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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1245EF

)

LANIGER ENTERPRISES OF AMERICA, )

INC. , )

)

Respondent . )

)

FINAL 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).

APPEARANCES

For Petitioner: Ronda L. Moore, Esquire

Department of Environmental Protection

3900 Commonwealth B oulevard

M ail S tation 35

Tallahassee, Florida 32399 - 3000

For Respondent: Martin S. Fri edman, Esquire

Rose, Sundstrom & Bentley, LLP

2180 W est State Road 434, Suite 2118

Longwood, Florida 32779

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent Laniger

Enterprises of Amer ica, Inc. (Laniger) , is liable to Petitioner

Department of Environmental Protection (Department) for

penalties and costs for the violations alleged in the

Department ' s Notice of Violation, Orders for Corrective Action,

and Administrative Penalty Assessment (NOV).

PRELIMINARY STATEMENT

On August 12, 2005, the Department issued a three - count NOV

against Laniger, pursuant to Section 403.121, Florida Statutes

(2005), 1 for Laniger ' s alleged failure to timely apply for

renewal of its domestic wastewater treatment facility permit,

for Laniger ' s alleged failure to submit certain semi - annual

progress reports, and for the Department ' s enforcement costs.

The Department seeks to impose administrative penalties in the

amount of $9,000, to require Laniger to take specifi ed

corrective actions, and to recover the Department ' s enforcement

costs. Laniger filed a petition to challenge the NOV and the

Department referred the matter to DOAH to conduct an evidentiary

hearing. Pursuant to Section 403.121(2), Florida Statutes, th e

Department is the " petitioner " in an administrative enforcement

proceeding.

Upon the joint request of the parties, this enforcement

case was consolidated for hearing with a permit case (DOAH Case

05 - 1599) arising from the Department ' s noticed intent to d eny

Laniger ' s application to renew its operating permit for its

domestic wastewater treatment plant (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, an expert in

hydrology. The Department ' s Exhibits 1 through 17 and 20 were

admitted into evidence. Laniger pr esented the testimony of

Reginald Burge; John Whitmer, an expert in design and permitting

of wastewater treatment plants; and James Herin, an expert in

the 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 Department timely filed post - hearing

submittals that have been carefully considered in the

preparation of this Final Order. 2

FINDINGS OF FACT

The Parties

1. The Department is the administrative agency of the

State of Florida having the power and duty to protect Florida ' s

air and water resources and to administer and enforce the

provisions of Chapter 403, Florida S tatutes, and the rules

promulgated in Florida Administrative Code Title 62.

2. Laniger is a Florida corporation that owns and operates

the WWTP that is the subject of this case, located at 1662

N ortheast 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 foreclosure

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

and was operating under a consent order wit h the Department.

After acquiring the WWTP, Laniger brought it into compliance

with the Department ' s requirements.

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

plant. " 3 The WWTP ' s treatment processes are extended aeration,

chlorination, and e ffluent 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 s ide 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 District

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

composed of Mosquito Lagoon, Indian River Lagoon, and Banana

River Lagoon. It extends from Ponce de Leon Inlet in Vo lusia

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

155 miles.

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

major problem affecting the water quality of 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

S t. Lucie River area near Laniger ' s WWTP is within any of the

12 problem areas identified in the SWIM Plan.

9. With regard to package 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, beca use 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, Chapter 90 - 262, Laws of Florida. Section 1 of the

Act defined the Indian River Lagoon System as including the same

water bodies as d escribed in the SWIM Plan, and their

tributaries. Section 4 of the Act provided:

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

Environmental 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 repo rt 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 d irect 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 discha rges or

may discharge to the lagoon system during

wet periods were considered threats.

* * *

3. Facilities with percolation ponds,

absorption fields, or other sub - surface

disposal systems located more than 100 feet

from surface water bodies in the s ystem 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. The Department notified Laniger that its WWTP was

listed as a threat to the water quality of the lagoon system

soon after the 1991 report was issued.

