05-001599 Laniger Enterprises Of America, Inc. vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, September 19, 2006.

Summary: Petitioner`s application to renew its wastewater treatment plant permit should be approved. Respondent`s basis for denying the permit application was without lawful authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LANIGER ENTERPRISES OF AMERICA, )

INC. , )

)

Petitioner , )

)

vs. ) Case No. 05 - 1599

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal administrative hearing in this matter was held on

July 10, 2006, in Stuart, Martin County, Florida, before

Bram D. E. Canter, a duly - appointed Administrative Law Judge of

the Division of Administrative Hearings (DOAH).

APPEARA NCES

For Petitioner: Brian J. Cross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

M ail S tation 35

Tallahassee, Florida 32399 - 3000

For Respondent: Martin S . Friedman, Esquire

Rose, Sundstrom & Bentley, LLP

2180 West State Road 434, Suite 2118

Longwood, Florida 32779

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent Laniger

Enterprises of America, Inc. (Laniger), is entitled to the

renewal of its domestic wastewater facility permit that was

denied by Petitioner Department of Environmental Protection

(Department).

PRELIMINARY STATEMENT

On April 6, 2005, the Department issued a Notice of De nial,

indicating that it was denying Laniger's application to renew

its permit to operate a domestic wastewater treatment plant

(WWTP) in Jensen Beach, Martin County, Florida. Laniger timely

filed a petition challenging the Department's action, and the

ca se was referred to DOAH to conduct an evidentiary hearing.

Upon the joint request of the parties, this permit case was

consolidated for hearing with an enforcement case (DOAH Case

No. 06 - 1245EF) arising from the Department's Notice of

Violation, Orders for Corrective Action, and Administrative

Penalty Assessment issued on August 12, 2005 (NOV). The NOV

contains three counts against Laniger for operating without a

permit, failure to submit certain semi - annual progress reports,

and for the Department's enfor cement costs. In the enforcement

case, the Department seeks to impose administrative penalties in

the amount of $9,000 and to require Laniger to cease operation

of its WWTP.

Under applicable law, the undersigned must issue a final

order in the enforcement case and a recommended order in the

permit case. Therefore, the two orders are being issued

separately.

At the hearing, the Department presented the testimony of

William Thiel; Timothy Powell; and Joseph May, accepted as an

expert in hydrology. The Depa rtment's Exhibits 1 through 17 and

20 were admitted into evidence. Laniger presented the testimony

of Reginald Burge; John Whitmer, accepted as an expert in design

and permitting of wastewater treatment plants; and James Herin,

accepted as an expert in th e evaluation of groundwater flow and

the evaluation of the transport of constituents in groundwater.

Laniger's Exhibits 1 through 6 were admitted into evidence.

The two - volume Transcript of the final hearing was filed

with DOAH. Laniger and the Departmen t timely filed post - hearing

submittals that have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the administrative agency of the

State of Florida having the power and duty to prote ct Florida's

air and water resources and to administer and enforce the

provisions of Chapter 403, Florida Statutes (2005), 1 and the

rules promulgated in Florida Administrative Code Title 62.

2. Laniger is a Florida corporation that owns and operates

the W WTP that is the subject of this case, located at

1662 Northeast Dixie Highway, Jensen Beach, Martin County,

Florida. The WWTP is referred to in the Department permit

documents as the Beacon 21 WWTP.

The WWTP

3. Laniger acquired the WWTP in 1988 in a fore closure

action. At that time, the WWTP was in a "dilapidated" condition

and was operating under a consent order with the Department.

After acquiring the WWTP, Laniger brought it into compliance

with the Department's requirements.

4. Laniger's WWTP is com monly referred to as a "package

plant." 2 The WWTP's treatment processes are extended aeration,

chlorination, and effluent disposal to percolation ponds. The

WWTP does not have a direct discharge to surface water. It was

permitted to treat 99,000 gallons per day (gpd) of wastewater.

Its average daily flow during the past year was about 56,000

gallons.

5. The east side of the WWTP site is adjacent to Warner

Creek. On the north side of the WWTP site, an earthen berm

separates the WWTP's percolation ponds from a drainage ditch

that connects to Warner Creek. Warner Creek is a tributary to

the St. Lucie River. The St. Lucie River is part of the Indian

River Lagoon System.

