STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROOKERY BAY UTILITY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-1318

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on March 5, 1997.

APPEARANCES

For Petitioner: Sanford M. Martin

2500 Airport Road, Suite 315

Naples, Florida 34112-4882

For Respondent: Thomas I. Mayton, Jr.

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to an operating permit for an existing domestic wastewater treatment facility operating in Naples.

PRELIMINARY STATEMENT

By application dated December 29, 1995, Petitioner requested that Respondent issue a renewal operating permit for an existing

1. million gallons per day wastewater treatment plant known as the Rookery Bay facility.

   At the hearing, Petitioner called four witnesses and offered into evidence 17 exhibits. Respondent called two witnesses and offered into evidence 20 exhibits. All exhibits were admitted.

   The court reporter filed the transcript on March 31, 1997.

   
   

   FINDINGS OF FACT

   
   

   1. On May 10, 1991, Respondent issued Petitioner a five- year permit to operate a 0.3 million gallon per day (GPD) domestic wastewater treatment plant known as the Rookery Bay facility in Naples. This permit, which is number DO11-187204, allowed Petitioner to operate an extended aeration plant, using chlorine for basic disinfection and disposing of the reclaimed water in two percolation ponds.

   2. The 1991 permit required Petitioner to allow Respondent access to the facility for inspections at reasonable times, notify Respondent of any violations of any permit conditions, maintain total chlorine residual of at least 0.5 milligrams per liter (mg/L) of effluent sample after at least 15 minutes’ contact time at maximum daily flow, maintain annual average effluent quality values for carbonaceous biochemical oxygen demand (CBOD) and total suspended solids (TSS) of not more than

      20 mg/L of effluent sample with maximum effluent quality concentrations of 60 mg/L in any single effluent sample, maintain a monthly average effluent quality value for fecal coliform of

      not more than 200 per 100 ml of effluent sample with a maximum effluent quality value of 800 per 100 ml in any single effluent sample, notify Respondent of any discharge from the percolation pond overflows, and monitor influent loading to the facility and apply for a permit modification if the monthly average influent flows approach or exceed the design capacity of 0.3 MGD or if the facility violates treatment standards.

   3. Respondent also issued Petitioner a five-year permit to operate a 0.15 GPD domestic wastewater treatment plant at the Rookery Bay facility. This permit, which is number DO11-167093, allowed Petitioner to operate a contact stabilization process plant.

   4. On December 29, 1995, Petitioner submitted a renewal application for permit number DO11-167093. Although the permit number references the smaller tank, the renewal application requests a permitted capacity of 0.3 MGD.

   5. By Notice of Permit Denial dated February 9, 1996, Respondent denied the permit application on the ground that Petitioner could not provide reasonable assurance that it would operate the facility in compliance with state standards based on a “continued and long standing pattern of noncompliance and violation of . . . rules and standards.”

   6. Petitioner’s operation of the Rookery Bay treatment plant has been poor. Respondent has brought an enforcement action against Petitioner, which signed a consent final judgment

      in January 1994. The consent final judgment required Respondent to pay $4500 in civil penalties.

   7. As it applied to the Rookery Bay facility, the consent final order required Petitioner to evaluate the facility to discover the causes of past violations and modify the facility to eliminate these violations.

   8. But Petitioner has not complied with material provisions of the consent final judgment. Petitioner’s operator has been held in contempt of court several times for violations at Rookery Bay and a nearby smaller treatment facility known as Port au Prince. Petitioner has several times refused Respondent’s representatives reasonable access to the Rookery Bay facility.

   9. At least twice, Petitioner has failed to advise Respondent of equipment failures that resulted in violations of treatment standards.

   10. On January 11, 1995, Petitioner cut off the power for several hours to a lift station pump serving a nearby a condominium complex. Predictably, the sewage backed up and overflowed into the street. Petitioner failed to restore the power timely or remove the overflowed sewage.

