Findings Of Fact Petitioner operates a cattle feeding lot near Bartow, Florida consisting of 6 sheds, 1600 feet long by approximately 25 feet wide. These sheds are two story structures with the cattle fed on the upper story. The upper floor is slotted to permit cattle droppings to fall to the lower level. From there the manure and urine is processed in the waste treatment facilities consisting of a concrete sump and anerobic ponds. These treatment facilities qualify as pollution control equipment for purposes of tax assessment. Petitioner installed metal roofs over these feeding sheds which Petitioner claims also constitute pollution control equipment. Shade for cattle is required and could be provided by a fibre screen which would cost some $37,000 as compared to the metal roof costs of approximately $171,000. The difference between the costs of the metal roof and a fabric sun screen is $133,882.06 which Petitioner desires to have reduced from its assessment for tax purposes. The Property Appraiser Polk County recommended to the DER that this amount be approved as a deduction for pollution control equipment. Petitioner contends that the primary purpose of the metal roof is to divert the rainwater from mixing with the cattle droppings. As constructed rainwater is presently collected from the roofs of the feeding lots and transported via viaduct to a runoff pond required by federal EPA regulations which acts as a settling pond. From this pond, which EPA regulations requires have a ten-year storm rainfall capacity, the water is pumped for irrigation purposes. If the rainwater is allowed to fall onto the upper platform on which the cattle are kept, it will go through the slots and mix with the fecal matter on the ground floor. If this were allowed to occur it would be necessary for Petitioner to greatly increase the size of its sump and anerobic ponds to treat this waste thus increasing the cost of this portion of its plant which is clearly pollution control equipment as defined by Section 193.621 F.S. As presently operated the solids are removed from the droppings in the sump before the remaining liquid is processed in the waste treatment facilities consisting of the anerobic ponds. The efficiency of the anerobic process is increased as the concentration of the waste material is increased. Adding rainwater to this waste material would therefore decrease the efficiency of the operation as well as require a larger capacity sump and anerobic ponds. In addition to keeping rainwater out of the cattle droppings, the roof provides needed shade to the cattle, provides better shelter for cattle in rainy or cold weather, and eliminates need for adding covers over the feeding troughs. Cattle fed in open lots are as healthy, or healthier, than those fed in covered feeding lots.
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, 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 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
The Issue Whether the alleged violation exists and, if so, whether orders for corrective action should be made final against respondents or either of them?
Findings Of Fact On October 17, 1984, Sunshine acquired from R & F what had been a filling station at the corner of U.S. Highway 98 and Laurie Avenue in Bay County, Florida. The old gas pumps had been moved some time before October 17, 1984. Only loose pipe connections leading to the underground storage tanks remained. The deed K & F executed in favor of Sunshine made no mention of these tanks. Respondent's Exhibit No. 1. Sunshine later contracted with Jake Walters, who began construction the following April to convert the site into a convenience store with gas pumps. On January 25, 1985, long before bringing any petroleum product onto the property, Jake Walters' construction foreman, John Kenneth Barnes, began taking up the two-foot slab of concrete that overlay K & F's underground storage tanks. The ground underneath the concrete smelled of gasoline. James Guris, who was overseeing the job for Sunshine, ordered work stopped and told Harold Millis, Sunshine's vice-president for real estate and construction, about the feel and smell of the soil. When Mr. Millis learned of the situation, he decided that DER should be notified. Because by then it was too late in the day to reach DER, Jim Guris called DER's office in Panama City on the following Monday, January 28, 1985. He spoke to DER's Grady Swann, who told him to file a discharge notification form with DER. Mr. Swann said removal of the underground tanks could go forward. Before removing the storage tanks, Mr. Barnes, or somebody at his direction, measured the depth of the tanks with a stick to determine how deep to dig. In this way two or three inches of gasoline were discovered in the bottom of each tank. Even though workmen secured a pump and pumped gasoline from each underground tank (into a 500-gallon tank mounted on a truck), they were unable to pump the tanks completely dry. In each of the three underground tanks, about a half inch of gasoline remained. With a crane and lifting rigs, they raised the tanks in an upright position, without spilling any gasoline. Except inside where the half inch of gasoline stood, the tanks and appurtenant pipes and tubing were dry. Mr. Guris ordered pressure tests done on the tanks, each a cylinder some five feet in diameter. Two of the tanks passed this test, but the third failed. That tank had a hole approximately one quarter inch in diameter a little left of center, about half way up one end of the tank. Groundwater on the site came within four and a half or five feet of the surface in early February of 1985. Because it contains less than 10,000 parts per million total dissolved solids, it is properly classified as G-II. A marine clay separates the surficial aquifer from the Floridan, but the surficial aquifer recharges the Floridan. Northeast