppa on February 8, 1988, at which time she advised him the problem was to be repaired, but they were without funds to pay for it. At that time, Mr. Havig gave the Reppas three weeks to have the work completed with a contractor to be retained within one week. When he spoke with Mrs. Reppa on February 16, 1988, she stated she was still having trouble getting a contractor. She had contacted one contractor who looked at the system on February 15, 1988 and who proposed to remove the washing machine from the drain system. When Mr. Havig talked with Mrs. Reppa on February 19, 1988, she indicated she would have to discuss the matter with her husband. Mr. Havig stated at that time that the Department would have to proceed with enforcement action if work was not started on the correction by February 22, 1988. No corrective action was taken by the Reppas and the Administrative Complaint was filed as a result. DHRS considers it important to properly dispose of effluent because, since it contains human waste, it carries bacteria, viruses and a danger of parasites. Agency policy requires that the septic system be continually monitored and that the tank be pumped and the drain field be repaired when necessary. The Department has no funds available to assist those who cannot afford to make repairs. In order to be properly processed, effluent drainage from septic tanks needs a minimum of two feet of soil between the discharge outlet of the tank and the water table. The soil acts as a filter to remove harmful organisms and contaminants from the effluent before it reaches the water table. A high water table, due to heavy rains or other causes, prevents this filtration and causes the effluent to come to the surface. The situation is correctable. Two methods of correction are: 1) elevate the system above the water table, or 2) remove the saturated soil and replace it with a good grade of sand. In October, 1985, another complaint against the Reppas, relating to the same situation, was filed with DHRS. At that time, the Reppas paid $650.00 to have the system repaired by an individual who replaced the drain field, drawing it away from adjoining property and toward the road. Though the contractor assured them this would fix the problem, wash water would continue to come to the surface. As a result, Mrs. Reppa has refrained from washing clothes at her home and takes them to the laundry in town. Because of the actions they have taken, such as having the drain field expanded and moved, the pumping out of the septic tank in January, 1988, and the cessation of washing clothes at home, Mr. and Mrs. Reppa are convinced the system is not overflowing and that the water on the neighbor's property is the accumulation of surface water drainage when it rains. The Reppa property is higher than the neighbor's property and Mrs. Reppa believes that rain water drains down there. The new part of the drain field works and the water in question, she feels, cannot be effluent. The evidence of record, however, indicates to the contrary and that it is waste effluent. Inquiry by the Reppas indicates that it would take $750.00 more to fix the system and the Reppas do not have that money. They are still paying back the money they borrowed from Mrs. Reppa's parents to make the first repairs. Mr. Reppa is a commercial fisherman whose income has been substantially reduced due to the restrictions placed on the taking of redfish. Many neighbors in the area, according to the Reppas, discharge sewage directly into the abutting canal and allow wash water to run out onto the ground. The Reppas cannot comprehend why these individuals, mostly three month winter visitors, are not cited while they, full time residents, are.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that an administrative fine of $50.00 per day be assessed against the Reppas for the violation established, said fine to be effective upon entry of a Final Order herein, with provision that the fine be remitted upon satisfactory proof that the violation has been corrected. Recommended in Tallahassee, Florida this 24th day of August, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Eugenie G. Rehak, Esquire Staff Attorney Department of Health and Rehabilitative Services Post Office Box 06085 Ft. Myers, Florida 33906 Frank Lee Reppa, pro se Denise J. Reppa, pro se 3863 Plumosa Drive St. James, Florida 33986 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
The Issue The ultimate issue to be resolved in this proceeding is whether the Department should issue a permit allowing the construction of a wastewater treatment and disposal system as requested in the modified application filed by Thomas E. Wasdin. The applicant and the Department contend that reasonable assurances have been given that the proposed facility will not result in violations of any of the Department's rules or regulations. The Petitioner contends that the proposed facility is located too near to existing shallow water drinking wells and that the facility otherwise fails to comport with the Department's rules and regulations.
