STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY UTILITIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2356

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on January 5, 1981, in Tavares, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: George B. Stallings, Jr., Esquire

Post Office Box 13, Ortega Station Jacksonville, Florida 32210

For Respondent: Charles G. Stevens, Esquire

Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

These proceedings began on November 20, 1979, when the Petitioner, Lake County Utilities, Inc. filed a Petition for Administrative Hearing with the Respondent, Department of Environmental Regulation (DER). The Petition requested a hearing on the Department's proposed denial of an application for a construction permit to build two (2) percolation ponds, a storm water control structure and culvert, and to regrade Petitioner's water and sewer plant site. By notice dated November 26, 1979, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. On March 6, 1980, Petitioner moved for an order to join the Lake County Pollution Control Board and the County Commissioners of Lake County as parties to this proceeding. Because in administrative proceedings there is no provision for the mandatory joiner of parties, the Motion was denied, but notice of the proceedings was sent to the Lake County Pollution Control Board. Section 28-5.107, Florida Administrative Code. The Lake County Pollution Control Board responded on June 2, 1980, by saying that it did not wish to participate as a party in the proceedings.

Thereafter Petitioner on June 30, 1980, filed a Motion For Declaratory Statement and Summary Order 1/ After a prehearing conference on July 1, 1980,

this Motion was denied on August 8, 1980 because there remained material facts in dispute between the parties. At the prehearing conference the Petitioner agreed to amend its Petition for Hearing to delete the constitutional issues raised therein since administrative hearing officers have no power to adjudicate them. An Amended Petition for Hearing was subsequently filed on August 13, 1980.

After one continuance the final hearing was held on January 5, 1981.

Respondent had sought to have the hearing continued further because the Department alleged that Petitioner was really seeking an operating permit in these proceedings but did not have pending a valid application for an operating permit. The Motion was denied because the reasons given for the continuance went to the merits of the case and required the consideration of facts not yet in the record.

At the final hearing Petitioner presented as its witnesses William G. Haynie, Robert A. Nord, William B. Moore, William K. Hennessy, William M. Boswick, Jr., Kenneth Wicks, Edward Davenport, and Allan Porter. It offered Exhibits 1-16 into evidence. Exhibits 1-7, 9-16 were received but the receipt of Exhibits 13, 14, 15 and 16 was limited solely for the purpose of showing that the applications were filed with DER. The statements contained therein were not accepted as true. DER presented as its witness William M. Boswick, Jr. The Department did not offer exhibits.

At the commencement of the final hearing Petitioner moved for a default against the Department for failure to comply with the Prehearing Order of October 6, 1980. That Order had required the parties to file a Prehearing Stipulation, or if they were unable to agree on one, to file in the alternative a Proposed Prehearing Statement not later than five days before the hearing.

The Order provided that:

Failure to comply with the requirements of this Order may result in cancellation of the hearing on the Hearing Officer's own motion, or may result in other appropriate sanctions such as the exclusion of not previously disclosed witnesses or exhibits.

Section 28-5.211, Florida Administrative Code.

Because DPR did fail to comply with the Order a sanction was granted. It was ordered that Petitioner could object to any evidence or testimony offered at the hearing by DER and have it excluded for failure to obey the prehearing order.

At the conclusion of the hearing the parties were provided the opportunity to file proposed orders and findings of fact. Section 120.57(1)(b)4. Florida Statutes. To the extent that the proposed findings of fact submitted by the parties are not reflected in this Order they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here. Agrico Chemical Company v. Department of Environmental Regulation, 356 So.2d 759, 763 (Fla. 1st D.C.A. 1978).

ISSUES PRESENTED

The parties have raised myriad issues hare. Petitioner has alleged being capriciously and arbitrarily denied its permit because similar treatment plants have been licensed nearby. The parties disagree over whether local Lake County

Pollution Control Board rules are applicable to Petitioner's plant. If the rules are applicable, they disagree over their interpretation. The parties further disagree over whether Petitioner has pending an application for a waste water treatment plant operating permit. It is this last issue which is discussed below because it is dispositive of the case.

FINDINGS OF FACT

1. Petitioner operates a waste water treatment plant in Lake County, Florida which serves four motels at the intersection of U.S. Highway 27 and SR

   19 immediately to the south of Interchange 27 on the Florida Turnpike.

