00-000130 Edward N. Pollack vs. Department Of Health Status: Closed Recommended Order on Wednesday, June 14, 2000.

Summary: Evidence did not show that Petitioner was entitled to a hardship exemption for a well that is less than 25 feet set back distance from a pesticide-treated slab.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD N. POLLACK, )

)

Petitioner, )

)

vs. ) Case No. 00-0130

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 11, 2000, in New Smyrna Beach, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Diane Cleavinger.

APPEARANCES

F or Petitioner: Edward N. Pollack, pro se

3665 Darby Road

New Smyrna Beach, Florida 32168

For Respondent: Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue in this case is whether a variance for a reduced

setback of four feet from Petitioner's well to a building pad

treated with pesticide should be denied by the Department of

Health.

PRELIMINARY STATEMENT

Petitioner Edward N. Pollack (Pollack), applied for a

variance from Respondent Department of Health (DOH), to utilize

a potable water well located four feet from a building pad which

had been treated with pesticide. The variance was denied.

Petitioner requested a formal administrative hearing on

Respondent's denial.

At the formal hearing, Petitioner testified in his own

behalf, presented the testimony of one witness and introduced

three exhibits into evidence. Respondent presented the

testimony of three witnesses and introduced three exhibits into

evidence.

After the hearing, Respondent filed a Proposed Recommended

Order on April 26, 2000. Petitioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. Petitioner resides on property consisting of 7.5 acres

at 3665 Darby Road, New Smyrna Beach, Volusia County, Florida.

Since Petitioner receives no public utility service at his home,

he has a septic system and potable drinking water well on his

property. However, Petitioner's family does not drink the water

from the well. The family purchases bottled water for drinking

purposes. The well water is used for other household purposes,

such as cleaning and bathing. There are other locations on

Petitioner's property for a well. The evidence demonstrated

that Petitioner has or had alternative locations for the well.

2. Petitioner built a 1681 square foot barn utilizing an

old concrete foundation from a previous barn. Petitioner's well

is located in the southwest corner of the old barn's foundation

and four feet from the new barn's foundation. The building

plans for the barn, submitted to Volusia County, clearly

indicated the location of Petitioner's well within four feet of

the new barn's foundation. Even with this information Volusia

County issued a building permit for the new barn. There were

other locations for the barn on Petitioner's property which

Petitioner would have utilized had he known of the setback

requirements when he first permitted his barn.

3. Volusia County required the new barn's foundation to be

elevated. In order to elevate the sub-floor for the new barn's

foundation, Petitioner placed a layer of visqueen on the sub-

floor, or old concrete floor of the old barn, then added a layer

of sand and poured concrete on top of the sand layer. The sand

layer is encased in concrete. The concrete encasement does not

necessarily prevent leaks from above given the porous nature of

concrete. Additionally, the condition of the old barn floor,

i.e. whether it has cracks, is not known.

4. The Volusia County building code requires that the soil

under a foundation be treated for termites. After Petitioner's

contractor added the sand layer, he spread one four-pound bag of

90 percent Sevin dust, a common garden pesticide, on top of the

sand. The application rate was within normal application rates

for the barn area. The Sevin dust was not applied with any

pressure to force penetration into the soil. More than seven

days later the contractor poured the new concrete foundation on

the pesticide-treated sand layer.

5. The label on the Sevin dust package indicates that 10

percent Sevin dust may be applied to vegetables up to the day of

harvest and in some instances 3 to 7 days before harvest,

depending on the type of crop. However, the package does not

indicate that a treated crop is edible for human consumption

without first washing the crop or other processing of the crop.

Therefore, a lack of danger from contamination has not been

shown. Indeed, the evidence did not show that health would not

be adversely affected by use of Petitioner's well given this

major deviation from the setback requirements and the soil in

the area.

6. A Volusia County building inspector informed

Petitioner's contractor that the close proximity of Petitioner's

potable well to the area treated with pesticide was a violation

of state health codes and could not be approved because the well

did not meet the requirement of having a 25-foot separation from

soil treated with pesticide. The contractor informed Steve

Baur, a Department of Health employee, about the violation. The

deviation of 21 feet from the 25-foot setback requirement is a

major deviation.

7. Petitioner applied to DOH for a variance to allow him

to utilize his potable drinking water well.