Findings Of Fact Petitioner is the president of Beach Woods of Brevard County, Inc. The corporation is the developer of "Beach Woods," a 376-unit planned unit development located in Melbourne Beach, Brevard County, Florida. One hundred eighty of the units have already been developed. Existing regional sewage treatment facilities operated by Brevard County are not adequate to accommodate the total number of units that the applicant proposes to develop. It appears that 24 more hookups are all that the existing facilities will tolerate. Beyond that number, a sewer moratorium is in effect, and unless the applicant can make some other arrangement for disposing of sewage, the development cannot be completed. The county has approved the planned unit development. In order to meet sewage treatment needs of the proposed development, the applicant is proposing to construct a "package sewage treatment plant" to accommodate waste that exceeds quantities that can be handled by existing regional facilities. Once the regional facilities are upgraded so that the development's sewage treatment needs can be accommodated, the applicant proposes to disassemble the package plant and utilize the regional facilities. The proposed plant would be a 50,000 gallons per day contact stabilization sewage treatment plant. Initially, it would be operated as a 5,000 to 15,000 gallons per day aeration plant. Once loads reach 18,000 gallons per day, it would become a contact stabilization plant. The Present collection and transmission system for sewage that exists at Beach Woods includes an 8-Inch collection station from which sewage flows to an existing lift station that pumps effluent via 6-inch pipes to the regional plant. When the proposed plant is completed, a computerized system would be set up to send effluent to the new plants when the limits that the regional plant can accommodate are met. Once the regional plant is upgraded to sufficient capacity, the bypass to the proposed plant would be eliminated, and all units would then be connected to the original collection system. The proposed treatment plant is based upon proven technology that has been in existence for more than 50 years. The plant should operate reliably, and proper consideration has been given to odor, noise, lighting, and aerosol drift. In close proximity to the plant, it is likely that there would occasionally be a "earthy smell" that would be noticeable, but not objectionable. Outside of the immediate proximity, no odor would be noticeable. Large fans would be operated in connection with the plant, and some noise would result. It does not, however, appear that the noise would be excessive or bothersome, even in the immediate vicinity of the plant. The plant would be lighted by street lights and would not result in any more excessive lights than normal street lights. The plant is not of the sort that aerosol drift is a likely problem. Adequate considerations have been given to providing emergency power to the plant in the event of a power outage. The plant could sit for at least 20 hours without power before any emergency would exist. If there was a power outage in excess of that period, emergency power sources are available. Consideration has been given to the 100-year flood plain. The plant has been placed at an elevation that keeps it outside of the 100-year flood plain. The land application system proposed by the applicant would utilize drain fields that would be alternately rested. Groundwater flows from the area of the proposed drain fields are in a southwesterly direction toward the Indian River. The Indian River in the location of the proposed facility is a "Class III surface water." Groundwater in the area of the proposed facility might be classified as either "G-I" or "G-II." Reasonable assurance has been given that the proposed sewage treatment plant would not operate in such a manner as to degrade surface or ground waters to the extent that any of the Department's specific water quality parameters set out in Chapter 17, Florida Administrative Code, would be violated. The proposed sewage treatment plant comports with local requirements and has been approved by Brevard County. The Allans Subdivision is a residential development that is located directly to the north of the Beach Woods development. Petitioner utilizes a shallow water well as a source of drinking water. The proposed land application site of the sewage treatment plant is located within 500 feet of the Petitioner's well. There are at least two other shallow water wells that serve as drinking water sources located within 500 feet of the proposed land application site. The applicant indicated a willingness to move the proposed facility so that no part of it would be located within 500 feet of the shallow drinking water wells. The evidence establishes that the plant could be moved to accomplish that. No specific plan, however was presented. Potential factual issues could exist respecting appropriate buffer zones for any relocation of the facility, even a minor relocation. The applicant is proposing to develop areas within 100 feet of the proposed facility. The applicant does not, however, propose to locate any public eating, drinking, or bathing facilities within 100 feet of the proposed plant or land application area. No map was presented during the course of proceedings before the Department of Environmental Regulation that preceded the formal administrative hearing or during the hearing itself to establish present and anticipated land uses within one mile of the boundaries of the proposed facility. The facility of such a size that it could not inhibit any conceivable present or proposed future land uses except within 500 feet of the proposed facility. Evidence was offered at the hearing from which it could be concluded that the Department has, in the past, issued permits for sewage treatment plants located within 500 feet of existing shallow drinking water wells. The testimony was that this has occurred despite a requirement in the Department's rules that there be a 500-foot buffer zone between any such plant and a shallow drinking water supply. No specific evidence was presented as to why the Department has allowed such a breach of its rules or why it should be allowed in this proceeding.
