The Issue The issues are whether Petitioner's substantial interests are determined by the issuance of the subject variance to Respondent Advanced Drainage Systems, Inc. (ADS) for the sale of an alternative drainfield system in Florida and whether, pursuant to section 120.542, Florida Statutes, on the grounds of substantial hardship or unfairness, ADS is entitled to this variance from three provisions of Florida Administrative Code Rule 64E-6.009(7) that, as to onsite sewage treatment and disposal systems (OSTDSs), require innovative system testing and prohibit an alternative drainfield system with an area smaller than the area required for a mineral-aggregate drainfield.
Findings Of Fact In the mid-1990s, Petitioner developed a drainfield system known as a Multi-Pipe System (MPS) as an alternative to the standard mineral-aggregate drainfield. The MPS consists of nine, eleven, or thirteen banded pipes constructed of four-inch, corrugated, high-density polyethylene tubing. Installed downgradient from a septic tank, the MPS retains the effluent from the septic tank long enough for the oxygen in the soil to treat the effluent's anerobic bacteria. After retaining the effluent long enough for this treatment to take place, the MPS releases the effluent so it can percolate deeper into the ground below the bottom of the drainfield. Marketed as a space-saving alternative to a mineral- aggregate drainfield, the drainfield area of the MPS is less than the minimum drainfield area specified by rule 64E-6.008 for a standard mineral-aggregate drainfield. For this reason, Petitioner sought DOH's approval of the MPS as an alternative drainfield system under rule 64E-6.009 (Alternative System or, more specifically, Alternative Drainfield System). In addition to being a proposed Alternative System, the MPS was also an "innovative system," as referenced in rule 64E-6.009(7), so DOH required Petitioner to conduct over two years' innovative system testing and submit to DOH the empirical data obtained from this testing. Petitioner did so, and DOH approved the MPS, with its reduced-size drainfield area, for sale and installation in Florida. A relatively small company, Petitioner entered into a license agreement with ADS in 2001 for the latter to produce and market the MPS in Florida. ADS subsequently sold at least 10,000 MPSs from 2001 until 2011 when the license agreement terminated. After Petitioner's patent on the MPS expired in 2014, ADS sought approval from DOH to market its own version of the MPS known as the Septic Stack. The Petition, Revised Petition, and Variance Order have been described above in the Preliminary Statement. DOH published notice of its receipt of the Petition in the Florida Administrative Register. Although DOH did not publish notice of its receipt of the Revised Petition, it did publish notice of the Variance Order in the Florida Administrative Register. The Variance Order provides persons whose substantial interests are determined by the proposed order a point of entry for requesting an administrative hearing on material issues of fact. Nothing in the record suggests that a third party had any right or opportunity to participate in the free-form agency proceeding that preceded the issuance of the Variance Order. Like the MPS, the Septic Stack is a space-saving alternative to the standard mineral-aggregate drainfield. The Septic Stack also consists of nine, eleven, or thirteen banded pipes constructed of four-inch, corrugated, high-density polyethylene tubing. Over the years, the thousands of MPSs that have been installed in Florida have proved that this Alternative Drainfield System operates adequately by protecting public health and the water resources of Florida. Although there is some dispute between Petitioner and ADS as to the specifications of the MPS that Petitioner licensed ADS to sell for installation in Florida, the MPS that ADS manufactured and that was installed in Florida is identical to the Septic Stack in terms of the perforated area punched into each length of pipe, an important feature in the proper performance of these Alternative Drainfield Systems. A small difference exists between the Septic Stack and the MPS in terms of the width of the straps holding the tubing in place during and after installation. Although the proper performance of these two Alternative Drainfield Systems requires that the pipes remain banded together, the small difference in the width of the banding straps is immaterial to their performance. The Septic Stack is the functional equivalent of the MPS. Because the MPS has adequately protected public health and the water resources, which are the relevant statutory purposes, as stated in the Conclusions of Law, the proposed variance would achieve the purpose of the statute by other means than those means set forth in the rule provisions from which the variance is sought. Consideration of hardship and fairness issues is complicated by the fact that, as discussed in the Conclusions of Law, the Septic Stack is not an innovative system, so it is not subject to innovative system testing under rule 64E-6.009(7) and 64E-6.009(7)(a)4. The following two paragraphs are necessarily conditional, assuming, for the sake of discussion, that DOH had properly determined that the Septic Stack requires a variance from the rule requiring innovative system testing. In this conditional case, requiring ADS to provide empirical data from innovative system testing would not produce a substantial hardship or be unfair to ADS by affecting it in a manner significantly different from the way that these rule provisions affect similarly situated persons that are subject to the rule. ADS has argued that the application of the rule would result in a substantial financial hardship. The record does not include an approximate cost of innovative system testing. If DOH had determined that the Septic Stack were not the functional equivalent of the MPS, the difference between these two Alternative Drainfield Systems would necessarily have been very slight, so any innovative element of the Septic Stack would not have required extensive or costly testing. Additionally, the record includes nothing about the net worth or revenues of ADS. There is thus no basis whatsoever for determining that innovative system testing itself would present a substantial financial hardship for ADS. ADS claims that the time required for innovative system testing would present a substantial financial hardship. The record does not indicate how long such testing would take. Again, if DOH had determined that the Septic Stack were not the functional equivalent of the MPS, the difference between these two Alternative Drainfield Systems would necessarily have been very slight, so any innovative element of the Septic Stack would not have required lengthy testing. It is thus impossible to estimate lost sales resulting from innovative system testing, nor is it possible to determine whether the lost profits, if any, from these sales would present a substantial financial hardship to ADS, given the absence of any evidence of the net worth or revenues of ADS. The record contains no indication of other hardships, such as technical or legal, resulting from requiring ADS to conduct innovative system testing. As explained in the Conclusions of Law, by proposing to grant ADS a variance from rule 64E-6.009(7) and (7)(a)4., DOH misapplies these two poorly worded rule provisions. But DOH's misapplication of these rule provisions does not create a statutorily recognized substantial legal hardship. The solution is not for DOH to misinterpret its rules and then grant variances due to the legal hardship arising from its misinterpretation; the solution is for DOH to acknowledge that the innovative system testing provisions of rule 64E-6.009(7) and (7)(a)4. do not apply to the Septic Stack because the Septic Stack is not an innovative system. ADS has argued that application of the innovative system testing provisions of rule 64E-6.009(7) and 64E-6.009(7)(a)4. would be unfair. But, as to these two rule provisions, the record fails to identify any person similarly situated to ADS or, thus, any difference in the impact of the rule on such a hypothetical person compared to the impact of the rule on ADS. The only other drainfield manufacturer identified in this case is Petitioner. The correct application of the relevant provisions of rule 64E-6.009(7) and (7)(a)4. required Petitioner to conduct innovative system testing and submit the empirical data to DOH because the MPS was an innovative system at the time--exactly what would be expected of ADS, if the Septic Stack were in fact an innovative system. Likewise, the application of rule 64E-6.009(7)(d) to the Septic Stack would not result in a substantial hardship of any sort, but it would be unfair. As noted in the Preliminary Statement, this rule provision prohibits the use of an alternative drainfield with an area smaller than the area required for a mineral-aggregate drainfield. As approved by DOH, the MPS drainfield is smaller than the area of a mineral- aggregate drainfield. The Septic Stack is functionally equivalent to the MPS, so the literal application of this rule to ADS's Septic Stack, but not to Petitioner's MPS, affects ADS in a manner significantly different from the way it affects Petitioner. Lastly, Petitioner has proved that its economic interests will suffer an injury in fact from the Variance Order. The proof of economic injury is straightforward. The addition of a competitor marketing a functionally equivalent Alternative Drainfield System in Florida will reduce Petitioner's sales in Florida. From the evidence produced by ADS in terms of lost sales resulting from the delay that would have resulted from innovative system testing,9/ Petitioner's economic injuries would not be insubstantial if ADS markets the Septic Stack in Florida. Petitioner has failed to prove any injury to any environmental interests, of which Petitioner has demonstrated none.
Recommendation It is RECOMMENDED that Department of Health enter a final order determining that Advanced Drainage Systems, Inc. is entitled to a variance from rule 64E-6.009(7)(d) in accordance with the formula set forth in the Variance Order, but not from rules 64E-6.009(7) and (7)(a)4. as to innovative systems.21/ DONE AND ENTERED this 19th day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2014.
The Issue Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs; (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans." It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number 4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project. There are inconsistencies in the plans and specifications, such as: (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".
