08-002552 Daniel M. Sevick vs. Department Of Health Status: Closed Recommended Order on Monday, February 16, 2009.

Summary: Petitioner failed to prove that innovative on-site sewage disposal system would not be subject to flooding. The statute has flood elevation standard, not an avenue to allow for a system which purports to prevent flooding by use of air pressure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL M. SEVICK, )

)

Petitioner, )

)

vs. ) Case No. 08-2552

)

DEPARTMENT OF HEALTH, )

)

Respondent, )

)

and )

)

NO MOUNDS SYSTEMS OF FLORIDA, )

INC., AND SAVE OUR SUWANNEE, )

INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

This cause came on for formal proceeding and hearing before

P. Michael Ruff, a duly-designated Administrative Law Judge of

the Division of Administrative Hearings. The hearing was

conducted in Tallahassee, Florida, on September 16 and 17, 2008.

The appearances were as follows:

APPEARANCES

For Petitioner: Kenneth J. Plante, Esquire

Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

For Respondent: 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

For Intervenor: Save Our Suwannee, Inc.

John M. Lockwood, Esquire

Rutledge, Ecenia & Purnell, P.A.

215 South Monroe Street, Suite 420

Tallahassee, Florida 32301

For Intervenor: No Mound Systems of Florida, Inc.

Kenneth J. Plante, Esquire

Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES :

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.

PRELIMINARY STATEMENT

This cause arose concerning the denial of the Petitioner's

application to construct an OSTDS on Lots 12 and 13 in the Log

Landing Subdivision in Dixie County, Florida. Those lots are

located adjacent to the Suwannee River. On July 23, 2007, a

letter was issued by the Department denying the permit

application based upon the following statement:

Our engineer has reviewed your proposal.

Based on the site elevation submitted (16.8

feet) and the 10 year flood elevation (22

feet) the proposal is not in compliance with

381.0065(4)(t), Florida Statutes, and must

be denied.

Thereafter a timely Petition in Opposition to the denial

was submitted by the Petitioner, seeking an administrative

hearing. The Petition was filed August 16, 2007, and by Order

of September 21, 2007, the Department assigned the Petitioner to

an appointed presiding officer to conduct an informal

administrative hearing.

On January 4, 2008, the Petitioner filed an Amended

Petition for Administrative Hearings, which included a challenge

pursuant to Section 120.57(1), Florida Statutes (2007),

concerning its position that the Department had followed and

applied an un-adopted rule in the process of its denial of the

permit application. On May 14, 2008, the Department entered an

Order Granting the renewed Motion for Leave to file an Amended

Petition and then referred the Amended Petition to the Division

of Administrative Hearings. The matter was assigned to an

administrative law judge and thence transferred to the

undersigned administrative law judge, and this proceeding

ensued.

Prior to the hearing, Petitions to Intervene were filed by

Save our Suwannee, Inc. (SOS), the Suwannee River Water

Management District (the District), the Florida Department of

Environmental Protection (DEP), and No Mounds Systems of

Florida, Inc. (No Mound).

Thereafter, an amended Petition to Intervene was filed by

SOS. The Petitions to Intervene filed by SOS, DEP, and the

District were denied based upon lack of standing. No Mound's

Petition for Leave to Intervene was granted, based upon there

being no objection thereto. SOS was granted leave to file a

Second Amended Petition to Intervene to demonstrate how it and

its members' substantial interests could be affected by the

permit application and therefore why it and its members had

standing.

The Second Amended Petition to Intervene by SOS was filed

pursuant to an Order denying the Amended Petition to Intervene

by SOS, entered by the undersigned on the day prior to the

hearing, because the Amended Petition was filed immediately

prior to the hearing. This resulted in the Second Amended

Petition to Intervene by SOS being timely filed on September 29,

2008, after the conduct of the hearing. Because of this

sequence of events concerning SOS's intervention, SOS was

allowed to proffer its testimony at the hearing, as to its

standing, and as to its position regarding the merits of the

permit application, with the understanding by all parties that

should the Second Amended Petition to Intervene be granted,

(which it was) that the proffered evidence by SOS would become

its actual evidence to be considered in support of its second

amended intervention petition. This was done in order to avoid

a bi-furcated hearing situation, with the inherent delay

involved in allowing SOS to put on its case at a later time, if

it were allowed to file a Second Amended Petition to Intervene,

which it was. Thus the hearing, including SOS's full

participation as an intervenor, under the above-described

circumstances, was concluded on the above date.