15. The De partment ' s 1991 report concluded that the

solution for package plants threats was to replace them with

centralized sewage collection and treatment facilities. To

date, over 90 of the package plants identified in the

Department ' 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

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

Wastewater 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

sta tute 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 compliance.

17. 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

[sic] 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. "

18. Most of the parties ' evidence and ar gument was

directed to the following requirements of the administrative

order:

1. Beacon 21 WWTP shall connect to the

centralized wastewater collection and

treatment within 150 days of its

availability and properly abandoned facility

[sic] or provide reas onable assurance in

accordance with Chapter 62 - 620.320(1) of the

Florida Administrative Code that continued

operation of the wastewater facility is not

a threat to the water quality of the Indian

River Lagoon System and will not cause

pollution in contrave ntion of chapter 403,

F.S. and Chapter 62 - 610.850 of the Florida

Administrative Code.

* * *

(3) Beacon 21 WWTP shall provide this

office with semi annual reports outlining

progress toward compliance with the time

frames specified in paragraph 1 of t his

section, beginning on the issuance date of

permit number FLA013879 - 002 - DW3P.

19. The administrative order contained a " Notice of

Rights " which informed Laniger of the procedures that had to be

followed to challenge the administrative order. Laniger did not

challenge the administrative order.

20. As a result of an unrelated enforcement action taken

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

monetary penalty, Martin County agreed to extend a force main

from its centralized sewage collec tion and treatment facility so

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

force main was completed in April 2003.

21. The force main was not extended to the boundary of the

Laniger WWTP site. The force main terminates approximately

1 50 feet north of the Laniger WWTP site and is separated from

the WWTP site by a railroad.

Correspondence Regarding Compliance Issues

22. On August 21, 2001, following an inspection of the

Laniger WWTP, the Department sent Laniger a letter that

identified some deficiencies, one of which was Laniger ' s failure

to submit the semi - annual progress reports required by the

administrative order. Reginald Burge, p resident of Laniger and

owner of the WWTP, responded by letter to William Thiel of the

Department, stat ing that, " All reports were sent to the West

Palm Beach office. Copies are attached. "

23. Mr. Thiel testified that the progress reports were not

attached to Laniger ' s letter and he informed Laniger that the

reports were not attached. Mr. Burge testified that he

subsequently hand - delivered the reports. At the hearing, it was

disclosed that Laniger believed its semi - annual groundwater

monitoring reports satisfied the requirement for progress

reports and it was the monitoring reports that Mr. Burge was

ref erring to in his correspondence and which he hand - delivered

to the Department. Laniger ' s position in this regard, however,

was not made clear in its correspondence to the Department and

the Department apparently never understood Laniger ' s position

until a fter issuance of the NOV.

24. 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 remin ded Laniger of the

requirement of the administrative order to connect within

150 days of availability.

25. On May 9, 2003, the Department received a response

from Laniger ' s attorney, stating that the administrative order

allowed Laniger, as an alternative to connecting to the

centralized wastewater collection and treatment system, to

provide reasonable assurance that the WWTP was not a threat to

the water quality of the lagoon system, and Laniger had provided

such reasonable assurance. It was also stated in the letter

from Laniger ' s attorney that " due to the location of Martin

County ' s wastewater facilities, such facilities are not

available as that term is defined in the [administrative]

Order. " 4

26. On May 29, 2003, the Department replied, pointing out

that the administrative order had found that reasonable

assurance was not provided at the time of the issuance of the

permit in 1999 , and Laniger had made no " improvements or

upgrades to the facility. " The Department also reiterated that

the progress repo rts had not been submitted.

27. On September 29, 2003, the Department issued a formal

Warning Letter to Laniger for failure to connect to the Martin

County force main and for not providing reasonable assurance

that the WWTP will not cause pollution in co ntravention of

Chapter 403, Florida Statutes. The progress reports were not

mentioned in the Warning Letter.

