STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSOLIDATED UTILITIES COMPANY, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-352

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on July 11, 1983, in Tallahassee, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: William E. Sundstrom, Esquire

1020 East Lafayette Street, Suite 103

Tallahassee, Florida 32301

For Respondent: Paul Ezatoff, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

This matter arose on Respondent's Notice of Violation to Petitioner which alleged violations of Chapter 403, Florida Statutes (F.S.), for failing to operate its sewage treatment plant with a valid permit and for failing to phase out the plant as required by its expired permit. The parties stipulated to the essential facts of this proceeding. Those proposed findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Petitioner owns and operates a 0.175 million gallon per day sewage treatment plant known as the Gramercy Park Sewage Treatment Plant, located north of Parke Avenue, 1/4 mile west of Haverhill Road, West Palm Beach, more specifically located at latitude 26 degrees 45' 52", longitude 80 degrees 07' 10", Palm Beach County, Florida. Petitioner's sewage treatment plant is of trickling filter design with tertiary filters discharging treated effluent to percolation ponds with an overflow provided to Canal EPB-10 which ultimately discharges to the South Florida Water Management District C-17 canal. The sewage treatment plant serves approximately 650 connections.

   
   

2. Petitioner has operated under a series of DER Temporary Operating Permits from on or about November 16, 1973, until January 1, 1981. These

   permits required petitioner to upgrade and modify the sewage treatment facility to achieve DER requirements for treatment efficiency and ultimately to design, finance, and construct a connection to the East Central Regional Sewage Treatment Plant for final sewage treatment and disposal.

   
   

3. Petitioner's most recent Temporary Operation Permit, No. DT 50-5339, contains the following Specific Condition:

   
   

   The issuance of this permit is based upon the permittee's request of 1/5/78 and in consideration of any comments from the public received pursuant to the Public Notice in the Palm Beach Post 1/23/78.

   It is issued to give the permittee a reasonable period of time to design, finance and construct a connection to the East Central Regional Sewage Treatment Facility for ultimate treatment and disposal of the Gramercy Park sewage.

   When the connection is placed in service, the treatment plant covered by this permit will be abandoned and dismantled. The schedule for construction of the connection to the East Central Regional Sewage Treatment Facility and abandonment of this treatment plant must be adhered to and is as follows:

   1. Preliminary engineering and approval - 7/79

   2. Final design and construction permit - 11/79

   3. Financing complete 7/79

   4. Contract award - 1/80

   5. Purchase of equipment complete - 5/80

   6. Start of construction - 1/81

   7. Completion of construction - 1/81

   8. Abandonment of treatment facility and diversion of flow to the East Central Regional Sewage Treatment Facility - 1/81

      
      

      Petitioner received, accepted, and operated pursuant to TOP No. DT 50-5338, and never objected to its conditions.

      
      

4. Petitioner was informed through DER correspondence dated March 8, 1978, that the referenced permit would not be effective unless accepted by Petitioner. That correspondence also informed Petitioner of its right to an Administrative Hearing if it objected to any portion of said permit. Petitioner did not request an Administrative Hearing or otherwise object to the provisions of DER Permit No. 50-5339.

   
   

5. Petitioner's sewage treatment plant is currently not in compliance with Florida Administrative Code Rule 17-6.060(1)(a)1., requiring secondary treatment of sewage. In its present condition, the sewage treatment plant is incapable of meeting the requirements of that rule.

   
   

6. Petitioner's most recent application (No. DT 50-62817) for a Temporary Operating Permit was denied by DER by Final Order dated March 4, 1983. Petitioner did not appeal the Final Order.

7. DER issued a Notice of Intent to Deny Application No. DT 50-62817 on February 4, 1983. Petitioner did not request an Administrative Hearing on the Notice of Intent to Deny.

   
   

8. DER has indicated by letter dated May 26, 1983, that no further discharge from the sewage treatment plant into Canal EPB-10 will be permitted.

   
   

9. Petitioner has failed to comply with Condition 1 of Permit No. DT 50- 5339, in that it has not abandoned its sewage treatment plant and has not diverted flow to the East Central Regional Sewage Treatment facility.