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 circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1. Rejected as not being necessary to the conclusions reached in this Recommended Order. 3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively, but modified. 13. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified. Rejected as being immaterial or irrelevant or subordinate or unnecessary. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24, 24, 25, 26, 27 and 27, respectively, but modified. 34. Adopted in Findings of Fact 17 and 18, but modified. 35-37. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40. Rejected as being immaterial or irrelevant or unnecessary or subordinate, but see Findings of Fact 37 and 38. 41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29, 29, 32, 30, 32 and 32, respectively, but modified. 51. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified. 54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. Adapted in Finding of Fact 55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37. 73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39. 77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39. 80.-82 Adopted generally or covered in Findings of Fact 40- 41. 83.-90. Adopted generally or covered in Findings of Fact 42 and 43. 91.-96. Adopted generally or covered in Findings of Fact 44 and 45. 97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47. 108.-109. Adopted in Finding of Fact 48. 110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50. 18. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52. 125. Rejected as immaterial or irrelevant or unnecessary or subordinate. 126.-127. Adopted in Finding of Fact 52. Adopted in Finding of Fact 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 53. Adopted in Finding of Fact 55. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 13-15. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony COPIES FURNISHED: Rex Smith Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Wings S. Benton, Esquire 1020 D. Lafayette Street, Suite 205 Post Office Box 5676 Tallahassee, Florida 32314-5676 L. Thomas Hubbard, pro se THA Building 3110 Spring Glen Road Jacksonville, Florida 32207
The Issue The issues to be resolved in this proceeding concern generally whether the Respondents named above are liable for the contamination and violations alleged in the Petitioner, Department of Environmental Regulation's (DER) Notice of Violation and Amended Notice of Violation, pursuant to the relevant provisions of Chapter 403, Florida Statutes, and the rules contained in Title 17, Florida Administrative Code, as relevant to this proceeding and treated herein.
Findings Of Fact DER is an agency of the State of Florida charged, under Chapter 403, Florida Statutes, and related rules, with preventing and alleviating environmental contaminations, as pertinent hereto, including such issues involving ground waters of the State of Florida. The property in question in this proceeding is located at the northwest corner of Blount and Guillemard Streets in Pensacola, Florida. The legal description of that property and the state of the title of the property is as described in the Prehearing Stipulation filed by the parties at page two thereof. The Belleaus are the current owners of the real property at that location. Crown is the owner and operator of a commercial laundry and dry cleaning business situated on that property in the building(s) located thereon. Crown is a corporation authorized to do business in the State of Florida and is a "person" within the meaning of Section 403.031(5), Florida Statutes. American Linen is a corporation authorized to conduct business in the State of Florida and is also a "person" within the meaning of that Statute. American Linen obtained the property by purchase by corporate warranty deed from Rentex (RCD) on April 23, 1979. It operated a commercial laundry at the property from that date until June 3, 1985, when it sold the laundry business to Crown and the real property upon which it operated to the Belleaus. In November of 1971, RCD, a Delaware corporation and a 100 percent-owned subsidiary of Rentex Services corporation (RSC), also a Delaware corporation, acquired the property. RCD owned and operated a commercial laundry and dry cleaning business on the property until April 23, 1979, on which date it sold the laundry business and property to American Linen. It actually operated a dry-cleaning service on the property during only 1974 and early 1975. Sketchley Delaware, Inc. (SDI), a Delaware corporation, purchased RSC, which then became a 100 percent- wholly-owned subsidiary of SDI in 1982. RCD, however, remained a 100 percent-wholly-owned subsidiary of RSC until 1983. In March of 1983, SDI merged with RSC, and the resulting corporation was named "Sketchley Services, Inc." RCD continued as a corporation, 100 percent-wholly-owned as a subsidiary of Sketchley. In October of 1983, RCD merged into Sketchley, and Sketchley survived. Respondent Sketchley has never held title to nor conducted any form of business on the property in question. On March 29, 1991, Sketchley was renamed "Jura Services, Inc." (Jura) and was converted to a close corporation under Delaware law. This controversy had its origins in May of 1986 when a representative of DER performed a routine sampling of tap water at the DER district office in Pensacola. Those samples were subjected to chemical analysis which revealed the presence of PCE, a widely-used solvent often associated with dry-cleaning operations. That tap water came from the public water supply for the City of Pensacola, supplied by a network of potable water wells. Upon learning of the PCE content in the water supply, DER began an investigation to attempt to locate its source. Analysis of a number of the Escambia County Utilities Authority (ECUA) wells (PW-6, PW- 8, PW-9, and east well) contained quantities of PCE in excess of the maximum contaminant levels for drinking water authorized by DER's rules. Those wells were taken out of service in June of 1986, subjected to carbon filtration which ultimately removed the PCE from the water supply for those wells, and the wells have since been put back in public service. A ground water investigation was undertaken by DER to determine the source of contamination in the upper portion of the sand and gravel aquifer and in the production zone of the deeper Floridian aquifer which supplies those wells. A total of 29 ground water monitoring wells (MW) were installed and sampled. An analysis of these was prepared (87-04 report). On February 7, 1987, DER and representatives of the utilities authority and Crown, the operator of the laundry facility, conducted an inspection and clean-out of the surge tank located in the floor of the Crown laundry building. A chemical analysis of three samples of liquid residue in the bottom of the tank revealed the presence of PCE in those sediments in concentrations of 1,952 parts per billion (PPB), 108.5 PPB, and 50 PPB. Additionally, one of the samples revealed trichloroethene at 34 PPB and 1, 2 dichloroethene at 52,800 PPB. Under certain conditions, these last two-named compounds are produced as bi-products of the breakdown of PCE. Based upon this inspection and the investigation of other potential sources, DER took the position that the surge tank at Crown had discharged waste water containing PCE into the adjacent soils and that PCE migrated into ground water produced by the ECUA's public water supply wells, PW-6, PW-8, PW-9, and "east well". Although not stipulating that the samples were representative or to the conclusions to be drawn from the analytical results of testing the samples, the parties stipulated that proper physical and technical procedures and methods were used in the collection, preservation and analysis of all of the samples and the laboratory results were consequently stipulated into evidence. Jura, American Linen, Crown, and the Belleaus had no actual knowledge that any PCE had been deposited in the surge tank between 1971 and the date in 1979, when American Linen bought the facility. A commercial laundry has been operated on the subject property since 1971. The laundry was operated by RCD at that time, and in the summer of 1974 and during at least part of 1975, a dry-cleaning operation, in addition to laundry, was conducted by RCD at the site. The dry-cleaning operation involved the use of PCE. This was the only period of time when dry-cleaning operations were conducted on the property until 1985 when Crown conducted a dry-cleaning operation. Crown's operation, however, made no use of PCE, but rather, Crown used "stoddered solvent" as its dry- cleaning fluid. During American Linen's ownership and operation of the laundry at the site, no dry-cleaning operations, whatever, were conducted. At no time during American Linen's ownership and operation of the laundry at the site nor during the Belleaus ownership, and Crown's operation, of the laundry facility was any PCE used or stored on the property. Since laundry operations commenced at the site, the waste wash water from the laundry was discharged to the surge tank located beneath the floor of the Crown building. That tank intercepts and stabilizes wash water prior to its discharge to the municipal sanitary sewer system. The surge tank also served as a component of the laundry operation as a thermal recovery system. Although the surge tank and the commercial laundry and dry-cleaning businesses which have been operated at the site constitutes an "installation" for purposes of Section 403.031(4), Florida Statutes, the tank has never been used for the intentional storage or disposal of any "hazardous substances", as defined in Section 403.703(31), Florida Statutes, by any of the Respondents. The tank has never been used for the intentional disposal of any hazardous substances by American Linen, Crown, the Belleaus, or Jura. During normal laundry operations, lint, sand and other sediment accumulated in the bottom of the surge tank over a period of time. When the accumulated quantity of sediment became too great so as to interfere with the operation, the liquid and the sediments were removed periodically by a vacuum truck and manual labor, using shovels, buckets, and a dumptruck. The surge tank was cleaned out several times over the pertinent years, including 1976, 1978, or 1979 (before American Linen's purchase), as well as in 1980-81, 1983, 1987, 1990 and 1991. It was possibly cleaned in 1972 or 1973, as well. In the 1976 clean-out, the surge tank was cleaned thoroughly enough that the workers reported searching for loose change on the concrete floor of the tank. DER must prove a violation of Section 403.161(1)(a) or (b), Florida Statutes, in order to establish liability for purposes of Section 403.141(1), Florida Statutes, and Section 403.121(2), Florida Statutes. DER has also sought, as of the time of hearing, to impose liability on the Respondents, pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the owner and operator or former owner and operator of a facility at which a release to the environment of a hazardous substance has occurred. Section 403.161(1)(a), Florida Statutes, provides that it is prohibited for a person to cause pollution so as to harm or injure human health or welfare, animal, plant, or aquatic life, or property. In this proceeding, DER did not establish with competent, substantial evidence that the alleged pollution by PCE caused any harm or injury to human health or welfare, animal, plant, or aquatic life, or property. No risk assessment was conducted to determine the potential harm or actual harm. No testimony was presented with regard to the possible health effects or injurious impacts of PCE in the environment. There was no evidence shown to establish what amount of PCE in the environment or ground water might cause or potentially cause such harm to human health or any of the other injurious effects referenced in the above-cited Statute. DER has not adduced any evidence of a preponderant nature to show that any Respondent is thus liable for a violation of Section 403.161(1)(a), Florida Statutes. Section 