28. The Department took no further formal action until it

issued the NOV in August 2005.

Count I: Failure to Timely File for Permit Renewal

and Operating Without a Permit

29. Count I of the NOV alleges that Laniger failed to

submit its permit renewal application at least 180 days prior to

the expiration of the 1999 permit, failed to obtain renewal of

its permit, and is operating the WWTP without a valid permit.

30. The date that was 180 days before the expiration of

the 1999 permit was on or about February 27, 2004. Laniger did

not submit its permit renewal application until February 15,

2005.

31. In an " enforcement meeting " between Laniger an d the

Department following the issuance of the warning letter in

September 2003, the Department told Laniger that it would not

renew Laniger ' s WWTP permit. It was not established in the

record whether this enforcement meeting took place before or

after Fe bruary 27, 2004.

32. When Laniger filed its permit renewal application in

February 2005, 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 applicati on.

Laniger requested that the Department to act on the permit

application , and the Department denied the application on

April 6, 2005. The Department ' s Notice of Permit Denial stated

that the permit was denied because Laniger had not connected to

the av ailable centralized wastewater collection and treatment

system nor provided reasonable assurance that the WWTP " is not

impacting water quality within the Indian River Lagoon System. "

Laniger filed a petition challenging the permit denial and that

petition is the subject of DOAH Case 05 - 15 9 9, which was

consolidated for hearing with this enforcement case.

33. Laniger ' s permit expired on August 25, 2004. Laniger

has operated the plant continuously since the permit expired.

Count II: Failure to Submit Progr ess Reports

34. Count II of the NOV alleges that Laniger failed to

comply with the requirement of the administrative order to

provide the Department with semi - annual reports of Laniger ' s

progress toward connecting to a centralized sewage collection

and tr eatment facility or providing reasonable assurances that

continued operation of the WWTP would not be a threat to the

water quality of the lagoon system. Laniger maintains that its

groundwater monitoring reports satisfied the requirement for the

semi - annu al progress reports because they showed that the WWTP

was meeting applicable water quality standards.

35. The requirement for groundwater monitoring reports was

set forth in a separate section of Laniger ' s permit from the

requirement to provide the semi - a nnual progress reports. The

monitoring reports were for the purpose of demonstrating whether

the WWTP was violating drinking water quality standards in the

groundwater beneath the WWTP site. They served a different

purpose than the progress reports, whic h were to describe steps

taken by Laniger to connect to a centralized sewage collection

and treatment facility. Laniger ' s submittal of the groundwater

monitoring reports did not satisfy the requirement for

submitting semi - annual progress reports.

36. The re was testimony presented by the Department to

suggest that it believed the semi - annual progress reports were

also applicable to Laniger ' s demonstration of reasonable

assurances that the WWTP was not a threat to the water quality

of the lagoon system. Ho wever, the progress reports were for

the express purpose of " outlining progress toward compliance

with the time frames specified in paragraph 1. " (emphasis added)

The only time frame mentioned in paragraph 1 of the

administrative order is connection to an available centralized

wastewater collection and treatment facility " within 150 days of

its availability. " There is no reasonable construction of the

wording of this condition that would require Laniger to submit

semi - annual progress reports related to re asonable assurances

that the WWTP is not a threat to the water quality of the lagoon

system.

Count III: Department Costs

37. In Count III of the NOV, the Department demands

$1,000.00 for its reasonable costs incurred in this case.

Laniger did not disput e the Department ' s costs.

CONCLUSIONS OF LAW

38. DOAH has jurisdiction over the parties to and the

subject matter in this proceeding pursuant to Sections 120.569,

120.57(1), and 403.121, Florida Statutes.

39. Section 403.161(1)(b), Florida Statutes, prov ides that

it is a violation of Chapter 403, Florida Statutes, to fail to

obtain any permit required by this chapter or by rule or

regulation, or to violate or fail to comply with any rule,

order, or permit adopted or issued by the Department pursuant to

it s lawful authority.