of where the storage tanks were dug up and 300 to 350 feet way a two-inch well 390 feet deep supplies water from the Floridan aquifer to three households. Nobody has detected any odor or taste of gasoline in water from those wells. Grady Swann took soil samples on site on February 8 and again on February 26, 1985. On his first visit, he noticed no sheen on the surface of the water standing in the area excavated around the old tanks, smelled no odor emanating from the standing water and did not take a sample. On his second visit, he did notice evidence of groundwater contamination and took water as well as soil samples. Mr. Swann returned on March 11, 1986, with Kenneth L. Busen and Mike Wilson of DER's Operation Response Team and used a power augur to put in temporary wells from which additional water samples were taken. These tests confirmed suspicions that the old gas tanks had leaked and revealed groundwater contamination attributable to gasoline including, in some samples, more than 1,000 times the allowable concentration of benzene. Gasoline seeping through soil leaves residual hydrocarbons which contaminate percolating rain or other groundwater moving through the same soil. Petitioner's Exhibit No. 6 depicts the probable initial configuration of the plume of hydrocarbons in the vicinity of the old tanks. Contamination is moving down gradient to the northeast, spreading out but growing more dilute. The steps called for by the proposed corrective orders are a reasonable way to mitigate environmental damage.
The Issue Should Respondent be fined $500.00 for initiating repairs to an on-site sewage treatment and disposal system before obtaining a permit?
Findings Of Fact Respondent is engaged in the septic tank contracting business as a contractor licensed under Chapter 489, Part III, Florida Statutes. He does business as "Alpha." In association with his business Respondent provided services to residents at 224 North Orange Avenue, Orange City, Florida. This was related to a failed on-site sewage treatment and disposal system at that residence. To assist in providing repair service to the residence in Orange City, Florida, Respondent engaged Andy Trapp. Mr. Trapp's business is to assist septic tank contractors in obtaining necessary permits to perform septic tank contracting services. Mr. Trapp's occupation includes field work involving soil testing, measurements, and completion of necessary paperwork to assist the septic tank contractor in obtaining necessary permits. As permitting agency, usually Petitioner would accept applications submitted by Mr. Trapp in relation to the application for a permit to repair on-site sewage treatment and disposal systems, in that Mr. Trapp is recognized by Petitioner as being sufficiently qualified to submit information in support of an application for permit. On March 27, 1998, Mr. Trapp submitted an application for a permit to repair the on-site sewage treatment and disposal system at the Orange City, Florida, address, to include supporting information concerning the results of soil testing. That application was accompanied by the necessary fee to obtain a permit. The application was delivered to Petitioner's Daytona Beach, Florida, office as a matter of convenience to Mr. Trapp. Mr. Trapp realized that the actual processing of the permit application would be conducted by Petitioner's Deland, Florida, office. In that connection, Mr. Trapp realized that the application that he had submitted to the Daytona Beach office would be forwarded by interoffice transmittal to the Deland office, which would cause a delay in the processing of the application. In his experience Mr. Trapp has filed applications with the Daytona Beach office to be subsequently transmitted to the New Smyrna Beach office of the Petitioner, which ordinarily can be done late on the same day that the application was presented or by the next day. James McRae is an environmental supervisor for the Volusia Health Department, Environmental Health Office in Deland, Florida. It is his office that had ultimate responsibility for considering, and if appropriate, issuing a permit allowing Respondent to conduct necessary repairs of the failed on-site sewage treatment and disposal system at the Orange City, Florida address. Mr. McRae confirmed that the permit application, as submitted by Mr. Trapp for the repairs, had been received by the Deland office on March 30, 1998. In addition, the accompanying $57.00 fee had been transferred from the Daytona Beach office to the Deland office, as was customary, the custom being that the funds in support of an application would ultimately be received in the office from which the application would be processed and a permit number assigned, as applicable. Upon receipt of the application in the Deland office, a receipt was generated. Information concerning the permit application was placed in the computer. Assessment of the application was assigned to William Vander Lugt, Environmental Specialists II, who is part of the field staff for the Petitioner's Deland office. Beyond Mr. Vander Lugt's assignment to consider the application for the permit for the Orange City, Florida project, it was expected that he would do any necessary field work involving an inspection and any necessary soil analysis. If satisfied that the site was appropriate to effect repairs to the failed on-site sewage treatment and disposal system, Mr. Vander Lugt would issue a permit subject to approval by Mr. McRae. Mr. McRae identified that the usual turn around time for issuing permits is two to three days, assuming that the permit was applied for at Petitioner's office which would be responsible for assessing the application. In this instance the permit had been applied for at another office which delayed consideration of the permit application by the Deland office. The permit was approved on April 2, 1998, within three days of its receipt by the Deland office. Before the permit was issued, Respondent, through his employees, had commenced the repairs at the Orange City, Florida, address. The commencement of repairs was verified by an on-site inspection performed by Mr. Vander Lugt, on March 31, 1998. Although the supporting information presented by Mr. Trapp was in order and the fee had been paid, and there was no indication that any other problems existed which would prohibit the repairs from being conducted, Respondent was premature in commencing the work before the permit issued, and was unjustified in that choice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be issued which imposes a $500.00 fine against Respondent for initiating a repair of an on-site sewage treatment and disposal system without first obtaining a permit to do the work. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Charlene Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael J. Jedware Post Office Box 390073 Deltona, Florida 32739-0073 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation. Its president is William T. Lamsom. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby. Porthouse learned that Orchard View was the owner of the property on which the drums were located. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor." When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground." Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated). Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum. The samples that Magnum had collected from the drums were sent to the laboratory for analysis. The analysis revealed the following: drum number 11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number 2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2 The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was $6,525.13. The Department is requesting that Orchard View reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234. DONE AND ENTERED this 15th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1998.
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is entitled to the renewal of its domestic wastewater facility permit that was denied by Petitioner Department of Environmental Protection (Department).
Findings Of Fact The Parties 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 Statutes (2005),1 and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP 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 with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."2 The WWTP's treatment processes are extended aeration, chlorination, and effluent 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. The east side 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 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 Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting water quality in the lagoon system. Domestic wastewater was identified as the major source of the nutrients. 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 area of the St. Lucie River that Warner Creeks flows into is within any of the 12 problem areas identified in the SWIM Plan. 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, because 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. 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 described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: 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. 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 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. 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 discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. 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. Laniger's WWTP was not determined to be a threat based on its wastewater treatment performance. There was no evidence presented that Laniger's WWTP had ever had intermittent treatment process failure, seepage to the lagoon system from effluent containment areas, or overflow during storm events. Those were the concerns related to package plants that were described in the SWIM Plan and the Department's 1991 report. Laniger's WWTP was not determined to be a threat based on evidence that it was causing or contributing to excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. No evidence was presented that there are excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. The Department's 1991 report concluded that the solution for package plants threats was to eliminate the package plants and connect their wastewater flow to centralized sewage collection and treatment facilities. To date, over 90 of the 155 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 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 statute 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. 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 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." The administrative order required Laniger to connect its WWTP to a centralized wastewater collection and treatment [facility] "within 150 days of its availability . . . or provide reasonable assurance in accordance with Chapter 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." 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 collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. 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 reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, Laniger's attorney responded, 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. Laniger's attorney also stated, "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] order." On September 29, 2003, the Department issued a 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 contravention of Chapter 403, Florida Statutes. The Department took no further formal action until it issued the NOV in August 2005. Laniger's challenge of the NOV was consolidated with this permit case. The Permit Renewal Application In an "enforcement meeting" between Laniger and the Department prior to the expiration of 1999 permit, the Department told Laniger that it would not renew Laniger's WWTP permit. Later, when Laniger filed its permit renewal application, 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 application. Laniger submitted its permit renewal application to the Department on February 15, 2005. The Department considered Laniger's permit application to be complete, but proceeded to prepare the Notice of Denial without any technical review of the application. 