Judges: DIANE K. KIESLING
Agency: Department of Environmental Protection
Latest Update: Sep. 19, 1984
Summary: Due to problems with discharge system, Hearing Officer recommends that operating and construction permits be denied and withdrawal of month-to-month authorization.
83-3676.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TRANS/CIRCUITS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 83-3676
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0191
)
TRANS/CIRCUITS, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane K. Kiesling, held a public hearing in this cause on June 28 and 29, 1984, in West Palm Beach, Florida.
APPEARANCES
For Petitioner: John S. Wilbur, Jr., Esquire
Caldwell, Pacetti, Barrow and Salisbury
324 Royal Palm Way
Palm Beach, Florida 33480
For Respondent: Paul R. Ezatoff, Esquire
State of Florida
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
The dispute between the parties involves two separate controversies presently pending before the Division of Administrative Hearing in DOAH Case Nos. 83-3676 and 84-0191, which were consolidated for final hearing on motion of the Department of Environmental Regulation (DER). By stipulation of the parties at hearing, a third issue was brought before the hearing officer, and evidence and testimony was taken thereon.
In Case No. 83-3676, Trans/Circuits has petitioned for a Section 120.57(1), Florida Statutes, hearing to contest DER's Notice of Intent to Deny Trans/Circuits' application for a permit to operate its industrial wastewater treatment system. Trans/Circuits contends that it has provided reasonable assurances that operation of its facility would not cause pollution in violation of DER standards or rules.
In Case No. 84-0191, Respondent, Trans/Circuits, has requested a formal administrative hearing pursuant to the provisions of Section 120.57(1), Florida Statutes, to contest a letter from DER withdrawing a month-to-month authorization for the operation of Trans/Circuits' industrial wastewater treatment facility. The authorization had been granted by letter from DER pursuant to the terms of a consent order which had been issued by DER in OGC Case No. 82-0429. That letter also ordered that all operations resulting in the discharge of industrial wastewaters to the waters of the state by Trans/Circuits must cease until an appropriate DER permit was obtained.
The third issue which has been injected into these proceedings concerns Trans/Circuits' application for a permit for construction of improvements to its wastewater treatment system. Although DER had not yet taken final action with regard to the application, in the interest of judicial economy the parties agreed to have the issue considered at hearing, with the hearing officer making a recommendation concerning permit issuance or denial based on the evidence and testimony presented at hearing.
At the final hearing, Trans/Circuits called as its witnesses W. Stanley Hynes and Glenn Carter. Trans/Circuits offered Exhibits 1 and 2, which were received into evidence. DER called as its witnesses Richard Reis and Vivek Kamath. DER offered Exhibits 2 through 23 which were received into evidence.
The parties filed proposed findings of fact and conclusions of law as permitted by law. 1/ To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the credible evidence.
FINDINGS OF FACT
Trans/Circuits is a manufacturer of electronic printed circuit boards located at 210 Newman Way, Lake Park, Florida. Trans/Circuits' manufacturing operation involves the deposition of copper on plastic boards and the use of a lead or tin etch resist in order to create an electrically conducting circuit board.
In the course of the manufacturing process, rinsewaters are used which become contaminated with copper and lead from the manufacturing process. These rinsewaters undergo chemical treatment to remove the metals and other contaminants, and are then discharged into an unlined percolation pond located behind Trans/Circuits' facility. About 36,000 gallons of effluent are discharged into the pond every day. The percolation pond discharges into ground water underlying Trans/Circuits' facility which groundwaters contain less than 3000 milligrams per liter (mg/l) of total dissolved solids.
Trans/Circuits uses a Havviland brand wastewater treatment system. The system at present does not provide treatment sufficient to remove copper, fluoride, and lead from the wastewater effluent in compliance with the DER class
G-II groundwater standards for these metals, i.e., 1.0 mg/l of copper, 1.5 mg/l of fluoride, and .05 mg/l of lead. Trans/Circuits has exceeded the effluent limitations for copper and lead at almost all times since at least June 1984.
Trans/Circuits is not likely to comply with those standards for at least six months, by Trans/Circuits' own admission.
The Operating Permit Application, Case No. 83-3676
Trans/Circuits requested a hearing to contest the DER Notice of Intent to Deny the application for an operating permit. The burden of proof and burden of going forward is therefore on Trans/Circuits to show that it is entitled to issuance of the operating permit. In this regard, Trans/Circuits did not introduce into the case any evidence relating to the operating permit application and did not introduce the application, itself. Further, Trans/Circuits did not present any evidence that its installation will abate or prevent pollution, or that it can provide reasonable assurances that the system which it seeks to operate will not discharge, emit or cause pollution.
