96-001318 Rookery Bay Utilities, Inc. (Priscilla Spade) vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, May 9, 1997.

Summary: Applicant failed to provide Respondent with assurance regarding operation of domestic wastewater plant due to poor operating history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROOKERY BAY UTILITY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-1318

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Naples,

Florida, on March 5, 1997.

APPEARANCES

For Petitioner: Sanford M. Martin

2500 Airport Road, Suite 315

Naples, Florida 34112-4882

For Respondent: Thomas I. Mayton, Jr.

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 323 99-3000

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to an operating

permit for an existing domestic wastewater treatment facility

operating in Naples.

PRELIMINARY STATEMENT

By application dated December 29, 1995, Petitioner requested

that Respondent issue a renewal operating permit for an existing

0.3 million gallons per day wastewater treatment plant known as

the Rookery Bay facility.

At the hearing, Petitioner called four witnesses and offered

into evidence 17 exhibits. Respondent called two witnesses and

offered into evidence 20 exhibits. All exhibits were admitted.

The court reporter filed the transcript on March 31, 1997.

FINDINGS OF FACT

1. On May 10, 1991, Respondent issued Petitioner a five-

year permit to operate a 0.3 million gallon per day (GPD)

domestic wastewater treatment plant known as the Rookery Bay

facility in Naples. This permit, which is number DO11-187204,

allowed Petitioner to operate an extended aeration plant, using

chlorine for basic disinfection and disposing of the reclaimed

water in two percolation ponds.

2. The 1991 permit required Petitioner to allow Respondent

access to the facility for inspections at reasonable times,

notify Respondent of any violations of any permit conditions,

maintain total chlorine residual of at least 0.5 milligrams per

liter (mg/L) of effluent sample after at least 15 minutes’

contact time at maximum daily flow, maintain annual average

effluent quality values for carbonaceous biochemical oxygen

demand (CBOD) and total suspended solids (TSS) of not more than

20 mg/L of effluent sample with maximum effluent quality

concentrations of 60 mg/L in any single effluent sample, maintain

a monthly average effluent quality value for fecal coliform of

not more than 200 per 100 ml of effluent sample with a maximum

effluent quality value of 800 per 100 ml in any single effluent

sample, notify Respondent of any discharge from the percolation

pond overflows, and monitor influent loading to the facility and

apply for a permit modification if the monthly average influent

flows approach or exceed the design capacity of 0.3 MGD or if the

facility violates treatment standards.

3. Respondent also issued Petitioner a five-year permit to

operate a 0.15 GPD domestic wastewater treatment plant at the

Rookery Bay facility. This permit, which is number DO11-167093,

allowed Petitioner to operate a contact stabilization process

plant.

4. On December 29, 1995, Petitioner submitted a renewal

application for permit number DO11-167093. Although the permit

number references the smaller tank, the renewal application

requests a permitted capacity of 0.3 MGD.

5. By Notice of Permit Denial dated February 9, 1996,

Respondent denied the permit application on the ground that

Petitioner could not provide reasonable assurance that it would

operate the facility in compliance with state standards based on

a “continued and long standing pattern of noncompliance and

violation of . . . rules and standards.”

6. Petitioner’s operation of the Rookery Bay treatment

plant has been poor. Respondent has brought an enforcement

action against Petitioner, which signed a consent final judgment

in January 1994. The consent final judgment required Respondent

to pay $4500 in civil penalties.

7. As it applied to the Rookery Bay facility, the consent

final order required Petitioner to evaluate the facility to

discover the causes of past violations and modify the facility to

eliminate these violations.

8. But Petitioner has not complied with material provisions

of the consent final judgment. Petitioner’s operator has been

held in contempt of court several times for violations at Rookery

Bay and a nearby smaller treatment facility known as Port au

Prince. Petitioner has several times refused Respondent’s

representatives reasonable access to the Rookery Bay facility.

9. At least twice, Petitioner has failed to advise

Respondent of equipment failures that resulted in violations of

treatment standards.

10. On January 11, 1995, Petitioner cut off the power for

several hours to a lift station pump serving a nearby a

condominium complex. Predictably, the sewage backed up and

overflowed into the street. Petitioner failed to restore the

power timely or remove the overflowed sewage.