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 Fallschase is a special taxing district which was created by the Board of County Commissioners of Leon County, Florida, in Leon County Ordinance No. 75-6. The district contains approximately 620 acres and is located in the area of the intersection of U.S. Highway 90 and Buck Lake Road in Leon County, Florida. The Intervenors are corporations which are seeking to develop the Fallschase area into a residential community. Through its permit application, Fallschase is seeking authority to construct a 167,000 gallon per day sewage treatment plant which would serve the proposed development. The plant would be of the extended aeration type with tertiary filters. Effluent from the plant would be discharged into a Percolation pond system. The City of Tallahassee operates a sanitary sewer system which serves areas within the city limits, as well as many unincorporated areas of Leon County. Service is provided to the unincorporated areas of the county in accordance with a contract between the City and Leon County which was executed in 1973. No election has been conducted within Leon County to authorize the contract. The County has terminated the contract, but the termination will not be effective until November 12, 1980. The City's sanitary sewer system is a regional system in that it serves a broad area not limited by the political boundaries of the City. The City's system has operated under temporary permits issued by the Department for a number of years because it does not meet the Department's requirements for tertiary sewage treatment. The City's regional sewage treatment system is capable of providing service to Fallschase. A 10-inch sewage pipe known as the "Belle Meade" Line runs adjacent to Fallschase. If a pumping station were constructed, sewage from Fallschase could be pumped into the Belle Meade Line and eventually into the City's primary sewage lines for treatment at one of the City's treatment facilities. In accordance with its statutory responsibilities, the Department has adopted Rule 17-4.26, Florida Administrative Code, which relates to permit requirements for sewage works. As filed with the office of the Secretary of State, the rule provided as follows: No person shall operate, maintain, construct, alter, modify, or expand any sewage collection system, sewage disposal system or sewage treatment facilities without a current and valid permit from the Department, pursuant to the Provision of Chapter 17-6, Florida Administrative Code. The Department shall deny an appli- cation for a permit and refuse to issue a permit unless the sewage collection, treatment and disposal system will pro- vide adequate and effective treatment in accordance with the rules and regu- lations of the Department and unless the system will operate as part of a regional system if one exists or be capable of tying into a regional system should one be established. Applications for a permit under this section shall be in accordance with Part I, Chapter 17-4, Florida Administrative Code. (e.s.) As filed with the Secretary of State, the rule included a clear policy choice in favor of regionalization of sewage treatment systems. In accordance with its responsibilities, the office of the Secretary of State published the rule in the Florida Administrative Code. When the rule was published in the Code, the portion of the rule which is underlined in the above quote was omitted. The rule as published in the Code thus did not include a clear statement requiring regionalization, and does not make sense. This erroneous version of the rule has been published in the Florida Administrative Code for more than five years, and the error has been compounded in that the Department has utilized the Florida Administrative Code version of the rule in its official handouts. A citizen requesting a current copy of Rule 17-4.26 from the Department, or from the Secretary of State's office, would receive the erroneous rule. The error has been further compounded because the Department subsequently adopted a policy of evaluating applications for sewage treatment proposals without regard to whether hookups to a regional system were possible. This policy has been applied by the Department for at least three years in accordance with verbal and written instructions of the Department's then Secretary, Jay Landers. Additional language was later added to Rule 17-4.26 as follows: Except for regional treatment plants, as designated by approved metropolitan or basin plans, all permits for treat- ment plants shall be valid only until connection, according to an approved plan, can be made to regional facilities. Such connection shall be made within ninety (90) days of the scheduled date for connection as provided in the approved plan. This provision has no applicability to the City's treatment system because the City's system has never been approved as the metropolitan or basin clan by the Department. The City has contended that the sewage treatment plant proposed by Fallschase would result in violations of the Department's standards for nitrates in the groundwater in the area of the plant. Nitrates would be a constituent of the effluent which would be discharged from the proposed sewage treatment