06-001245EF
Laniger Enterprises Of America, Inc. vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Tuesday, September 19, 2006.
Recommended Order on Tuesday, September 19, 2006.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF ENVIRONMENTAL )
12PROTECTION , )
14)
15Petitioner , )
17)
18vs. ) Case No. 06 - 1245EF
25)
26LANIGER ENTERPRISES OF AMERICA, )
31INC. , )
33)
34Respondent . )
37)
38FINAL ORDER
40A formal administrative hearing in this matter was held on
50July 10, 2006 , in Stuart, Martin County, Florida, before
59Bram D. E. Canter, a duly - appointed Administrative Law Judge of
71the Division of Administrative Hearings (DOAH).
77APPEARANCES
78For Petitioner: Ronda L. Moore, Esquire
84Department of Environmental Protection
883900 Commonwealth B oulevard
92M ail S tation 35
97Tallahassee, Florida 32399 - 3000
102For Respondent: Martin S. Fri edman, Esquire
109Rose, Sundstrom & Bentley, LLP
1142180 W est State Road 434, Suite 2118
122Longwood, Florida 32779
125STATEMENT OF THE ISSUE
129The issue in this case is whether Respondent Laniger
138Enterprises of Amer ica, Inc. (Laniger) , is liable to Petitioner
148Department of Environmental Protection (Department) for
154penalties and costs for the violations alleged in the
163Department ' s Notice of Violation, Orders for Corrective Action,
173and Administrative Penalty Assessment (NOV).
178PRELIMINARY STATEMENT
180On August 12, 2005, the Department issued a three - count NOV
192against Laniger, pursuant to Section 403.121, Florida Statutes
200(2005), 1 for Laniger ' s alleged failure to timely apply for
212renewal of its domestic wastewater treatment facility permit,
220for Laniger ' s alleged failure to submit certain semi - annual
232progress reports, and for the Department ' s enforcement costs.
242The Department seeks to impose administrative penalties in the
251amount of $9,000, to require Laniger to take specifi ed
262corrective actions, and to recover the Department ' s enforcement
272costs. Laniger filed a petition to challenge the NOV and the
283Department referred the matter to DOAH to conduct an evidentiary
293hearing. Pursuant to Section 403.121(2), Florida Statutes, th e
302Department is the " petitioner " in an administrative enforcement
310proceeding.
311Upon the joint request of the parties, this enforcement
320case was consolidated for hearing with a permit case (DOAH Case
33105 - 1599) arising from the Department ' s noticed intent to d eny
345Laniger ' s application to renew its operating permit for its
356domestic wastewater treatment plant (WWTP). Under applicable
363law, the undersigned must issue a Final Order in the enforcement
374case and a Recommended Order in the permit case. Therefore, the
385two orders are being issued separately.
391At the hearing, the Department presented the testimony of
400William Thiel ; Timothy Powell ; and Joseph May, an expert in
410hydrology. The Department ' s Exhibits 1 through 17 and 20 were
422admitted into evidence. Laniger pr esented the testimony of
431Reginald Burge; John Whitmer, an expert in design and permitting
441of wastewater treatment plants; and James Herin, an expert in
451the evaluation of groundwater flow and the evaluation of the
461transport of constituents in groundwater. Laniger ' s Exhibits 1
471through 6 were admitted into evidence.
477The two - volume Transcript of the final hearing was filed
488with DOAH. Laniger and the Department timely filed post - hearing
499submittals that have been carefully considered in the
507preparation of this Final Order. 2
513FINDINGS OF FACT
516The Parties
5181. The Department is the administrative agency of the
527State of Florida having the power and duty to protect Florida ' s
540air and water resources and to administer and enforce the
550provisions of Chapter 403, Florida S tatutes, and the rules
560promulgated in Florida Administrative Code Title 62.
5672. Laniger is a Florida corporation that owns and operates
577the WWTP that is the subject of this case, located at 1662
589N ortheast Dixie Highway, Jensen Beach, Martin County, Florida .
599The WWTP is referred to in the Department permit documents as
610the Beacon 21 WWTP.
614The WWTP
6163. Laniger acquired the WWTP in 1988 in a foreclosure
626action. At that time, the WWTP was in a " dilapidated " condition
637and was operating under a consent order wit h the Department.