The cause came on for hearing as noticed. The Petitioner

presented the testimony of Allen F. Hassett, Professional

Engineer (PE), accepted as an expert in the field of Sanitary

and Waste Water Engineering: Harry Wild; PE, who was accepted as

an expert in onsite sewage treatment and disposal systems

(OSTDS) design and environmental engineering; and Steven Sayko,

Professional Geologist (PG), who was accepted as an expert in

the field of Hydrogeology. The Petitioner's Exhibits 1 through

16 were admitted into evidence.

The Department presented the testimony of Gerald Briggs,

Chief of the Bureau of Onsite Sewage Program; Samuel Averett;

and Paul Booher, PE, of the Bureau of Onsite Sewage Programs, of

the Department of Health. The Respondent's Exhibits 1 through

12 and 15 through 17, as well as 20A, B, and C were admitted

into evidence.

The Respondent's Exhibits 1 through 10 and 15 through 17

are maintenance reports which are routinely submitted to the

Department on a quarterly basis and relate to various no mound

systems in Florida. These were objected to by the Petitioner on

relevancy and hearsay grounds. It was determined that they come

within the business records exception to the hearsay rule and

the hearsay objection was overruled. They were determined to be

relevant, subject to briefing on whether the prejudice out-

weighed the relevance. It is determined that these exhibits are

relevant and they are admitted. They will be weighed and

considered in terms of their remoteness in time from the design

and installation of the proposed system, and in terms of any

innovations which have been brought forward as to no mound

systems since the time of a particular maintenance report

regarding a no mound system in these exhibits. Other factors

such as location and elevation, which render the systems

addressed by some of these maintenance reports to be different

in character, construction and operational parameters from the

system proposed, are deemed to detract from the substance and

materiality of such reports.

Upon conclusion of the proceeding, the parties had the

evidence transcribed and elected to submit proposed recommended

orders. The Proposed Recommended Orders were timely submitted

after the Order was entered on the Second Amended Petition for

Intervention by SOS, which closed the record. Proposed

Recommended Orders were submitted by the Petitioner, the

Respondent, and by the Intervenors. All have been considered in

the rendition of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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

4. 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.

5. 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.

6. Over approximately the last 10 years No Mound has been

issued innovative permits authorizing the installation of

approximately 250 no mound drainfield systems.

7. 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."

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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."

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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."

27. 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.

28. 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.

29. 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.

30. 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).

31. 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.

32. 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.

33. 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."

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

42. The Department has the authority to issue permits

governing installation and operation of OSTDS systems. The

intent of the Legislature to that effect is set out in Section

381.0065(1), Florida Statutes (2007), concerning permitting.

Therein it is provided:

1. LEGISLATIVE INTENT.-It is the intent of

the legislature that where a publicly owned

or investor-owned sewerage system is not

available, the department shall issue

permits for the construction, installation,

modification, abandonment, or repair for

onsite sewage treatment and disposal systems

under conditions as described in this

section and rules adopted under this

section. It is further the intent of the

legislature that the installation and use of

onsite sewage treatment and disposal systems

not adversely affect the public health or

significantly degrade the groundwater or

surface water.

The following requirements are imposed by Section

381.0065(4)(t), Florida Statutes (2007), for installation of

OSTDS in the floodways of the Suwannee and Aucilla Rivers:

(t) Notwithstanding the provisions of sub-

paragraph (g)1., onsite sewage treatment and

disposal systems located in floodways of the

Suwannee and Aucilla Rivers must adhere to

the following requirements:

(1) The absorption surface of the

drainfield shall not be subject to flooding

based on 10-year flood elevations.

Provided, however, for lots or parcels

created by the subdivision of land in

accordance with applicable local government

regulations prior to January 17, 1990, if an

applicant cannot construct a drainfield

system with the absorption surface of the

drainfield at an elevation equal to or above

10-year flood elevation , the department

shall issue a permit for an onsite sewage

treatment and disposal system within the 10-

year flood plain of rivers, streams, and

other bodies of flowing water if all of the

following criteria are met:

a. The lot is at least one-half acre in

size;

b. The bottom of drainfield is at least 36

inches above the 2-year flood elevation; and

c. The applicant installs either:

A waterless, incinerating, or organic

waste composting toilet and a gray water

system and drainfield in accordance with

department rules; an aerobic treatment unit

and drainfield in accordance with department

rules; a system approved by the state health

office that is capable of reducing effluent

nitrate by at least 50 percent; or a system

approved by the county health department

pursuant to department rule other than a

system using alternative drainfield

materials. . . . (Emphasis supplied).