40. Section 403.121(2)(b), Florida Statutes, provides that

if the Department has reason to believe a violation has

occurred, it may institute an administrative proceeding to order

the prevention, abatement, or control of the conditions creating

the violation or other appropriate corrective action. This

section also provides that the Department shall proceed

administratively in all cases where the Department seeks

administrative penalties of $10,000 or less. In this case, the

Departmen t is seeking administrative penalties of $9,000.

41. In administrative enforcement proceedings brought

pursuant to Section 403.121, Florida Statutes, the Department

has the burden to prove the alleged violations by a

preponderance of the evidence. § 403. 121(2)(d), Fla. Stat.

Count I

42. Florida Administrative Code Rule 62 - 620.410(5)

requires an applicant to apply to the Department to renew an

existing permit at least 180 days before the expiration date of

the existing permit. This requirement was also s tated in

Laniger ' s permit. Laniger does not dispute that it failed to

apply for renewal of its WWTP permit 180 days prior to the

expiration of the 1999 permit. However, the Department is not

demanding that Laniger pay a penalty for this violation.

43. C ount I of the NOV also charges Laniger with operating

without a permit. Florida Administrative Code Rule 62 -

600.700(1) requires a domestic wastewater treatment and effluent

disposal facility to have a Department permit to operate. There

is no dispute tha t Laniger has continuously operated its WWTP

after August 25, 2004, without a permit.

44. Laniger is liable for operating without a permit from

the expiration of its permit on August 25, 2004, until the

Department denied Laniger ' s application to renew the permit on

April 5, 2005. However, Laniger cannot be held liable for

operating without a permit after April 5, 2005, because, as

concluded in the companion permit case, Laniger was entitled to

issuance of the renewal permit. 5

45. Section 403.121(3)(b), F lorida Statutes, provides that

for failure to obtain a required wastewater permit the

Department shall assess a penalty of $1,000. Section

403.121(6), Florida Statutes, provides that the administrative

penalty can be assessed for each additional day durin g which a

violation occurs. The Department demands that an additional

penalty be imposed for each of the four quarters of the year

that have passed since the 1999 permit expired, for a total

penalty for Count I of $4,000. As stated above, Laniger cannot

be held liable for operating without a permit after April 5,

2005. Laniger is only liable for operating without a permit for

a period of 2 1/3 quarters . Therefore, consistent with the

approach taken by the Department, it is concluded that the

penalty for this violation, before application of mitigating

factors, should be $2,333.

46. Section 403.121(10), Florida Statutes, provides that

an administrative law judge may " reduce up to 50 percent the

penalty imposed for mitigating factors. " A mitigating facto r in

regard to Laniger ' s failure to file its permit renewal

application in time to avoid operating without a permit was the

Department ' s statement to Laniger that it did not intend to

approve the permit, and the Department ' s subsequent attempt to

return La niger ' s permit application. These actions show clearly

that no matter when Laniger had applied for renewal of its

permit, it would have been summarily denied by the Department.

It is concluded, therefore, that the penalty should be reduced

to $1,500.

Cou nt II

47. The Department asserts in Count II of its NOV that

Laniger violated Section 403.161(1)(b), Florida Statutes, when

it did not comply with the requirement of the administrative

order to submit the semi - annual reports of Laniger ' s progress in

conne cting to a centralized sewage collection and treatment

facility. The Department met its burden to prove by a

preponderance of the evidence that Laniger is liable for the

violation alleged in Count II of the NOV.

48. Section 403.121(4)(f), Florida Statute s, provides that

failing to submit required reports is a violation for which a

$500.00 penalty can be imposed. Section 403.121(6), Florida

Statutes, provides that the administrative penalty can be

assessed for each additional day during which a violation

occurs. In its NOV, the Department demands $500 for each of the

ten semi - annual reports that Laniger failed to submit between

August 26, 1999, and August 25, 2004, for a total penalty of

$5,000.