The Trans/Circuits facility has never been in compliance with DER standards and cannot provide assurances that it will be in compliance at anytime in the foreseeable future. Further Trans/Circuits has been operating without an operating permit at least since October 1983.
The Month-to-Month Authorization, Case No. 84-0191
On September 17, 1982, DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Trans/Circuits. The NOV alleged that Trans/Circuits violated provisions of Chapter 403, Florida Statutes, and DER rules in operation of its industrial waste water treatment and disposal system. Trans/Circuits requested and received an informal conference to discuss the allegations of the NOV, which conference was held on October 20, 1982.
At the informal conference, DER and Trans/Circuits reached agreement on a resolution of the issues raised by the NOV. On November 4, 1982, a Consent Order was issued by DER, setting forth the parties' agreement and requiring Trans/Circuits to perform certain corrective actions. In the consent order, Trans/Circuits agreed not to discharge industrial wastewaters into waters of the state "without an appropriate and valid permit authorizing such discharge or having otherwise obtained Department authorization."
At the time the consent order was issued, Trans/Circuits was operating pursuant to a DER construction permit which was issued for the purpose of allowing Trans/Circuits to make certain modifications to its treatment system to bring the system into compliance with DER effluent standards. The construction permit expired in January 1983, but Trans/Circuits continued to operate.
About one month after the construction permit expired, DER notified Trans/Circuits that it was violating the consent order by operating without DER authorization. The parties met to discuss the matter, and agreed that Trans/Circuits would cease operation for one week to conduct bench-scale testing to identify problem areas and possible corrective actions. Trans/Circuits did cease operation and conduct the testing as agreed.
Trans/Circuits presented the data resulting from their bench scale testing to DER, and represented that it had identified problem areas that needed correction. DER evaluated the data and agreed to allow Trans/Circuits to operate for a limited time to gather plant effluent quality data which would
form the basis for DER's decision whether to allow operation to continue. DER did not take enforcement action to have Trans/Circuits cease operation at that time because DER wanted to give Trans/Circuits time to show that it could comply with the effluent standards as it claimed it could.
On March 23, 1983, DER notified Trans/Circuits that there had been a significant improvement in the plant's ability to produce effluent of acceptable quality, and DER authorized Trans/Circuits to make modifications in order to improve effluent quality. DER at that time gave Trans/Circuits authorization to operate for an indefinite period, with the condition that DER would rescind its approval if the program of sampling and system approval did not continue. Trans/Circuits accepted the authorization on DER's terms.
On April 12, 1983, DER granted Trans/Circuits' month-to-month authorization to operate ". . . provided continued improvement is made in your system's operation and the Department can reasonably anticipate system compliance." This authorization was in response to a request from Trans/Circuits for 90-day temporary operating approval in order to demonstrate that the system could comply with state standards.
By letter dated October 5, 1983, DER withdrew its authorization for month-to-month operation of Trans/Cirouits' facility because it believed that compliance with state standards could no longer be reasonably anticipated. Despite Trans/Circuits' best efforts, the facility was not in compliance and DER had no assurance that continued operation would bring the facility into compliance within a reasonable amount of time. Trans/Circuits has never ceased operation since DER withdrew its month-to-month operating approval. Trans/Circuits has not had a DER permit for construction or operation of the facility since the expiration of their last construction permit in January, 1983. At a meeting on December 1, 1983, Trans/Circuits' general manager admitted that he was aware that Trans/Circuits' was in violation of the terms of the consent order by continuing to operate without DER authorization.
Analysis of Trans/Circuits' plant effluent for April 1983, shows that average lead levels were 0.21 parts per million (ppm) (or mg/l), average fluoride levels were 2.45 ppm, while average copper levels were 0.51 ppm. These were the effluent levels existing when Trans/Circuits was granted its month-to- month approval for operation. Since the month-to-month authorization was granted, the majority of Trans/Circuits' effluent samples have not complied with the DER standards for lead, copper, and fluoride.
Since April 16, 1984, five percent or less of Trans/Circuits' effluent samples have complied with the effluent standards for lead and copper. In the week or two prior to hearing, the majority of effluent samples contained lead at a concentration of 0.2 to 0-5 ppm (with some higher), and contained copper at a concentration of between 2 and 3.5 ppm (with some higher). The most recent data available indicate that Trans/Circuits is not in compliance with the effluent standards for lead, copper and fluoride. Daily average effluent concentrations for lead and copper are significantly greater now than they were when DER issued its month-to-month authorization. Groundwater samples just outside Trans/Circuits' property show violations of the DER standards for lead. The evidence shows that Trans/Circuits effluent quality has not improved since April 1983. Effluent concentrations of lead and copper have actually increased significantly since October 1983, when DER withdraw its month-to-month authorization. Trans/Circuits does not even expect to know before December 1984, whether its present system can attain compliance with effluent standards.