403.161(1)(b), Florida Statutes, provides that it is a violation to fail to comply with any rule of DER. Section 403.161(1)(b), Florida Statutes, is implemented with regard to ground water through former Rule 17-4.245(2), Florida Administrative Code, now Rule 17- 28.700, Florida Administrative Code, which provides a cause of action for violation of ground water standards. In order to maintain a cause of action under that Rule, DER must prove that the Respondents violated either Rule 17-3.402(1), Florida Administrative Code (the "Free From" Rule), or Rule 17-3.404(1)(a), Florida Administrative Code, which sets forth the ground water criteria alleged in the NOV and Amended NOV to have been violated. Concerning Rule 17-3.402(1), Florida Administrative Code, which establishes narrative, minimum health effects-based criteria applicable to ground water, DER has alleged that the Respondents failed to comply with this Rule, but introduced no evidence concerning any health effects of PCE in the ground water. DER produced no evidence whatever regarding the concentration, if any, of PCE, which may be carcinogenic, mutagenic, teratogenic, or toxic, or which would pose a serious danger to the public health, safety or welfare, or create a nuisance, or impair the reasonable and beneficial use of any adjacent ground water. Even assuming that some amount of PCE was released from the surge tank at some period of time, DER failed to present any evidence regarding the quantity of PCE which may have been released, and the concentration in the ground water which could have resulted from a release from the Crown property. It simply was not proven that the concentration shown in the wells, at which samples were taken, all resulted from any release, if any, which came from the Crown property. Thus, DER failed to adduce evidence which can demonstrate in a preponderant way a violation of the "Free From Rule" cited above or which would support its cause of action under Section 403.161(1)(b), Florida Statutes, with regard to alleged violation of this Rule. DER has also alleged that the Respondents violated Rule 17-3.404(1)(a), Florida Administrative Code, cross- referencing and incorporating former Rule 17-22.104(1)(g), Florida Administrative Code, now Rule 17-550.310(2)(d), Florida Administrative Code, which sets forth the ground water standard, in the form of maximum contaminant level (MCL) for PCE. In order to demonstrate a violation of Rule 17-3.404(1)(a), Florida Administrative Code, as to each Respondent, DER had to prove that the Respondents caused a release of PCE to the ground water, resulting in a concentration of PCE in the ground water greater than the MCL established by the Rule. Effective May 23, 1984, DER thus established 3 parts per billion as the MCL for PCE in drinking water and as the water quality standard for PCE applicable in Class G- II ground water, which is the classification of the ground water underlying the Crown property, and occurring at all of the supply wells and monitor wells involved in this proceeding. In order to demonstrate a violation of the MCL by release of PCE from the laundry property, DER had the burden of proving: (a) that PCE entered the surge tank; (b) that the surge tank, in fact, released it to the environment and to the ground water; (c) that the release of PCE occurred during the ownership and/or operation of the laundry by one or more of the Respondents; and (d) that the amount of PCE entering the ground water during ownership and/or operation of each Respondent caused the concentration of PCE in the ground water to exceed the MCL in effect at the time of each Respondent's ownership and/or operation. Proof of PCE in the Tank Rentex installed a dry-cleaning machine at the Crown facility during mid-1974. It was equipped with two PCE holding tanks with PCE being used as the cleaning solvent in the dry-cleaning process. There was a storage tank, four to five feet tall, which stored pure PCE. The other tank was an eight to ten foot tall "cooker" tank used to heat and reconstitute PCE used in the dry-cleaning process. The machine was located near the rear of the Crown building, close to the floor drains and the wash room. The dry-cleaning machine was dismantled and removed from the Crown facility to another dry-cleaning establishment in Baltimore sometime in late 1974 or the early part of 1975. The thrust of DER's case is that spills of PCE occurred from the dry-cleaning machine and its operation at the Crown facility which were allowed to enter the surge tank and thence leaked into the soil, the environment and the ground water. Indeed, several boil-overs of PCE occurred during the period of 1974 and early 1975, when the dry-cleaning operations were being conducted at the facility. Witnesses, Mathias and Hedrick, for DER, established that one spill of PCE in the amount of four to five gallons also occurred, along with several boil-overs from the laundry machine during that time period; however, the actual amount of PCE spilled or boiled over from the dry-cleaning machine and its operation was not established by DER. Mr. Mathias worked as a maintenance man at the facility during the relevant period when dry-cleaning operations were conducted by RCD. He established that there were several boil-overs of PCE from the cooker tank and that when PCE boiled over from the top of the machine, some quantity would be sprayed onto the floor which was then hosed off into the floor drains, which communicate with the surge tank. He was unable to quantify the amount of PCE spilled on the laundry floor or which reached the surge tank, however. He was not able to definitively establish how many boil-overs he witnessed nor their severity in terms of the amount of PCE which was resultingly spilled on the floor of the laundry. He did not witness any spills of PCE other than those occurring in conjunction with boil-over events. Mr. Hedrick was also a maintenance man at the facility during RCD's period of ownership and its dry- cleaning operations. He knew of one incident in mid-1974 in which four to five gallons of PCE were spilled directly onto the floor of the laundry due to a hose connecting the holding tank to the cooker tank being inadvertently disconnected. That PCE was washed with a hose into the floor drains and thence into the surge tank. Mr. Hedrick could recall only two boil-overs of PCE from the dry- cleaning machines. These incidents involved PCE spraying over the top of the cooker tank but did not involve the release of any significant amount of PCE onto the floor. Mr. Hedrick established that employees were careful in handling the chemical because it was very expensive and they were careful not to waste it. After boil-over events which he described, he observed the level of the PCE in the holding tank, which did not appear to drop much as a result of the boil-overs. He was also responsible for refilling PCE into the holding tank as necessary. His experience was that he was not required to add PCE to the machine as the mere result of a boil-over because the boiling PCE escaped from the top of the machine mostly as foam with very little actual volume of PCE being discharged during such a boil- over event. Mr. Hedrick's testimony is corroborated by that of Dr. Mercer, an expert in hydrogeology, dense, non-aqueous phase liquid behavior (DNAPL), and the fate and transport of chemicals in the subsurface environment, presented by Jura. Dr. Mercer established that in a boil-over event, the PCE escaping from the top of the machine is pure PCE, chemically, but it escapes in the form of a foam or mist very near the boiling point of approximately 250 Fahrenheit. Because it is very volatile, most of the PCE escaping from the machine in a boil-over event, due to its volatility enhanced by its high heat, dissipates into the atmosphere. Whatever PCE did not volatilize would spread in a thin film over the floor of the facility and, because it was still a warm fluid, would continue to volatilize into the atmosphere. The small amount which did not volatilize would be washed into the floor drains and correspondingly diluted prior to entry into the surge tank, where it would be further diluted by the large volume of warm water present in the tank which would enhance dissolution and dilution. Consequently, the boil-overs would have produced only dissolved PCE entering the tank in small quantities, most of which would be flushed from the tank into the city sanitary sewer system through the outfall line exiting from the wall of the surge tank. Thus, the testimony of these witnesses establishes that only one spill of four to five gallons of PCE occurred in 1974, most of which was washed into the floor drains and into the surge tank. It was not established that the boil- over events materially contributed to the volume of PCE entering the surge tank during the dry-cleaning operations conducted in 1974 and early 1975. No PCE was shown to have been deposited in the surge tank after dry-cleaning operations ceased in 1974 or at the latest in early 1975 during the RCD ownership and operation of the facility. It was not shown that PCE was released or discharged to the environment by any other means since that time at or on the property or facility. Release of PCE to the Environment DER has thus established that some four to five gallons of PCE from a spill entered the surge tank in 1974 and that some minor quantities from boil-overs entered the tank through wash down of the laundry floor. DER also has the burden to establish the next evidentiary link; that the PCE was released from the surge tank to the environment. The surge tank consists of a poured concrete floor with concrete-block walls with a plaster or cement covering on the outside of the tank. The concrete-block mortar joints and concrete with which the tank is constructed are porous materials, although the specific porosity has not been quantified. The extent of coverage, the integrity and continuity of the exterior cement or plaster layer over the outside of the tank, and for the life of the tank, is not established. The surge tank was constructed in 1969 in conjunction with the construction of the laundry building. It is 20 feet long by 10 feet deep by 9 feet wide. It is stipulated that the surge tank leaks wash water at some rate because of the porosity of the materials and because of cracks and fissures which have opened in its walls since its construction. Testing of the tank in 1971 revealed that it leaked, at that time, at the rate of 6.5 gallons per day. No evidence establishes what the leakage rate before 1991 might have been. There is no direct evidence of a release of PCE from the surge tank to the soil or ground water. Michael Clark testified in this regard, as a member of the Operations Response Team of DER. In his opinion, DNAPL or "separate phase" PCE (undissolved PCE) had escaped from the tank into the ground water; however, he testified that he performed no calculations to determine the quantity of PCE which would have had to enter the surge tank in order to create a release of separate phase PCE. Mr. Clark assumed in the gravamen of his testimony that the contents of a 55- gallon drum of PCE had been released to the surge tank in a spill, in performing his analysis of the potential for release of PCE from the surge tank. He admitted, however, that the release of 55 gallons of PCE had been only hypothetical and no evidence was presented in this case to establish that 55 gallons of PCE had been spilled or otherwise placed in the surge tank. Mr. Clark was neither offered nor qualified as an expert in hydrogeology or any other field of expertise which could establish that he had any expertise in the movement of chemicals in the environment or in ground water or soils, nor as to the chemical state of those chemicals while in the soils or ground water at any point in time. Mr. Clark's opinion that separate phase PCE was released to the soil and then the ground water from the surge tank and that it resulted in the contamination found in the public water supply wells at issue, as well as in the monitoring wells, is not supported by competent, substantial evidence. Inasmuch as Mr. Clark's