plant into percolation ponds. The engineer who has designed the proposed plant estimated that total nitrogen discharged into the percolation ponds would be approximately 20 milligrams per liter, or parts per million (p.p.m.). In extended aeration plants such as that proposed by Fallschase, a substantial portion of the nitrogen would be in the form of nitrates. The 20 p.p.m. estimate is high. The experience generally in north Florida has been that nitrogen concentrations would not exceed 10 p.p.m. in the effluent discharged into percolation ponds. Once the effluent is discharged into the ponds, a certain amount of nitrogen is removed during the settling process. As the effluent percolates through the subsoils into the groundwater, further nitrogen is removed. Estimates of nitrogen removal through these processes range from a low of 25 percent to a high of 75 percent. The groundwater below the proposed plant is classified as Class 1-B groundwater under the Department's rules. It is very unlikely that effluent reaching the groundwater would contain as much as 10 p.p.m. nitrates. Even if it did, mixing with the groundwater would cause an almost immediate dilution of nitrogen concentrations so that concentrations in the groundwater as high as 10 p.p.m. would be unlikely in the extreme. Many sewage treatment plants operate within the Department's northwestern region, which extends from Pensacola to Tallahassee. The Department monitors these plants. A violation of the Department's nitrate standards has never been observed in the region. Indeed, in the entire State of Florida, nitrate violations have been detected only in certain areas of Dade County. Testimony was presented by the City to the effect that chemical processes in percolation ponds can cause very drastic nitrate concentrations when the funds are intermittently flooded and drained. Such concentrations have been observed at one of the City's treatment plants. The City`s plant, however, is of a different sort than that proposed by Fallschase. The City's plant produces concentrations of nitrogen in ammonia compounds and utilizes intermittent drying and flooding of the percolation ponds as a part of its operation. Ammonia compounds will not be a major constituent of effluent placed in the Fallschase percolation ponds; and, furthermore, the ponds will not be intermittently flooded and drained in the manner that would cause such concentrations to develop. In its Notice of Intent to Issue the proposed permit, the Department indicated that sludge produced through the proposed treatment facility should be disposed of by hauling to a plant operated by the City. The City has indicated that it will not make its plant available for such disposal, and cotends that accordingly Fallschase has given no reasonable assurances that the sludge will be disposed of properly. The contention is without merit. Many alternatives exist for disposal of sludge. Fallschase has adequate area available to it for construction of sludge drying pits. Sludge can be hauled to many potential locations. Specific issues respecting sludge disposal can be addressed in the operating permit which would not be issued by the Department until it is established that the proposed plant can operate within the Department's rules and regulations. The soils which lie below the proposed percolation ponds are not of a highly permeable sort. To aid in the percolation of effluent through the ground into the groundwater, Fallschase proposes to construct two-foot diameter holes in the bottom of the percolation ponds. The holes would extend from 18 to 25 feet below the bottom of the percolation ponds. The holes would be filled with sand, and alternatingly coarse layers of gravel. The City has contended that these holes would constitute wells, and that they therefore would need to be permitted by the Department. This contention is without merit. These structures could fit loosely within the definition of a well, but their function is merely to aid in the percolation of effluent through the subsoils. They are not designed to inject effluent directly into the groundwater. These structures would constitute wells to the same extent that any drain field would constitute a well.
Findings Of Fact The permit Applicant and Co-Respondent, Florida Medical Facilities, Inc. is the owner and developer of a 60-acre tract of land upon which it has constructed a hospital and will construct various attendant laboratories, medical offices and the like. Additionally, the Applicant is the owner of approximately five acres of land adjacent to its original 60-acre site which lies on Morningside Drive in Englewood, Sarasota County, Florida. The Applicant proposes to construct and operate the wastewater treatment plant on that 5-acre parcel. The Applicant proposes to construct an extended aeration wastewater treatment plant and effluent disposal drain field system which will accommodate and dispose of all wastewater effluent on the site by the absorption bed, land application method. The proposed sewage treatment plant will have an average daily design flow capacity of 50,000 gallons per day. The anticipated peak flow of the treatment plant will be 60,000 gallons per day. The plant will generate and dispose of approximately 900 gallons of waste sludge on a daily basis. The facility would employ dual drain fields, use of which would be rotated on a weekly basis. The proposed average hydraulic loading rate would be 3.21 inches per day or two gallons per day, per square foot of drain field. The