   
   

10. Such diversion is technologically feasible and the East Central Regional Sewage Treatment Facility is available to handle the flow from Petitioner's facility.

    
    

    CONCLUSIONS OF LAW

    
    

11. Rule 17-6.060(1)(a)1., Florida Administrative Code (F.A.C.), applies to Petitioner's sewage treatment plant, and provides in part:

(1) Technology-Based Effluent Limitations (TBELs).

1. Secondary Treatment -

   1. Surface water disposal (excluding ocean outfalls)

   All domestic wastewater facilities are required, at a minimum, to provide sec- ondary treatment of wastewater. New facilities and modifications of existing facilities shall be designed to achieve an effluent after disinfection containing

   not more than 20 mg/l BOD and 20 mg/l TSS, or 90 percent removal of each of these pollutants from the wastewater influent, whichever is more stringent. All facilities shall be operated to achieve, at a minimum, the specified effluent limitation (20 mg/l)

   . . . .

   
   

   12. Rule 17-6.180(1)(b)1., F.A.C., states in part:

   
   

   1. Operational Criteria

      * * *

2. Effluent Compliance Concentrations - The applicability of the effluent compliance concentrations contained below to all facilities, whether new or existing, shall depend on the treatment requirements refer- enced, pursuant to Section 17-6.010(5).

1. In order to determine compliance of a domestic wastewater facility with

   the secondary treatment standards speci- fied in Section 17-6.060(1)(a)1., (1)(a) 2.a., and (1)(a)3.a., the following opera- tional criteria shall be applicable.

   1. The arithmetic mean of the BOD and TSS values for the effluent samples collected

(whether grab or composite technique is used) during an annual period, as described in Subsection (a)1., above, shall not exceed 20 mg/1.

1. Section 403.087(1), Florida Statutes (F.S.), states:

   
   

   1. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, main- tained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. . . .

      
      

2. Section 403.088, F.S., states:

   
   

   1. No person, without written authori- zation of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below

      the classification established for them.

      
      

3. Rule 17-4.03, F.A.C., states:

Any stationary installation which will reasonably be expected to be a source of pollution shall not be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the Department, unless the source is exempted by Department rule.

16. Rule 17-6.140(2), F.A.C., states:

1. No person shall construct, modify, or operate any wastewater treatment plant or disposal system without an appropriate permit from the Department.

1. Petitioner's wastewater treatment plant is a stationary installation which may reasonably be expected to be a source of water pollution. A permit is required for the operation of this plant pursuant to Sections 403.087(1) and 403.088, F.S., and Rules 17-4.03 and 17-6.140(2), F.A.C.

   
   

   18. Section 403.161(1)(b), F.S., states:

   
   

   1. It shall be a violation of this chapter, and it shall be prohibited:

* * *

(b) 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, regulation, order, permit, or certification

adopted or issued by the department pursuant to its lawful authority.

1. Petitioner has violated Section 403.161(1)(b), F.S., by failing to comply with Condition No. 1 of Permit DT 50-5339; by failing to comply with the minimum treatment requirements under Rule 17-6.080, F.A.C.; and by operating its plant without the permit required by the above cited provisions.

   
   

2. Petitioner presented evidence relating to the cost of the corrective actions proposed by DER, including its inability to fund these improvements without a utility rate increase, and the financial impact of higher rates on it customers. However, there is no authority for DER to consider such evidence in determining that corrective actions are required to bring Petitioner's operation into compliance with the above provisions of Florida law. Therefore, Respondent's motion to exclude such evidence is granted.

   
   

3. DER seeks to recover $500 in investigation costs and expenses resulting from this proceeding. However, there was no evidence presented in support of this claim and it is therefore rejected.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Respondent enter a Final Order finding Petitioner guilty of the allegations contained in Counts One through Three of its, Notice of Violation, and requiring the previously directed sewage plant phaseout.

DONE and ENTERED this 30th day of August, 1983, in Tallahassee, Florida.

