03-001527 Plastic Tubing Industries, Inc. vs. Department Of Health, Bureau Of Onsite Sewage Programs Status: Closed Recommended Order on Thursday, December 11, 2003.

Summary: Petitioner proved by a preponderance of the evidence that Respondent, in January 1997, approved its request to use an alternative drainfield system such that 1 linear foot of Petitioner`s 9-pipe system is equivalent to 3 square feet of mineral aggregate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLASTIC TUBING INDUSTRIES, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 03 - 1527

)

DEPARTMENT OF HEALTH, BUREAU OF )

ONSITE SEWAGE PROGRAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given, and on September 22 and 23, 2003, a final

hearing was held in this case. Pursuant to Sections 120.569 and

120.57(1), Florida Statutes, the final hearing was conducted by

Charles A. Stampelos, Administrative Law Judge, in Orlando,

Florida.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302 - 1838

For Respondent: Richard P. McNelis, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

Whether, on January 14, 1997, the Department of Health

(Department or DOH), approved a n alternative drainfield system

for Plastic Tubing Industries, Inc. (PTI), consisting of a 9 -

pipe system on an equivalency of one linear foot of PTI's system

to two square feet of mineral aggregate or one linear foot of

PTI's system to three square feet of mineral aggregate.

PRELIMINARY STATEMENT

On January 14, 1997, the Department approved PTI's request

for a 9 - pipe system as an alternative drainfield system.

Thereafter, a controversy arose as to the specific scope of the

Department's approval. PTI cla imed that the Department had

approved its 9 - pipe system, such that one linear foot of PTI's

9 - pipe system was equivalent to three square feet of mineral

aggregate, rather than two square feet of mineral aggregate. On

March 18, 2003, the Department advised PTI in writing that it

stood by its previous decisions on the matter.

On April 2, 2003, PTI filed a Petition for Formal

Administrative Proceedings (Petition) with the Department to

contest the Department's March 18, 2003, action.

On or about April 16, 2003, the Department filed a motion

to dismiss PTI's Petition on the ground that it was untimely

filed. PTI filed a response.

On April 30, 2003, the Department referred the Petition to

the Division of Administrative Hearings (DOAH) for the

assignment of an administrative law judge. (The Department did

not rule on the Department's motion to dismiss.)

On May 1, 2003, the Department filed a motion to relinquish

jurisdiction to the Department so that the Department could rule

on the motion to dismiss. O n May 2, 2003, PTI filed a response

opposing the Department's motion to relinquish jurisdiction. On

May 19, 2003, Administrative Law Judge J. Lawrence Johnston

denied the Department's motion to relinquish jurisdiction.

Judge Johnston also determined that the Department's motion to

dismiss was considered to be still pending.

On March 27, 2003, the Department filed a renewed motion to

dismiss PTI's petition as untimely. On March 28, 2003, the

Department filed a motion in limine which closely tracked its

renewed motion to dismiss, but requested that PTI be prohibited

from introducing any evidence on any matter which arose after

January 14, 1997, the date of the Department's approval letter.

On June 5, 2003, PTI filed a response to the Department's

rene wed motion to dismiss and motion in limine.

After hearing argument of counsel on June 6, 2003, the

Department's motions were denied by Order dated June 6, 2003.

In a Corrected Order, entered on June 9, 2003, the parties were

"requested in their pre - hear ing stipulation to address the

issue of which party has the burden of proof and what is the

standard of proof, e.g. , a preponderance of the evidence, in

this proceeding."

On June 10, 2003, the parties consented to continue the

final hearing scheduled f or June 25 - 27, 2003, and the final

hearing was rescheduled for final hearing on September 22 - 24,

2003.

A pre - hearing conference was held on September 19, 2003, to

address the order of proof, burden of proof, and the standard of

proof. Prior to this telep hone pre - hearing conference, the

Department filed a memorandum of law and PTI filed a response.

After hearing argument of counsel, it was determined that PTI

would proceed first, followed by the Department, followed by PTI

for rebuttal only, and followed by the Department for

surrebuttal only. It was further ordered that each party would

bear the burden to prove its respective position as stated in

its respective pre - hearing stipulation, and that each party was

to assume that it had the burden of proof in this proceeding.

The applicable standard of proof would be determined in the

recommended order. See Order, September 19, 2003.

The parties introduced into evidence Joint Exhibits 1 - 11.

PTI called four witnesses: Michael C. Maroschak, Douglas

P. E verson, Scott Thomson, and John E. Garlanger, Ph.D., P.E.

Dr. Garlanger was accepted as an expert witness in hydrology,

hydro - geology, and geotechnical engineering. PTI Exhibits 1 - 7,

and 9 - 15 were admitted.

The Department called two witnesses: Fred Atc hley and Paul

W. Booher, P.E. The Department Exhibits 1 - 4 were admitted.

A transcript of the hearing was filed on October 14, 2003.

After granting two unopposed extensions of time, each party

filed a proposed recommended order, which have been considere d

in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner, Plastic Tubing Industries, Inc. (PTI),

formerly Plastic Tubing, Inc., was originally formed in Florida

in 1974. PTI manufactures plastic drain pipe and the fitting s

that accompany such pipe. Many of its products and processes

are patented.

2. In conjunction with its business, PTI has developed

several alternative drainfield systems that utilize plastic

tubing or corrugated pipe in lieu of a standard subsurface

system made with mineral aggregate for septic tank drainfields.

An alternative drainfield system substitutes pipe, or other

materials, for aggregate (gravel or rock) used in traditional

systems.

