STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1549

)

BARTOW ETHANOL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, K.N. Ayers, held a formal hearing in the above- styled case on May 6, 1993, at Bartow, Florida.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent: Howard C. Batt, Esquire

611 Druid Road East Suite 712

Clearwater, Florida 34616

STATEMENT OF THE ISSUES

Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.

PRELIMINARY STATEMENT

By Notice of Violation dated October 30, 1991, Petitioner, Department of Environmental Regulation (DER), notified Respondent, Bartow Ethanol, Inc. (BEI), that it was in violation of various provisions of Chapter 403, Florida Statutes, by:

1. Operating a composting facility, a potential source of water and air pollution, without a valid permit.

   
   

2. Allowing foul odors to emanate from the facility.

   
   

3. Allowing storm water/leachate to run off from the facility creating a source of ground water pollution.

4. Failing to notify DER that they had initiated use of stillage material in the composting operation by failure to submit quarterly compost samplings and analysis results to DER and failure to notify DER of days designated for sampling and testing the compost.

   
   

   BEI submitted an application to renew its permit to operate a solid waste composting facility on September 20, 1991. The former permit issued on September 28, 1988 expired on June 1, 1991. Several meetings and conferences were held between BEI and DER with regard to the renewal. A Draft Permit was submitted to BEI in February of 1992, which contained provisions to which BEI did not concur. Informal proceedings were initiated to resolve these differences and these informal proceedings were extended until May 20, 1992, at which time DER entered its notice of permit denial. BEI then requested a formal hearing to challenge this denial and continued the operation of its composting facility. DER did not initiate judicial proceedings to stop the BEI operation. The challenge to the permit denial was forwarded to the Division of Administrative Hearings on June 12, 1992 and was scheduled for hearing on October 1, 1992. On September 18, 1992, DER requested a continuance of that hearing to allow the parties additional time to enter into a settlement agreement. That case still pends.

   
   

   On March 19, 1993, the notice of violation was forwarded by DER to the Division of Administrative Hearings for formal proceedings, and this case was scheduled and heard on May 6, 1993.

   
   

   At the commencement of the hearing, BEI stipulated that permit number SC53- 150121 expired on June 1, 1991; that a new permit was applied for on October 18, 1991; the application for the new permit was denied on May 20, 1992; that at a meeting on November 17, 1992, DER advised BEI what would be required for the permit to be issued; and that BEI committed the odor violations as alleged.

   Thereafter, BEI called one witness; DER called one witness; and 14 exhibits were admitted into evidence. There is no real dispute regarding the operative facts alleged in the Notice of Violation. Accordingly, proposed findings of fact submitted by the parties are accepted.

   
   

   In its proposed recommended order, DER dismissed Counts II, III, IV, V, and VI of the Notice of Violation as moot because BEI was operating without a valid permit, the charge in Count I. This leaves for consideration Counts I, VII (failure to submit monthly reports), VIII (failure to conduct quarterly sampling and testing of compost), IX (maintaining a stationary installation which may reasonably be expected to be a source of air or water pollution without a current and valid permit, and X (DER incurred expenses of not less than $500.00 in investigating this matter).

   
   

   FINDINGS OF FACT

   
   

   1. BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER.

      
      

   2. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed.

      
      

   3. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER.

   4. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code.

      
      

   5. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors.

      
      

   6. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

      
      

   8. Section 403.087, Florida Statutes, provides in pertinent part:

      
      

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

         
         

   9. Section 403.161, Florida Statutes, provides in pertinent part:

      
      

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

         ***

         (b) To fail to obtain any permit required by this chapter, or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit or certification adopted or issued by the department pursuant to its lawful authority.

         
         

   10. BEI stipulated that it requires a permit from DER to operate its facility and that the permit that was issued expired on June 1, 1991 and has not been renewed. Since BEI admits all factual allegations of this Notice of Violation, the only issue is what remedial action is necessary to correct the matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that

BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall:

1. Immediately cease acceptance of all materials on the property.

2. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal.

   
   

3. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit.

   
   

4. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department:

   
   

   1. All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution.

      
      

   2. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990.

      
      

   3. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990.

      
      

   4. All records documenting amount of yard trash received at the facility since January 1, 1990.

      
      

5. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619.

DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1993.

COPIES FURNISHED:

Tracey S. Hartman, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Howard C. Batt, Esquire 611 Druid Road East Suite 712

Clearwater, Florida 34616

Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Ken Plante, Esquire General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-001549

Orders for Case No: 93-001549