The Indian River Lagoon Act

6. In 1989, the St. Johns River Water Management Distri ct

and the South Florida Water Management District jointly produced

a Surface Water Improvement and Management (SWIM) Plan for the

Indian River Lagoon System ("the lagoon system"). For the

purpose of the planning effort, the lagoon system was defined as

c omposed of Mosquito Lagoon, Indian River Lagoon, and Banana

River Lagoon. It extends from Ponce de Leon Inlet in Volusia

County to Jupiter Inlet in Palm Beach County, a distance of

155 miles.

7. The SWIM Plan identified high levels of nutrients as a

majo r problem affecting water quality in the lagoon system.

Domestic wastewater was identified as the major source of the

nutrients.

8. The SWIM Plan designated 12 problem areas within the

lagoon system and targeted these areas for "research,

restoration and conservation projects under the SWIM programs."

Department Exhibit 2 at 11 - 13. Neither Warner Creek nor the

area of the St. Lucie River that Warner Creeks flows into is

within any of the 12 problem areas identified in the SWIM Plan.

9. With regard to p ackage plants, the SWIM Plan stated:

There are numerous, privately operated,

"package" domestic WWTPs which discharge

indirectly or directly to the lagoon. These

facilities are a continual threat to water

quality because of intermittent treatment

process failure, seepage to the lagoon from

effluent containment areas, or overflow to

the lagoon during storm events.

Additionally, because of the large number of

"package" plants and the lack of enforcement

staff, these facilities are not inspected or

monitored as regularly as they should be.

Where possible, such plants should be phased

out and replaced with centralized sewage

collection and treatment facilities.

Department Exhibit 2 at 64.

10. In 1990, the Legislature passed the Indian River

Lagoon Act, Chap ter 90 - 262, Laws of Florida. Section 1 of the

Act defined the Indian River Lagoon System as including the same

water bodies as described in the SWIM Plan, and their

tributaries. Section 4 of the Act provided:

(1) Before July 1, 1991, the Department of

E nvironmental Regulation shall identify

areas served by package sewage treatment

plants which are considered a threat to the

water quality of the Indian River Lagoon

System.

11. In response to this legislative directive, the

Department issued a report in July 1991, entitled " Indian River

Lagoon System: Water Quality Threats from Package Wastewater

Treatment Plants." The 1991 report f ound 322 package plants

operating within the lagoon system and identified 155 plants as

threats to water quality.

12. The 1991 report described the criteria the Department

used to determine which package plants were threats:

1. Facilities that have direct discharges

to the system were considered threats.

2. Facilities with percolation ponds,

absorption fields, or other sub - surface

disposal; systems located within 100 feet of

the shoreline or within 100 feet of any

canal or drainage ditch that discharges or

may discharge to the lagoon system during

wet periods were considered threats.

* * *

3. Facilities with percolat ion ponds,

absorption fields, or other sub - surface

disposal systems located more than 100 feet

from surface water bodies in the system were

evaluated case - by - case based on [operating

history, inspection reports, level of

treatment, and facility reliability ].

13. Laniger's package plant was listed in the 1991 report

as a threat to the water quality of the lagoon system because it

was within 100 feet of Warner Creek and the drainage ditch that

connects to Warner Creek.

14. Laniger's WWTP was not determin ed to be a threat based

on its wastewater treatment performance. There was no evidence

presented that Laniger's WWTP had ever had intermittent

treatment process failure, seepage to the lagoon system from

effluent containment areas, or overflow during stor m events.

Those were the concerns related to package plants that were

described in the SWIM Plan and the Department's 1991 report.

15. Laniger's WWTP was not determined to be a threat based

on evidence that it was causing or contributing to excess

nutri ents in Warner Creek or in that part of the St. Lucie River

nearest to Laniger's WWTP. No evidence was presented that there

are excess nutrients in Warner Creek or in that part of the

St. Lucie River nearest to Laniger's WWTP.

16. The Department's 1991 r eport concluded that the

solution for package plants threats was to eliminate the package

plants and connect their wastewater flow to c entralized sewage

collection and treatment facilities. To date, over 90 of the

155 package plants identified in the Depa rtment's 1991 report as

threats to the water quality of the lagoon system have been

connected to centralized sewage collection and treatment

systems.