3. Before installation in the State of Florida, PTI was

required to obtain approval for its alternative drainfield

system from the Department. See Fla. Admin. Code R. 10D - 6.049,

effective January 3, 1995, amended November 19, 1997, and

February 3, 1999; and replaced with Fla. Admin. Code R. 64E -

6.009.

4. The Department was, at all times relevant to this

administrative proceeding, the state agency authorized to

approve the use of alternative systems (to standard subsurface

systems) in the State of Florida. Approvals of alternative

systems were based on the Department's analy sis of, in part,

plans prepared by an engineer registered in the State of Florida

and submitted by applicants. See Rule 10D - 6.049. 1

Septic Tanks and Drainfields

5. "Alternative system" means "any approved onsite sewage

treatment and disposal system used in lieu of, including

modifications to, a standard subsurface system." Rule 10D -

6.042(3). "Standard subsurface drain field system" means "an

onsite sewage system and disposal system drain field consisting

of a distribution box or header pipe in a drain tren ch or

absorption bed with all portions of the drain field side walls

installed below the elevation of undisturbed native soil (see

Figure 3)." Rule 10D - 6.042(45).

6. The primary purpose of any on - site septic tank system,

and ultimately, the septic tank drai nfield, is the storage and

dispersal of wastewater until the soil can accept it. In other

words, a drainfield is a transmission device that takes water

and other liquids from a septic tank to the ground. Liquids

leave the septic tank into the drainfield which is designed to

store the liquid before letting it flow into the ground or soil.

Mineral aggregate provides a conducive medium to spread and

temporarily store the effluent.

7. Storage capacity refers to the amount of effluent coming

out of a septic tan k that will be stored in the aggregate or

aggregate alternative, here the pipes, until the ground will

accept the effluent.

8. Filtrative surface area refers to the openings (in the

pipe or aggregate) that allow the water/effluent to leave the

storage area a nd enter the soil. In the case of mineral

aggregate, the openings between the aggregate provide an exit

for the water/effluent into the soil. With respect to PTI's

pipe product, the water leaves the holes in the pipes and

travels through voids created fr om the ridges and valleys of the

pipes and enters the soil.

9. An alternative system is evaluated by how the

alternative system compares in function (storage capacity and

filtrative surface area) to mineral aggregate.

10. In November 1998, the Department def ined "reduction"

for the first time to mean any change in the actual bottom area

size of the drainfield or a change in the footprint of a

drainfield. For example, if a product system is 33 - inches wide,

it would have a reduction because it is less than 36 inches

wide. Prior to November 1998, reduction referred to a reduction

in linear feet, rather than total trench area or footprint.

Thus, if 80 feet of an alternative product could function as

well as a 100 - foot trench of aggregate, a reduction of 20 feet

would occur. PTI did not ask for a reduction in drainfield

linear footage, and in particular, regarding the 9 - pipe system.

The Approval Process

11. On or about April 21, 1995, PTI submitted a letter to

the Department which apparently requested approval "to u tilize

both the 9 - pipe and 13 - pipe configurations in lieu of mineral

aggregate material in septic tank drainfield systems."

(Petitioner Exhibit 2.) This letter is not part of the final

hearing record, but is reflected in the Department's May 24,

1995 let ter from Paul Booher, P.E., to Fred Atchley, on behalf

of PTI. 2 (The quoted language is from the May 24, 1995 letter.)

12. In the May 24, 1995, letter, the Department requested

PTI to provide additional information to assist the Department

in its evaluation o f PTI's request. In part, the Department

stated that there are three mechanisms that affect the

performance of the infiltrative surface, i.e ., chemical,

biological, and physical, and that "[b]iological, and perhaps

other physical (soil size) consideration s, affect the

performance of drainfield systems."

13. By letter dated July 7, 1995, PTI's engineer, John E.

Garlanger, Ph.D., P.E., a principal with Ardaman & Associates,

Inc., provided PTI, to the attention of Mr. Atchley, a

letter/report which responded to the Department letter of

May 24, 1995. Dr. Garlanger stated in part: "As requested,

Ardaman & Associates, Inc. has prepared cross - sectional drawings

showing the dimensions associated with the installation of a 9 -

pipe and 13 - pipe Rockless Drain Field Sys tem (PTI System) in

both mound trench and subsurface trench drain field system." In

addition to the letter/report, Dr. Garlanger provided a drawing

labeled "Installation Guidelines Multi - Pipe Rockless Drain Field

System Plastic Tubing Industries, Inc.," F ile No. 95 - 104.

(Joint Exhibit 1.)

14. The July 7, 1995, drawing depicts the 9 - pipe system

and 13 - pipe system. The 9 - pipe system consists of nine four -

inch diameter corrugated polyethylene pipes. Four pipes are

placed on top of five pipes and one of the fou r pipes is a

distribution pipe. The nine pipes are bundled together, are

8.63 inches in height and 23.25 inches in width, and depicted

within a two - foot wide trench. Note 4 of 6 on the drawing

indicated that the "ACTUAL WIDTH OF BOTH 9 - PIPE AND 13 - PIPE

S YSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY

UP TO 10 % DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES."

(The same drawing also illustrates the 13 - pipe system with six

pipes placed on top of seven pipes and bundled. The 13 - pipe

system is 8.63 inches in height and 32.375 inches in width and

depicted within a three - foot wide trench. Note 4 is also

referenced. (Joint Exhibit 1.))