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 available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." The record evidence showed that the "reasonable assurance" that would have been necessary to satisfy the Department was more than the reasonable assurance the Department usually requires for package plants, and more than the Department would have required if Laniger's WWTP was 100 feet from Warner Creek. Competent substantial evidence was presented that Laniger's WWTP is capable of being operated in accordance with the statutes and rules of Department generally applicable to package wastewater treatment plants. Laniger's 1999 permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Whether the Martin County Facility is Available As discussed below in the Conclusions of Law, it is concluded that the Department did not have authority to require Laniger to connect the WWTP to the Martin County force main or to require assurance beyond the reasonable assurance generally required for package treatment plants in order to obtain a permit. However, because considerable evidence and argument was directed to whether the force main was available, that issue will be addressed here. The Martin County force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad and railroad right-of-way. Laniger presented undisputed evidence that the cost to connect to the Martin County force main would be approximately $490,000 and that cost was prohibitively high, given the relatively small number of households served by the WWTP. The Laniger WWTP is subject to rate regulation by the Public Service Commission (PSC). Laniger presented evidence suggesting that connection to the Martin County force main would result in rates that would not be approved by the PSC. The evidence was speculative and not competent to support a finding regarding PSC action. The evidence does show, however, that PSC rate regulation was not a factor that the Department considered when it determined that the Martin County force main was available. There is no Department rule that defines when a centralized sewage collection and treatment facility is "available." The determination that the Martin County force main was available to Laniger was made informally by members of the Department's compliance staff in the Department's St. Lucie office. Mr. Thiel testified that he considered the force main to be available because it was "in close proximity" to Laniger's WWTP. However, Mr. Thiel admitted that there is a difference of opinion within DEP as to when a facility is available and reasonable persons could disagree about whether a facility was available. Mr. Thiel thought that the cost to connect is a factor to be considered in determining whether a facility is available, but another Department employee did not think cost should be considered. There was no evidence that the Department took into account Laniger's cost to connect in determining that the Martin County force main was available. The Department simply assumed that the Martin County force main was close enough to the Laniger WWTP site that the cost to Laniger would not be prohibitive. In addition, the Department was aware of other package plants that had connected to centralized sewage collection and treatment facilities that were the same distance or a greater from the package plant, and the Department did not hear from the owners of the package plants that the costs were prohibitive. Timothy Powell of the Department stated that force mains are usually made available by extending the force main so that it is "abutting the property as much as possible." He also stated that he assumed that Martin County would extend its force main under the railroad and to the boundary of the Laniger WWTP site after Laniger agreed to connect. However, there was no evidence to show that this is Martin County's intent, and the Department did not tell Laniger that Laniger did not have to connect to the force main unless Martin County brought the line to the boundary of the WWTP site. If the Department had authority to require Laniger to connect to the Martin County force main when it became available, and in the absence of any rule criteria to determine when a centralized sewage collection and treatment facility is available, the determination would have to be based on reasonableness. Reasonableness in this context must take into account the cost of the connection. Cost is the inherent reason that Laniger was not required to connect to the Martin County centralized sewage collection and treatment facility without regard to whether the facility was available. Laniger showed that the cost of connecting to the force main is unreasonably high due to the need to construct a line beneath the railroad. Therefore, Laniger proved by a preponderance of the evidence that the Martin County force main is not available.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Laniger Enterprises of America, Inc., a renewal of its wastewater treatment plant operating permit. The permit should contain the same conditions as were contained in the 1999 permit, with the exception of those conditions derived from Administrative Order No. AO 99-008- DW43SED. DONE AND ENTERED this 19th 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 19th day of September, 2006.