The 1999 Permit and Administrative Order

17. On August 26, 1999, the Department issued Domestic

Wastewate r Facility Permit No. FLA013879 to Laniger for the

operation of its WWTP. Attached to and incorporated into

Laniger's 1999 permit was Administrative Order No. AO 99 - 008 -

DW43SED. The administrative order indicates it was issued

pursuant to Section 403.088 (2)(f), Florida Statutes. That

statute pertains to discharges that "will not meet permit

conditions or applicable statutes and rules" and requires that

the permit for such a discharge be accompanied by an order

establishing a schedule for achieving compli ance.

18. The administrative order contains a finding that the

Beacon 21 WWTP is a threat to the water quality of the lagoon

system and that the WWTP "has not provided reasonable

assurance . . . that operation of the facility will not cause

pollution in contravention of chapter 403, F.S., and

Chapter 62 - 610.850 of the Florida Administrative Code." The

cited rule provides that "land application projects shall not

cause or contribute to violations of water quality standards in

surface waters."

19. The ad ministrative order required Laniger to connect

its WWTP to a centralized wastewater collection and treatment

[facility] "within 150 days of its availability . . . or provide

reasonable assurance in accordance with Chapter 620.320(1) of

the Florida Administ rative Code that continued operation of the

wastewater facility is not a threat to the water quality of the

Indian River Lagoon System."

20. As a result of an unrelated enforcement action taken

by the Department against Martin County, and in lieu of a

mo netary penalty, Martin County agreed to extend a force main

from its centralized sewage collection and treatment facility so

that the Laniger WWTP could be connected. The extension of the

force main was completed in April 2003.

21. On April 10, 2003, the Department notified Laniger by

letter that a centralized wastewater collection and treatment

system "is now available for the connection of Beacon 21." In

the notification letter, the Department reminded Laniger of the

requirement of the administrative o rder to connect within

150 days of availability.

22. On May 9, 2003, Laniger's attorney responded, stating

that the administrative order allowed Laniger, as an alternative

to connecting to the centralized wastewater collection and

treatment system, to pro vide reasonable assurance that the WWTP

was not a threat to the water quality of the lagoon system, and

Laniger had provided such reasonable assurance. Laniger's

attorney also stated, "due to the location of Martin County's

wastewater facilities, such fac ilities are not available as that

term is defined in the [administrative] order."

23. On September 29, 2003, the Department issued a warning

letter to Laniger for failure to connect to the Martin County

force main and for not providing reasonable assuranc e that the

WWTP will not cause pollution in contravention of Chapter 403,

Florida Statutes. The Department took no further formal action

until it issued the NOV in August 2005. Laniger's challenge of

the NOV was consolidated with this permit case.

The Pe rmit Renewal Application

24. In an "enforcement meeting" between Laniger and the

Department prior to the expiration of 1999 permit, the

Department told Laniger that it would not renew Laniger's WWTP

permit. Later, when Laniger filed its permit renewal

ap plication, the Department offered to send the application back

so Laniger would not "waste" the filing fee, because the

Department knew it was not going to approve the application.

25. Laniger submitted its permit renewal application to

the Department on February 15, 2005. The Department considered

Laniger's permit application to be complete, but proceeded to

prepare the Notice of Denial without any technical review of the

application. The Department denied the application on April 6,

2005.

26. The Dep artment's Notice of Permit Denial stated that

the permit was denied because Laniger had not connected to the

available centralized wastewater collection and treatment system

nor provided reasonable assurance that the WWTP "is not

impacting water quality wi thin the Indian River Lagoon System."

The record evidence showed that the "reasonable assurance" that

would have been necessary to satisfy the Department was more

than the reasonable assurance the Department usually requires

for package plants, and more t han the Department would have

required if Laniger's WWTP was 100 feet from Warner Creek.

27. Competent substantial evidence was presented that

Laniger's WWTP is capable of being operated in accordance with

the statutes and rules of Department generally ap plicable to

package wastewater treatment plants.

28. Laniger's 1999 permit expired on August 25, 2004.

Laniger has operated the plant continuously since the permit

expired.