15. Dr. Garlanger provided six notes to the July 7, 1995

drawing, as follows:

1.) STORAGE VOLUME BENEATH BOTTOM OF 0.75 -

INCH DIAMETER PERFORATIONS IN DISTRIBUTION

PIPE FOR 9 - PIPE SYSTEM IS GREATER THAN 1180

in 3 /ft (5.1 gal/ft) [1190 in 3 /ft (5.2

gal/ft)] AND FOR 13 - PIPE SYSTEM IS GREATER

THAN 1690 in 3 /ft (7.3 gal/ft) [1710 in 3 /ft

(7.4 gal/ft)]. THIS COMPARES WITH A STORAGE

VOLUME OF 660 in 3 /ft (2.8 gal/FT) FOR

CONVENTIONAL 2 - FOOT WIDE AGGREGATE - FILLED

TRENCH AND 1000 in 3 /ft (4.3 gal/ft) FOR A

CONVENTIONAL 3 - FOOT WIDE AGGREGATE - FILLED

TRENCH.

2.) TOTAL AVAILABLE STORAGE VOLUME WITHIN

9 - PIPE SYSTEM IS 1985 in 3 /ft (8.6 gal/ft)

[2070 in 3 /ft (8.9 gal/ft)] AND WITHIN 13 - PIPE

SYSTEM IS 2910 in 3 /ft (12.6 gal/ft) [2980

in 3 /ft (12.9 gal/ft)]. THIS COMPARES WITH A

TOTAL STORAGE VOLUME OF 1185 in 3 /ft (5.13

gal/ft) [1200 in 3 /ft (5.2 gal/ft)] FOR 2 - FOOT

WIDE, 12 - INCH DEEP AGGREGA TE SYSTEM AND 1790

in 3 /ft (7.75 gal/ft) [1800 in 3 /ft (7.8

gal/ft)] FOR A 3 - FOOT WIDE, 12 - INCH DEEP

AGGREGATE SYSTEM.

3.) THE BOTTOM AREA AVAILABLE FOR

FILTRATION IS GREATER THAN 160 in 2 /ft FOR THE

9 - PIPE SYSTEM AND GREATER THAN 220 in 2 /ft FOR

THE 13 - PIPE SYSTEM. COMPARABLE BOTTOM AREAS

FOR AGGREGATE SYSTEMS ARE 100 in 2 /ft FOR A 2 -

FOOT TRENCH AND 150 in 2 /ft FOR A 3 - FOOT

TRENCH.

4.) ACTUAL WIDTH OF BOTH 9 - PIPE AND 13 - PIPE

SYSTEMS AFTER PLACEM ENT IN THE TRENCH IS

GREATER THAN SHOWN B Y UP TO 10% DUE TO

SPREA DING OF THE PIPES WI THIN THE BUNDLES.

5.) PERFORATIONS [I N DISTRIBUTION PIPE] ARE

SPACED 4" ON CENTER. PERFORATION AREA I S

2.65 in 2/ LINEAL FOOT.

6.) EITHER OF THE UPPER PIPES IN THE

DISTRIBUTION PIPE BUNDLE MAY BE USED FOR THE

DISTRIBUTION PIPE. THE LO WER PIPE SHALL NOT

BE USED FOR THE DISTRIBUTION PIPE. [THE

DISTRIBUTION PIPE SHALL BE MARKED WITH A

REFERENCE LINE TO ORIENT THE PERFORATIONS.

THE DISTRIBUTION PIPE SHALL BE COUPLED

BETWEEN EACH BUNDLE TO PROVIDE A CONTINUOUS

LENGTH OF PIPE.]

(The langu age appearing in brackets appears in the revised

drawing, Joint Exhibit 2, submitted by PTI with Dr. Garlanger's

December 8, 1996, letter, DOH Exhibit 4.)

16. In his July 7, 1995 letter to PTI, Dr. Garlanger, in

responding to Mr. Booher's letter of May 24, 199 5, stated in

part:

Explain how the pipe bundles fulfill the

requirement for a 12 - inch deep drain field?

Paragraph 10D - 6.056(3)(e) requires the

mineral aggregate material have a total

depth of at least 12 inches and that the

distribution pipe have a mini mum of six

inches of aggregate under the pipe. The

purpose of the aggregate is to provide a

highly conductive medium to spread and

temporarily store the wastewater above the

infiltrative surface between loading cycles.

Twelve inches of mineral aggregate in a 2 -

foot wide trench can store approximately

5.25 gallons of wastewater per foot.

Deducting the dead storage below the

perforations in the distribution pipe, the

total available storage in a conventional 2 -

foot wide trench drain is 5.13 gallons per

foo t and in a conventional 3 - foot wide

trench is 7.75 gallons per foot.

The height of the 9 - pipe and 13 - pipe systems

is 8.360 inches. The distance from the

bottom of the trench to the bottom of the

perforations in the distribution pipe is

4.836 inches. The total available water

storage in a 9 - pipe system after deducting

the dead storage is 8.60 gallons per foot

and in a 13 - pipe system after making the

same deduction is 12.58 gallons per foot.

In both cases, the total available storage

is greater for the PT I system. [ See Note 2

above.]

Note that the total available water storage

capacity below the bottom of the

perforations in the distribution pipe is

also greater for the PTI System than for the

aggregate system: 5.1 gal/ft for the 9 - pipe

system compared to 2.8 gal/ft for a

conventional 2 - foot wide trench and 7.3

gal/ft for the 13 - pipe system compared to

4.3 gal/ft for the conventional 3 - foot wide

trench. [ See Note 1 above.]

Because the thickness of aggregate below the

pipe is less than the minimum requir ement of

6 inches, we are concerned about the

distribution of the effluent over the

infiltrative surface, especially since the

sidewalls are such an integral part of the

operation of the system.