Findings Of Fact At all times relevant hereto respondents, Selma Fruman and others, were the owners of a 14-unit apartment complex known as the Greenville Apartments located at 1701 North Treasure Drive North Bay Village Florida. Respondents hold license number 23-8285 issued by petitioner, Department of Business Regulations Division of Hotels and Restaurants (Division), and are subject to that agency's regulatory jurisdiction. On or about September 2D 1985, a Division environmental health specialist conducted a routine inspection of respondents' facility to determine if health and safety standards were being maintained. All such facilities must be inspected at least twice during each fiscal year. The inspection was made in the presence of respondents' representatives. The specialist found the following items to be in noncompliance with Division rules: fire extinguishers were not recharged as required by Rule 7C-1.04(1), Florida Adminis- trative Code, combustible and flammable materials were stored in the electric meter room in viola- tion of Rule 7C-1.03(2), Florida Administra- tive Code, the building had flaking and peeling paint in contravention of Rule 7C-1.03(1), Florida Administrative Code, and trash, debris and junk were lying in the rear of the property in violation of Rule 7C- 1.03(5) and (7), Florida Administrative Code. Through testimony at hearing it was established that the deviations from agency rules constituted a threat to the tenants' healthy safety and welfare. A copy of the report listing the above violations was sent to respondents by certified mail. The report warned that all violations must be corrected within ten days of receipt of the notice. The notice included the name and telephone number of the specialist who conducted the inspection. On October 23, 1985, the Division specialist returned to respondents' facility to ascertain if the deficiencies had been corrected. The specialist found none of the four items had been corrected. A notice to show cause was then issued by the Division on November 1, 1985. However, respondents apparently requested an informal conference to discuss the violations and one was scheduled on a later date. After missing the conference, the manager of respondents' facility (and brother of one of the owners) wrote a letter on December 20, 1985 requesting a second conference and advising that "the four items mentioned to be corrected Items a, b and c, have been done and the building has been scheduled for painting the second week of January, 1986." On January 24, 1986, the specialist made a return visit to the facility and found items a and b had been corrected while the violations in items b and c were unrepaired. At an informal conference held on January 29, 1986, respondents disputed the findings of the Division and requested a formal hearing. That prompted the instant proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that respondents be found guilty as charged in the notice to show cause, and that a $2,000 civil penalty be imposed to be paid within thirty days from date of the final order entered in this proceeding. DONE and ORDERED this 15th day of May, 1986, in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Lynne A. Guimby, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301 Mr. Morris Liebman 1701 N. Treasure Drive North Bay Village, Florida 33141 Mr. R. Hugh Snow, Director Division of Hotels & Restaurants Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301
Findings Of Fact Petitioner applied for conditional use approval from Respondent for the package sale of beer, wine and liquor (4-COP) at 2779 Gulf-To-Bay Boulevard, Clearwater, Florida, on or after September 4, 1987. The subject property is zoned general commercial (CG), and conditional use approval is required for package sales on property zoned CG. Conditional use approval was previously granted for this property on June 30, 1987, to allow on-premises consumption of alcoholic beverages, but this prior approval is not under review in this proceeding. On October 13, 1987, the Planning and Zoning Board voted unanimously to deny Petitioner's application for the package sale of beer, wine and liquor. Petitioner has timely sought review of the Planning and Zoning Board decision. It is undisputed that the subject property is less than 500 feet from an adult congregate living facility (ACLF) which constitutes the residence of approximately 300 persons. Frank Pascoe, the President and representative of the ACLF, testified about the residents' concerns about security, and the adverse impact of this application on the general welfare of their neighborhood. Paula Harvey, Planning Director, testified about the adverse impacts of this application on neighborhood noise, traffic and parking. Ordinance 4470-87 applies to this application since said Ordinance, by its terms, governs applications filed subsequent to September 3, 1987. Petitioner offered no evidence in support of its application. Specifically, there is no evidence in the record favorable to the applicant concerning noise, parking and the compatibility of this application with the neighborhood.
Findings Of Fact The Petitioner and his father own and operate the Hiland Park Laundry, a laundromat located at 2431 Highway 231, Panama City, Florida. The Petitioner purchased the business in 1975 and has operated continuously since that time. Wastewater from the laundry, as well as a trailer on the property, passes through a "trickling filter" wastewater treatment facility consisting of primary and secondary settling tanks as well as a trickling filter, thus discharging the treated effluent into a drainage ditch adjacent to the Petitioner's property line, from which drainage ditch the effluent is discharged into Beatty Bayou, a Class III water of the State. The treatment plant and disposal system has been operating since the early 1970's, prior to the Petitioner's purchase of the laundromat and treatment and disposal facility. In 1980, the Petitioner applied for an operating permit for his wastewater treatment facility. Because the discharge from the facility violated the effluent limitations of Chapter 17-6, Florida Administrative Code, the Petitioner was only issued a Temporary Operating Permit on February 2, 1981, which was modified by virtue of the letter from DER on June 8, 1981. The pertinent conditions in the TOP provided that the discharge from the Petitioner's wastewater treatment system must meet the requirements of Chapter 17-6, Florida Administrative Code, as to the quality of its effluent prior to its expiration. Failure to meet that condition would result in a denial of a Permanent Operating Permit and the denial of any further TOP. The pertinent effluent limitation which the TOP (and rules) required the facility to meet was 90 percent removal of biochemical oxygen demand and suspended solids. Since the issuance of the TOP, the discharge from the plant has seldom met those standards. Upon applying for the TOP, which is the subject of this proceeding, the Petitioner failed to present any concrete plans for improving the quality of the effluent from his