Whether the Martin County Facility is Available

29. As discussed below in the Co nclusions of Law, it is

concluded that the Department did not have authority to require

Laniger to connect the WWTP to the Martin County force main or

to require assurance beyond the reasonable assurance generally

required for package treatment plants in o rder to obtain a

permit. However, because considerable evidence and argument was

directed to whether the force main was available, that issue

will be addressed here.

30. The Martin County force main was not extended to the

boundary of the Laniger WWTP si te. The force main terminates

approximately 150 feet north of the Laniger WWTP site and is

separated from the WWTP site by a railroad and railroad

right - of - way.

31. Laniger presented undisputed evidence that the cost to

connect to the Martin County forc e main would be approximately

$490,000 and that cost was prohibitively high, given the

relatively small number of households served by the WWTP.

32. The Laniger WWTP is subject to rate regulation by the

Public Service Commission (PSC). Laniger presented evidence

suggesting that connection to the Martin County force main would

result in rates that would not be approved by the PSC. The

evidence was speculative and not competent to support a finding

regarding PSC action. The evidence does show, however, th at PSC

rate regulation was not a factor that the Department considered

when it determined that the Martin County force main was

available.

33. There is no Department rule that defines when a

centralized sewage collection and treatment facility is

"availab le."

34. The determination that the Martin County force main

was available to Laniger was made informally by members of the

Department's compliance staff in the Department's St. Lucie

office. Mr. Thiel testified that he considered the force main

to be av ailable because it was "in close proximity" to Laniger's

WWTP. However, Mr. Thiel admitted that there is a difference of

opinion within DEP as to when a facility is available and

reasonable persons could disagree about whether a facility was

available.

3 5. Mr. Thiel thought that the cost to connect is a factor

to be considered in determining whether a facility is available,

but another Department employee did not think cost should be

considered. There was no evidence that the Department took into

accoun t Laniger's cost to connect in determining that the Martin

County force main was available. The Department simply assumed

that the Martin County force main was close enough to the

Laniger WWTP site that the cost to Laniger would not be

prohibitive. In ad dition, the Department was aware of other

package plants that had connected to centralized sewage

collection and treatment facilities that were the same distance

or a greater from the package plant, and the Department did not

hear from the owners of the pa ckage plants that the costs were

prohibitive.

36. Timothy Powell of the Department stated that force

mains are usually made available by extending the force main so

that it is "abutting the property as much as possible." He also

stated that he assumed th at Martin County would extend its force

main under the railroad and to the boundary of the Laniger WWTP

site after Laniger agreed to connect. However, there was no

evidence to show that this is Martin County's intent, and the

Department did not tell Lanig er that Laniger did not have to

connect to the force main unless Martin County brought the line

to the boundary of the WWTP site.

37. If the Department had authority to require Laniger to

connect to the Martin County force main when it became

available, and in the absence of any rule criteria to determine

when a centralized sewage collection and treatment facility is

available, the determination would have to be based on

reasonableness. Reasonableness in this context must take into

account the cost of th e connection. Cost is the inherent reason

that Laniger was not required to connect to the Martin County

centralized sewage collection and treatment facility without

regard to whether the facility was available. Laniger showed

that the cost of connecting to the force main is unreasonably

high due to the need to construct a line beneath the railroad.

Therefore, Laniger proved by a preponderance of the evidence

that the Martin County force main is not available.

CONCLUSIONS OF LAW

38. DOAH has jurisdiction over the parties to and the

subject matter in this proceeding pursuant to Sections 120.569

and 120.57(1), Florida Statutes.

39. The Department has regulatory authority over Laniger's

WWTP under Sections 403.087 and 403.088, Florida Statutes, and

Florida Administrative Code Chapter 62 - 610.

40. Laniger bears the burden of proof in this case to show

by a preponderance of the evidence that it is entitled to the

renewal of its operating permit. Department of Transportation

v. J. W. C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1979).

41. Laniger presented a prima facie case of its

entitlement to the permit. The burden then shifted to the

Department to demonstrate that reasonable assurance had not been

provided. Id. In order to overcome Laniger's prima faci e case

for entitlement to the permit renewal, it was incumbent on the

Department to demonstrate its authority to require Laniger to

connect to a centralized sewage collection and treatment

facility or provide assurance over and above the reasonable

assuran ce generally required for package sewage treatment

plants. The Department failed to show it has such authority.