The Construction Permit Application
On March 8, 1984, Trans/Circuits applied to DER for a permit to construct modifications and improvements to the existing Havviland wastewater treatment system. Although the stated purpose of the requested construction was to upgrade the system to achieve compliance with the Riviera Beach Sewer Use Code so as to allow a sewer tie-in, Trans/Circuits had abandoned that purpose by the time of the hearing. Trans/Circuits now seeks to upgrade the systems so that the effluent can comply with the applicable standards for discharge to ground water.
When DER received the application, it was reviewed by a DER engineer to see if it was complete. The engineer determined it was not complete, and notified Trans/Circuits on April 6, 1984, that additional information was needed to complete the review process, all of which information was necessary to determine whether a permit should be issued for the requested construction.
Trans/Circuits' general manager objected to the request for additional information, claiming that all the requested information was not necessary to review the application. However, at the request of Trans/Circuits' counsel, a meeting was held between representatives of Trans/Circuits and DER to discuss the request for information that was needed for review of the application. Trans/Circuits thereafter, withdrew their objections, and agreed to provide the requested information.
Trans/Circuits responded to DER's request for additional information on June 27, 1984, at 3:30 P.M. the day prior to hearing. Trans/Circuits delivered a packet of information to DER at that time that purported to be the requested information. Also at that time, however, Trans/Circuits told DER that it had already performed some of the construction for which a permit was sought, and that it was not sure what, if any, of the remaining construction would be undertaken.
The information that was submitted to DER was not all of the information requested by DER. No flow diagram was submitted and waste effluent analysis was lacking. Without this information, it is impossible to determine whether or not reasonable assurance has been provided by Trans/Circuits that DER standards will be met.
Even if all of the requested information had been submitted, DER could not issue a construction permit to Trans/Circuits because its future construction plans are now only speculative. Trans/Circuits does not know what modifications it intends to construct, or when exactly such modifications will be made. All that is certain is that Trans/Circuits does not intend any longer to construct the modifications for which it made application. DER evaluates applications to determines whether all proposed modifications works as a system.
Trans/Circuits is the applicant for this permit and has the burden of showing that it is entitled to issuance of the permit. Here Trans/Circuits failed to present any evidence of what construction it actually plans to do, let alone that the purposed construction meets the criteria and that it is entitled to the permit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this hearing. Section 120.57(1), Florida Statutes.
Florida Administrative Code Rule 17-4.07 provides in pertinent part:
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 or rules.
* * *
(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, Florida Statutes.
* NOTE: PAGE 10 OF THE ORIGINAL RECOMMENDED ORDER ON FILE WITH THE DIVISION IS MISSING AND THEREFORE NOT AVAILABLE IN THIS ACCESS DOCUMENT.
In addition to the minimum criteria provided in Section 17-3.402, Florida Administrative Code, waters classified as Class G-I and Class G-II ground water shall meet the following standards:
The primary and secondary drinking water quality standards for public water systems established pursuant to the Florida Safe Drinking Water Act, which are listed in Section 17-22.104, Florida Administrative Code, except as provided in Section
17-4.245(8), Florida Administrative Code.
Florida Administrative Code Rule 17-22.104 provides that the drinking water quality standard for lead, is 0.05 milligrams per liters (mg/l), for copper is 1 mg/l, and for fluoride is 1.5 mg/l.
Florida Administrative Code Rule 17-103.130 states in pertinent part:
(1)(a) In licensing (permit) proceedings, including variance, exception, exemption, site specific alternative criteria, or other similar proceedings, the applicant shall have
the burden of establishing, by a preponderance of the evidence, entitlement to the requested license, variance, exception, exemption, site specific alternative criteria, or other relief.
* * *
In enforcement, license revocation, or other similar proceedings, the Department shall have the burden of proof.
Florida Administrative Code Rule 17-4.03 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. The Depart- ment may issue such permit only after it is assured that the installation will not cause pollution in violation of any of the provi- sions of Chapter 403, Florida Statutes, or
the rules and regulations promulgated thereunder.
Trans/Circuits' industrial wastewater treatment system is a stationary installation which may reasonably be expected to be a source of water pollution. The effluent from system discharges into Class G-II ground waters, which are waters of the state as defined by Section 403.031(2), Florida Statutes.