   11. On several occasions, raw or inadequately treated sewage has leaked from the tanks at the Rookery Bay facility. Petitioner has failed to eliminate this problem over the course of its five-year operating permit.

   12. On numerous occasions, Respondent’s representatives have detected violations of effluent quality. These violations have arisen inadequate detention time in the chlorine contact chamber. Consequently, the TSS and CBOD levels have repeatedly exceeded permitted standards.

   13. The parties dispute the adequacy of the capacity of the Rookery Bay facility. There is considerable evidence, including one statement in the application, that suggests that the facility’s capacity is seriously inadequate.

   14. Either the capacity of the Rookery Bay is, and has been, inadequate--in which case at least some of the violations are attributable to overcapacity operation--or, if the facility has had adequate capacity, the operational competence of Petitioner is below the minimum level necessary to provide reasonable assurance of proper operations at this facility in the future.

   15. Most likely, the Rookery Bay facility lacks adequate capacity, at least part of the year, and Petitioner lacks the minimum requisite competence to operate the facility in a responsible manner.

   16. The strongest evidence in the record suggests that the Rookery Bay facility serves, during peak season, 1500 mobile home connections and 400 apartment connections. These connections generate about 377,500 GPD of raw sewage. A slightly lower value is probable after consideration of the likely presence of

       recreational vehicles among the mobile home count. But this reduction, even without adjustment for dry-season infiltration and inflow, would not yield sufficient savings in raw sewage as to provide reasonable assurance that the Rookery Bay facility has adequate capacity to serve the present demand or adequate capacity to serve the demand projected over the five-year term of the permit that Petitioner seeks.

   17. Even if one were to credit Petitioner’s volume-to- capacity calculations, the results fail to constitute reasonable assurance of violation-free operation of the Rookery Bay facility. Petitioner's calculations leave little if any margin for error at present demand levels, and, given Petitioner’s singularly poor operating history at this facility, these calculations provide poor assurance of compliant operation of this troubled facility.

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   19. Sections 403.085 and 403.087 authorize Respondent to issue permits for the operation of domestic wastewater facilities.

   20. Rule 62-620.320(1) recognizes that the burden of proof is on Petitioner, as the applicant in this case. Section

       403.087(6) acknowledges that a permit is not a “vested right” in the permittee.

   21. Rule 62-620.320(1) requires that the applicant for a permit must provide “reasonable assurance” that the operation of the proposed facility will not violate applicable law.

   22. Rule 62-620.320(7) provides that, when determining whether an applicant has provided reasonable assurance that Respondent’s standards will be met, Respondent shall consider an applicant’s violation of rules at any wastewater facility.

   23. Rule 62-620.320(4) requires Respondent to issue, reissue, or renew a permit that is otherwise deniable if the conditions of Section 403.088(2)(e) and (f) are met. Section 403.088(2)(e) permits, but does not require, Respondent to issue, reissue, or renew a permit under any of several conditions, such as the pending construction of pollution-abatement facilities, the lack of a reasonable alternative to disposing of the waste other than by discharge into waters of the state, the public interest, or the absence of unreasonable destruction of the quality of waters receiving the waste discharge. However, Petitioner has not shown that any of these exceptions are applicable in this case.

   24. The facts demonstrate repeated violations of law in Petitioner’s operation of the Rookery Bay facility, repeated failures by Petitioner to allow Respondent to perform its regulatory and enforcement functions with respect to the Rookery

Bay facility, and no assurance that the renewal of the operating permit would not result a five-year extension of these substantial violations.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner’s renewal application for a domestic wastewater treatment operating permit for the Rookery Bay facility.

DONE AND ORDERED in Tallahassee, Florida, this 9th day of May, 1997.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997.

COPIES FURNISHED:

Sanford M. Martin

2500 Airport Road, Suite 315

Naples, Florida 34112-4882

Thomas I. Mayton, Jr. Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-001318

Orders for Case No: 96-001318