opinion testimony did not demonstrate, by preponderant evidence, that separate phase PCE was released to the environment from the tank and there being no direct evidence of such a release, then inferential evidence must be used to establish whether such a release occurred. PCE was shown to be present in the tank in 1974 based upon the above-described events. The presence of PCE has been detected in the ground water immediately downgradient of the Crown property, as well as in the public drinking water supply wells and the monitoring wells, downgradient of the Crown facility. That evidence, together with the evidence concerning the porous nature of the materials of which the tank is constructed and the tank's condition, which has deteriorated over time, is sufficient to support an inference that some undetermined quantity of dissolved PCE escaped from the surge tank over some undetermined points or periods of time. DER, however, did not adduce evidence which could establish an inference that a release of dissolved PCE or separate phase PCE from the tank would be sufficient to cause the violations of the MCL for PCE found at the monitoring points in the vicinity of the Crown property nor is the evidence sufficient to establish when the releases, if any, which may have contributed to a violation of the MCL for PCE at the monitoring or sampling points may have occurred. The lack of sufficient evidence to support such an inference is pointed out by the testimony of witnesses Mathias and Hedrick, testifying for DER, concerning the quantity of PCE which entered the tank and by the testimony of Jura's expert witness, Dr. James Mercer, regarding the behavior of PCE upon entering the tank and upon a release to the environment. The finding that the evidence is insufficient to support an inference that the tank released sufficient PCE to cause a violation of the MCL for PCE is further supported by the evidence that DER did not exclude, through its PCE source investigation, other potential sources of PCE contamination in the ground water, other than Crown, particularly in view of the evidence concerning the cone of influence of the "east well" and the location of the contamination in the PW-9 well, located upgradient from the Crown facility. Dr. Mercer testified concerning the behavior of separate phase PCE with regard to the spill of four to five gallons of pure PCE from the holding tank, as found above. He established that because PCE is very volatile, much of the spill would have volatilized into the atmosphere, although at a slower rate than the boiling temperature of PCE released during boil-over events, as described herein. The spilled PCE, which did not volatilize, would have been washed down with a hose, diluting it and dissolving it in water prior to its entry into the floor drains and the surge tank. In the floor drains and in the tank, some of the PCE would have been entrained or bound up in the lint present in those locations; and some of the PCE would have made its way to the surge tank. Because of prior dilution and dissolution, a relatively small amount of pure PCE would have entered the surge tank. The presence of warm water in the tank would have promoted more dissolution and dilution of the chemical, such that most of the four to five gallons of pure PCE spilled would have become mostly dissolved PCE upon entry into the tank. Some of that would have then been washed out into a sanitary sewer system through the outfall line. Since separate phase PCE is denser than water, any of it in that form entering the tank would sink to the bottom of the waste water in the tank, coming to rest on the layer of sand, lint and other sediments on the bottom of the tank. Dr. Mercer established that any separate phase PCE from the referenced spill would thus form a layer on top of accumulated sediments at the bottom of the tank, approximately .14 inches thick, assuming that it was evenly distributed over the bottom of the tank. In order for separate phase PCE to penetrate the pore spaces in the sediments, it would have to displace the waste water or wash water already occupying those pore spaces. If the layer, established by Dr. Mercer, was as thin as .14 inches thick, such a thin layer would not penetrate the pore spaces of the sediments because they would be filled already with wash water. That thin layer of separate phase PCE would not exert sufficient hydraulic pressure to displace that water because of the capillary pressure barrier formed between the water in the pore spaces and the separate phase PCE layer on top of the sediments. The capillary pressure effect is the pressure difference between two liquids, which creates a capillary pressure barrier, inhibiting the penetration of separate phase PCE into the pore spaces of the sediments. Dr. Mercer testified that a thickness of 4.7 inches of separate phase PCE, resting on top of the sediments, would be necessary to overcome the capillary pressure barrier between the wash water and the pore spaces of the saturated sediments and the separate phase PCE layer lying on top of those sediments. Therefore, most of the separate phase PCE would remain as a layer on top of the sediments. Dr. Mercer opined that if separate phase PCE does not reach the sediments in the bottom of the tank in sufficient volume to maintain the movement of the chemical through that porous medium, the separate phase PCE, which does settle to the top of the sediments, will tend to dissolve over time, partially into the wash water above the layer of PCE at the bottom of the tank and partially into the water occupying the pore spaces within the layer of sediments in the bottom of the tank. Any separate phase PCE, which dissolves into the overlying wash water, will become extremely diluted. Eventually, most of that dissolved PCE would be discharged through the tank's outfall to the public sanitary sewer system. Any separate phase PCE, which is able to overcome the capillary pressure barrier and move into the pore spaces of the sediments, by displacing wash water within those spaces, would become trapped within those pore spaces, because of an effect known as "residual saturation". When a separate phase liquid moving through a porous medium is not of sufficient volume to maintain its movement, it tends to physically break apart into globules of separate phase liquid within those pore spaces. As more globules form within the spaces, the movement of the separate phase liquid decreases until at some point the flow stops. When the flow stops, the globules of separate phase liquid become trapped within the spaces. The point at which a sufficient percentage of pore spaces are filled with globules of separate phase liquid is called "residual saturation". Because of the effect of residual saturation on any separate phase PCE at the bottom of the tank, Dr. Mercer concluded that separate phase PCE within the pore spaces of the sediments would be unable to flow and would effectually be trapped in the sediments in the bottom of the tank until those sediments were removed, either through dissolution into the wash water in the tank as flushing occurs through use of the tank over time or when the sediments were removed during clean-outs of the tank. Therefore, little, if any, separate phase PCE could have been released from the tank to the environment. Dr. Mercer's testimony was unrefuted and thus demonstrates that most PCE entering the tank would dissolve into the wash water already present, flow through the outfall to the sewer system, or become dissolved in the free water and water occupying the pore spaces in the sediments at the bottom of the tank. The evidence supports the finding that little, if any, PCE would be released to the soil surrounding or underlying the tank as a result of the spill of four or five gallons of PCE from the dry-cleaning machine. No evidence was presented to establish the quantity of PCE which could have escaped from the tank as a result of the spill of four or five gallons of PCE into the tank nor was any evidence presented which would establish during what period of time the release to the environment may have occurred. Charles Ferst testified as an expert in environmental engineering concerning the amount of PCE which may be released from the tank over time. Mr. Ferst testified that the leakage rate of the surge tank likely increased over time until reaching the current rate established in the evidence of 6.5 gallons per day, as determined by the 1991 test. Although the surge tank leaked at earlier periods, Mr. Ferst could not determine when the tank started leaking and could not calculate the leakage rate at any period of time prior to 1991 nor could any other witness. Based upon standard construction practices and the materials used in the tank at the time of its construction in 1969, Mr. Ferst opined that the tank leaked more after 1980 than in earlier years. Using that assumption and the fact that the sediments in the bottom of the tank were cleaned out several times between 1974 and 1991, he calculated the maximum amount of PCE which could have escaped from the tank after 1980. Mr. Ferst's calculations, however, are based upon a number of unsupported assumptions. Although he establishes that the tank leaked more in later years than in earlier years, his calculations and assumptions do little to establish how much PCE may have been released during any particular period of time; and little weight can be given to his conclusions regarding the specific amounts of PCE allegedly released at particular periods of time. DER did not present any evidence concerning the amount of PCE which could have escaped from the tank, even assuming that the tank leaked since 1974, when it was shown that some PCE had been placed in the tank. DER failed to prove that any amount of PCE which may have leaked out of the tank was sufficient to cause a violation of the MCL for PCE, and it did not inferentially demonstrate that any PCE which may have leaked out of the tank caused a violation of the MCL, because it simply failed to show that the violation levels found in the various wells where samples were drawn, solely resulted from contamination emanating from the Crown tank. DER failed to adduce evidence sufficient to carry its burden of proving a violation of the ground water standard for PCE caused by a release of PCE from the Crown property. Source of Contamination DER must prove that a release of PCE from the tank caused or contributed to the PCE contamination found in the public water supply wells and the monitoring wells. Dr. Mercer testified that if it is assumed that the tank is a source of contamination and the PCE concentration data collected by DER is used, the travel time of PCE from the surge tank to one of the monitoring wells, MW-3, where the highest concentrations were found, would indicate a release occurring many years prior to 1969, the year in which the Crown building and surge tank were constructed. Dr. Mercer therefore concluded that the surge tank at the Crown facility was likely not the sole or even the primary source of PCE contamination found by DER. In attempting to determine the source of the PCE discovered in the subject water supply wells, DER conducted soil sampling in suspected areas of contamination. This soil sampling revealed only two significant areas of PCE contamination in soils, neither of which was near the Crown property. DER then also selected monitoring well locations based upon ease of accessibility in order to determine the source of the contamination quickly. The monitoring wells were placed in the deep, intermediate, and shallow zones of the aquifer system underlying downtown Pensacola. Near the Crown facility, however, the intermediate zone was not present; instead, there was a shallow zone separated from the deep zone by a confining unit of relatively-impervious material. DER demonstrated that the shallow, intermediate and deep aquifer systems within the downtown Pensacola area are contaminated with PCE and PCE-derived breakdown compounds at widely-varying concentrations. DER did not prove, however, that one or more discreet plumes of PCE contamination exist. Mr. Clark, testifying