proposed facility will serve a 100-bed community hospital, assorted medical offices, a diagnostic laboratory and a 75-bed nursing home. The permit applicant has agreed and stipulated that chemical, nuclear and other hazardous and noxious waste materials, blood, body parts, medicines, and drugs will not be introduced into the sewage treatment system plant or drain fields. The Applicant (FMF) originally proposed to dispose of sewage effluent emanating from its hospital and other facilities by transmission of it through force-mains to existing public wastewater systems, one of which is in Charlotte County and the other in Sarasota County. After exploring these possibilities, these alternatives proved to be either too expensive or to involve transmission of effluent over too great a distance to make these options feasible. Sarasota County has a local pollution control program approved by the DER, pursuant to Section 403.182, Florida Statutes. Under this program the Sarasota Environmental Service Department reviews domestic wastewater treatment facility permit applications pending before the DER and makes recommendations on their disposition. The county's ordinance concerning such facilities is equivalent to the DER standards, except in some respects it is stricter Mr. Russell Klier of the county environmental services department established that the proposed project as planned and designed, will comply with county ordinances regarding wastewater treatment plants. Indeed, it was established through Mr. Klier's testimony, that the proposed project has more redundancy and reliability safeguards than any other such project presently operating in Sarasota County. The proposed sewage treatment plant and disposal system is designed to attain the secondary level of treatment required by Chapter 17-6.060, Florida Administrative Code. The effluent disposal system will provide for disposal of effluent in an absorption field system as envisioned by Chapter 17-6.040(4)(M), Florida Administrative Code and the Department's "Land Application Manual," incorporated by reference in that rule. The system, as proposed, will have the additional safeguards required by the "Land Application Manual" in order to attain "Class I reliability." The hospital, which is the initial facility to be constructed on the 60-acre site, is largely completed, and is being served by a temporary "package" sewage treatment plant until the permit application is resolved. The package sewage treatment plant, as well as the proposed plant and drain field land application system will only serve the medical center complex. All on-site stormwater and surface water run-off from both the 60-acre original medical center site, as well as the 5- acre proposed sewage treatment plant and disposal site, will be managed by directing stormwater and surface water run-off to holding ponds to be constructed and maintained on the original 60-acre site. Steven Houghton was accepted as an expert engineering witness. It was thus established that the system as designed will meet all water quality parameters regulated and enforced by the DER and Sarasota County in terms of the quality of the effluent generated by the plant and disposal system for disposal by land application. In this connection, he established that no nuclear, infectious, toxic or noxious waste will be processed by the system or introduced into the system nothing other than domestic-type sewage will be treated, processed and disposed of by the proposed system. Mr. Houghton acknowledged that the project will be located in an historically flood-prone vicinity, but that will not affect the quality or effectiveness of the operation of the plant nor the safe disposal of the resulting effluent. In that regard, the Applicant will place fill at the drain field site so as to provide a more effective soil percolation condition than that presently existing in the soils at the drain field site. Additionally, the Applicant will provide a sewage storage tank to provide extra reliability and avoidance of pollution caused by sewage overflows in the event of any excessive sewage flows into the plant, and as a safeguard against disposing of insufficiently treated effluent during periods of high rain and high surface or ground water conditions. Additionally, the system will be constructed and operated with sufficient redundancy of electrical and mechanical components so as to provide auxiliary capacity throughout the system, allowing it to operate efficiently 24 hours a day and to continue to provide treatment and disposal of the effluent in accordance with secondary treatment and Class I reliability standards, even during periods of mechanical or electrical outages. Petitioner Mary Wagoner owns and resides on acreage generally south and adjacent to the proposed project site. Mrs. Wagoner uses a potable water well in the shallow aquifer with a depth of approximately 35 feet. Mrs. Wagoner's well has recently been tested and at this time provides good, safe, potable water which she uses both for drinking, cooking, domestic usage, as well as water for her livestock. Mrs. Wagoner's well is less than 500 feet from the proposed "wetted area" of the drain field land application disposal site. Mr. Edward Snipes was accepted and testified as an expert witness in the areas of engineering and wastewater engineering on behalf of the Department. He corroborated Mr. Houghton's testimony in establishing that the project would meet the Department's standards for water quality and Class I reliability