   
   

2. On October 27, 1972, DER issued a construction permit to Petitioner to construct the plant at a design capacity of 250,000 gallons per day (gpd). The treated effluent was proposed to be discharged via a spray irrigation system to the ground water on Petitioner's site. The plant has never operated at capacity. Its normal volume has ranged from between a low of 40,000 gpd to a peak of 140,000 gpd.

   
   

3. Petitioner's plant is situated on a 12.5 acre site over a clay hard pan. The hard pan which is immediately below the ground surface prevents adequate percolation of the plant's effluent down to the underlying ground water. During periods of heavy rain the effluent from the plant has breached a retaining dike and flowed directly into a marsh area known as the Little Everglades to the north.

   
   

4. Petitioner has submitted four permit applications to the Department. The first, submitted in September of 1972 was for the construction permit already mentioned. The next applications dated October 22, 1973, was for an operation permit. The application indicated that there would be no discharge to surface waters but there would be a discharge to ground waters. The application also indicated that the availability of space for the expansion of the plant was limited to the site at that time. Petitioner later purchased additional land not reflected in this application.

   
   

5. The operation permit was never granted by the Respondent. As stated by Mr. Potter, President of Lake County Utilities, Inc., "In the fall of 1973, I made an application as engineer for the utility company to the Florida DPC [Department of Pollution Control] and to Lake County for an operation permit. That permit was denied by the Department on the ground that we had not satisfied Lake County as to the total containment of our effluent."

   
   

6. Subsequently on August 30, 1976, Petitioner submitted a construction permit application to DER for permission to add a 1.32 acre oxidation-polishing pond, to regrade and regrass the existing spray irrigation field, to construct a

   0.40 acre denitrification pond and to add a nutrient uptake. No increase in the design capacity was proposed. On that application Petitioner indicated that there would be a discharge to the surface waters of the state. In answer to that part of the application which asked for proposed drainage path of the effluent Petitioner stated,

   
   

   "From treatment plant to 'on-site' ponds to 'on-site' grassy pond and marsh would overflow to ajacent Florida DOT [Department of Transportation] borrow pit: thence via developed drainage waste to the 'Little Everglades' swamp: then, via developed canal

   and ditches and through natural ponds and marshes to 'Little Lake Harris' and ultimately the Atlantic Ocean."

   
   

   This permit was denied by DER because the Lake County Pollution Control Board did not approve the plan.

   
   

7. Finally on September 29, 1978, Petitioner applied for another construction permit. Thee construction would include:

   
   

   1. Construction of storm water control structures and culverts:

   2. Regrading of water and sewer plant sites;

   3. Construction of percolation pond "A" and enclosing dikes; and

   4. Construction of percolation pond "B" and enclosing dikes.

      
      

      This application was made in response to advice from DER that Petitioner's plant should be in a no discharge condition in order to comply with Lake County Pollution Control rules.

      
      

8. On November 2, 1979, the Department issued a Letter of Intent to deny the last permit application because the application was deemed to be incomplete and because the further data which DER requested was not provided. In response to DER's intent to deny the construction permit Petitioner on November 20, 1979, filed its Petition for an Administrative Hearing.

   
   

9. Petitioner does not now intend to construct the proposed facilities for which it requested the construction permit in September of 1978. The following colloquy is from the final hearing.

   
   

   Mr. Stephens Have you-- Can you describe briefly the nature of the changes proposed in your 1978 construction permit application?

   
   

   Mr. Potter 1978 construction permit application on nominally the five acre parcel to create a diked pond or lake.

   
   

   Mr. Stephens Uh-huh.

   
   

   Mr. Potter Solely that. The part on the nominally two and a half acre parcel, give or take, was to create a deep percolation pond in which I proposed digging through the clay to the sand and shell below.

   
   

   Mr. Stephens Uh-huh.

   
   

   Mr. Potter So that waters that entered that pond, A, because of its depth, would denitrify and release nitrogen contents to the atmosphere; and, the water would, because of its hydraulic head in relation to the soil below, would push its way into the soils below.

   Mr. Stephens Uh-huh.

   
   

   Mr. Potter But in the event I could not dispose of the water through that form of percolation, it would overflow into the five acre diked area. And thereby I hoped to satisfy Lake County and the D.E.R. and solve this lingering festering problem.

   
   

   Mr. Stephens Uh-huh. You are the Petitioner in this case. Is it your desire or intention to complete those. . .that construction?