plant. He merely stated his acknowledgment that, although the system does not comply with current DER requirements, that it will be dismantled upon the Bay County Regional Sewage Treatment and Disposal System becoming available at his location. It is not established, however, that there are any current plans to extend public sewer service to the vicinity of the Petitioner's property at the present time. (DER Exhibit 9) Upon the issuance of the Notice of Intent to Deny the request for the TOP, the Petitioner requested a formal proceeding and the cause was set for hearing before the undersigned on September 24, 1982. At the time of the hearing, the parties agreed on the record to a continuance on the basis that the Petitioner would submit within 60 days a plan certified by an appropriate engineer for a design to bring the discharge effluent into compliance with the effluent parameters of Chapter 17-6, Florida Administrative Code. It was suggested at that time to the Petitioner that his plant and system might comply with the permit exemption contained in Rule 17-4.60, Florida Administrative Code, which provides that such plants are exempt from permitting requirements if they incorporate a trickling filter, a sand filter, as well as a drain field. The Petitioner elected to avoid purchasing a sand filter unit inasmuch as a civil engineer he consulted informed him that the purchase and installation price for such a unit would be approximately $17,000.00, with the attendant drain field estimated to cost an additional $13,000.00. It was established contrarily however that because of the actual peak and average flows of the plant which equate to a daily hydraulic loading on the proposed sand filter of 7,000 gallons per day and 6,000 gallons per day, respectively, that a much smaller sand filter would be required, at a much reduced price. Thus, it was established that a figure of $9,000.00 to $10,000.00 would be the appropriate cost of installing the sand filter which would exempt the facility from the permitting requirements. The concrete slab proposed to be used by the Petitioner's engineer at a cost of in excess of $4,000.00 would not be necessary with a properly designed sand filter with underdrains and grated gravel courses. Based upon his own engineer's estimate of approximately $30,000.00 for the required upgrading, the Petitioner informed the Department that he was not able to underwrite such a high expense and would prefer to find some other solution to the problem. As of the date of the hearing, the Petitioner still was desirous of the Department conferring with him to find a less expensive solution to the problem, but failed to adduce any evidence to establish that such a less expensive solution (less than the solution proposed by the Department) existed. During the period the case was held in abeyance for 60 days after the scheduling of the first hearing in September, 1982, during which time the parties had agreed to seek a solution to the problem involving denial of the permit application, and thereafter until the subject hearing, the Petitioner made no substantial efforts to confer with the personnel of DER and attempt to arrive at a feasible solution to the treatment and disposal problem upon which the denial of the permit application was based. Carol Daugherty is a chemist whose firm supplies the Department with the Petitioner's monthly operating reports, and obtains samples of effluent upon which those reports are based. She performs the testing on the samples from the plant's effluent discharge and engages somewhat in operation of the plant. The Petitioner's discharge has consistently failed to comply with the BOD and total suspended solids effluent limitations listed in Rule 17-6.060, Florida Administrative Code, providing for 90 percent removal of those effluent constituents. William Young, accepted expert witness in the field of biology and water quality assessment, visited the site in February, 1982, and in April, 1983, taking water quality samples from a drainage ditch both upstream and downstream of the Petitioner's discharge point. Chemical analysis of the samples reveal that the Class III parameter for bacteriological quality (coliform bacteria) was violated downstream of the discharge point. An imbalance existed in the bayou in natural populations of aquatic flora and fauna establishing there to be violation of permissible nutrient levels in terms of the excessive deposition of nutrients from the Petitioner's plant into the drainage ditch and thence into the bayou. Mr. Pressley's facility is not the only source of discharge into the drainage ditch which discharges into the bayou, but is the primary source of discharge. Rick Bradburn also was accepted as a expert witness in the field of biology and water quality assessment. He has visited the Petitioner's facility on a number of occasions and periodically has reviewed the monthly operational reports supplied by the Petitioner. The Petitioner's effluent, on a regular basis, is characterized by excessive biochemical oxygen demand, excessive total suspended solids and excessive fecal coliform bacteria counts vis-a-vis the standards and the rules cited hereinbelow. The discharge from the Petitioner's facility thus seldom exceeds 85 percent removal of biochemical oxygen demand and suspended solids (over the past 23 months) and is characterized by excessive nutrient deposition in the Class III waters of the State. The Petitioner has known, or should have known, since shortly after February 2, 1981, when the original TOP was issued with the subject condition regarding required upgrading of the plant and disposal system, that additional upgrading would be required in order to render the effluent produced by plant less degradory. Since that time he knew, or should have known, that the failure to take steps to achieve such upgrading of the treatment and effluent disposal system would jeopardize his continued operation of his business. The Petitioner has made little effort to arrive at and submit plans to achieve a more qualitative level of effluent treatment and as of the time of the hearing had not yet submitted a reasonable compliance schedule nor any sort of commitment to construct needed additional treatment facilities, even though the parties do not dispute that the effluent produced by the plant does not meet the required standard of 90 percent removal of biochemical oxygen demand and suspended solids.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application of Freddie Pressley for a Temporary Operating Permit allowing continued operation of a wastewater treatment and disposal facility in Bay County, Florida, be and the same is hereby DENIED. DONE and ENTERED this 23rd day of August, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 23rd day of August, 1983. COPIES FURNISHED: Freddie Pressley c/o Highland Park Laundry 2431 Highway 231 Panama City, Florida 32405 Dennis R. Erdley, Esquire Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the Respondent's license for the Egret Motel should be suspended or revoked and whether a fine should be imposed upon the Respondent?