The hydraulic conductivity of both the

aggregate system and the bundled pipe system

is several orders of magnitude higher than

that of the in situ sand that underlies the

drain field. In both cases, but certainly

for the PTI System, water flowing out of the

perforations in the distribution pipe can

spread out even ly across the infiltrative

surface. The depth to which the water rises

above the infiltrative surface depends

primarily on the inflow rate and the

hydraulic conductivity of the organic mat

that forms on the bottom of the trench.

Because of the differen ces in porosity

between the two systems, the water increases

in depth faster in the aggregate system than

in the PIT System. However, the ultimate

depth of water for a given inflow rate will

be roughly the same for both systems, i.e.,

when inflow equals o utflow. The only

difference between the two systems is in the

volume of water that is stored in the trench

during each loading period; the PTI System

stores more.

There should be no significant difference in

the effect of the sidewalls on the

infiltrativ e capacity of the two systems.

The effect of increasing sidewall seepage on

the overall hydraulic performance of a drain

field system is not large. For a 2 - foot

wide trench, increasing the sidewall seepage

by raising the water depth from 5 to 6

inches i ncreases the peak infiltration rate

by less than 7 percent. The corresponding

increase for a 3 - foot wide trench is less

than 5 percent.

State the area per lineal foot of bundle

that constitutes the infiltrative surface.

The surface area at the bottom of the trench

that is available for filtration of

suspended solids in the effluent is greater

than 160 in 2 /lineal foot for the 9 - pipe

system and greater than 220 in 2 /lineal foot

for the 13 - pipe system. This compares with

100 in 2 /lineal foot for a 2 - foot wid e

aggregate - filled trench and 150 in 2 /lineal

foot for a 3 - foot wide aggregate - filled

trench. [ See Note 3 above.]

(The underlined portions are inquiries made by Mr. Booher. The

language in brackets refers to the "Notes" mentioned above.)

17. DOH Exhibit 3 is a copy of Dr. Garlanger's July 7,

1995, letter, which also contains Mr. Booher's comments of

August 14, 1995. It is noted that Dr. Garlanger discusses the

calculations which appear in Notes 1, 2, and 3, in that portion

of Dr. Garlanger's letter/report rec ited above. Mr. Booher also

made notations on the July 7, 1995, drawing, with respect to,

among other things, the Notes. Material here, beside Note 3,

Mr. Booher wrote "Gravel Shadow? @ .35% open." (Joint Exhibit

1.) Mr. Booher also noted on Dr. Garlan ger's July 7, 1995,

letter/report " disagree " and other notations with respect to Dr.

Garlanger's explanation under the subject discussed in Note 3

above, and under the heading "State the area per lineal foot of

bundle that constitutes the infiltrative surf ace." (Emphasis in

original.) ( See Finding of Fact 16, p. 13.)

18. On October 15, 1996, Mr. Booher requested additional

information from Mr. Atchley, as follows:

Per our conference call yesterday please

provide the following for approval of the

rockless p ipe drainfield:

1. A written request.

2. Drawings showing the distribution and

void pipe locations. Indicate the pipe

bundle configurations.

3. If you intend to use the notes on

drawing 95 - 104 titled "Installation

guidelines - Multi - pipe rockless drainfi eld

system" please fully include and explain the

calculations, including drawings with the

areas calculated shown by shading.

4. Explain comparison calculations. For

example, gravel percent voids used,

effective gravel depth, percent assumed for

gravel s hadowing and how determined, percent

used for pipe shadowing and how determined.

5. If the distribution pipes are of

different material than the void pipe please

so indicate.

6. Reference the applicable ASTM standard

for all materials.

Below item 6, th e following handwritten note (by Mr. Booher)

appears: "Fred - Don't get optomistic [sic] - we are attempting to

define 'gravel equivalent.'" (Joint Exhibit 5.)

19. In response to Mr. Booher's October 15, 1996, request

for additional information, on December 8, 1 996, Dr. Garlanger

provided a two - page letter, and Attachment 1 to Mr. Atchley.

Attachment 1 provided "Calculations for Storage Volumes and

Infiltration Areas for Multi - Pipe Rockless System and

Conventional Gravel Drain." Material here, Attachment 1

cont ained a summary of Dr. Garlanger's conclusions (and the

actual calculations) comparing PTI's multi - pipe system, 9 - pipe

and 13 - pipe, to 24 and 36 - inch wide gravel - filled trenches,

regarding three parameters: storage volume below holes in the

distribution p ipe; filtration area; and total storage volume in

the system. The specific calculations and illustrations are

provided, including "area and volume calculations," in

Attachment 1 on pages 1 - 10. (DOH Exhibit 4 and Joint

Exhibit 4.)

20. Dr. Garlanger also provi ded comparison calculations

responding to item 4 in Mr. Booher's October 15, 1996 letter

( see Finding of Fact 18) as follows:

Explain comparison calculations. For example, gravel

percent voids used, effective gravel depth, percent

assumed for gravel shado wing and how determined.

The comparison calculations are presented in

Attachment 1. The gravel porosity was calculated

based on a typical dry density for loosely placed FDOT

No. 57 stone of 110 pcf and a specific gravity for

limestone of 2.8, resulting i n a calculated porosity

of approximately 35 percent. For a conventional

gravel - filled trench, the area available for

filtration was calculated as the total area of the

gravel times porosity, i.e., the percent assumed for

gravel shadowing was 100 - 35=65 per cent. For the multi -

pipe rockless drain, the contact between the bottom of

each pipe and the ground surface was taken as 2 inches

per lineal inch of pipe which provides sufficient

bearing area to support the overburden pressure.