for DER, attempted to calculate the travel time of contaminants found in MW-3 based upon their being released to the ground water from the Crown facility. Although Mr. Clark indicated this to be, in his belief, between 1970 and 1980, he admitted that he only estimated the travel time of ground water, as opposed to PCE, from the Crown property. Moreover, he averaged high hydraulic conductivity values for monitoring wells quite distant from the Crown property, near PW-9, and ignored data from closer, more relevant wells. Dr. Mercer, however, testified that the method used by DER to calculate travel time, which relies on conductivity values too far away from the suspected source and wells of concern, and averages only those high-conductivity values, while ignoring more pertinent values, provides a less accurate result. Hydraulic conductivity values are used to calculate ground water velocities, which can then be used to calculate travel times over a certain distance. Dr. Mercer testified that using the hydraulic conductivity values obtained from monitoring wells in close proximity to an assumed source and which reveal the presence of PCE in significant concentrations, which DER did not do, produces a much slower ground water velocity than that calculated by DER because the hydraulic conductivity values used are much lower. Averaging the hydraulic conductivity values obtained from monitoring wells which indicated significant concentrations of PCE in close proximity to the Crown facility to calculate travel time for PCE produced an estimate of 37 years for PCE released from the surge tank to reach MW-3. Thus, the PCE would have had to have been released prior to 1969 when the surge tank and the laundry facility were built (or from a different location). Because of this, it was not definitively shown that the PCE found in MW-3 came from the surge tank at the Crown facility. Dr. Mercer's testimony, because of his higher level of training, expertise and experience in hydrogeology and the fate and transport of chemicals in ground water, is accepted over that of Mr. Clark. Mr. Ross Mitchell testified regarding DER's search, which he conducted for facilities within the downtown Pensacola area which used or could have been the sources of a release of PCE. That investigation apparently concentrated on dry-cleaning establishments because DER opined that PCE was commonly used in such operations. Mr. Mitchell described his source investigation as "quick and dirty". He indicated that he did not follow up with every lead that he developed and that he established a "ball park" area within which to conduct his investigation. In fact, his investigation concentrated on a specific geographic area, in which other DER personnel had told him high concentrations of PCE had been found in ground water. As part of his investigation, he relied upon verbal representations by owners and operators regarding whether their facilities had ever used PCE. He made no effort to confirm those representations, other than cross-checking, in some instances, whether a given facility had been identified by a PCE supplier as a facility to which it had supplied PCE. However, he did not obtain customer lists from suppliers of PCE and was only able to get fragmentary information from the suppliers. Mr. Mitchell made no effort to verify whether PCE had ever been used at many of the facilities he had identified. He simply looked for readily- available evidence. That investigation was completed before DER became aware that PCE had been used at the Crown facility. Once that knowledge was obtained, Mr. Mitchell assumed that it would be the source of the PCE contamination found. He did not follow up regarding any of the other facilities which were on his list of suspect locations. He acknowledged at hearing that several of the suspect facilities, other than Crown, had not actually been eliminated as potential sources and acknowledged that he had not considered possible sources, other than dry-cleaning establishments, such as refuse dumpsters at facilities which had been identified as using or having used PCE. He did no environmental sampling around dumpsters at such facilities to detect spillage and did not investigate any records of any of the facilities he had investigated to determine whether they had purchased or used PCE. Mr. Mitchell located four dry cleaners, all upgradient of the PCE contaminated drinking water wells operated by ECUA. Among the dry cleaners suspected as potential sources of the contamination, only the Crown facility was located hydraulically downgradient of PW-9. In order for the contamination to travel from the Crown surge tank to PW-9, the pumping regimen employed by ECUA's supply wells would have to reverse the direction of ground water flow or hydraulic gradient. Dr. Mercer's calculations demonstrated that the pumping regimen employed by ECUA could not have reversed the gradient so as to pull contaminants from the Crown facility upgradient to be captured by PW-9. Dr. Mercer and Mr. Clark both agreed that the "east well" pumps continuously throughout the year. PW- 9 does not pump continuously. When the "east well" is pumping, it will capture anything that would be in the subsurface in the vicinity of the Crown facility; and its capture zone would extend upgradient as far as PW-9. Mr. Clark admitted that he had no calculations to support his conclusion that ECUA's pumping of PW-9 could have reversed the gradient in the subsurface to draw contaminants from the Crown facility to PW-9. Accordingly, it is concluded that DER did not adduce sufficient evidence to prove that the Crown facility could be the source of contamination in PW-9. The source investigation conducted by DER was inadequate to definitively determine whether the Crown facility was the source of PCE contamination or not. DER did not collect adequate soil and ground water samples throughout the area of known contaminations so as to pinpoint a specific source or sources for the contamination. No soil samples were collected from the immediate area around potential sources identified in close proximity to PW-9, for instance, such as the other four dry-cleaning establishments. Instead, once DER found PCE in MW-3 in high concentrations, it apparently focused all of its efforts on the Crown facility, assuming it to be the source of contamination. There are other upgradient PCE users (TCE), identified in Exhibit 6 which have not been ruled out as sources by competent evidence and that exhibit also shows that there may be three older dry cleaning sites in the downtown area with underground solvent tanks, which the record does not prove to have been investigated and ruled out as sources. Since Crown was shown not to be the source of PCE contamination at PW-9, there could be sources of PCE contamination other than Crown which better account for conditions observed in the ground water in downtown Pensacola. DER simply failed in its investigation to adequately rule out other potential sources of contamination within the cone of influence of the public water supply wells, PW-6, PW-8, the "east well", and PW-9. It is as likely as not, for example, that PCE emanating from whatever source or sources contaminated PW-9 (potentially four different dry-cleaning establishments) was also drawn hydraulically downgradient and into the "east well" and other wells. The record reflects that the "east well", for instance, when it is pumping, has a capture zone which extends as far as and including PW-9. DER failed to adequately investigate that potential explanation, as well as other potential sources of the contamination, including the stormwater pond, and thereby failed to prove that contamination emanating from the Crown facility, more likely than not, caused the contamination observed in the ECUA wells, or at least all of it, to the extent of its violating the MCL for PCE in the sites sampled. DER also seeks to impose liability on the Respondents pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the current or former owner or operator at the time of disposal of any hazardous substance, as to a facility at which a release of hazardous substances has occurred. PCE is a hazardous substance, as that term is used in Section 403.727, Florida Statutes. However, Section 403.727, Florida Statutes, did not become effective until 1980; and PCE was not listed as a hazardous substance until 1984. DER has failed to prove in what quantity or during what period of time PCE may have been released from the surge tank at the Crown facility. It has established that PCE was only placed in the surge tank during 1974 and 1975 and not since, well before the effective date of this statutory provision and the listing of PCE as a hazardous substance. It has produced evidence from which it is inferred that a certain amount of dissolved PCE in laundry waste water leaked from the tank. It has not been established when the leakage started nor in what quantities PCE dissolved into the wash or waste water may have leaked into the surrounding soil, nor what rate (continuously increasing, decreasing, or static) the leakage occurred. Thus, the most that may be inferred is that leakage of dissolved PCE in an unknown concentration occurred sometime after 1974, but it has not been proven that PCE, as a hazardous substance, has been released into the environment during a specific period of time when each of the Respondents owned and/or operated the Crown facility. Thus, DER has failed to adduce evidence sufficient to carry its burden of proving a release of a hazardous substance, subjecting any of the Respondents to liability under Section 403.727, Florida Statutes. In any event, the Respondents were not on notice of the need to defend against a charge under that statutory section since the NOV and the Amended NOV did not inform them that such would be the basis of any purported liability alleged by DER. DER contended, for the first time at hearing, that the Respondents are liable for violation of the hazardous waste disposal rules. DER alleged at hearing that PCE, as a waste, is a listed hazardous waste, either as a spent solvent or a discarded commercial chemical. No such allegations were included in the NOV or the Amended NOV. However, Dr. Mercer established that any PCE which may have been released into the environment from the surge tank was in dissolved form and not as separate phase PCE. Dissolved PCE has not been shown to be a hazardous waste. Therefore, there is no evidence of record to support a finding that improper disposal of hazardous waste occurred at any point or points in time relevant to his proceeding. Moreover, Mr. Clark testified that he conducted a hazardous waste inspection of the Crown facility in 1982. Mr. Clark determined at that time that there was no hazardous waste being generated in the building or being stored in the building. DER has failed to demonstrate that any hazardous waste was generated or stored on the Crown property or disposed of into the surge tank at anytime by any of the Respondents. Finally, no evidence has been presented in this case that any of the Respondents had actual or constructive knowledge of the presence of PCE in the surge tank or of whether or not any release to the surge tank had occurred between 1971 and 1979 or any knowledge of any use or discharge of PCE to the surge tank prior to the commencement of DER's investigation in this action. Only RCD may be presumed to have had knowledge of the spillage of PCE which was discharged to the surge tank in 1974 and 1975, which entity was Jura's predecessor, ultimately merged into the corporation now known as Jura Services, Inc. Additionally, DER seeks in this proceeding only to be reimbursed for the costs of the investigation and tracing of the source of contamination and not for any natural resources damages nor any adjudication of the extent of liability for such damages, except insofar as the Order for Corrective Action which DER seeks to have imposed in this case reserves DER the opportunity to seek a determination after completion of corrective action of the extent to which the Respondents may be liable for natural resources damage, if any.