648After acquiring the WWTP, Laniger brought it into compliance
657with the Department ' s requirements.
6634. Laniger ' s WWTP is commonly referred to as a " package
675plant. " 3 The WWTP ' s treatment processes are extended aeration,
686chlorination, and e ffluent disposal to percolation ponds . The
696WWTP does not have a direct discharge to surface water . It was
709permitted to treat 99,000 gallons per day (gpd) of wastewater.
720Its average daily flow during the past year was about 56,000
732gallons.
7335. The east s ide of the WWTP site is adjacent to Warner
746Creek. On the north side of the WWTP site, an earthen berm
758separates the WWTP ' s percolation ponds from a drainage ditch
769that connects to Warner Creek. Warner Creek is a tributary to
780the St. Lucie River. The St. Lucie River is part of the Indian
793River Lagoon System.
796The Indian River Lagoon Act
8016. In 1989, the St. Johns River Water Management District
811and the South Florida Water Management District jointly produced
820a Surface Water Improvement and Management (SWIM ) Plan for the
831Indian River Lagoon System ( " the lagoon system " ). For the
842purpose of the planning effort, the lagoon system was defined as
853composed of Mosquito Lagoon, Indian River Lagoon, and Banana
862River Lagoon. It extends from Ponce de Leon Inlet in Vo lusia
874County to Jupiter Inlet in Palm Beach County, a distance of
885155 miles.
8877. The SWIM Plan identified high levels of nutrients as a
898major problem affecting the water quality of the lagoon system.
908Domestic wastewater was identified as the major source of the
918nutrients.
9198. The SWIM Plan designated 12 problem areas within the
929lagoon system and targeted these areas for " research,
937restoration and conservation projects under the SWIM programs. "
945Department Exhibit 2 at 11 - 13. Neither Warner Creek nor the
957S t. Lucie River area near Laniger ' s WWTP is within any of the
97212 problem areas identified in the SWIM Plan.
9809. With regard to package plants, the SWIM Plan stated:
990There are numerous, privately operated,
" 995package " domestic WWTPs which discharge
1000indirectly or directly to the lagoon. These
1007facilities are a continual threat to water
1014quality because of intermittent treatment
1019process failure, seepage to the lagoon from
1026effluent containment areas, or overflow to
1032the lagoon during storm events.
1037Additionally, beca use of the large number of
" 1045package " plants and the lack of enforcement
1052staff, these facilities are not inspected or
1059monitored as regularly as they should be.
1066Where possible, such plants should be phased
1073out and replaced with centralized sewage
1079collection and treatment facilities.
1083Department Exhibit 2, at 64.
108810. In 1990, the Legislature passed the Indian River
1097Lagoon Act, Chapter 90 - 262, Laws of Florida. Section 1 of the
1110Act defined the Indian River Lagoon System as including the same
1121water bodies as d escribed in the SWIM Plan, and their
1132tributaries. Section 4 of the Act provided:
1139(1) Before July 1, 1991, the Department of
1147Environmental Regulation shall identify
1151areas served by package sewage treatment
1157plants which are considered a threat to the
1165water quality of the Indian River Lagoon
1172System.
117311. In response to this legislative directive, the
1181Department issued a report in July 1991, entitled " Indian River
1191Lagoon System: Water Quality Threats from Package Wastewater
1199Treatment Plants. " The 1991 repo rt f ound 322 package plants
1210operating within the lagoon system and identified 155 plants as
1220threats to water quality.
122412. The 1991 report described the criteria the Department
1233used to determine which package plants were threats:
12411. Facilities that have d irect discharges
1248to the system were considered threats.
12542. Facilities with percolation ponds,
1259absorption fields, or other sub - surface
1266disposal; systems located within 100 feet of
1273the shoreline or within 100 feet of any
1281canal or drainage ditch that discha rges or
1289may discharge to the lagoon system during
1296wet periods were considered threats.
1301* * *
13043. Facilities with percolation ponds,
1309absorption fields, or other sub - surface
1316disposal systems located more than 100 feet
1323from surface water bodies in the s ystem were
1332evaluated case - by - case based on [operating
1341history, inspection reports, level of
1346treatment, and facility reliability].