Computation of equivalent storage in the gravel

assumed a minimum of 6 inches of No. 57 stone beneath

the invert of the pipe and a distance of 0.83 inches

from the invert of the pipe to the bottom of the drain

holes.

(Emphasis added.) (Mr. Booher's request is underlined before

Dr . Garlanger's response.)

21. Dr. Garlanger also provided a drawing labeled

"Installation Guidelines Multi - Pipe Rockless Drain Field System

Plastic Tubing Industries, Inc.," File No. 95 - 104. This drawing

reflects general revisions of October 11, 1995, and Dece mber 6,

1996, to the original drawing dated July 7, 1995, which

accompanied Dr. Garlanger's July 7, 1995, letter to Mr. Atchley.

See Findings of Fact 14 - 15.

22. Six "Notes" were presented in the December 6, 1996,

drawing revisions, with some changes made to N otes 1, 2, 5, and

6 which do not appear to be material. See Finding of Fact 15.

No changes are made to Notes 3 and 4. Material here, Note 3

pertains to "the bottom area available for filtration" and Dr.

Garlanger's calculations showing the 9 - pipe system comparing

more favorably (equal to or greater) to a 24 and 36 - inch (two

and three feet wide, respectively) wide aggregate (gravel)

trench without any changes in response to Mr. Booher's

August 14, 1995, comments and October 15, 1996, request for

additiona l "comparison calculation" and explanation regarding

"gravel shadowing." (Notes 1 - 3 are derived from the

calculations appearing in Attachment 1, pages 1 - 9.)

Dr. Garlanger's submissions indicated that one linear foot of

the 9 - pipe system is equal to or gr eater than three square feet

of gravel. Also, the representation that the 9 - pipe system fits

within a 24 - inch trench does not relate to equivalency. See

Finding of Fact 36.

23. Dr. Garlanger's December 8, 1996, letter, with

Attachment 1, and the revised draw ing, were forwarded to Mr.

Booher with a cover letter from Mr. Atchley, dated December 11,

1996. Mr. Atchley stated in his letter:

Enclosed are the drawings and calculations

you requested. The "numbers" add up

favorably. I look forward to your response

and anticipated approval based on this

information. Please notice the difference

in volume (total capacity), porosity and

filtrative surface area. Based on these

calculations we could justify a reduction of

up to 40%. However, we do not wish to apply

for any reduction at this time. We do ask

that the bed installation constraint be

removed from our acceptance letter.

There seems to be more and more bed type

installations even though the FAC 10D - 6

clearly states that a trench system is the

preferred me thod. Consequently, we will be

requiring that certified installers of our

systems employ a method of back filling that

will insure against collapse of any part of

the system. This method would also have to

provide within reason, a guaranty against

operat ing any equipment onto the drain field

area until sufficient cover has been

established. After 10 to 12 inches of cover

has been established we ask them to mark the

bed area with stakes and flagging to serve

as a warning to other sub - contractors such

as t he sod installers and the finished grade

tractor operator.

If there are any questions please call me at

(407) 298 - 5121.

(On January 13, 1997, Mr. Atchley also sent Mr. Booher a similar

letter, but also included some additional data regarding 1996

sales, including but not limited to average system size per

square foot, the number of active installers, installations per

month.)

24. On January 14, 1997, Mr. Booher issued the following

approval letter to Mr. Atchley:

Dear Mr. Atchley:

We have reviewed the engi neering

drawings dated 07/07/95 with revision 2

dated 12/06/96 and data prepared and sealed

by Ardaman & Associates dated December 8,

1996, and received in this office on

December 16, 1996. Your request for

alternative drainfield system approval

letters d ated December 11, 1996, and

January 13, 1997, have also been reviewed.

The PTI nine pipe bundle and PTI

thirteen pipe bundle Multi - Pipe Rockless

Drainfield Systems are hereby approved for

use in the State of Florida. We have

concerns about the total eff ective sidewall

contact surface area, especially when

systems are installed with no fall. We also

have concerns regarding the structural

integrity of the pipe bundle systems when

used in large bed applications.

Nevertheless, approval is granted based on

the design and recommendations submitted by

your professional engineer for which he is

solely responsible; the comparative data

versus a standard drainfield system; and the

satisfactory performance in Florida of

similar PTI Multi - Pipe Rockless Drainfield

S ystem installations.

Except as herein noted, all systems

shall be installed in accordance with

sections 381.0065 - 381.0067 Florida Statutes,

and all rules in Chapter 10D - 6, Florida

Administrative Code (FAC). All

installations shall be sized and installed

meeting all rules in Rule 10D - 6, FAC and

shall also meet the following conditions:

1. All licensed septic tank

contractors who are going to install these

systems shall be field instructed by

certified employees of PTI on the proper

installation and bac kfilling requirements of

the systems prior to installation.

2. Prior to the first installation in

each county, contact the local Health

Department to provide hands on training for

the county health department staff.

3. Both the 9 and 13 pipe bundle

sy stems can be installed in subsurface,

filled, or mound trench or bed systems. In

bed systems the maximum centerline to

centerline spacing of the distribution pipe

shall be 36 inches.

4. The distribution piping may be used

to house low pressure distribut ion networks.

5. A copy of the applicable limited

warranty shall be provided to each

homeowner/builder.

Department approval of any alternative

system application or any other type system

does not guarantee or imply that any

individual system installati on will perform

satisfactorily for a specific period of

time. The individual system design engineer

or the registered septic tank contractor if

an engineer didn't design the system is

primarily responsible for determining the

best system design to meet sp ecific

wastewater treatment and disposal needs and

to address the specific property site

conditions and limitations.