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 DER enter a Final Order dismissing the Amended NOV against all Respondents. DONE AND ENTERED this 5th day of November, 1992, in Tallahassee, Leon County, Florida. Hearings Hearings P. MICHAEL RUFF Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 5th day of November, 1992. 5985 APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3077 & 88- Petitioner's Proposed Findings of Fact 1-16. Accepted. Rejected as contrary to the preponderant evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not dispositive. Rejected as contrary to the preponderant weight of the Hearing testimony and evidence and subordinate to the Officer's findings of fact on this subject matter. Rejected for the same reason. Accepted but not in itself dispositive of the material findings issues and subordinate to the Hearing Officer's of fact on this subject matter. Rejected as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 23-27. Accepted but not in themselves materially dispositive. 28-30. Accepted but not in themselves materially dispositive. 31-34. Accepted. 35-40. Accepted but not in themselves materially dispositive. 41-50. Accepted but not in themselves materially dispositive. 51. Accepted but not in itself dispositive and subordinate to the Hearing Officer's findings of fact on this subject matter. 52-53. Accepted. Accepted as to the DER intent in placement of the wells. Accepted but not materially dispositive standing alone. Accepted. Accepted to the extent that Crown Laundry has been shown source by circumstantial evidence to be inferentially a of the contamination found in the various wells mentioned but not the sole source nor the source actually causing this made on violation of appropriate standards and otherwise proposed finding of fact is subordinate to those this subject matter by the Hearing Officer. Rejected as not entirely in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted as to the levels of chemical depicted in this the proposed finding of fact but not as to the material import of the proposed finding of fact concerning tank being the cause of the excession of the MCL standards. Accepted but not itself dispositive of material issues presented. 61-62. Accepted. Accepted except that the presence of these chemicals in excession of the MCL inside the tank does not constitute a violation of any pertinent legal authority. Accepted. Accepted to the extent that the walls of the tank are a continuing source of PCE. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted in terms of the amount spent but rejected otherwise as being, in effect, a conclusion of law. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as constituting a recitation of a portion of the fact pleadings at issue and not as a proposed finding of which is materially dispositive of any issue. Rejected as not constituting a material proposed finding of fact but rather a recitation or discussion of the remedies sought by the Petitioner. Rejected as immaterial in this proceeding. Accepted but not dispositive. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the evidence. Respondent, American Linen Supply Company's Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not as probative that leakage could have raised the level of PCE in the monitoring and production well samples above the maximum contaminant level. Accepted. Accepted but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive. 27-28. Accepted. Respondents, Belleaus and Crown Laundry and Dry Cleaners, Inc.'s Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, as speculative. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive of material issues. Accepted. Respondent, Jura Services, Inc.'s Proposed Findings of Fact 1-63. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 66-68. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Jack Chisolm, Esq. Richard Windsor, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 William D. Preston, Esq. Thomas M. DeRose, Esq. HOPPING, BOYD, ET AL. 123 S. Calhoun Street P.O. Box 6526 Tallahassee, Florida 32301 Thomas P. Healy, Jr., Esq. MAYER, BROWN & PLATT 190 South LaSalle Street Chicago, Illinois 60603 John W. Wilcox, Esq. Derek B. Spilman, Esq. RUDNICK & WOLFE 101 East Kennedy Blvd. Suite 2000 Tampa, Florida 33602 Jeffrey C. Bassett, Esq. BARRON, REDDING, ET AL. Box 2467 Panama City, Florida 32401
The Issue The issues to be resolved in this proceeding concern whether an application to construct and operate an on-site sewage treatment and disposal system (OSTDS), within the Suwannee River flood plain, meets the requirements of Section 381.0065(4)(t), Florida Statutes (2007), and relevant Department of Health (Department) rules, and whether the department applied an un-adopted rule in denying the permit application.
Findings Of Fact Daniel Sevick is the owner of two lots, consisting of a total of 1.24 acres, within the flood plain of the Suwannee River. The lots are lots 12 and 13 in "Log Landing Subdivision." The Petitioner applied for a construction permit for the installation of an OSTDS on that property. The application for the permit was submitted to the Dixie County Health Department, which forwarded it to the Department of Health for review, in accordance with Section 381.0065(4)(j), Florida Statutes (2007). The Respondent, Department of Health, (Department) is an Agency of the State of Florida charged with implementing and enforcing the provisions of Chapter 381, Florida Statutes, and Florida Administrative Code Chapter 64E. Among its duties are the review of and issuance of permits for construction of OSTDS. The permit application was reviewed by the Department and was subsequently denied, based upon the following reasoning contained in the denial letters: Our engineer has reviewed your proposal. Based on the site elevation submitted (16.8 feet) and the 10 year elevation (22 feet) the proposal is not in compliance with 381.0065(4)(t), Florida Statutes, and must be denied. Certain of the facts have been stipulated to by the parties. The parties thus agree that the 10-year flood elevation for the property is 22 feet; the site elevation of the property is 16.8 feet and the two-year flood elevation for the property is 16.00 feet. The bottom of the proposed drainfield is at an elevation of 14.30 feet. The Petitioner thus proposes to install the OSTDS system with the bottom of the drainfield 1.70 feet below the two-year flood elevation. The proposed system consists of a conventional septic tank system connected to a "no mound" drainfield system. No Mound System The no mound drainfield system is an innovative drainfield system. No Mound was granted a permit for its design as an "innovative system" by the Department, initially authorizing installation of five systems in Florida, starting on December 23, 1998. An "innovative system" is defined as an "onsite sewage treatment and disposal system that, in whole or in part, employs materials, devices, or techniques that are novel or unique and that have not been successfully field tested under sound scientific and engineering principles under climatic and soil conditions found in this state." See § 381.0065(4)(2)(g), Fla. Stat (2007). Innovative systems, by definition are considered to be "performance-based systems" which have additional requirements placed on them depending on the performance level of the effluent treatment. The design of the OSTDS system submitted with the permit application included several changes intended for this particular property, based upon discussions between the Petitioner's representatives and the Department. The changes include relocation of the OSTDS and drainfield to the highest elevation of the property; addition of a solar-recharge battery alternative power supply; the obtaining of additional information with regard to soil borings; and the performance of an evaluation to confirm the capacity of the soil anchors in saturated soil. The OSTDS, including the no mound drainfield, was designed by Harry Wild, PE, specifically for the Petitioner's property. The proposed OSTDS is considered by the Department to be an "engineer-designed" system. Over approximately the last 10 years No Mound has been issued innovative permits authorizing the installation of approximately 250 no mound drainfield systems. The no mound system is an innovative system which does not employ a conventional drainfield. Instead, based upon principles of physics and engineering, the drainfield system is designed to be installed underground, with air pumped into the system to depress the groundwater elevation or "water table," so as to provide the required separation or distance between the absorption surface of the drainfield (bottom of the drainfield) and the groundwater. In Florida the separation required is 24 inches. The drainfield system is designed to retain air pumped into it, for depression of the groundwater level, by being covered with pieces of geo-fabric and a p.v.c. membrane designed to retain air within the system under a certain level of pressure. The air pressure is designed to depress the water level of groundwater directly beneath the area of the drainfield, much like the principle of a "diving bell." The drainfield system would be covered with two pieces of geo-fabric on either side of a 30 mill. p.v.c. membrane, the same material used as a liner for hazardous waste landfills. The geo-fabric material protects the p.v.c. membrane from damage or puncture during construction. Once in operation the membrane is unlikely to tear under normal conditions, unless through intentional puncture with an extremely sharp implement or through some catastrophic event, such as a large tree falling on the surface above the membrane. The membrane is held in position by a patented ballast and anchor system. The ballast material consists of pre- stressed concrete beams, spanning the width of the drainfield. At each end of each beam is a soil anchor. The 20 pre-stressed ballast beams are held in place with 40 helically shaped screw anchors, which screw into the soil. Each anchor is intended to withstand 5,000 pounds of upward force. The screw anchors are designed to hold the concrete beams in place in saturated soil. The soil anchors are threaded with a washer and nut on both the top and the bottom of the concrete beam which prevents the beam from moving vertically, downward or upward, so that the beam can resist any uplifting force. Air is pumped into this system by a continuous air pump which would be wired into the power system of the residence to be on the property. There would also be an emergency power supply. The air pressure inside the system would vary in response to the level of water outside the system whether groundwater or surface water. As the water outside the system rises or subsides, the water inside and beneath the system is supposed to remain lowered, as the pressure inside the system is designed to increase or decrease. The Petitioner maintains that the ballast system is designed to contain the pressure (air pressure) which would be required to continue to suppress any groundwater or flood water associated with a ten-year flood event. The system has an "air bleed," which is intended to maintain aerobic conditions in the drainfield. If surface waters overflow the top of the drainfield system in a flood event, the air bleed system is designed to continue functioning. The air would enter the soil beneath the ground surface and bubble up through any water above the ground surface. If both the primary and backup power supplies should fail, the Petitioner maintains that the air bleed would "shut off" so that no air would escape from the system and thus maintain the pressure within the system, much like a diving bell. This characteristic is designed to maintain the separation between the groundwater surface and the bottom of the drainfield in the event of a power failure. The Department has interpreted the operative statute, Section 381.0065(4)(t), Florida Statutes (2007), as providing that the absorption surface of a drainfield for any OSTDS system cannot lie below the 10-year flood elevation, if it is located within the floodways of the Suwannee or Aucilla Rivers, unless the system meets all the exceptions contained in Section 