   
   

   Mr. Potter Now that I have been made aware of the law, the law of Chapter four oh three, the rules of Florida D.E.R. and become clear as to the ordinances adopted by the County Commission and the Lake Pollution Board of Lake County as to Class 3-B waters, I have no intention of squandering my money, and, in effect, the money of my customers, in such a wasteful pursuit.

   
   

   Mr. Stephens So you're saying here under oath you don't intend to perform that work even if granted a permit?

   
   

   Mr. Potter Not shy of a court order.

   
   

   As the result of Mr. Potter's testimony on behalf of the Petitioner at the final hearing, it is found that Petitioner has withdrawn its September 1978 application for a construction permit.

   
   

10. There is not now pending before the Department of Environmental Regulation a valid permit application for the Petitioner to operate its waste water treatment plan.

    
    

11. On May 9, 1980 Lake County Utilities, Inc. served Petitioner's Fourth Interrogatories to Respondent which asked by Interrogatory 10:

    
    

    Please state when and by whom the Department of Environmental Regulation has caused field studies to be made and samples to be taken out of the waters of Lake County (and specifically the geographical vicinity of U.S. 27 - S.R. 19

    - Fla. Turnpike) periodically and in a logical geographic manner so as to determine the levels of water quality of the waters as such studies and sampling is within the powers and duty of the Department as mandated by the Florida Legislature in Chapter 403 of the Laws of Florida. (emphasis in original)

    The Department responded:

    
    

    10. The Department conducts sampling in the waters of Lake County in conjunction with individual permit applications and not on a systematic basis throughout the County. Respondent objects to this interrogatory as being irrelevant to this proceeding in that the subject permit was not denied on the basis of anticipated water quality violations, but rather, as a result of the pollution control ordinances of Lake County, Florida, which prohibit any discharge to surface waters from the subject facility, and which the Department is required to enforce pursuant to Section 403.182(6), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject of this case. Section 120.57(1) and Section 120.65, Florida Statutes.

    
    

13. According to Petitioner's Amended Petition for Administrative Hearing it seeks relief in the form of an operating permit for its waste water treatment plant in Lake County. This relief must be denied. The authority and responsibility for permitting baste water treatment plants rest with the Respondent. Section 403.087(1), provides:

    
    

    1. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. In no event shall a permit for a water pollution source be valid for more than 5 years. However, upon expiration, a new permit may be issued by the department in accordance with this act and the rules and regulations of the department.

    2. The department shall adopt, amend, or repeal rules, regulations, and standards for

       the issuance, denial, and revocation of permits.

       
       

       Chapter 403 further provides that;

       
       

       (3)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires.

       Section 403.088(3)(a), Florida Statutes.

       Pursuant to those provisions the Department has promulgated Section 17-4.05, Florida Administrative Code which requires:

       
       

       1. Any person desiring to obtain a permit from the Department shall make application on forms prescribed by the Department and shall submit such information as the Department may require. The Department may require such person to submit any additional information reasonably necessary for proper evaluation.

    (4) To ensure protection of public health, safety, and welfare any construction, modification, or operation of an installation which may be a source of pollution shall be in accordance with good professional engineering practices pursuant to Chapter 471, Florida Statutes. Therefore, all applications for a Department permit shall be certified by a professional engineer registered in the State of Florida except as provided below.

    
    

14. In its application the prospective permittee must give reasonable assurances that the standards of Section 17-4.07, Florida Administrative Code will be met. Those criteria are:

    
    

    1. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations. After receipt of all required information the Department must either issue or deny the permit within sixty (60) days.

    2. When the application is found deficient in any respect, or required information has not been submitted to the Department, the application shall not be accepted. The Department shall notify the applicant of the deficiencies or lacking information and allow

       a reasonable time for corrections or submission of the necessary information.

    3. The Department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the Department except as provided in Chapter 403.088, F.S.

    At the present time Petitioner has not made a threshold showing of reasonable assurances that the operation of its plant will not cause pollution. This is because Petitioner does not even have an application pending for an operation permit. Since the conception of Lake County Utilities, Inc. Petitioner has filed four permit applications. One was for an operating permit, but it was filed over eight years ago and was denied. Petitioner's latest application was for a permit to build facilities which Petitioner does not now intend to construct.