If you have any questions please call

us at (904) 488 - 4070.

(Emphasis added.) This letter was accompanied by a facsimile

sheet which in dicated, in part, that the Department intended to

"notify the 67 counties within the week."

25. On January 29, 1997, Mr. Booher authored an

Interoffice Memorandum which was issued from John Heber, Chief,

On - Site Sewage Program, Mr. Booher's supervisor at the time, to

the County Health Department Director/Administrator. (Joint

Exhibit 11.) This Interoffice Memorandum provided in part:

The PTI 9 pipe and 13 pipe "Multi -

Purpose Rockless Drainfield Systems"

have both been given alternative

systems approval for use in Florida.

The systems are to be installed in

accordance with drawing file number 95 -

104 dated 07/07/95, revision 2 dated

12/06/96, copy attached.

Except as hereby noted, systems

shall be installed in accordance with

sections 381.0065 - 381.0067, Florida

Statutes, and all rules in Chapter 10D -

6, Florida Administrative Code (FAC).

The following conditions apply:

1. The 9 pipe system shall be

rated at 1 linear foot equals 2 square

feet of drainfield area.

2. The 13 pipe system shall be

rated a t 1 linear foot equals 3 square

feet of drainfield area.

3. The 9 pipe and 13 pipe bundle

systems may be installed in subsurface,

filled or mounded trench or bed

applications. Dosing will be

acceptable when used to overcome a

gravity situation. Pressur ized systems

shall be designed and installed in

accordance with Chapter 10D - 6, Florida

Administrative Code. Please be

reminded that certain pressurized

dosing systems must be designed by

engineers registered in the State of

Florida. For designs requiring the use

of smaller diameter pipe (either screw

joint or glue joint), the 9 pipe and 13

pipe systems distribution pipe shall

house the pressurized pipe system.

4. All licensed septic tank

contactors who are going to install

these systems shall be field instructed

by certified employees of PTI on the

proper installation and backfilling

requirements of the systems prior to

installation.

5. Prior to the first

installation in each county, contact

the local Health Department to provide

hands on training fo r the county health

department staff.

6. A copy of the applicable

limited warranty shall be provided to

each homeowner/builder.

Department approval of any

alternative system application or an

other type system does not guarantee or

imply that any indi vidual system

installation will perform

satisfactorily for a specific period of

time. The individual system design

engineer (or the registered septic tank

contractor if an engineer does not

design the system) is primarily

responsible for determining the b est

system design to meet specific

wastewater treatment and disposal needs

and to address the specific property

site conditions and limitations.

If you have any questions, please

call me or Paul Booher, P.E., at (904)

488 - 4070, or SC 278 - 4070.

(Emphasis in original.)

26. On March 13, 1998, the Department issued a document

entitled "Onsite Sewage Treatment and Disposal Systems

Alternative Drainfield Products." This document describes

several product names including PTI's product as follows: "PTI

'NPRDS' 9 e a. - 2 - tier 13 ea. - 2 - tier." The engineer of record is

listed as Ardaman and Associates, and the type of permit issued

is referred to as "Alternative Status" along the same line as

"PTI 'MPRDS"" and "No reduction in area" along the line "9 ea. - 2

tier." Mr. Everson may have seen this chart prior to seeing the

November 27, 2000, chart mentioned below. But, the mention of

no reduction would have been consistent with his understanding

that reduction referred to a reduction in linear feet and PTI

did not reques t a reduction in linear feet.

27. On November 27, 2000, an employee of the Department

prepared a similar chart which included a description of product

names and included the same PTI product. However, under the

heading "Type of Permit Issued and Sizing Criter ia," the

following language appears:

PRODUCT NAME SUBMISSION APPROVAL CPHU ENGINEER TYPE OF PERMIT ISSUED

DESCRIPTION DATE DATE NOTIFICATION OF and SIZING CRITERIA

DATE RECORD

*** *** *** *** *** ***

PTI "MPRDS" 12/06/96 12/14/96 01/15/97 Ardaman

9 ea. - 2 tier and 1 linear foot of

Associates product = 2 sq ft of

mineral aggregate

13 ea. - 2 tier 1 linear foot of

product = 3 sq ft of

mineral aggregate

28. On February 26, 2001, the Department issued a similar

chart which contained the same information regarding PTI as the

November 27, 2000, chart, which appears above.

29. All of the charts were designed to provide guidance to

the local health departments regarding the alternative

drainfield systems approved in the State of Florida and the

ratings, e.g. , e quivalency, assigned to each. See Findings of

Fact 26 - 28.

30. The November 27, 2000, and February 26, 2001, charts

described PTI's 9 - pipe system approved by the Department on a

one - to - two square foot equivalency to mineral aggregate. In

late 2000, while work ing with a Department representative on an

industry presentation, Mr. Everson, vice president of PTI,

discovered the November 27, 2000, chart mentioned above. Mr.

Everson believed this representation to be incorrect and

reported it to Michael Maroschak, t he president of PTI.

Discussions transpired between representatives of PTI and the

Department.

31. Ultimately, the Department implicitly decided that the

Department had approved PTI's 9 - pipe system, consistent with

these charts. On March 18, 2003, the Depa rtment advised PTI in

writing that it "stands by its previous decisions on the

matter." PTI then filed its Petition challenging this agency

action.

Resolution of the Controversy

32. PTI has developed various pipe configurations to serve

as alternative drain field systems. PTI requested the Department

to approve its 9 - pipe and 13 - pipe bundle Multi - Pipe Rockless

Drainfield Systems in or around April of 1995. The 9 - pipe

system is the subject of this proceeding.