43. The purpose of Subsection (4)(t) is to provide

additional requirements for OSTDS located in the floodways of

the Suwannee and Aucilla Rivers. These provisions show a

particular legislative concern for these environmentally

important areas, hence the legislatively-imposed unique

requirements for these regions.

44. The stated legislative intent provides that when

attempting to place OSTDS in these floodways, "[T]he absorption

surface of the drainfield shall not be subject to flooding based

on 10-year flood elevations ." If one reads the entire text of

Section 381.0065(4)(t)1., a consistency through the entire text

of that paragraph is revealed which shows a legislative intent

centered on the actual placement of the bottom of a drainfield

system in relation to the 10-year flood elevation. It is not a

subjective concern that the absorption surface of such a

drainfield not be "subject to flooding," depending upon the type

of innovative, engineered system which might be capable of being

installed, which would, if operating correctly, isolate the

absorption surface itself from flood waters.

45. It is true that the first sentence of that

subparagraph, cited last-above, states that the absorption

surface "shall not be subject to flooding based on 10-year flood

elevations," rather than openly stating that the 10-year flood

elevation is a mandatory minimum elevation. However, when the

paragraph is read in its entirety, it can be seen that the

second sentence of (4)(t)1., provides a legislative explanation

of what "subject to flooding" actually means. In other words,

if one wishes to install a OSTDS in the flood zone of either

river, the drainfield must not be "subject to flooding," but if

one owns a lot which meets the exception language beginning in

the second sentence of that paragraph and the "applicant cannot

construct a drainfield system with the absorption surface of the

drainfield at an elevation equal to or above the 10-year flood

elevation," the exceptions beginning in that second sentence can

be applicable to that particular situation. The point is, if

one reads Section 381.0065(4)(t)1., Florida Statutes (2007), in

its entirety and in complete context, it is clear that the

legislature meant that "subject to flooding" meant that one does

not place the bottom of the drainfield below the 10-year flood

elevation in the Suwannee and Aucilla River flood plains (unless

the exceptions are met). The system proposed by the Petitioner

is a closed drainfield system designed to withstand the flood

waters by isolation of the drainfield surface through the use of

a maintained positive air pressure. The Petitioner thus

contends that the above-referenced requirement regarding the

absorption surface not being subject to flooding is met by the

particular devices installed, with regard to the drainfield,

referenced in the Findings of Fact.

46. The Petitioner contends that Section 381.0065, Florida

Statutes (2007), contemplates the use and installation of

innovative systems, such as the No mound system and, because it

is a closed system, and is designed to withstand the pressure of

flood waters, that the absorption surface will not be subject to

flood waters as contemplated by the statute. However, the

purpose of the above-cited subsection, in relation to the

remainder of Section 381.0065, Florida Statutes, which provides

the framework for OSTDS regulation, simply provides additional

requirements for OSTDS systems to be located within the 10-year

flood elevation of the Suwannee and Aucilla River basins,

without regard to the type of system proposed.

47. Section 381.0065 addresses permitting, siting,

construction, installation, inspection, operation, maintenance,

modification, repair and abandonment of onsite systems. It also

provides for variances, special consideration for sensitive

areas such as the Suwannee and Aucilla River flood zones,

Department evaluation of onsite system additives, and the

development and permitting of alternative treatment units and

innovative system designs.

48. While that section contemplates innovation, design

provisions for engineer-designed, performance-based systems, are

found in Section 381.0065(4)(j), and innovative systems in

Section 381.0065(3)(e), not in Section 381.0065(4)(t).

49. The No Mound Corporation has already been issued an

innovative permit, to install 250 systems in Florida. When

installing an OSTDS, No Mound must still meet all remaining

requirements of Section 381.0065. If the absorption surface of

a drainfield for any OSTDS, without regard to the type of

system, is at an elevation less than the 10-year flood

elevation, pursuant to Section 381.0065(4)(t)1., a. through c.,

all three of the statutorily-enumerated exceptions must be met,

and engineering design is not one of them. If all of the

exceptions are not met, then no OSTDS system, including the no

mound system, is allowed to be constructed in the floodway of

the Suwannee River.