in large part. It was shown that the project will not likely have harmful effects on the Petitioners' water wells. Mr. Snipes established that the Department's "Land Application Manual" embodied in Rule 17-6.04(4)(Q), Florida Administrative Code requires a buffer zone of only 100 feet, instead of 500C feet, from the wetted area of the sewage effluent disposal site, due to the type of system and level of treatment proposed. That is, the system would provide secondary treatment, with additional safety measures incorporated in the design and operation so as to achieve Class I reliability. This Class I reliability standard includes a sufficiently high rate of disinfection so as to allow unrestricted public access to the site, and thus would meet the most stringent Class I reliability standards extant in Rule 17- 6.040(4)(M), Florida Administrative Code. This permits a reduced buffer zone between the wetted area of the drain field and any adjacent, shallow-water wells. Thus, the buffer zone would, in the case of this plant, be allowably reduced from 500 feet to 100 feet. In only one respect, was any doubt cast by Petitioner's testimony and evidence on the showing of reasonable assurances that all Department water quality and wastewater treatment standards will be met. That doubt concerns the distance from the bottom of the drain field to the water table elevation at the drain field site, as that relates to the ability of the system to continue to treat and dispose of effluent within appropriate standards in this admittedly flood-prone area, as that problem would in turn relate to potential contamination of ground water in the area, especially in times of high rainfall and high ground water levels. In that connection, Petitioner Wagoner offered Herman Weinberg as an expert witness in civil engineering and he was accepted. Mr. Weinberg acknowledged that he was not a soil engineer and acknowledged that the Department or its witnesses were more knowledgeable about wastewater regulation, treatment and disposal methods than he. He opined, however, that the plant may not be able to reach Class I reliability due to its location in a flood-prone area. He fears that insufficient soil testing and water quality testing had been done prior to the filing of the permit application. and prior to the ultimate construction of the project, if that is to be the case. Section 17-6.040(4) (M), Florida Administrative Code, adopts by reference the United States Environmental Protection Agency design criteria for mechanical, electrical and fluid system and component reliability manual. That manual sets forth certain minimum standards for Class I reliability sewage treatment and disposal plants and systems. In this regard, the rule in that manual establishes that wastewater treatment works include holding ponds and basins and other structures of the disposal system. It provides that all treatment works, structures, as well as electrical and mechanical equipment, shall be protected from physical damage by flooding of a magnitude occurring on the average of once in a hundred years, the so- called "100-year flood." In this connection, it was established through witness Weinberg's testimony as well as that of Mr. Houghton, the Applicant/Respondent's witness, that the 100-year flood plan elevation on and around the subject site is 12 feet above mean sea level. The top of the proposed drain field would be located at 12.33 feet elevation. The bottom of the drain field would be at 10.33 feet elevation. The water table level established by witness Houghton as a result of his survey and calculations, is at 8.33 feet elevation. The Department of Environmental Regulation, in its "Land Application Manual," which provides criteria for sewage plant and disposal system construction and operation, requires a 36-inch minimum separation between the bottom of a drain field and the design water table level. Thus, the legally operative Class I reliability standards, incorporated in the above-referenced rule and manuals, and which the Applicant and the Department agree is the level of reliability required, given the conditions and the proximity of Petitioner's well, can only be met if the drain field disposal system is at this required elevation of 36 inches above the design water table level. Affirmative, reasonable assurances that this safeguard will be incorporated in the subject system are necessary in view of the fact that Petitioner Wagoner's potable water well is clearly less than 500 feet from the wetted area of the drain field site. In this connection, the Applicant/Respondent has proposed placing fill soil of a suitable type for adequate percolation and land application treatment of the effluent on the drain field site, however, it has not been established that this will be done to such an extent as to raise the elevation of the drain field sufficiently so that the bottom of the drain field is a minimum of 36 inches above the design water table. The installation of an adequate depth of fill soil of a suitable percolation characteristic must therefore be a condition on the issuance of the permit. Further, in that regard, the Applicant/Respondent's soil test and calculation of tile ground water level or "design water table," occurred in January and February of 1985, at a time when the southwest region of Florida was in a drought or dry condition, such that the water level or ground water table at normal rainfall conditions would likely be at a higher elevation. Thus, a grant of this permit must be conditioned