33. As early as May 1995, the Department understood t hat

PTI requested approval to utilize both PTI's 9 - pipe and 13 - pipe

configurations in lieu of mineral aggregate material in septic

tank drainfield systems. Over the course of over a year and a

half, in support of its approval request and in response to

qu estions posed by the Department, PTI, by and through Dr.

Garlanger, PTI's registered Professional Engineer, submitted an

engineering drawing (signed and sealed), as revised, and

specific specifications and calculations to indicate that one

linear foot of t he 9 - pipe system compared favorably, on paper,

with a conventional three - foot wide, 12 - inch deep (three square

feet) aggregate system.

34. The Department raised questions regarding PTI's

proposal to which PTI, and specifically Dr. Garlanger,

responded. Durin g the approval process, the Department raised

issues related to "gravel shadowing" and Dr. Garlanger's

calculations regarding the "bottom area available for

filtration." See , e.g. , (DOH Exhibit 3, p. 2; Joint Exhibit 1.)

35. Dr. Garlanger responded to these i nquiries. See ,

e.g. , (DOH Exhibits 3 and 4; Joint Exhibits 1 and 2.) Dr.

Garlanger has been a registered Professional Engineer in the

State of Florida since 1974 and has served as vice - president for

Ardaman & Associates and chief engineer since 1975. H e was

accepted as an expert in the areas of hydrology, hydro - geology,

and geotechnical engineering. Dr. Garlanger prepared and signed

and sealed the engineering drawings and all comparative data

submitted by PTI with its approval request.

36. Dr. Garlanger's engineering drawings, including the

"Notes" as revised, and calculations indicated favorable (equal

to or greater than) comparisons of one linear foot of PTI's 9 -

pipe system with two and three square feet of aggregate

(gravel). The fact that the 9 - pipe sy stem fits within a 24 - inch

or two - foot wide trench does not affect its equivalency to three

square feet of aggregate (gravel) with respect to the three

parameters in Notes 1 - 3 and in the calculations referred to in

Attachment 1. See Finding of Fact 22.

37. Du ring the final hearing, the Department, consistent

with written comments made during the approval process,

suggested that the "gravel shadowing" or "a shadowing technique"

that occurs with alternative systems to compare their

infiltrative surface area (bot tom area available for filtration)

to aggregate, has never been used by the Department "as an

evaluator." Mr. Booher 3 explained that this technique "reduces

the size of the actual area, the length times the width of the

drain field [sic], by a cross secti onal area of interrupting

gravel, saying the actual absorption area is reduced as a result

of the gravel that is sitting on the infiltrative surface and

reduces the total area, absorptive area, to about one - third of

the actual total area. And that's what [he] disagree[s] with."

38. Mr. Booher also stated that he would not approve a 9 -

pipe system at a three square - foot equivalent because of

biological loading. He explained his position in some detail.

39. In the May 24, 1995, letter to PTI, the Department

stat ed that it was "interested in verifying that the drainfield

environment will support aerobic treatment over the long term."

This question expressed the Department's concern regarding

"biological loading and problems that can develop. Dr.

Garlanger respon ded to this inquiry and his explanation was

accepted by Mr. Booher "because everyone claims it." See (DOH

Exhibit 3; Petitioner Exhibit 2, p. 3.)

40. The Department also contended that it did not approve

PTI's request because PTI did not ask for a "reduction ." Mr.

Booher explained during the final hearing that Dr. Garlanger's

drawings (Joint Exhibits 1 and 2) referred to "the 9 - inch pipe

and the 24 - inch trench and the 13 - inch pipe and the 36 - inch

trench because that note 4 says that if you put them in

accord ance with this document, then you will be a full 24 - inch,

9 - inch, 24 - inch equivalent and 36 - inch, 13 - pipe equivalent" and

that he "needed to restrict [his] review to no reduction in

area." Mr. Booher also commented on Note 3, for which he

disagreed during the approval process. It did not matter to Mr.

Booher that Dr. Garlanger used "the shadow masking technique

because [PTI] was not asking for any reduction." He considered

Note 3 as "just more information, as opposed to an evaluation

for determination of the sizing." In other words, according to

Mr. Booher, the Department's approval letter of January 14,

1997, did not address the idea of using the 9 - pipe system in a

36 - inch trench" because PTI "asked for no reduction." 4

41. The Department's position is al so based, in part, on

Mr. Atchley's cover letters of December 11, 1996, and January

13, 1997, in which Mr. Atchley, referring to Dr. Garlanger's

drawings and calculations, that "[b]ased on these calculations

we could justify a reduction of up to 40%. Howe ver, we do not

wish to apply for any reduction at this time."

42. The weight of the evidence indicates that the

reference to the "40%" pertains to the 13 - pipe system, which

would have been a large reduction, and not the 9 - pipe system.

The 9 - pipe system qual ified for only a minimal reduction which

was not requested. Also, PTI did not request a reduction in

linear feet.

43. There is a conflict in the evidence regarding what PTI

requested. Mr. Atchley opines that PTI did not request approval

of the 9 - pipe syste m such that one linear foot of product is

equivalent to three square feet of aggregate. Mr. Booher agrees

and also opines that the Department did not approve this

configuration. Mr. Everson takes the opposite view as does Dr.

Garlanger. The conflict is resolved in PTI's favor.