50. In enacting the Section 381.0065(4)(t), Florida

Statutes (2007), the legislature was not concerned with whether

the engineering design or innovative devices for a particular

type of drainfield system would render it flood proof. Rather,

it was concerned with the location of the drainfield, deeming

it, in effect, to be "subject to flooding" if it was located

beneath the 10-year flood elevation.

51. It is well-settled that legislative intent is the

principal concept regarding statutory construction. Reynolds v.

State of Florida , 842 So. 2d 46, 49 (Fla. 2003); McGhee v.

State , 847 So. 2d 498, 501 (Fla. 4th DCA 2003). Legislative

intent derives primarily from statutory language itself, which

is the most reliable and authoritative expression of such

intent. Reynolds , 842 So. 2d at 49; McGhee , 847 So. 2d at 501.

52. The statutory language must be read and considered in

its entirety when making an interpretation. Jones v. ETS of New

Orleans, Inc. , 793 So. 2d 912, 915 (Fla. 2001) (". . .

[S]tatutory phrases are not to be read in isolation, but rather

within the context of the entire section." Acosta v. Richter ,

671 So. 2d 149, 154 (Fla. 1996)). Once legislative intent is

ascertained, all parts of the statute must be read conjunctively

to arrive at a consistent complete context. Statutory phrases

should be considered with a view to the entire context of the

section from which they come. Borden v. Est-European Insurance

Company , 921 So. 2d 587, 595 (Fla. 2006); Parker v. State , 874

So. 2d 683, 684 (Fla. 4th DCA 2004). It is clear, when reading

and considering Section 381.0065(4)(t)1., Florida Statutes, in

its entire context, that the legislature was really concerned

with avoiding placement of the bottom of a drainfield below the

10-year flood elevation.

53. The Department is the state agency charged with

administering the provisions of Section 381.0065, Florida

Statutes (2007). The construction or interpretation of a

statute by an agency which it is given power to administer it

will generally not be overturned unless clearly erroneous.

Laborer's International Union of North America, Local 478 v.

Burroughs , 541 So. 2d 1160, 1162 (Fla. 1989); Pan American World

Airways v. Florida Public Service Commission , 427 So. 2d 716,

719 (Fla. 1983); Wallace Corporation v. City of Miami Beach , 793

So. 2d 1134, 1140 (Fla. 1st DCA 2001). See also Cenac v. State

Board of Accountancy , 399 So. 2d 1013 (Fla. 1st DCA 1981) (an

agency's construction of statutes within its regulatory

jurisdiction is generally given deference because of the

agency's familiarity with the statutory scheme and its expertise

in administering the field being regulated); Roberts v. Ayers ,

380 So. 2d 1057 (Fla. 1st DCA 1979). The agency's construction

of a statute need not be the only possible interpretation or

even the most desirable one, but must only be within the range

of possible statutory construction. Orange Park Kennel Club,

Inc., v. Department of Business and Professional Regulation , 644

So. 2d 574, 576 (Fla. 1st DCA 1994); Florida League of Cities v.

Department of Environmental Regulation , 603 So. 2d 1363, 1369

(Fla. 1st DCA 1992).

54. If one considers Section 381.0065(4)(t), Florida

Statutes (2007), in its entirety, along with the remainder of

that statutory section, it becomes apparent that the legislature

was concerned with creating special consideration for the area

of the floodways of the Suwannee and Aucilla Rivers. It

intended to ensure that drainfields not be subject to flooding,

by requiring construction of them with an absorption surface at

an elevation equal to or above the 10-year flood elevation.

Design standards are established elsewhere in Section 381.0065,

Florida Statutes (2007). Once a permit is granted for an

innovative design system such as the no mound system, that

system must still meet all other requirements of Section

381.0065, including the provisions of paragraph (4)(t).

55. In summary, the Department is the agency with the

authority as well as expertise to administer Section 381.0065,

Florida Statutes. Its interpretation of Section 381.0065(4)(t),

Florida Statutes, is the more reasonable interpretation of those

proposed and it is not clearly erroneous. Its interpretation

reflects the most likely rationale and context of the

legislature's intent in the enactment of the subject provision.