49. Section 403.121(10), Florida Statutes, provides that

an administrative law judge may " reduce up to 50 percent the

penalty imposed for mitigating factors. " Mitigating factors

regarding Laniger ' s failure to submit semi - annual progress

reports are that (1) Laniger believed that its semi - annual

groundwater monito ring reports satisfied the requirement for

semi - annual progress reports and, although that was an error, it

was not completely unreasonable given the wording of the

condition in the administrative order, and (2) the usefulness of

the progress reports prior to the availability of a centralized

sewage collection and treatment facility was not made clear by

the Department, and the Department ' s long delay in doing

anything about Laniger ' s failure to file the reports suggests

the Department did not considered th e progress reports to be

very important. It is concluded, therefore, that the penalty

should be reduced 50 percent, to $2,500.

Count III

5 0 . The Department presented evidence in support of its

claim to $1,000 in reasonable costs. Because the Department is

the prevailing party in this enforcement case, it is entitled to

recover these costs. § 403.121(2)(f), Fla. Stat.

Orders for Corrective Action

5 1 . In its NOV, the Department demands that Laniger enter

into a wastewater service agreement with Martin County and apply

to the Department for approval to connect to the Martin County

force main within 120 days. The NOV also requires Laniger to

submit an " inactivation/abandonment " plan to the Department

within 60 days of Laniger ' s receipt of the permit to c onnect to

the Martin County force main.

5 2 . Because in the Recommended Order in the consolidated

permit case the undersigned concludes that Laniger is entitled

to the renewal of its permit, these corrective actions demanded

by the Department are rejected .

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

1. For violating Count I of the NOV, Laniger shall pay a

penalty of $1,500;

2. For violating Count II of the NOV, Laniger shall pay a

penalty of $2,500;

3. La niger shall pay the Department ' s costs of $1,000;

4. Laniger ' s payment of the penalties and costs, described

above, shall be made within fifteen days of the date of this

Final Order, payable to the " State of Florida Department of

Environmental Protection, " and shall include thereon the

notations " OGC Case No. 05 - 0319 " and " Ecosystem Management and

Restoration Trust Fund. " The payment shall be sent to State of

Florida Department of Environmental Protection, Southeast

District Branch Office, 1801 Southeast Hillmoor Drive,

Suite C - 204, Port St. Lucie, Florida 34952.

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

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 9 th day of Septembe r , 2006 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2005 codification.

2 / Counsel for the Department stated that " a proposed final

order is not contemplated " under Section 403.121, Florida

Statutes, but one was submitted by the Department " at the

request of the administrative law judge. " Section

403.121(2)(h), Florida Statutes, provides that " Chapter 120

shall apply " to administrative enforcement proceedings.

Providing the parties an opportunity to fil e post - hearing

submittals is just as appropriate in an enforcement proceeding

as in any other Chapter 120 hearings involving disputed issues

of material fact, and is contemplated in Florida Administrative

Code Rule 28 - 106.215. Moreover, the undersigned di d not request

post - hearing submittals, but merely established the deadline for

them, " if filed. "

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

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

Department, discussed later in this Final 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]

and is intended to serve small areas. "

4 / Laniger presented evidence at the final hearing in support

of its claim that the Martin County force main was not available

because Laniger ' s cost to connect to the force main would be

prohibitively large.

5 / In the permit case, it is concluded th at Department lacks

authority to require Laniger to connect to a centralized sewage

collection and treatment facility or provide assurance beyond

the reasonable assurance generally required for package sewage

treatment plants. The Department ' s sole relian ce on

Chapter 90 - 262, Laws of Florida, is insufficient because that

law merely directed the Department 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 requirements for package

plants located within the lagoon system. There was no basis

shown by the Department to impose additional requirements on

Laniger beyond the requirements that would have been applicable

t o Laniger ' s WWTP if it had been located 100 feet from Warner

Creek.

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 Environ mental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental 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, Ma il Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proc eedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.