44. While Mr. Booher's comments appearing of record,

regarding PTI's request for approval and the Department's

approval, and which were explained more fully during the final

hearing, are credible, the fact remains that the Department

g ranted approval "based on the design and recommendations

submitted by [PTI's] professional engineer for which he is

solely responsible; the comparative data versus a standard

drainfield system; and the satisfactory performance in Florida

of similar PTI Mul ti - Pipe Rockless Drainfield System

installations." (Joint Exhibit 6.) The Department did not take

exception in its approval letter, as it did during the final

hearing, to PTI's submissions by Dr. Garlanger, PTI's

professional engineer. 5 Dr. Garlanger's submissions and his

explanation of his submissions are credible. The weight of the

evidence indicates that PTI requested approval for and the

Department approved PTI's 9 - pipe system on an equivalency of one

linear foot of product to three square feet of m ineral

aggregate.

CONCLUSIONS OF LAW

Jurisdiction

45. The Division of Administrative Hearings has

jurisdiction over the subject matter of, and the parties to,

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

Standing

46. PTI has standing to challenge to D epartment's action

of March 18, 2003.

Burden of Proof

47. This is a de novo proceeding designed to formulate

final agency action. PTI challenges the Department's action of

March 18, 2003, which effectively rejects PTI's contention as to

what the Department ap proved on January 14, 1997, regarding

PTI's request for approval of its 9 - pipe alternative drainfield

system.

48. Prior to the final hearing, given the unique nature of

this case, it was resolved that both parties would have the

burden of proof. See Order S eptember 19, 2003.

49. As a general rule, "the burden of proof, apart from

statutes, is on the party asserting the affirmative of an issue

before an administrative tribunal." Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349, 350 (F la.

1st DCA 1977). If PTI were an applicant for a license, for

example, PTI would have the burden of proof. Florida Department

of Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981). If this were a disciplinary proceeding involvin g

a license, for example, the Department would have the burden of

proof. Department of Banking and Finance Division of Securities

and Investor Protection v. Osborne Stern and Company , 670 So. 2d

932 (Fla. 1996). This case does not involve either situatio n

and no statute designates which party has the burden of proof

here. Nevertheless, it is concluded that PTI, as the

Petitioner, has the ultimate burden to prove its case by a

preponderance of the evidence. Balino v. Department of Health

and Rehabilitati ve Services , supra . See also § 120.57(1)(j),

Fla. Stat.

Resolution of the Controversy

50. The issue presented in this proceeding is difficult to

resolve because it requires an examination of events which

occurred from on or about April 1995 through January 1 4, 1997.

51. Technical documents were submitted to and evaluated by

the Department's professional staff. PTI's professional

engineer provided the Department with written explanations

throughout the approval process, including responses to

Department concern s. Some concerns are stated in the

Department's approval letter. But none of those concerns

pertain to the issue raised in this proceeding.

52. PTI proved by a preponderance of the evidence that the

Department approved its 9 - pipe system such that one linea r foot

of the PTI 9 - pipe system is equivalent to three square feet of

mineral aggregate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health enter a final

order concluding that Plastic Tubing Industries, Inc.'s 9 - pipe

bundle Multi - Pipe Rockless Drainfield System, such that one

linear foot of PTI's 9 - pipe system is equivalent to three square

feet of mineral aggregate, is approved for use in the State of

Florida.

DONE AND ENTERED this 11th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of December, 2003.

ENDNOTES

1 / Unless otherwise indica ted, all citations to the Department's

rules are to Chapter 10D - 6, DOH Exhibit 1, which applied to

PTI's application for its alternative drainfield system. This

particular Chapter was amended and replaced with Chapter 64E - 6,

Florida Administrative Code, D OH Exhibit 2, after the

Department's January 14, 1997 approval of PTI's alternative

drainfield system.

2 / Mr. Atchley worked for PTI for approximately 16 years. His

most responsible position was that of sales manager for four or

five years. During the PTI product approval process,

Mr. Atchley reported regularly to Mr. Maroschak. Mr. Atchley

discussed PTI's request with Mr. Booher, among other Department

employees. Mr. Atchley does not believe PTI requested approval

such that one linear foot of the 9 - p ipe system is equivalent to

three square feet of mineral aggregate. In or around 1998, he

was sued by PTI regarding the ownership of the 9 - pipe design and

did not prevail.

3 / Mr. Booher has worked continuously as an engineer since

graduating from the Un iversity of Florida in 1962. He is

registered as a Professional Engineer in the State of Florida.

Mr. Booher has worked for the Department since January 11, 1995.

He handles all of the engineering functions associated with the

on - site sewage programs in the Bureau of On - Site Sewage. Since

1995, he handled all of the alternative drainfield product

approval requests, 15 to 16.

4 / Mr. Booher stated that in 1997, the Department used the

"total bottom area" to establish alternative drainfield sizing.

In particular, Mr. Booher relied on Rule 10D - 6.042(1) definition

of "[a]bsorption surface - the total surface area of soil at the

bottom of the drainfield" and that part of Rule 10D - 6.048(5)

which relates to [t]he minimum absorption area for standard

subsurf ace drainfield systems. . . ." The Department considers

"reduction" and "equivalency" the same because it sizes

alternative drainfield systems by area not linear footage.

5 / The Department's Interoffice Memorandum of January 29, 1997,

supports the Depar tment's position that it approved PTI's 9 - pipe

system "rated at 1 linear foot equals 2 square feet of

drainfield area." But, this document, memorializing what the

Department believed it approved, was not part of the

Department's approval letter or sent t o PTI and should not be

construed to describe the nature and scope of the Department's

approval.

COPIES FURNISHED :

Julie Gallagher, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302 - 1838

Richard P. McNelis, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Departmen t 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 Reco mmended Order should be filed with the agency that

will issue the final order in this case.