COPIES FURNISHED:

William E. Sundstrom, Esquire 1020 East Lafayette Street Suite 103

Tallahassee, Florida 32301

R. T. CARPENTER 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 30th day of August, 1983.

Paul R. Ezatoff, Jr., Esquire Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

CONSOLIDATED UTILITIES COMPANY, INC.,

Petitioner,

vs. DOAH Case No. 83-352

OGC Case No. 82-0581

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On August 30, 1983, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Recommended Order to the Department of Environmental Regulation (Department). A copy of the Recommended Order is attached as Exhibit A. On September 12, 1983, counsel for the Department timely filed Exceptions to Recommended Order, pursuant to Florida Administrative Code Rule 17-1.68.

RULINGS ON EXCEPTIONS

Counsel for the Department filed exceptions to both findings of fact and conclusions of law contained in the Recommended Order. The exception to findings of fact requests not that a hearing officer's finding be rejected, but rather that the following additional finding be made:

DER has incurred recoverable costs and expenses while investigating

this matter in the amount of $500.00.

This proposed finding was included in a proposed recommended order submitted to the hearing officer by DER. The hearing officer did not specifically rule on DER's proposed finding, but rather generally stated that "[t]hose proposed findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary or not supported by the evidence."

I have reviewed the complete record and I determine that the hearing officer erred in his rejection of DER's proposed finding. The proposed finding was stipulated by the parties, and constitutes an admission of one of the counts of the notice of violation which precipitated this order. As a fact central to one of the issues in this proceeding, the proposed finding cannot be considered subordinate or immaterial. The proposed finding is also not cumulative or unnecessary, since no other findings were made by the hearing officer relating to the issue. As a stipulated fact, the proposed finding is fully supported by the evidence. For the foregoing reasons, I find counsel's exception to be well- taken, and I specifically adopt the finding of fact set forth above.

Counsel for the Department also filed an exception to the hearing officer's conclusion of law that the Department's claim for investigative expenses must be rejected because no evidence in support of the claim was presented. In light of my ruling that the hearing officer erroneously rejected the parties' stipulation to the fact supporting DER's claim, I reject the hearing officer's conclusion of law. I specifically conclude that the stipulated fact was sufficient to support the Department's claim for recovery of the investigative expenses it incurred in this matter.

ORDER

Having considered the Recommended Order, the record, and the pleadings in this case, it is hereby

ORDERED that:

1. The hearing officer's findings of fact and conclusions of law, as modified by this Order, are adopted by the Department.

   
   

2. The orders for corrective actions of the notice of violation are adopted by the Department. Consolidated Utilities Company, Inc. (Consolidated) is required to comply with those orders, to wit:

   
   

   1. Consolidated, within 120 days, shall prepare and submit to the Department a complete construction permit application, with engineering plans and signed agreements, entered into between Consolidated and the East Central Regional Sewage Treatment Facility, covering the construction and installation of sewerage necessary to effect connection of Consolidated's plant to the regional facility.

      
      

   2. Consolidated, within 180 days, shall award a contract for completion of the work described in Consolidated's approved construction permit.

      
      

   3. Consolidated, within 270 days, shall complete construction of the permitted connection to the regional treatment facility, deactivate its treatment plant, and redirect all influent flow from its plant to the regional facility.

   4. Consolidated, within 30 days, shall continually operate its facility in a manner which will maximize the effectiveness of its wastewater treatment units and produce the highest quality effluent possible. Disinfection shall be provided to the extent necessary to provide intermediate disinfection, that is, not more than a 14 MPN fecal coliform value per 100 milliliters of effluent.

      
      

   5. Consolidated, within 30 days, shall remit the sum of $500.00 as reimbursement of investigative costs and expenses to the Department of Environmental Regulation, Southeast Florida District, Post Office Box 3858, West Palm Beach, Florida 33402. Consolidated shall tender by United States Mail a certified check in said sum, payable to the "Pollution Recovery Fund".

DONE AND ENTERED this 14 day of October, 1983, in Tallahassee, Leon County, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-4805

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to WILLIAM E. SUNDSTROM, ESQUIRE, 1020 East Lafayette Street, Suite 103, Tallahassee, Florida 32301, on this 19th day of October, 1983.

PAUL R. EZATOFF, JR.

Assistant General Counsel STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-9675

Docket for Case No: 83-000352

Orders for Case No: 83-000352