381.0065(4)(t)1.a.b. and c., Florida Statutes. One of these exceptions requires that the bottom of the drainfield, the absorption surface, be at least 36 inches above the two-year flood elevation for the site. The two-year flood elevation at the subject site is 16 feet. The proposed installation would have the bottom of the drainfield or absorption surface located 1.70 feet below that two-year flood elevation, thus not complying with that exception. The applicant's system is not in compliance with the portion of paragraph (c), referenced above as an exception, concerning a system approved by the county health department, pursuant to department rule, which is "other than" a system using "alternative drainfield materials." This system would apparently use so-called "alternative drainfield materials." Innovative systems are those which represent new technology that has not been completely field-tested in Florida. The Petitioner has applied for the permit as an innovative permit application, which contains a requirement that the system be replaced with an alternative system in case it fails within a five-year test period. No mound systems are site specific, with each one being specifically designed for a particular property with its unique characteristics. There are approximately 50 no mound systems approved, permitted and operating in Florida at the present time. The evidence does not reflect which, if any, of those systems are installed below flood elevations. The drainfield portion of such a system works in the same way as a conventional drainfield, that is, the soil and piping which lies below the membrane. The membrane system is the unique characteristic of the no mound system. Because of the membrane and ballasting system designed to retain air pressure over and in contact with the drainfield absorption surface, the system is different and more complex than the standard drainfield system, although it treats affluent in the same way. Two significant problems arose with the installation of the first five innovative permit, no mound systems. The testimony of Sam Averett, who is a septic system contractor, described an installation of a no mound system on his own property in 1999. The system was installed in accordance with Mr. Hassett's specifications and recommendations, and he was present during the installation. Mr. Hassett testified in support of the petition in this case as an engineering expert. Within a few days or weeks the Averett system developed a problem. Apparently, with a substantial rain event, the system "floated" that is, the air pressure contained within the membrane rose to the surface of the ground, similar to a "bubble." This would have amounted to a failure to maintain the air pressure necessary to ensure that a 24-inch separation between the absorption surface of the drainfield and the groundwater table elevation was maintained. That system was re- designed and a different ballasting system or buoyancy package was used, involving the use of "railroad iron" (rails), and plywood spanning the drainfield in order to hold the membrane beneath in place, with the whole arrangement being recovered with dirt. Thereafter, on January 1, 2003, after a substantial rainfall event, the system floated out of the ground once again. After that second failure of the Averett system, Mr. Averett installed a "hoot" system, which involves a "drip irrigation" drainfield installation, with the delivery piping and the drainfield being much closer to the ground surface or within six inches of the surface. The system described by Jack Murray in his testimony was also one of the original five systems installed in Florida by No Mound, Inc. That system was designed to maintain a 30- inch separation between the absorption surface of the drainfield (bottom of drainfield) and the groundwater elevation or water table. According to Mr. Murray it never maintained that separation. He was aware of the lack of a 30-inch separation being maintained because of the onsite monitors installed with the system. He described the actual separation which the system provided as being only .9 feet. The onsite monitors by which he was able to observe the actual separation failed after about two years of operation. He brought the separation issue to the attention of the contractor or representative of No Mound, which patented the system and oversaw the installation. According to Mr. Murray, however, they never satisfactorily addressed the problem. When the air pump failed, after approximately two years of operation, he called the manufacturer of the air pump and was informed that the air pump had been the incorrect type or size for the no mound system which he had installed. Although these two referenced problems concerning the Murray system and the Averett system represent two of the first five innovative no mound systems installed in Florida, the problems associated therewith may have been corrected since, because each system installed at a given site is specifically and uniquely designed by an engineer for that site and its physical, hydrologic and operating circumstances. Thus, the referenced problems involving buoyancy or "floating-up" of the drainfield membrane system and the failure to maintain adequate pressure so as to achieve the legally-mandated 24-inch differential between groundwater elevation and the bottom of the absorption surface, may not be construed to be direct predictors of what will occur with the installation of the Sevick system. The problems do point up, however, the fact that the air pressure maintained at different groundwater levels in the system is a critical component of the system's function and also that the ballasting system and design is critical in order to maintain the integrity of the membrane system or air chamber overlying the drainfield surface, at different water levels and conditions. This is a particular concern with regard to flood conditions. It also true that the proposed air pressure to be maintained in the system at issue, the Sevick system, would be five pounds per square inch. Earlier systems, possibly including the Murray system, maintained a pressure of two pounds per square inch. However, aside from the rather conclusory testimony of the Petitioner's expert witnesses, who opined generally that the air pressure and the integrity of the membrane system and ballast system would be adequate to maintain the legally- mandated 24-inch differential of unsaturated soil below the absorption surface, there was no definitive evidential showing of what air pressure would actually be necessary to perform that function adequately under all conditions. This is particularly problematic under conditions of flooding, since the proposed drainfield would be beneath both the 10-year flood elevation and the two-year flood elevation. Although there was testimony which indicated that the air pressures would vary, would increase or decrease depending upon the water levels beneath the drainfield and outside of the membrane, there was no definitive showing in the evidence as to what pressures under those varying water level conditions would still enable the 24-inch differential to be maintained. Under the Department's interpretation of its statutes and rules, a 24-inch differential is deemed adequate and necessary for treatment of the sewage effluent entering the drainfield. The electric power necessary for operation of the air pump which pressurizes the system would be derived from connection with the residence to be constructed on the lots. The emergency power system would be designed to accommodate situations where there is a power outage, for instance in a storm situation. The alternative system would be dependent upon solar-rechargeable battery power. If the air pump ceased operation due to a power outage and the backup system was not adequate, or adequately charged, to operate the pump sufficiently or for a sufficient period of time to maintain the required air pressure, then the 24-inch differential might not be maintained. The evidence does not reveal a practical way to monitor the air inflow or the air pressure condition inside the membrane in the event of a power outage. The Petitioner's witnesses maintained that if there was a power outage the air bleed device would close down, thus maintaining the required air pressure (akin to a diving bell circumstance). There was no persuasive evidence, however, to show what air pressure would thus be statically maintained and whether it would maintain the required 24-inch separation. Harry Wild was the design engineer who designed the no mound system for the Sevick property. Mr. Wild, however, was unaware, apparently, that Dr. Jeffrey Evans, a geotechnical expert and expert in the design of helical anchors for the ballast system for the Sevick property, had recommended that at least one boring be made for each site or each of the two lots to a depth of 20 feet. This was recommended in order to verify what the sub-surface conditions were, so that the conditions assumed in the system design could be verified. Mr. Wild testified that he only took borings to a depth of 10 feet. Mr. Hassett on the other hand testified that he thought the borings had only been done to six feet. In fact, the site evaluations submitted to the Department demonstrated soil boring had been performed to a depth of six feet below ground surface, and the cross-sectional drawing indicates that the anchors, designed to hold down the beams and the membrane, would only begin approximately four feet below the ground surface. Thus, even though Mr. Wild was the expert designer of the No mound system for the Sevick project, he was unaware of whether the ballast system was a new type of system which had been specifically designed for that property. He did acknowledge that it was the first time he had employed that type of ballast system. In spite of the higher operating pressure, five PSI versus two PSI, to be maintained in the Sevick no mound system over that normally maintained in previous no mound systems, Mr. Wild did not perform calculations or evaluations as to the beam strength and design requirements of the new ballast system. He did not perform calculations or evaluations that addressed the issue of membrane deflection requirements, which relates to how much the membrane would move upward under various pressures. This in turn could relate to how much downward pressure must be exerted by the anchoring system, to counteract the buoyancy of the membrane bulging upward under different pressure circumstances, associated with different water levels. Mr. Hassett did not know what membrane deflection was acceptable for the Sevick no mound system other than "a fair amount" which he acknowledged varied "depending on the geo- synthetic or the geo-grid that was specified for that particular project." It is understandable that this is an innovative system which requires certain revisions at times before it is installed, or during the course of installation, to adapt its design to the particular site. However, the evidence presented at hearing, as shown by Mr. Hassett's testimony, and Mr. Wild's as well, in this regard, is somewhat indefinite and does not show a substantial likelihood that the membrane and concrete beam and anchor ballasting system proposed will work as planned from a structure and strength standpoint. As Mr. Hassett testified "they will be tested before installation." As shown by Mr. Wild's testimony, the soil of the Petitioner's lots is composed of fine sand at the installation site. There is no evidence concerning any erosion study or concerning what the erosion experience might be in a flooding situation, in order to determine the effect on the helical anchors and ballasting system in the event of floods of varying severities, including a 10-year flood. Dr. Evans established in his deposition testimony that the helical anchors get their resistance to upward force from the sheer strength of the soil, which is a frictional value combined with the effective stress on the soil. If a certain amount of soil is eroded away, then the holding capacity of the anchors is correspondingly reduced. Dr. Evans, however, assumed that the applied load per anchor was 5,000 pounds, with the anchor handling 5,000 pounds