Its interpretation is deemed correct.

56. Even if that were not the case, the above Findings of

Fact reveal a number of problems or potential problems with the

no mound system. There are several unanswered questions as to

the installation and operation of the no mound system to be

placed on the Sevick property. The primary concern is the

question of how effective the anchoring system would be, given

that some expert testimony and evidence seemed to rely on the

anchors being at a 10-foot depth below the ground surface, while

the design and apparent installation plans would indicate that

they would actually begin four feet below the ground surface.

The unanswered questions also include what might happen if

flood-caused erosion removed soil relied upon to exert a

sufficient downward force on the anchoring system to hold the

membrane in place. Thus, there is the potential that, through

flood-caused erosion, the membrane, and the air pressure that it

is supposed to maintain, might be displaced, rendering the

drainfield absorption surface subject to flooding in such an

event.

57. Moreover, the evidence supportive of the above

Findings of Fact does not clearly establish that, in the event

of a power failure, even taking into account the back-up battery

power system, a sufficient air pressure could be maintained

beneath the membrane of the drainfield system so as to exclude

flood waters and to maintain the required 24-inch separation

between the bottom of the drainfield system and the groundwater

elevation. Thus, even if the Petitioner's interpretation of the

referenced statute regarding the meaning of "subject to

flooding" is correct, the preponderant evidence, supportive of

the above Findings of Fact, shows that the drainfield's

absorptive surface could be subject to flooding, in a flood

event.

Un-adopted Rule Issue

58. The Petitioner contends that the Department applied an

un-adopted rule in its review of the permit application. The

Petitioner maintains that the Department expanded the definition

of the term "flooding" contained in Florida Administrative Code

Rule 64E-6.002(25) so as to include a location and elevation

requirement. The permit was denied, however, based upon the

Department's interpretation of the statute involved, Section

381.0065(4)(t)1., Florida Statutes (2007). Even had the rule

definition of flooding been considered during the review of the

application there is no evidence to show that the Department

expanded the term "flooding" and employed an un-adopted rule.

59. A rule is defined in Section 120.52(15), Florida

Statutes (2008), as an agency statement of "general

applicability." The statement of general applicability

regarding definition of the term "flooding" is codified in

Florida Administrative Code Rule 64E-6.002(25) and defines it as

"a covering of the soil surface by water from any source. . . ."

60. The definition of flooding in the Department's rule is

used within the context of Section 381.0065(4)(t)1., which

statute is concerned with elevation requirements regarding the

flood zones of the Suwannee River. The statute thus states that

the absorption surface of the drainfield shall not be subject to

flooding, based on 10-year flood elevations, and also states

that if the three exceptions are all met that an applicant who

cannot construct a drainfield system with the absorption surface

equal to or above the 10-year flood elevation may still be

issued a permit based upon the three exceptions, quoted above.

61. In the case of Environmental Trust v. Department of

Environmental Protection , 714 So. 2d 493, 498 (Fla. 1st DCA

1998), the First District Court of Appeal considered the

question of the use of an agency's rule of general applicability

within the context, or applicable to, a particular set of facts.

The court opined:

An agency statement that is the equivalent

of a rule must be adopted in the rulemaking

process. . . .

This requirement, carried forward in Section

120.54(1), Florida Statutes (supp. 1996),

prevents an administrative agency from

relying on general policies that are not

tested in the rulemaking process, but it

does not apply to every kind of statement an

agency may make. Rulemaking is required

only for an agency statement that is the

equivalent of a rule, which is defined in

Section 120.52(15), Florida Statutes (1996),

as a statement of "general applicability."

An agency statement explaining how an

existing rule of general applicability will

be applied in a particular set of facts is

not itself a rule. If that were true, the

agency would be forced to adopt a rule for

every possible variation on a theme, and

private entities could continually attack

the government for its failure to have a

rule that precisely addresses the facts at

issue. (Citations omitted)

62. In this case had the Department considered the rule

term "flooding" during the course of its review of the OSTDS

application, it would have done so within the context of the

statute which specifically addresses the issue of locating such

systems in the Suwannee and Aucilla River floodways and which

is also concerned with the placement of drainfield absorption

surfaces in relation to the 10-year and two-year flood

elevations. The use of the existing rule of general

applicability (the flooding rule), applied to the particular set

of facts, which includes a statute which contemplates location

and elevation, does not mean that the definition of the term

"flooding" found in Florida Administrative Code Rule 64E-

6.002(25) has been expanded to include a location and elevation

requirement. The statute itself contained that definition.