8. Petitioner's variance application was denied by the

variance committee and Dr. Sharon Heber, Department of Health

Environmental Health Director, for the following reasons:

1. Section 64E-8.009(2), F.A.C., allows the

granting of variances to 'prevent excessive

hardship only in cases involving a minor

deviation from established standards when

the hardship was not intentionally caused by

the applicant, where no reasonable

alternative exists, and where proper use of

the system will not adversely affect public

health.'

2. According to information supplied by the

Volusia County Health Department, the

treated slab is located 4 feet from the

existing well. This is a major deviation

from the established standards.

3. The well completion report for the

existing well indicates coarse shell

starting at 10 feet and continuing down to

60 feet. This material provides no

filtration and/or confinement for the

pesticide.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

action. Section 120.57(1), Florida Statutes.

10. Section 381.0062(6)(a), Florida Statutes, states that

the department may "grant variances and exemptions from the

rules promulgated under the provisions of this section through

procedures set forth by the rule of the department."

11. Florida law concerning setbacks of potable wells from

pesticide applications is found in Section 64E-8.002(b)1,

Florida Administrative Code. The law requires that potable

water wells must maintain a setback of 25 feet from a building

foundation when the soil has been treated with a pesticide.

12. Section 64E-8.009, Florida Administrative Code,

establishes the criteria for variances concerning drinking water

systems. Section 64E-8.009, Florida Administrative Code, states

in relevant part:

64E-8.009 Variances.

(1) The supplier may request a variance by

completing Form DH 4094, and submitting a

statement regarding hardship, any other

information necessary for rendering a

decision and all information required by

subsection 64E-8.009(3). The burden of

presenting pertinent and supportive facts

shall be the responsibility of the

applicant.

(2) Upon consideration of each application,

and the recommendations of . . . the county

health department, the Deputy State Health

Officer or his designee has the authority to

grant a variance, grant a provisional

variance or deny the variance request. The

Deputy State Health Officer or his designee

will grant a variance to prevent excessive

hardship only in cases involving minor

deviation from established standards when

the hardship was not caused intentionally by

the applicant, where no reasonable

alternative exists, and where proper use of

the system will not adversely affect public

health. In making its decision, the

department shall consider the factors in

rule 64E-8.003(4). . . .

(3) For variances involving private water

system replacement well, except those which

are less than 50 feet from an OSTDS or 25

feet from a building foundation which has

been chemically treated for pests, the

applicable county health department

administrator has the authority to grant a

variance, grant a provisional variance, or

deny the variance request . . . .

(4) The department shall consider:

(a) Historical water quality.

(b) Age and condition of system components

and the likelihood it will continue to

provide potable water.

(c) Size of come of influence and

protection of source from contamination.

(d) Amount of deviation from the standards.

(e) Type and degree of consumer exposure.

(f) Economic Hardship.

(g) Alternative potable water availability.

. . .

13. Section 64E-8.002(2)(b)1, Florida Administrative Code,

states that there must be a separation of 25 feet from a potable

water well to a building foundation when the soil has been

chemically treated for pests. Section 64E-8.002(b)1., Florida

Administrative Code, does not delineate which types of pesticide

fall under this requirement. It applies to any pesticide used

to treat the soil. Section 64E-8.002(2)(b)1., Florida

Administrative Code, does not detail the methods of application

of the pesticide which are applicable under the rule. It

applies to any and all methods of application, hand-spreading or

spraying. Section 64E-8.002(2)(b)1., Florida Administrative

Code, does not specify the types of soil to which this rule

applies. The rule applies no matter what type of soil is

present.

14. In this case, Petitioner owns several acres around his

house and has sufficient unobstructed area available in which to

install a new potable water well and meet all required setbacks.

Petitioner's request for a reduced setback of 4 feet instead of

25 feet is a major deviation of the rule, not a minor deviation.

Moreover, the system is so close to the pesticide-treated area

that there is a significant threat to public health. Therefore,

Petitioner is not entitled to a variance.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Health enter a final order denying

Petitioner's request for a variance.

DONE AND ENTERED this 14th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of June , 2000.

COPIES FURNISHED:

Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

Edward N. Pollack

3665 Darby Road

New Smyrna Beach, Florida 32168

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

William Langue, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

Bin A00

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.