of upward force if it was 10 feet underground. Therefore, the designers of the system would need to assure that the anchors are 10 feet underground and that the applied load is 5,000 pounds, according to Dr. Evan's testimony. He opined that if erosion of varying amounts occurred that could affect the anchors' holding capacity. In fact, the evidence shows that the anchors or the top of the anchors may only be proposed to be installed four feet below the surface. Therefore, the evidence does not clearly establish that the beam/anchor system is adequate to maintain the stability of the drainfield membrane system in the event of a flooding situation. Gerald Briggs testified on behalf of the Department. He described the growing concern that nitrogen levels in the effluent of OSTDS systems represent, in terms of potential environmental degradation of ground or surface waters, which the Department is charged with addressing by the statutory authority cited below. The no mound system, like any conventional OSTDS system, has no specific provision that would treat or reduce nitrogen levels in the effluent from the system. The 24-inch separation between the absorption surface of the drainfield and the groundwater elevation is designed to be unsaturated soil, which provides treatment of only a primary nature for essentially the public health/pathogenic components of the OSTDS system effluent (i.e. sanitary treatment). Although there is not such a monitoring requirement, the Department has requested data from the Petitioner regarding the quality of the effluent that would leave the system. If the system were ever installed, it should be done with the condition that effluent sampling and testing of the effluent should be performed, in order to ascertain that the system operates properly, in terms of public health and environmental degradation, on an ongoing basis. The Petitioner's witnesses, Mr. Wild and Mr. Sayko, acknowledged that the system proposed is not infallible and there are certain risks posed by the installation. For instance, if a pump was broken then the water level would start to rise inside the no mound system, according to Mr. Sayko's testimony. Moreover, the absorption surface in the drainfield as proposed, would likely be "subject to flooding" in a situation of power outages and erosion during a flood event. It must be remembered that the ground surface is some five feet below the 10-year flood elevation at the installation site and the absorption surface or bottom of the drainfield is over seven feet below the 10-year flood elevation. Thus, in the circumstance of power outages or flood-caused erosion, the absorption surface of the proposed drainfield could be "subject to flooding." The Department denied the subject permit application because the site elevation is 16.8 feet and the 10-year flood elevation at the site is 22 feet. Thus, the proposal was to install the absorption surface below the 10-year flood elevation (more than seven feet below it). In denying the requested permit the Department denied it based upon its interpretation of the subject statute, Section 381.0065(4)(t)(1), Florida Statutes (2007). It did not actually employ an un-adopted rule or "agency statement of general applicability" in making this interpretation. Rather, it interpreted the statute, applying it to the particular facts of the permit application and the situation prevailing at the proposed installation site. It was not applying an interpretation or policy statement of general applicability enforced throughout its jurisdiction, or throughout the flood plain area of the Suwannee and Aucilla Rivers, but rather was applying the statutory language and its interpretation of it to the particular site and circumstances of the proposed system and its contemplated operation. A variance from the above-referenced statutory requirements and related rules is not at issue in this case because the Petitioner has not sought a variance. Although variances have been granted in the Suwannee River flood plain area, in accordance with Section 381.0065(4)(h), Florida Statutes (2007), the grant of such variances has usually carried the concomitant requirement of more advanced treatment of the effluent in the system to be installed, as allowed by the granted variance. Thus, an aerobic treatment unit (ATU) or performance-based septic treatment system, such as an advanced secondary treatment system (AST), as well as the use of drip drainfields, such as the hoot system, have been required in accordance with the statute. An ATU introduces air into the treatment unit in order to enhance the treatment and generally employ filters as well, according to witness Briggs. An AST type system reduces the biochemical oxygen demand (BOD), total suspended solids, as well as treating the nitrogen and phosphorus contents of the effluent. Historically, the Department has only approved variances in the Suwannee or Aucilla River flood plains for vacant lots with the use of ATU or AST type systems. A drip drainfield reduces the required height of the drainfield by some 12 inches because it is only buried six inches into the soil. This is done because it is designed to be buried in the shallow root zone of trees and plants which allow trees and plants to uptake the nutrients in the effluent water and thus prevent them from being deposited in the ground or surface waters. In the Suwannee River basin area, most of the variances granted by the Department have required such drip drainfield systems. One of the statutory considerations for granting of a variance is that the Petitioner for a variance should not have created the hardship involved, resulting in the need for the variance. The Department maintains that the Petitioner, Mr. Sevick, has created the hardship in this case by purchasing the lot knowing of the restrictions on OSTDS systems that were legally prevailing. The evidence, however, does not really establish that the Petitioner intentionally created the hardship by purchasing a lot knowing of all the restrictions that were in place and their effects. One can infer, for instance, that he was aware of advertisements by No Mounds, that lots in the Suwannee River basin or flood plain area could be developed by using its OSTDS system without even necessitating the use of fill. The Department's evidence simply does not establish that the Petitioner, Mr. Sevick, intended creating the hardship, on his own volition, by purchasing the lot with knowledge that the specific restrictions were in place, from a legal standpoint. Thus it was not proven that the Petitioner is unable to establish a hardship for purposes of seeking a variance pursuant to Section 381.0065(4)(h), Florida Statutes (2007), on the basis that the Petitioner created the hardship. As established by witness Briggs, nitrogen and phosphorus elements of OSTDS effluents are of growing concern for ground and surface waters in Florida. Nitrogen and phosphorus enhance algae growth in surface waters, which can lead to reduced dissolved oxygen content and other factors harmful to fish and wildlife. There is thus a deleterious environmental impact from nitrogen and phosphorus levels in surface waters or groundwaters, in addition to the pathogens which can characterize effluent from OSTDS systems, related to human waste. Advanced septic systems such as ATUs or ASTs have been required in the grant of variance-based septic system permits in flood plains of the rivers because of the potential of their being flooded and because of the locations of the systems. The Department, in consideration of its statutory charge, has sought to seek as much treatment as possible for the effluent, in such situations, in order to prevent significant degradation of ground or surface water. A no mound system is a drainfield dispersal system, so it itself poses no additional treatment capability than does a conventional OSTDS system, as established by both witnesses Wild and Briggs.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Amended Petition be denied. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2009. COPIES FURNISHED: Kenneth J. Plante, Esquire Tana D. Storey, Esquire Brewton Plante, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Mark Dunn, Esquire Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Lucy M. Schneider, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 John M. Lockwood, Esquire Rutledge, Ecenia & Purnell, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32301 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
Findings Of Fact Respondent is a registered septic tank contractor. He is licensed locally to install septic tanks in Lee and Collier counties, where he has installed 250-450 septic tank systems in the past 15 years. He has been a septic-tank contractor for 25 years. He has a good record for performing septic-tank services. In November 1995, Respondent performed work for Charles Allen on Marco Island. The work consisted of drainfield repairs and a septic-tank pumpout. Respondent performed the drainfield repairs and pumped out the liquids from the tank, but failed to pump out the solids from the bottom of the tank. Unaware that the solids had not been removed, Mr. Allen paid Respondent the $1500 price on which they had agreed for all of the work. Three months later, Mr. Allen's septic tank backed up, dumping sewage in his home. This happened late at night, and Respondent was unable to come right over to repair the system. Mr. Allen thus contacted another contractor, who, for $205, pumped out at least eight inches of solids, which were causing the sewage to back up into the house. Since the repairs, Mr. Allen has had no other problems with his system. It is evident that Respondent failed to remove the solids in November, as three months are insufficient time for this kind of build-up and Mr. Allen's system has worked fine since the failure in February. In March 1996, Respondent performed repair work to a drainfield in Bonita Springs. Petitioner rejected the work for final approval on March 27, 1996. The grounds for rejection were that the drainfield was installed 4.8 inches too low, a large amount of the drainfield aggregate was sinking into the drainfield replacement material, and Respondent had added an extension onto the existing drainfield, rather than replace the entire drainfield, as the repair permit had required. Petitioner's inspector informed Respondent of the rejection on March On April 3, the inspector drove by the site and found that Respondent had covered the repaired system without having first called for a reinspection. Circumstances unknown to Respondent, the homeowner, and Petitioner at the time of initial permit rendered almost the entire plan for this repair job unfeasible. Among other factors was the fact that the drainfield was planned for a front yard, sandwiched between a driveway and a landscaped area. Also, Respondent discovered deficiencies in the original drainfield once he uncovered it. However, Respondent was not justified failing to call for a reinspection before covering the system. Respondent was irritated with Petitioner's representative for failing to come immediately to inspect the work, but this is no excuse for covering the repaired system with dirt prior to obtaining a reinspection. Shortly before the final hearing, Respondent dug up the system, installed an entirely new drainfield, and completed the repairs in a satisfactory fashion.
Recommendation It is RECOMMENDED that the Department of Health and Rehabilitative Service enter a final order imposing an administrative fine of $1000 against Respondent for a false payment statement and failure to call for reinspection prior to covering a system. ENTERED on October 10, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on October 10, 1996. COPIES FURNISHED: Susan Mastin Scott Senior Attorney Department of Health and Rehabilitative Services Post Office Box 60085 Fort Myers, Florida 33906 Attorney Michael F. Kayusa Post Office Box 6096 Fort Myers, Florida 33911 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X Tallahassee, Florida 32399-0700
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 On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
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.