Based on the foregoing Findings of Fact, it is specifically concluded as a matter of law that Trans/Circuits has failed to provide reasonable assurance that operation of its facility will not cause pollution in violation of DER standards or rules. By Trans/Circuits' own admission, operation of the installation will not be in accord with applicable laws, rules, or regulations at least until the end of 1984, and perhaps longer. Trans/Circuits has completely failed to carry its burden of showing entitlement to a operating permit, having put on no evidence in support of its application for an operating permit and no evidence to show that its operation meets the criteria of the rules set forth above.
Trans/Circuits has also failed to provide reasonable assurance that the construction of modifications to its facility will be in accord with applicable laws, rules or regulations. Trans/Circuits has failed to show that the proposed modifications will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by DER. Trans/Circuits does not even know at the present time what modifications it will construct, if any, and in the absence of specific plans, reasonable assurance cannot be provided and a permit cannot be issued.
DER's letters granting month-to-month authorization for Trans/Circuits' operation and subsequently withdrawing that authorization were
free-form agency action. Capeletti Brothers, Inc. v. State, Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978), cert. den., 368 So. 2d 1374. Although no clear point of entry into Chapter 120, Florida Statutes, proceedings was given, Trans/Circuits requested and received an opportunity to contest DER's free-form action. The purpose of Chapter 120 proceedings is to formulate agency action and not to review action preliminarily taken. Therefore, DER is not restricted to the reasons expressed in its letter withdrawing authorization, but may justify its action on other grounds.
Here, DER has fully met its burden of demonstrating that Trans/Circuits has not satisfied the conditions of the month-to-month authorization, and that therefore such authorization should properly be withdrawn. The evidence shows that since the authorization was granted, Trans/Circuits has not made any significant progress in improving the quality of its effluent. DER's belief that it can no longer reasonably anticipate system compliance is fully borne out by the evidence presented at hearing. This evidence includes these salient facts: Trans/Circuits has not complied with effluent standards on a regular basis since authorization was granted; effluent concentrations of lead and copper are as high or higher now than when the authorization was granted; Trans/Circuits has no demonstrable program for modifying its treatment process to assure compliance with DER standards; and Trans/Circuits itself does not expect compliance before the end of the year, and that belief is speculative.
Trans/Circuits' continued discharge into groundwaters can reasonably be expected to reduce the quality of the receiving waters below the classification established for them by DER rule. The off-site violations of the standard for lead show that the groundwaters are already exceeding standards, and further discharge can only exacerbate that condition. Trans/Circuits' discharges cause a violation of the groundwater standards for lead, copper, and fluoride at the site.
At hearing, Trans/Circuits argued that it was entitled to a temporary operating permit in order to have additional time to fine tune its system. It requested that a Recommended Order be entered granting a temporary operating permit. It is concluded that the question of entitlement to a temporary operating permit is mot at issue in these proceedings. Trans/Circuits has never made application to DER for a temporary operating permit, which is a specific procedure separate and independent from the applications at issue in these proceedings. Accordingly, the issue of entitlement to a temporary operating permit is not ripe for consideration in these proceedings.
Trans/Circuits also argued that DER is applying unequal scrutiny and standards to Trans/Circuits in the permitting process. No credible evidence was presented to support this assertion. It is concluded that DER has acted properly in evaluating the applications of Trans/Circuits and applied the standards set forth in its rules in an equal and even-handled manner. DER has followed its own rules in all respects.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered by the State of Florida Department of Environmental Regulation:
Denying Trans/Circuits application for an operation permit;
Denying Trans/Circuits application for a construction permit; and
Withdrawing the month-to-month authorization for Trams/Circuits' operation.
DONE and ENTERED this 19th day of September, 1984, in Tallahassee, Florida.
DIANE K. KIESLING
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 19th day of September, 1984.
ENDNOTES
1/ DER filed a Motion to Strike Proposed Recommended Order based on the alleged untimely filing of same by Trans/Circuits. That motion is implicitly denied by the consideration of the proposed Recommended Order of Trans/Circuits.
COPIES FURNISHED:
John S. Wilbur, Jr., Esquire Caldwell, Pacetti, Barrow and Salisbury
324 Royal Palm Way
Palm Beach, Florida 33480
Paul R. Ezatoff, Esquire State of Florida
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
Docket for Case No: 83-003676
Orders for Case No: 83-003676
| Issue Date |
Document |
Summary |
|
Sep. 19, 1984 |
Recommended Order
|
Due to problems with discharge system, Hearing Officer recommends that operating and construction permits be denied and withdrawal of month-to-month authorization.
|