135013. Laniger ' s package plant was listed in the 1991 report
1362as a threat to the water quality of the lagoon system because it
1375was within 100 feet of Warner Creek and the drainage ditch that
1387connects to Warner Creek.
139114. The Department notified Laniger that its WWTP was
1400listed as a threat to the water quality of the lagoon system
1412soon after the 1991 report was issued.
141915. The De partment ' s 1991 report concluded that the
1430solution for package plants threats was to replace them with
1440centralized sewage collection and treatment facilities. To
1447date, over 90 of the package plants identified in the
1457Department ' s 1991 report as threats to the water quality of the
1470lagoon system have been connected to centralized sewage
1478collection and treatment systems.
1482The 1999 Permit and Administrative Order
148816. On August 26, 1999, the Department issued Domestic
1497Wastewater Facility Permit No. FLA013879 to Laniger for the
1506operation of its WWTP. Attached to and incorporated into
1515Laniger ' s 1999 permit was Administrative Order No. AO 99 - 008 -
1529DW43SED. The administrative order indicates it was issued
1537pursuant to Section 403.088(2)(f), Florida Statutes. That
1544sta tute pertains to discharges that " will not meet permit
1554conditions or applicable statutes and rules " and requires that
1563the permit for such a discharge be accompanied by an order
1574establishing a schedule for achieving compliance.
158017. The administrative order contains a finding that the
1589Beacon 21 WWTP is a threat to the water quality of the lagoon
1602system and that the WWTP " has not provided reasonable
1611assurance . . . that operation of the facility will not cause
1623pollution in contravention of chapter 403, F.S., and Chapter
1632[sic] 62 - 610.850 of the Florida Administrative Code. " The cited
1643rule provides that " land application projects shall not cause or
1653contribute to violations of water quality standards in surface
1662waters. "
166318. Most of the parties ' evidence and ar gument was
1674directed to the following requirements of the administrative
1682order:
16831. Beacon 21 WWTP shall connect to the
1691centralized wastewater collection and
1695treatment within 150 days of its
1701availability and properly abandoned facility
1706[sic] or provide reas onable assurance in
1713accordance with Chapter 62 - 620.320(1) of the
1721Florida Administrative Code that continued
1726operation of the wastewater facility is not
1733a threat to the water quality of the Indian
1742River Lagoon System and will not cause
1749pollution in contrave ntion of chapter 403,
1756F.S. and Chapter 62 - 610.850 of the Florida
1765Administrative Code.
1767* * *
1770(3) Beacon 21 WWTP shall provide this
1777office with semi annual reports outlining
1783progress toward compliance with the time
1789frames specified in paragraph 1 of t his
1797section, beginning on the issuance date of
1804permit number FLA013879 - 002 - DW3P.
181119. The administrative order contained a " Notice of
1819Rights " which informed Laniger of the procedures that had to be
1830followed to challenge the administrative order. Laniger did not
1839challenge the administrative order.
184320. As a result of an unrelated enforcement action taken
1853by the Department against Martin County, and in lieu of a
1864monetary penalty, Martin County agreed to extend a force main
1874from its centralized sewage collec tion and treatment facility so
1884that the Laniger WWTP could be connected. The extension of the
1895force main was completed in April 2003.
190221. The force main was not extended to the boundary of the
1914Laniger WWTP site. The force main terminates approximately
19221 50 feet north of the Laniger WWTP site and is separated from
1935the WWTP site by a railroad.
1941Correspondence Regarding Compliance Issues
194522. On August 21, 2001, following an inspection of the
1955Laniger WWTP, the Department sent Laniger a letter that
1964identified some deficiencies, one of which was Laniger ' s failure
1975to submit the semi - annual progress reports required by the
1986administrative order. Reginald Burge, p resident of Laniger and
1995owner of the WWTP, responded by letter to William Thiel of the
2007Department, stat ing that, " All reports were sent to the West
2018Palm Beach office. Copies are attached. "
202423. Mr. Thiel testified that the progress reports were not
2034attached to Laniger ' s letter and he informed Laniger that the
2046reports were not attached. Mr. Burge testified that he
2055subsequently hand - delivered the reports. At the hearing, it was
2066disclosed that Laniger believed its semi - annual groundwater
2075monitoring reports satisfied the requirement for progress
2082reports and it was the monitoring reports that Mr. Burge was
2093ref erring to in his correspondence and which he hand - delivered
2105to the Department. Laniger ' s position in this regard, however,
2116was not made clear in its correspondence to the Department and
2127the Department apparently never understood Laniger ' s position
2136until a fter issuance of the NOV.