63. A plain reading and consideration of that rule

demonstrates that the 10-year flood elevation is indeed

contemplated within that rule where it states as follows:

Flooding - A covering of soil surface by

water from any source, such as streams

overflowing their banks, runoff from

adjacent or surrounding slopes, elevation of

the groundwater table exceeding that of the

soil surface, or combination of these.

Terms also associated with flooding and used

elsewhere in this chapter are:

(a) Frequent-flooding which occurs more

than once every two years on the average;

(b) Ten year flood elevation -that flood

elevation which has a 10 in 100 probability

of being equaled or exceeded in any calendar

year.

64. Moreover, regarding the Petitioner's interpretation of

the "subject to flooding" standards, it must be remembered that

the absorption surface of the drainfield is defined as "the

total surface area of soil at the bottom of the drainfield."

Fla. Admin. Code Rule 64E-6.002(1). If flooding is a covering

of soil surface as defined in the above-cited rule, and the

absorption surface is at the bottom of the drainfield, which is

obviously located beneath the soil surface, clearly when the

soil surface is covered or submerged by water, anything beneath

that surface is subject to flooding, including the absorption

surface of the drainfield, given the rule's definition.

65. Section 381.0065(1), Florida Statutes, provides a

statement of the legislature's intent in enacting the OSTDS

regulatory program, including public health and environmental

concerns, where it is stated:

It is further the intent of the legislature

that the installation and use of onsite

sewage treatment and disposal systems not

adversely affect the public health or

significantly degrade the groundwater or

surface water.

66. If effluent from OSTDS systems is not properly treated

and disposed of, it can pose a public health hazard involving

pathogenic constituency and potential environmental degradation

in the form of excessive nutrients, principally nitrogen and

phosphorous in the groundwater or surface waters. These are the

public health and environmental degradation-type concerns the

legislature was treating in enacting the regulatory program

involved.

67. The evidence adduced at hearing shows that there have

been some operational problems with no mound systems in the

past, as described in the above Findings of Fact. More

pointedly, however, it has not been demonstrated persuasively

that the no mound system proposed to be placed on the Sevick

property has been adequately tested and found to safely address

the proper disposal and treatment of effluent through the

subject drainfield. The evidence is not persuasive in terms of

demonstrating that sufficient air pressure can be maintained in

order to sustain the required 24-inch differential of

unsaturated soil below the absorption surface. The air pressure

necessary to perform that function, especially under varying

ground and surface water levels, including varying flood

conditions, were not definitively established. This is

especially problematic under conditions of pump failure due to

inadequacy of the solar-charged battery system, if primary power

is interrupted, or if failure occurs due to maintenance issues.

68. Moreover, there is a significant potential for

erosion, due to flood waters compromising the integrity of the

soil anchoring system and the membrane, and therefore the air

pressure within the drainfield system. The evidence shows that

the anchors, rather than being 10 feet beneath the soil surface

may only be as little as four feet below the surface (top of the

anchors). It has not been demonstrated by preponderant,

persuasive evidence that they could maintain sufficient downward

force so as to stabilize the anti-buoyancy beams, cover and

membrane system, and therefore preserve the integrity of the

membrane in a flood and erosion situation, particularly a 10-

year flood event.

69. Thus, it has not been clearly established, aside from

the findings and discussions regarding the legal effect on the

permit application of the 10-year flood elevation standards,

that the system will definitely work adequately as designed and

installed. On balance, it must be determined that the permit

should therefore be denied, subject to the applicant's statutory

opportunity to apply for a variance, which may result in his

ability to install an OSTDS system of some type, similar to

those described above, which may provide adequate treatment,

even if below the 10-year flood elevation.

70. In this connection, the preponderant evidence of

record does not establish that the Petitioner purchased the lots

in question with the intent to create a hardship situation with

regard to variance requirements and standards, nor does it

establish that he was aware, upon purchase of the lots, that the

subject legal interpretation might be made and that the

resultant legal difficulty in installing such a system below the

10-year flood elevation might ensue. The evidence adduced does

not establish that he was even aware of the 10-year flood

elevation when he purchased the property.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

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.