11. On several occasions, raw or inadequately treated

sewage has leaked from the tanks at the Rookery Bay facility.

Petitioner has failed to eliminate this problem over the course

of its five-year operating permit.

12. On numerous occasions, Respondent’s representatives

have detected violations of effluent quality. These violations

have arisen inadequate detention time in the chlorine contact

chamber. Consequently, the TSS and CBOD levels have repeatedly

exceeded permitted standards.

13. The parties dispute the adequacy of the capacity of the

Rookery Bay facility. There is considerable evidence, including

one statement in the application, that suggests that the

facility’s capacity is seriously inadequate.

14. Either the capacity of the Rookery Bay is, and has

been, inadequate--in which case at least some of the violations

are attributable to overcapacity operation--or, if the facility

has had adequate capacity, the operational competence of

Petitioner is below the minimum level necessary to provide

reasonable assurance of proper operations at this facility in the

future.

15. Most likely, the Rookery Bay facility lacks adequate

capacity, at least part of the year, and Petitioner lacks the

minimum requisite competence to operate the facility in a

responsible manner.

16. The strongest evidence in the record suggests that the

Rookery Bay facility serves, during peak season, 1500 mobile home

connections and 400 apartment connections. These connections

generate about 377,500 GPD of raw sewage. A slightly lower value

is probable after consideration of the likely presence of

recreational vehicles among the mobile home count. But this

reduction, even without adjustment for dry-season infiltration

and inflow, would not yield sufficient savings in raw sewage as

to provide reasonable assurance that the Rookery Bay facility has

adequate capacity to serve the present demand or adequate

capacity to serve the demand projected over the five-year term of

the permit that Petitioner seeks.

17. Even if one were to credit Petitioner’s volume-to-

capacity calculations, the results fail to constitute reasonable

assurance of violation-free operation of the Rookery Bay

facility. Petitioner's calculations leave little if any margin

for error at present demand levels, and, given Petitioner’s

singularly poor operating history at this facility, these

calculations provide poor assurance of compliant operation of

this troubled facility.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.)

19. Sections 403.085 and 403.087 authorize Respondent to

issue permits for the operation of domestic wastewater

facilities.

20. Rule 62-620.320(1) recognizes that the burden of proof

is on Petitioner, as the applicant in this case. Section

403.087(6) acknowledges that a permit is not a “vested right” in

the permittee.

21. Rule 62-620.320(1) requires that the applicant for a

permit must provide “reasonable assurance” that the operation of

the proposed facility will not violate applicable law.

22. Rule 62-620.320(7) provides that, when determining

whether an applicant has provided reasonable assurance that

Respondent’s standards will be met, Respondent shall consider an

applicant’s violation of rules at any wastewater facility.

23. Rule 62-620.320(4) requires Respondent to issue,

reissue, or renew a permit that is otherwise deniable if the

conditions of Section 403.088(2)(e) and (f) are met. Section

403.088(2)(e) permits, but does not require, Respondent to issue,

reissue, or renew a permit under any of several conditions, such

as the pending construction of pollution-abatement facilities,

the lack of a reasonable alternative to disposing of the waste

other than by discharge into waters of the state, the public

interest, or the absence of unreasonable destruction of the

quality of waters receiving the waste discharge. However,

Petitioner has not shown that any of these exceptions are

applicable in this case.

24. The facts demonstrate repeated violations of law in

Petitioner’s operation of the Rookery Bay facility, repeated

failures by Petitioner to allow Respondent to perform its

regulatory and enforcement functions with respect to the Rookery

Bay facility, and no assurance that the renewal of the operating

permit would not result a five-year extension of these

substantial violations.

RECOMMENDATION

Based on the fo regoing, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order denying Petitioner’s renewal application for

a domestic wastewater treatment operating permit for the Rookery

Bay facility.

DONE AND ORDERED in Tallahassee, Florida, this 9th day of

May, 1997.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488 -9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of May, 1997.

COPIES FURNISHED:

Sanford M. Martin

2500 Airport Road, Suite 315

Naples, Florida 34112-4882

Thomas I. Mayton, Jr.

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom

General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

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 must be filed with the agency that will

issue the final order in this case.