214324. On April 10, 2003, the Department notified Laniger by
2153letter that a centralized wastewater collection and treatment
2161system " is now available for the connection of Beacon 21. " In
2172the notification letter, the Department remin ded Laniger of the
2182requirement of the administrative order to connect within
2190150 days of availability.
219425. On May 9, 2003, the Department received a response
2204from Laniger ' s attorney, stating that the administrative order
2214allowed Laniger, as an alternative to connecting to the
2223centralized wastewater collection and treatment system, to
2230provide reasonable assurance that the WWTP was not a threat to
2241the water quality of the lagoon system, and Laniger had provided
2252such reasonable assurance. It was also stated in the letter
2262from Laniger ' s attorney that " due to the location of Martin
2274County ' s wastewater facilities, such facilities are not
2283available as that term is defined in the [administrative]
2292Order. " 4
229426. On May 29, 2003, the Department replied, pointing out
2304that the administrative order had found that reasonable
2312assurance was not provided at the time of the issuance of the
2324permit in 1999 , and Laniger had made no " improvements or
2334upgrades to the facility. " The Department also reiterated that
2343the progress repo rts had not been submitted.
235127. On September 29, 2003, the Department issued a formal
2361Warning Letter to Laniger for failure to connect to the Martin
2372County force main and for not providing reasonable assurance
2381that the WWTP will not cause pollution in co ntravention of
2392Chapter 403, Florida Statutes. The progress reports were not
2401mentioned in the Warning Letter.
240628. The Department took no further formal action until it
2416issued the NOV in August 2005.
2422Count I: Failure to Timely File for Permit Renewal
2431and Operating Without a Permit
243629. Count I of the NOV alleges that Laniger failed to
2447submit its permit renewal application at least 180 days prior to
2458the expiration of the 1999 permit, failed to obtain renewal of
2469its permit, and is operating the WWTP without a valid permit.
248030. The date that was 180 days before the expiration of
2491the 1999 permit was on or about February 27, 2004. Laniger did
2503not submit its permit renewal application until February 15,
25122005.
251331. In an " enforcement meeting " between Laniger an d the
2523Department following the issuance of the warning letter in
2532September 2003, the Department told Laniger that it would not
2542renew Laniger ' s WWTP permit. It was not established in the
2554record whether this enforcement meeting took place before or
2563after Fe bruary 27, 2004.
256832. When Laniger filed its permit renewal application in
2577February 2005, the Department offered to send the application
2586back so Laniger would not " waste " the filing fee, because the
2597Department knew it was not going to approve the applicati on.
2608Laniger requested that the Department to act on the permit
2618application , and the Department denied the application on
2626April 6, 2005. The Department ' s Notice of Permit Denial stated
2638that the permit was denied because Laniger had not connected to
2649the av ailable centralized wastewater collection and treatment
2657system nor provided reasonable assurance that the WWTP " is not
2667impacting water quality within the Indian River Lagoon System. "
2676Laniger filed a petition challenging the permit denial and that
2686petition is the subject of DOAH Case 05 - 15 9 9, which was
2700consolidated for hearing with this enforcement case.
270733. Laniger ' s permit expired on August 25, 2004. Laniger
2718has operated the plant continuously since the permit expired.
2727Count II: Failure to Submit Progr ess Reports
273534. Count II of the NOV alleges that Laniger failed to
2746comply with the requirement of the administrative order to
2755provide the Department with semi - annual reports of Laniger ' s
2767progress toward connecting to a centralized sewage collection
2775and tr eatment facility or providing reasonable assurances that
2784continued operation of the WWTP would not be a threat to the
2796water quality of the lagoon system. Laniger maintains that its
2806groundwater monitoring reports satisfied the requirement for the
2814semi - annu al progress reports because they showed that the WWTP
2826was meeting applicable water quality standards.