Findings Of Fact At all times relevant to these proceedings Harshada Nagda has been the holder of license 52-69H, a license for a public lodging establishment known as the Egret Motel (hereinafter referred to as the "Egret"). The Egret is located at 300 S.W. 18th Street, Ocala, Marion County, Florida. There are five septic tanks on the property where the Egret is located. Three of those septic tanks have not created any problems during the period of time at issue in this proceeding. As early as September 10, 1986, problems with two of the septic tanks and the waste disposal system of the Egret have bean experienced. As a result of the problems with the Egret's waste disposal system, an Official Notice to Abate a Sanitary Nuisance was issued by the Marion County Public Health Unit on May 6, 1987. This Notice was hand delivered to the Manager of the Egret. The following violation was reported on the Notice: "An inspection on 9/10/86, 2/11/87, 5/5/87 disclosed the discharge of untreated or improperly treated human waste onto the ground surface." On June 8, 1987, the Respondent signed the following letter to Mr. David L. Townsend, Environmental Health Director, Marion County Public Health Unit: This letter shall serve as consent order that I will keep the existing septic tank system and drain field pumped and maintained until, [sic] January 1, 1988, by which time the existing buildings will be torn down and the new buildings will be hooked up to the City of Ocala Sewer System. On October 5, 1987, the Marion County Public Health Unit received a complaint from a neighbor of the Egret about the sewage system. On October 5, 1987, Robert Wade Varnadore, an Environmental Health Supervisor of the Marion County Public Health Unit, and William B. Dickson, an Environmental Health Specialist with the Petitioner, inspected the Egret property. They discovered raw, untreated sewage leaking onto the surface of the grounds of the Egret in three different places. The sewage from these locations ran along the surface of the Egret property toward the back of the property. The ground around the leaks and the run off was saturated with effluent (human liquid waste), there was fecal material (human solid waste) and tissue paper in standing effluent and a bad odor permeated the area. The conditions were similar to those found on October 13, 1987, as described further, infra. Mr. Dickson completed a Public Lodging Inspection Record on October 5, 1987, at the end of the inspection and gave it to Lenora Cox, who signed the Record as manager of the Egret. The Record reported a "Major" problem with "sewerage or disposal system" and indicated the following: "Failure to maintain an adequate and approved sewage disposal system as evidence [sic] by failing septic systems leaking raw sewage to the surface of the ground." Mr. Varnadore reported the condition of the Egret on October 5, 1987, to Mr. Townsend and recommended that action be taken to close the Egret. Mr. Townsend and Mr. Varnadore then met with Nathan Grossman, M.D., Marion County Health Director. Dr. Grossman was informed of the present condition of the Egret and the history of the problem. Based upon this report, Dr. Grossman condemned the property by letter dated October 5, 1987, "as an imminent threat to the health, safety and welfare of the public." On October 8, 1987, Mr. Dickson returned to the Egret and conducted an inspection. Mr. Dickson completed a Public Lodging Inspection Record. A copy of the Record was given to Al Cox, who signed the Record as "manager" of the Egret. Mr. Dickson noted the following -major" problems in the following general categories at the Egret: Electrical deficiencies, proper locking devices, building repair/painting; toilet/lavatory facilities, household furnishings, plumbing, ventilation, garbage and refuse, sewerage or disposal system, room rates posted and smoke detector. The specific problems discovered by Mr. Dickson were noted on a sheet of paper which has been accepted into evidence as exhibit 4. Mr. Dickson's description of the specific problems at the Egret in exhibit 4 is hereby adopted as a correct characterization of problems existing at the Egret. Among the problems existing at the Egret on October 8, 1987, was the failing sewerage at the same locations noted during the October 5, 1937, inspection of the Egret. As a result of the inspection on October 8, 1987, Mr. Dickson requested an emergency order