06-001245EF Laniger Enterprises Of America, Inc. vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, September 19, 2006.


View Dockets  
Summary: Respondent shall pay a penalty of $1,500 for operating a package wastewater treatment plant without a permit, $2,500 for failing to submit certain reports, and $1,000 for Respondent`s costs.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/19/2006
Proceedings: DOAH Final Order
PDF:
Date: 09/19/2006
Proceedings: Final Order (hearing held July 10, 2006). CASE CLOSED.
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.
PDF:
Date: 08/18/2006
Proceedings: (Petitioner`s) Proposed Recommended Order filed.
Date: 08/10/2006
Proceedings: Transcript of Proceedings (Volume I and II) filed.
PDF:
Date: 08/10/2006
Proceedings: Notice of Filing (Transcript of Proceedings) 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: Pre-hearing Stipulation 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: 06/21/2006
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 06/13/2006
Proceedings: Department of Environmental Protection`s Notice of Taking Depositions filed.
PDF:
Date: 06/12/2006
Proceedings: Notice of Taking Deposition Duces Tecum 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: 05/24/2006
Proceedings: Order of Consolidation (DOAH Case Nos. 05-1599 and 06-1245EF).
PDF:
Date: 04/18/2006
Proceedings: Joint Notice of Related Case and Motion to Consolidate (with Case No. 05-1599) filed.
PDF:
Date: 04/14/2006
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 04/12/2006
Proceedings: State of Florida Domestic Wastewater Facility Permit filed.
PDF:
Date: 04/12/2006
Proceedings: Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment filed.
PDF:
Date: 04/12/2006
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 04/12/2006
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
PDF:
Date: 04/12/2006
Proceedings: Initial Order.

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

Related Florida Statute(s) (5):