283235. The requirement for groundwater monitoring reports was
2840set forth in a separate section of Laniger ' s permit from the
2853requirement to provide the semi - a nnual progress reports. The
2864monitoring reports were for the purpose of demonstrating whether
2873the WWTP was violating drinking water quality standards in the
2883groundwater beneath the WWTP site. They served a different
2892purpose than the progress reports, whic h were to describe steps
2903taken by Laniger to connect to a centralized sewage collection
2913and treatment facility. Laniger ' s submittal of the groundwater
2923monitoring reports did not satisfy the requirement for
2931submitting semi - annual progress reports.
293736. The re was testimony presented by the Department to
2947suggest that it believed the semi - annual progress reports were
2958also applicable to Laniger ' s demonstration of reasonable
2967assurances that the WWTP was not a threat to the water quality
2979of the lagoon system. Ho wever, the progress reports were for
2990the express purpose of " outlining progress toward compliance
2998with the time frames specified in paragraph 1. " (emphasis added)
3008The only time frame mentioned in paragraph 1 of the
3018administrative order is connection to an available centralized
3026wastewater collection and treatment facility " within 150 days of
3035its availability. " There is no reasonable construction of the
3044wording of this condition that would require Laniger to submit
3054semi - annual progress reports related to re asonable assurances
3064that the WWTP is not a threat to the water quality of the lagoon
3078system.
3079Count III: Department Costs
308337. In Count III of the NOV, the Department demands
3093$1,000.00 for its reasonable costs incurred in this case.
3103Laniger did not disput e the Department ' s costs.
3113CONCLUSIONS OF LAW
311638. DOAH has jurisdiction over the parties to and the
3126subject matter in this proceeding pursuant to Sections 120.569,
3135120.57(1), and 403.121, Florida Statutes.
314039. Section 403.161(1)(b), Florida Statutes, prov ides that
3148it is a violation of Chapter 403, Florida Statutes, to fail to
3160obtain any permit required by this chapter or by rule or
3171regulation, or to violate or fail to comply with any rule,
3182order, or permit adopted or issued by the Department pursuant to
3193it s lawful authority.
319740. Section 403.121(2)(b), Florida Statutes, provides that
3204if the Department has reason to believe a violation has
3214occurred, it may institute an administrative proceeding to order
3223the prevention, abatement, or control of the conditions creating
3232the violation or other appropriate corrective action. This
3240section also provides that the Department shall proceed
3248administratively in all cases where the Department seeks
3256administrative penalties of $10,000 or less. In this case, the
3267Departmen t is seeking administrative penalties of $9,000.
327641. In administrative enforcement proceedings brought
3282pursuant to Section 403.121, Florida Statutes, the Department
3290has the burden to prove the alleged violations by a
3300preponderance of the evidence. § 403. 121(2)(d), Fla. Stat.
3309Count I
331142. Florida Administrative Code Rule 62 - 620.410(5)
3319requires an applicant to apply to the Department to renew an
3330existing permit at least 180 days before the expiration date of
3341the existing permit. This requirement was also s tated in
3351Laniger ' s permit. Laniger does not dispute that it failed to
3363apply for renewal of its WWTP permit 180 days prior to the
3375expiration of the 1999 permit. However, the Department is not
3385demanding that Laniger pay a penalty for this violation.
339443. C ount I of the NOV also charges Laniger with operating
3406without a permit. Florida Administrative Code Rule 62 -
3415600.700(1) requires a domestic wastewater treatment and effluent
3423disposal facility to have a Department permit to operate. There
3433is no dispute tha t Laniger has continuously operated its WWTP
3444after August 25, 2004, without a permit.