closing the Egret. On October 13, 1987, Mr. Varnadore, Mr. Dickson and Mr. Townsend went to the Egret and served an Emergency Order of Suspension and a Notice to Show Cause. The Emergency Order of Suspension orders the suspension of the Respondent's license until the Order is lifted or a Final Order is issued pursuant to the Notice to Show Cause. The Emergency Order also ordered the Respondent to cease and desist from the sale or rental of lodging units at the Egret. The Notice to Show Cause notified the Respondent that the Petitioner may assess a civil penalty against her or suspend or revoke her license with the Petitioner based upon the condemnation by the Marion County Public Health Unit of the Egret, the condition of the sewage system of the Egret on October 3, 1987, and other problems noted by Mr. Dickson as a result of his October 8, 1987, inspection. The Notice to Show Cause also notified the Respondent that, if she wished to contest the charges against her, she could inform the Petitioner that she intended to attend an emergency hearing scheduled to commence on October 16, 1987, or she would be given at least fourteen days notice of a final hearing to be conducted at a later date in accordance with Section 120.57(1), Florida Statutes. At the time that the Emergency Order of Suspension and the Notice to Show Cause were served, nine pictures were taken on the property of the Egret reflecting the condition of part of the Egret's sewage system. The conditions reflected in the pictures are representative of the conditions in existence on October 5, 1987. Sewage was found to be leaking to the surface in at least three locations. There were exposed and broken pipes connecting the sewage system to the Egret, standing effluent and saturated ground, floating tissue paper and fecal matter. If a hotel has raw sewage on the ground and people are on the property, those people are in danger. Anyone coming into contact with human waste can contract hepatitis, a liver disease, or any number of other diseases. Although the Respondent indicated that the problem with the sewage system had been corrected, the weight of the evidence fails to support such a finding of fact. The Respondent indicated that she believed that the problem discovered with the sewage system in October had been caused by excessive rain and roots clogging the system. She indicated that the roots had now been cleared. Removing roots, however, will not stop broken pipes from leaking and the evidence failed to support a conclusion that the system will not fail again when it rains or otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's license number 52-69H be suspended for a period of 12 months for violating Sections 509.211(1) and 509.215(1), Florida Statutes (1986 Supp.), Section 509.221(2) and (5), Florida Statutes (1985), and Rules 7C-1.004 (4) and (7), and 7C-3.00l(1) and (9), Florida Administrative Code. It is further RECOMMENDED that a total fine of $500.00 be imposed on the Respondent for violating Sections 509.201(1), and 509.221(2), Florida Statutes (1985), and Rules 7C-1.003(1), and 7C-3.002(i) and (2), Florida Administrative Code. DONE and ENTERED this 4th, day of November, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4484 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2. 4 and 5. The first paragraph is unnecessary. It only affects the weight to be given Mr. Varnadore's testimony. The last two para- graphs are technically not findings of fact; are statements about the witnesses' testimony. It will be assumed that such statements about testimony are intended to reflect the facts. See 7, 8 and 10. 8 and 9. 11. Mr. Dickson's "opinion" is irrelevant. 14 and 17. The last sentence is a con- clusion of law. 7. 17. 8. Irrelevant. 9. 17. 10. The last sentence is irrelevant. Irrelevant. 10. The last sentence is irrelevant. 8, 10 and 18. Dr. Grossman did not, how- ever, testify about a facility of "more than 30 units." Although Dr. Grossman was asked about a 30 unit facility he specifically indicated that his conclusion about the Egret had nothing to do with the size of the facility. 14. 5. 15. 6. 16. 3 and 19. 17-19. Irrelevant. COPIES FURNISHED: Van B. Poole, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 R. Hugh Snow, Director Division of Hotels and Restaurants Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harshada Nagda Egret Motel 300 Southwest 18th Street Ocala, Florida 32674
