Judges: K. N. AYERS
Agency: Department of Environmental Protection
Latest Update: Nov. 01, 1991
Summary: Deny landfill permit. There were no reasonable assurances given.
83-0624.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PETE'S & RON'S TREE SERVICE, ) INC., )
)
Petitioner, )
)
vs. ) CASE NO. 83-624
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on June 16, 1983, at Tampa, Florida.
APPEARANCES
For Petitioner: Ronald A. White and
Peter J. Fernandez, pro se Post Office Box 14156 Tampa, Florida 33690
For Respondent: William W. Deane, Esquire and
Wayne H. Bosford, Legal Intern Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
By letter dated February 14, 1983, Pete & Ron's Tree Service, Inc., by Peter J. Fernandez, President, requested a formal hearing to contest Respondent's, DER, denial of its application for a Class III landfill permit. By letter dated February 2, 1983, District Manager, Southwest District,
Department of Environmental Regulation, advised Petitioner of the intent to deny its application for a Class III landfill permit for the following reasons:
The applicant has not provided the Department with proof that the bonding requirements of Section 17-7.03(1) , Florida Administrative Code, have been satisfied.
Documentation from the appropriate zoning office that the operation of this facility is in conformance with local zoning has not been provided.
The site is not secured to prevent unauthorized entry and dumping into the landfill site.
Solid waste materials have continued to be dumped on this property without an appropriate and currently valid permit issued by the Department.
The present method of spreading tree clippings, stumps and scattered piles of trash all over the property without an adequate firebreak around the perimeter of the site constitutes
a potential fire hazard.
The applicant does not provide reasonable assurances that the requirements of Chapter 17-4, F.A.C., and Chapter 403, F.S., will be met.
At the hearing Petitioner called one witness, Respondent called three witnesses, and three exhibits were admitted into evidence.
FINDINGS OF FACT
Petitioner purchased a five-acre tract of land in Section 11, Township
28 South, Range 17 East, in Hillsborough County, Florida, to use as a dump site for tree trimmings generated by its tree service business.
After being advised by the Hillsborough County Environmental Protection Agency (HCEPA) that dumping on this property was illegal and a fire hazard, Petitioner applied for and obtained a permit to burn some of the trimmings that had been dumped on the property. The permit was issued to burn in the northern part of the property and burning logs were observed in the southern part of the property without an adequate firebreak. This permit was later rescinded.
At the time Petitioner acquired the property it was enclosed with a barbed-wire fence with access only via an 18-foot-wide road. Brush fires in the vicinity of the property led the fire department to cut the fence so their equipment could be moved through the area when necessary.
Frequent inspection by HCEPA led to citations to Petitioner for maintaining a fire hazard (no adequate fire-break around the perimeter of the property), for unauthorized dumping on the property, inadequate security, and for operating a landfill without a permit. An order to cease dumping on this site was issued by HCEPA.
Petitioner sought the assistance of the fire department in constructing a firebreak around the property and on two occasions stretched a chain and later a cable across the road to bar access to unauthorized persons. Trespassers tore down the chain and cable and dumped household trash on the property.
Petitioner engaged the services of an engineer to prepare its application to DER for a permit to operate a landfill. When advised that the application was incomplete, that a bond was needed, that the property was not zoned properly, and that the security was inadequate, Petitioner applied to Hillsborough County for a zoning change and contacted an insurance company about the required bond and was assured a bond would be issued when requested.
Petitioner's application for a zoning change never reached the agenda of the Hillsborough County Commission and Petitioner never presented documentary evidence that the required bond would be issued upon request. Petitioner presented no evidence that anything has been done to improve the security of the property or to keep unauthorized persons out.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 403.087, Florida Statutes, requires a permit from DER before any stationary installation may be constructed which will reasonably be expected to be a source of air or water pollution. Burning tree clippings constitutes a source of air pollution.
To qualify for a landfill permit Rule 17-7.03, Florida Administrative Code, requires the operator to post a performance bond. No documentary evidence was presented to DER or at the hearing that Petitioner could qualify for such performance bond.
Rule 17-7.05, Florida Administrative Code, establishes criteria for sanitary landfills including Class III landfills which receive only trash or yard trash. Among these requirements are that the property conform with the proper zoning. The property is currently zoned AR and a zoning of A is required for landfill sites in Hillsborough County. No evidence was presented that the proposed site meets the zoning requirements for a sanitary landfill.
Evidence was presented that no security is provided at this site, that solid waste materials have been dumped on this site after HCEPA directed Petitioner to cease and desist from further dumping, and that the firebreak established by Petitioner is not adequate.
Here, the burden is on Petitioner to show, by a preponderance of the evidence, that it meets all of the requirements for the issuance of the requested permit. This burden Petitioner has clearly failed to meet. It is therefore
RECOMMENDED that the application of Pete & Ron's Tree Service, Inc., for a Class III landfill permit in Hillsborough County be DENIED.
DONE AND ENTERED this 6th day of July, 1983, in Tallahassee, Florida.
K. N. AYERS, 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 6th day of July, 1983.
COPIES FURNISHED:
Ronald A. White Peter J. Fernandez
Post Office Box 14156 Tampa, Florida 33690
William W. Deane, Esquire and Wayne H. Bosford, Legal Intern Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Docket for Case No: 83-000624
Orders for Case No: 83-000624