345144. Laniger is liable for operating without a permit from
3461the expiration of its permit on August 25, 2004, until the
3472Department denied Laniger ' s application to renew the permit on
3483April 5, 2005. However, Laniger cannot be held liable for
3493operating without a permit after April 5, 2005, because, as
3503concluded in the companion permit case, Laniger was entitled to
3513issuance of the renewal permit. 5
351945. Section 403.121(3)(b), F lorida Statutes, provides that
3527for failure to obtain a required wastewater permit the
3536Department shall assess a penalty of $1,000. Section
3545403.121(6), Florida Statutes, provides that the administrative
3552penalty can be assessed for each additional day durin g which a
3564violation occurs. The Department demands that an additional
3572penalty be imposed for each of the four quarters of the year
3584that have passed since the 1999 permit expired, for a total
3595penalty for Count I of $4,000. As stated above, Laniger cannot
3607be held liable for operating without a permit after April 5,
36182005. Laniger is only liable for operating without a permit for
3629a period of 2 1/3 quarters . Therefore, consistent with the
3640approach taken by the Department, it is concluded that the
3650penalty for this violation, before application of mitigating
3658factors, should be $2,333.
366346. Section 403.121(10), Florida Statutes, provides that
3670an administrative law judge may " reduce up to 50 percent the
3681penalty imposed for mitigating factors. " A mitigating facto r in
3691regard to Laniger ' s failure to file its permit renewal
3702application in time to avoid operating without a permit was the
3713Department ' s statement to Laniger that it did not intend to
3725approve the permit, and the Department ' s subsequent attempt to
3736return La niger ' s permit application. These actions show clearly
3747that no matter when Laniger had applied for renewal of its
3758permit, it would have been summarily denied by the Department.
3768It is concluded, therefore, that the penalty should be reduced
3778to $1,500.
3781Cou nt II
378447. The Department asserts in Count II of its NOV that
3795Laniger violated Section 403.161(1)(b), Florida Statutes, when
3802it did not comply with the requirement of the administrative
3812order to submit the semi - annual reports of Laniger ' s progress in
3826conne cting to a centralized sewage collection and treatment
3835facility. The Department met its burden to prove by a
3845preponderance of the evidence that Laniger is liable for the
3855violation alleged in Count II of the NOV.
386348. Section 403.121(4)(f), Florida Statute s, provides that
3871failing to submit required reports is a violation for which a
3882$500.00 penalty can be imposed. Section 403.121(6), Florida
3890Statutes, provides that the administrative penalty can be
3898assessed for each additional day during which a violation
3907occurs. In its NOV, the Department demands $500 for each of the
3919ten semi - annual reports that Laniger failed to submit between
3930August 26, 1999, and August 25, 2004, for a total penalty of
3942$5,000.
394449. Section 403.121(10), Florida Statutes, provides that
3951an administrative law judge may " reduce up to 50 percent the
3962penalty imposed for mitigating factors. " Mitigating factors
3969regarding Laniger ' s failure to submit semi - annual progress
3980reports are that (1) Laniger believed that its semi - annual
3991groundwater monito ring reports satisfied the requirement for
3999semi - annual progress reports and, although that was an error, it
4011was not completely unreasonable given the wording of the
4020condition in the administrative order, and (2) the usefulness of
4030the progress reports prior to the availability of a centralized
4040sewage collection and treatment facility was not made clear by
4050the Department, and the Department ' s long delay in doing
4061anything about Laniger ' s failure to file the reports suggests
4072the Department did not considered th e progress reports to be
4083very important. It is concluded, therefore, that the penalty
4092should be reduced 50 percent, to $2,500.
4100Count III
41025 0 . The Department presented evidence in support of its
4113claim to $1,000 in reasonable costs. Because the Department is
4124the prevailing party in this enforcement case, it is entitled to
4135recover these costs. § 403.121(2)(f), Fla. Stat.
4142Orders for Corrective Action
41465 1 . In its NOV, the Department demands that Laniger enter
4158into a wastewater service agreement with Martin County and apply
4168to the Department for approval to connect to the Martin County
4179force main within 120 days. The NOV also requires Laniger to
4190submit an " inactivation/abandonment " plan to the Department
4197within 60 days of Laniger ' s receipt of the permit to c onnect to
4212the Martin County force main.
42175 2 . Because in the Recommended Order in the consolidated
4228permit case the undersigned concludes that Laniger is entitled
4237to the renewal of its permit, these corrective actions demanded
4247by the Department are rejected .