42. There is no Department statute or rule that expressly

addresses circumstances under which package sewage treatment

plants must connect to centralized sewage collection and

treatment facilities. The sole authority upon which the

Department relies for requiring Laniger to connect to the Martin

County force main is Chapter 90 - 262, Laws of Florida. 3

43. The only relevant authority granted to t he Department

by Chapter 90 - 262, Laws of Florida, was to "identify areas

served by package sewage treatment plants which are considered a

threat to water quality of the Indian River Lagoon System." The

law did not create new standards or permitting requir ements for

package plants. The law did not specify what action the

Department was to take with regard to package plants identified

as threats.

44. It is a well - established principle recognized by the

courts of Florida that an administrative agency posses ses no

power not granted by statute and any reasonable doubt as to the

lawful existence of a particular power must be resolved against

the exercise thereof. State ex rel. Greenberg v. Florida State

Board of Dentistry , 297 So. 2d 628 (Fla . 1st DCA 1974), c ert.

dismissed, 300 So. 2d 900 (Fla. 1974); City of Cape Coral v. GAC

Utilities, Inc. of Florida , 281 So. 2d 493 (Fla. 1973).

45. The Department's reliance on Section 403.088(2)(f),

Florida Statutes, to issue the administrative order in 1999 was

misplaced because that section pertains to discharges that "will

not meet permit conditions or applicable statutes and rules." 4

The Department had no basis to believe that Laniger's WWTP would

not meet any permit condition, statute, or rule. This section

does not provide the Department with authority to impose a

compliance schedule solely because the Department identified

Laniger's WWTP as a "threat" in a report.

46. The Department denied Laniger's permit application

because it contends Laniger failed to provide reasonable

assurance that Laniger's WWTP, although operating in compliance

with standards generally applicable to package wastewater

treatments plants, would not cause or contribute to excess

nutrients in the lagoon system. The Department has authority t o

act to prevent a violation of water quality standards. However,

the Department had no factual basis to believe there was an

excess nutrient problem in Warner Creek or the area of the

St. Lucie River into which Warner Creek flows. Neither the SWIM

Plan nor Chapter 90 - 262, Laws of Florida, established that there

were excess nutrients in every part of the 155 - mile - long lagoon

system. In fact, the SWIM Plan showed that Laniger's WWTP was

not within any of the "problem areas" of the lagoon system.

Therefor e, the Department had no basis to require additional

assurance from Laniger in order to obtain a permit for its WWTP. 5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental P rotection

enter a final order granting Laniger Enterprises of America,

Inc., a renewal of its wastewater treatment plant operating

permit. The permit should contain the same conditions as were

contained in the 1999 permit, with the exception of those

cond itions derived from Administrative Order No. AO 99 - 008 -

DW43SED.

DONE AND ENTER ED this 1 9 th day of September , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrat ive 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 1 9 th day of Septe mber , 2006 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2005 codification.

2/ The term "package plant" is not defined in any statute or

rule of the Department. However, in the 1991 report of the

Departme nt, discussed later in this Recommended Order, the

Department defined a package plant as "a manufactured treatment

facility that is prefabricated or has a modular design. It

typically has a design capacity of less than 1.0 mgd [million

gallons per day] an d is intended to serve small areas."

3/ No part of the Indian River Lagoon Act of 1990 was codified

in the Florida Statutes.

4/ Laniger's failure to comply with the administrative order

was subject to enforcement and was the basis for imposing

penaltie s in the Final Order in the companion case because

Laniger waived its right to challenge the administrative order.

5/ Whether the Department has a sufficient basis to require

additional assurance from any other package plant identified as

a threat to the lagoon system is not at issue here.

COPIES FURNISHED :

Martin S. Friedman, Esquire

Rose, Sundstrom & Bentley, LLP

2180 West State Road 434, Suite 2118

Longwood, Florida 32779

Ronda L. Moore, Esquire

Department of Environmental Protection

3900 Commonwe alth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Brian J. Cross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environm ental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Colleen M. Castille, Secretary

Department of Environmental Protection

Douglas Building, Mail Station 35

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 should be filed with the agency that

will issue the Final Order in this case.