    
    

15. In place of a pending application Petitioner relies on its Amended Petition for Administrative Hearing for its demand that it receive an operating permit. Petitioner asserts that since DER did not file either an answer or a motion in opposition to the petition in order to challenge Petitioner's allegation that it is entitled to an operating permit, the Department is now estopped by the pleadings from arguing that no operation permit application is pending.

    
    

16. Petitioner has misconceived the peculiar nature of pleadings under the Model Rules, Chapter 28, Florida Administrative Code. Section 28-5.203 provides;

    
    

    A respondent or intervenor may file an answer which shall contain any available affirmative defenses. If an answer is filed it shall be filed within twenty (20) days of service of the petition.

    
    

    Section 28-5.205 states:

    
    

    Motions in opposition to a petition, which may be filed by any party, include motions to dismiss, to strike, and for more definite statement, and shall be filed within twenty

    (20) days of service of the petition. Any ruling by a presiding officer on a motion in opposition to a petition shall be incorporated in a recommended order, and can be finally disposed of only by the agency head.

    
    

    These sections provide that answers or other responsive pleadings, such as motions, are permissive, but not mandatory as they are under either the Florida or Federal Rules of Civil Procedure. For this reason the Department has not admitted the allegations of the Amended Petition by failing to plead against it.

    
    

17. During the discovery between the parties the Department stated that the reason it intended to deny Petitioner's license application was because of Petitioner's failure to meet Lake County Pollution Control standards. 2/ Petitioner now argues that this answer estops DER from asserting that a license should not be denied far any other reason. This argument is flawed.

    
    

18. The Interrogatory which prompted DER's Answer is quoted at Findings of Fact 11 supra. It asked about when the Department had done water quality surveys.

    
    

    10. The Department conducts sampling in the waters of Lake County in conjunction with

    individual permit applications and not on a systematic basis throughout the County.

    Respondent objects to this interrogatory as being irrelevant to this proceeding in that the subject permit was not denied on the basis of anticipated water quality violations, but rather, as a result of the pollution control ordinances of Lake County, Florida, which prohibit any discharge to surface waters from the subject facility, and which the Department is required to enforce pursuant to Section 403.182(6), Florida Statutes.

    (emphasis added)

    
    

    From the answer it is impossible to determine which of Petitioner's four permit applications was being referred to. Since the only application pending at the time of the answer was the construction permit application of December 1978, I conclude that DER's answer was referring to that application. For this reason the answer cannot create an estoppel relating to the operating permit issue.

    
    

19. There is no means by which these proceedings can revive Petitioner's October 1973 operation permit application. If Petitioner were unhappy with DER's action when the permit was denied, Petitioner should have filed a timely appeal of the denial. This forum may not become the vehicle for a collateral attack on the Department's denial which constitutes final agency action.

    
    

20. Petitioner may not seek the issuance of a permit without first submitting an application in conformance with DER's rules. The facts of this case illustrate why. In one application 3/ Petitioner stated that its plant will not discharge to surface waters of the state. In a later application 4/ Petitioner stated that the plant would discharge to surface waters. On the present record there is no way to tell if Petitioner wants an operating permit allowing or not allowing a discharge to surface waters.

    
    

21. Because of the procedural posture of this case, with the only pending application found to have been withdrawn, this Order does not constitute an adjudication of whether an operating permit should ultimately be issued to Petitioner, if Petitioner later decides to make an application in conformance with Chapter 17-4, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it Is RECOMMENDED:

That the State of Florida, Department of Environmental Regulation enter a Final Order dismissing the Amended Petition for Administrative Hearing without prejudice, however, to the filing of a new application by Petitioner for a waste water treatment plant operating permit.

DONE and RECOMMENDED this 12th day of May, 1981, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1981.

ENDNOTES

1/ This Motion was not considered to he one for a declaratory statement as the Division of Administrative Hearings does not have jurisdiction to enter a declaratory statement on this subject matter. Section 120.565, Florida Statutes.

2/ Answer #10, Answers to Petitioner's Fourth Set of Interrogatories. 3/ September 1972--Construction Permit.

4/ August 1976--Construction Permit.

COPIES FURNISHED:

George B. Stallings, Jr., Esquire Post Office Box 13

Ortega Station

Jacksonville, Florida 32210

Charles G. Stevens, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 79-002356

Orders for Case No: 79-002356