4253DISPOSITION
4254Based on the foregoing Findings of Fact and Conclusions of
4264Law, it is ORDERED:
42681. For violating Count I of the NOV, Laniger shall pay a
4280penalty of $1,500;
42842. For violating Count II of the NOV, Laniger shall pay a
4296penalty of $2,500;
43003. La niger shall pay the Department ' s costs of $1,000;
43134. Laniger ' s payment of the penalties and costs, described
4324above, shall be made within fifteen days of the date of this
4336Final Order, payable to the " State of Florida Department of
4346Environmental Protection, " and shall include thereon the
4353notations " OGC Case No. 05 - 0319 " and " Ecosystem Management and
4364Restoration Trust Fund. " The payment shall be sent to State of
4375Florida Department of Environmental Protection, Southeast
4381District Branch Office, 1801 Southeast Hillmoor Drive,
4388Suite C - 204, Port St. Lucie, Florida 34952.
4397DONE AND ORDERED this 1 9 th day of September, 2006 , in
4409Tallahassee, Leon County, Florida.
4413S
4414BRAM D. E. CANTER
4418Administrative Law Judge
4421Division of Administrative Hearings
4425The DeSoto Building
44281230 Apalachee Parkway
4431Tallahassee, Florida 32399 - 3060
4436(850) 488 - 9675 SUNCOM 278 - 9675
4444Fax Filing (850) 921 - 6847
4450www.doah.state.fl.us
4451Filed with the Clerk of the
4457Division of Administrative Hearings
4461this 1 9 th day of Septembe r , 2006 .
4471ENDNOTES
44721/ Unless otherwise indicated, all references to the Florida
4481Statutes are to the 2005 codification.
44872 / Counsel for the Department stated that " a proposed final
4498order is not contemplated " under Section 403.121, Florida
4506Statutes, but one was submitted by the Department " at the
4516request of the administrative law judge. " Section
4523403.121(2)(h), Florida Statutes, provides that " Chapter 120
4530shall apply " to administrative enforcement proceedings.
4536Providing the parties an opportunity to fil e post - hearing
4547submittals is just as appropriate in an enforcement proceeding
4556as in any other Chapter 120 hearings involving disputed issues
4566of material fact, and is contemplated in Florida Administrative
4575Code Rule 28 - 106.215. Moreover, the undersigned di d not request
4587post - hearing submittals, but merely established the deadline for
4597them, " if filed. "
46003 / The term " package plant " is not defined in any statute or
4613rule of the Department. However, in the 1991 report of the
4624Department, discussed later in this Final Order, the Department
4633defined a package plant as " a manufactured treatment facility
4642that is prefabricated or has a modular design. It typically has
4653a design capacity of less than 1.0 mgd [million gallons per day]
4665and is intended to serve small areas. "
46724 / Laniger presented evidence at the final hearing in support
4683of its claim that the Martin County force main was not available
4695because Laniger ' s cost to connect to the force main would be
4708prohibitively large.
47105 / In the permit case, it is concluded th at Department lacks
4723authority to require Laniger to connect to a centralized sewage
4733collection and treatment facility or provide assurance beyond
4741the reasonable assurance generally required for package sewage
4749treatment plants. The Department ' s sole relian ce on
4759Chapter 90 - 262, Laws of Florida, is insufficient because that
4770law merely directed the Department to " identify areas served by
4780package sewage treatment plants which are considered a threat to
4790water quality of the Indian River Lagoon System. " The law did
4801not create new standards or permitting requirements for package
4810plants located within the lagoon system. There was no basis
4820shown by the Department to impose additional requirements on
4829Laniger beyond the requirements that would have been applicable
4838t o Laniger ' s WWTP if it had been located 100 feet from Warner
4853Creek.