upon the installation of sufficient, appropriate quality fill soil to ensure that the minimum 36-inch separation between the drain field bottom and the water table is maintained during normal water table or rainfall conditions. If this measure is not taken, given the 2-foot separation between the drain field, as designed, and the water table, the oxygen transferring capacity of the soil beneath the drain field may not be sufficient to satisfy the oxygen demand required for consistently adequate treatment and safe disposal of the sewage effluent. Additionally, in this same context, Chapter 1 of the DER Land Application Manual at Section 1.3, requires that sufficient storage capacity exist on-site to ensure retention of sewage effluent during conditions which preclude land application, such as high ground water conditions or flooding conditions. This capacity should be equivalent to three days maximum daily flow at the design capacity of the plant, or in this case, 180,000 gallons. Although the Applicant, by its plans and specifications in evidence, has assured that a sewage effluent storage tank will be constructed and operated, it has failed to establish that sufficient storage capacity will be incorporated to assure the retention of 180,000 gallons of effluent. Any grant of the permit application should be conditioned upon such an assurance. Finally, in connection with the above-mentioned condition concerning installation of sufficient, appropriate soil filling to allow for a minimum 36-inch amount of unsaturated soil beneath the drain field, that addition of fill should also be of a sufficient type and amount to ensure that the Applicant's proposed rotation or "resting" of drain fields for 7-day periods will be adequate to ensure that the subject amount of soil is unsaturated before re-use of either of the two drain fields. There should be incorporated in these conditions, upon a grant of the permit, the requirement that the Department monitor construction of the proposed facility to ensure that the above conditions are adequately met, in view of the low-lying terrain at the drain field site and the flood-prone condition of that locality. Petitioner Mary Nygaard testified on behalf of herself and her husband, Lyle A. Nygaard. Mrs. Nygaard complains of feared pollution of her shallow-water potable well which she maintains is within 500 feet of the drain field and sewage plant site. Mr. Nygeard established that the well is 187.1 feet from the Petitioner's southern property boundary, but acknowledged that no survey has been done delineating the distance to the proposed wetted area of the drain field. It was not otherwise proven how far the Nygaard's potable well is from the wetted area of the proposed drain field where the effluent will be disposed of. Various easements and roadways lie between the Nygaard's well and the wetted area of the proposed drain field site with indeterminate dimensions, thus it was not proven what distance exists between the Nygaard's well and the drain field site other than that it exceeds 187.1 feet.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Florida Medical Facilities for a permit authorizing construction of an extended aeration, wastewater treatment plant and disposal system to serve only the Englewood Hospital and Medical Center project in Englewood, Sarasota County, Florida, referenced above be GRANTED, provided that the above-delineated conditions upon a grant of the permit are complied with. DONE and ENTERED this 30th of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, 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 30th day of January, 1986. COPIES FURNISHED: Lyle and Mary E. Nygnard 740 Morningside Drive Englewood, Florida 33533 Harlan Domber, Esquire ISPHORDING, PAYNE, KORP and MUIRHEAD, P.A. 333 West Miami Avenue Venice, Florida 33595 James H. Burgess, Jr., Esquire SYPRETT, MESHAD, RESNICK and LIEF, P.A. Post Office Box 1238 Sarasota, Florida 33578 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following specific rulings are made on the proposed findings of fact submitted by the parties to the extent that the proposals actually constitute proposed findings of fact as opposed to recitations of testimony and evidence, conclusions and arguments of law. APPLICANT/RESPONDENT'S PROPOSED FINDINGS OF FACT Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 7 constitutes a conclusion of law. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 11 constitutes in part a conclusion of law. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Accepted, but this proposed finding of fact is unnecessary and immaterial to a resolution of the material issues presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. RESPONDENT/DEPARTMENT OF ENVIRONMENTAL REGULATION'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted as modified by the Findings of Fact and Conclusions of Law in the Recommended Order concerning the conditions which must be met before the permit should be granted as that relates to Class I reliability standards and the "buffer zone" issue. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the necessity of the installation of a minimum 36-inch adequate soil percolation zone and adequate sewage effluent storage capacity. Accepted in part, but rejected to the extent that this proposed finding of fact maintains that the nature of Mrs. Wagoner's well has been impossible to obtain due to her refusal to allow inspection. Indeed, Mrs. Wagoner adduced competent evidence of the water quality in her well. Accepted in part, but modified by the Findings of Fact in the Recommended Order concerning the additional conditions that should be placed upon the permit related to its location in a flood-prone area, and related to the distance between the bottom of the drain field and the high water table. Accepted. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the conditions referenced above which must be met for Class I reliability and for avoidance of harmful effect on Petitioner's water well. Accepted. Accepted. Accepted.. Accepted, but modified by the Findings of Fact in the Recommended Order concerning additional conditions referenced above which must be met concerning Class I reliability and protection of water quality in Petitioner's-well. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as constituting merely a discussion of testimony. Accepted. Accepted. Accepted. Accepted, but this proposed finding is irrelevant to a resolution of the material issues presented. Accepted. Rejected as merely being a recitation of testimony. Accepted. PETITIONER WAGONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, except to the extent that it indicates the applicant will situate the facility in a manner so as not to be accessible to the general public. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as constituting a discussion and conclusion of law. 13 and 14. Rejected. These two proposed findings in reality constitute discussion and conclusions of law. 15 and 16. Rejected. These two proposed findings in reality constitute discussion and conclusions of law. They are rejected for the additional reason that portions of those two paragraphs that constitute proposed findings of fact do not comport with the competent, substantial, credible evidence and testimony presented. 17 through 31. These proposed findings are rejected as constituting conclusions of law and, to the extent that they embody proposed findings of fact, are not supported by the competent, substantial, credible evidence and testimony presented. The evidence and testimony shows that reasonable assurances (except as to the permit conditions recommended) have been provided that all pertinent regulatory criteria have been or will be met. The EPA Manual criteria referenced in these proposed findings of fact (17-31) are not mandatory, whereas those in Subsection (4)(q) of the above-referenced rule are mandatory and have been reasonably assured by the applicant to be met subject to the conditions recommended on a grant of the permit by the Hearing Officer. Accepted, except to the extent that the applicant is reputed not to have provided data to substantiate the estimated design water table. The applicant's proof of the water table elevation was un-refuted. Accepted as to the first sentence, the remaining portion of that proposed finding of fact is irrelevant and unnecessary to a disposition of the material issues presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Accepted to the extent that the conditions recommended to be attached to a grant of the permit envision assurance being provided before a grant of the permit that the issue raised by proposed finding No. 39 is satisfied. Accepted. Accepted as to its second sentence, the first sentence in that proposed finding is rejected as not comporting with the competent, substantial, credible testimony and evidence presented, and as being unnecessary to a resolution of the material issues presented. Accepted. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. 47. Rejected as constituting a conclusion of law. 48. Rejected as constituting a conclusion of law. 49. Rejected as constituting a conclusion of law. 50. Rejected as constituting a conclusion of law. 51. Rejected as constituting a conclusion of law. 52. Rejected as constituting a conclusion of law. 53. Rejected as constituting a conclusion of law. 54. Accepted. 55. Rejected as constituting a conclusion of law. 56. Rejected as constituting a conclusion of law. 57. Rejected as constituting a conclusion of law. 58. Rejected as constituting a conclusion of law. 59. Rejected as constituting a conclusion of law. 60. Rejected as constituting a conclusion of law. 61. Rejected as constituting a conclusion of law. 62. Rejected as constituting a conclusion of law. 63. Rejected as constituting a conclusion of law. 64. Rejected as constituting a conclusion of law. 65. Rejected as constituting a conclusion of law. 66. Rejected as constituting a conclusion of law. 67. Rejected as constituting a conclusion of law. 68. Rejected as constituting a conclusion of law. 69. Rejected as constituting a conclusion of law and for the additional reason that the last sentence is a proposed finding of fact not supported by competent, substantial credible evidence and testimony presented. Rejected as constituting a conclusion of law and for the further reason that the proposed finding of fact is not supported by competent, substantial, credible testimony and evidence presented. Rejected in part as constituting a conclusion of law and accepted to the extent that reasonable assurances concerning the effect of the water table elevation discussed in the Recommended Order have not been provided and such assurance should be a condition on a grant of the permit. The remainder of that proposed finding of fact is not supported by the competent, substantial, credible evidence presented and is irrelevant. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Accepted. Accepted. Accepted. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.