4854COPIES FURNISHED :
4857Martin S. Friedman, Esquire
4861Rose, Sundstrom & Bentley, LLP
48662180 West State Road 434, Suite 2118
4873Longwood, Florida 32779
4876Ronda L. Moore, Esquire
4880Department of Environ mental Protection
48853900 Commonwealth Boulevard
4888Mail Station 35
4891Tallahassee, Florida 32399 - 3000
4896Lea Crandall, Agency Clerk
4900Department of Environmental Protection
4904Douglas Building, Mail Station 35
49093900 Commonwealth Boulevard
4912Tallahassee, Florida 32399 - 3000
4917Greg Munson, General Counsel
4921Department of Environmental Protection
4925Douglas Building, Mail Station 35
49303900 Commonwealth Boulevard
4933Tallahassee, Florida 32399 - 3000
4938Colleen M. Castille, Secretary
4942Department of Environmental Protection
4946Douglas Building, Ma il Station 35
49523900 Commonwealth Boulevard
4955Tallahassee, Florida 32399 - 3000
4960NOTICE OF RIGHT TO JUDICIAL REVIEW
4966A party who is adversely affected by this Final Order is
4977entitled to judicial review pursuant to Section 120.68, Florida
4986Statutes. Review proc eedings are governed by the Florida Rules
4996of Appellate Procedure. Such proceedings are commenced by
5004filing the original Notice of Appeal with the agency clerk of
5015the Division of Administrative Hearings and a copy, accompanied
5024by filing fees prescribed by law, with the District Court of
5035Appeal, First District, or with the District Court of Appeal in
5046the Appellate District where the party resides. The notice of
5056appeal must be filed within 30 days of rendition of the order to
5069be reviewed.
- Date
- Proceedings
- PDF:
- Date: 08/18/2006
- Proceedings: Department of Environmental Protection`s Proposed Final Order filed.
- PDF:
- Date: 08/18/2006
- Proceedings: Respondent, Department of Environmental Protection`s, Proposed Recommended Order filed.
- Date: 08/10/2006
- Proceedings: Transcript of Proceedings (Volume I and II) filed.
- Date: 07/10/2006
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 06/30/2006
- Proceedings: Laniger Enterprises of America, Inc.`s Notice of Filing Excerpts from the Deposition of Joe May in Support of its Emergency Motion to Exclude Expert Witnesses filed.
- PDF:
- Date: 06/29/2006
- Proceedings: Laniger Enterprises of America, Inc.`s Responses to Florida Department of Environmental Protection`s Second Request for Production of Documents filed.
- PDF:
- Date: 06/29/2006
- Proceedings: Notice of Service of Laniger Enterprises of America, Inc.`s Responses to Florida Department of Environmental Protection`s Second Request for Production of Documents filed.
- PDF:
- Date: 06/29/2006
- Proceedings: Laniger Enterproises of America, Inc.`s Emergency Motion to Exclude Expert Witnesses filed.
- PDF:
- Date: 06/28/2006
- Proceedings: Laniger Enterprises of America, Inc.`s Responses to Florida Department of Environmental Protection`s Request for Admissions filed.
- PDF:
- Date: 06/28/2006
- Proceedings: Notice of Service of Laniger Enterprises of America, Inc.`s Responses to Florida Department of Environmental Protection`s Request for Admissions filed.
- PDF:
- Date: 06/13/2006
- Proceedings: Department of Environmental Protection`s Notice of Taking Depositions filed.
- PDF:
- Date: 06/09/2006
- Proceedings: Department of Environmental Protection`s Notice of Taking Deposition Duces Tecum filed.
- PDF:
- Date: 06/01/2006
- Proceedings: Department of Environmental Protection`s Second Request for Production of Documents to Laniger Enterprises of America, Inc. filed.
- PDF:
- Date: 06/01/2006
- Proceedings: Department of Environmental Protection`s First Request for Admissions to Laniger Enterprises of America, Inc. filed.
- PDF:
- Date: 04/18/2006
- Proceedings: Joint Notice of Related Case and Motion to Consolidate (with Case No. 05-1599) filed.
- PDF:
- Date: 04/12/2006
- Proceedings: Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment filed.
Case Information
- Judge:
- BRAM D. E. CANTER
- Date Filed:
- 04/12/2006
- Date Assignment:
- 04/18/2006
- Last Docket Entry:
- 09/19/2006
- Location:
- Stuart, Florida
- District:
- Southern
- Agency:
- Department of Environmental Protection
- Suffix:
- EF
Counsels
-
Martin S. Friedman, Esquire
Address of Record -
Ronda L. Moore, Esquire
Address of Record