STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 03-2180EF

) DADDY DOES DIRT, INC., and ) WILLIAM H. STANTON, JR., )

)

Respondents. )

______________________________)

FINAL ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on October 2, 2003, in Tampa, Florida.

APPEARANCES

For Petitioner: Lisa G. London, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondents: Thomas S. Hogan, Jr., Esquire

The Hogan Law Firm Post Office Box 485

Brooksville, Florida 34605-0485 STATEMENT OF THE ISSUE

The issue is whether Respondents should have an administrative penalty imposed, take corrective action, and pay

investigative costs for allegedly maintaining a solid waste management facility without a permit and disposing of solid waste in an area subject to periodic or frequent flooding.

PRELIMINARY STATEMENT

On October 10, 2002, Petitioner, Department of Environmental Protection (Department), filed a Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (Notice) under Section 403.121(2), Florida Statutes (2002),1 alleging that in 2001 Respondents, Daddy Does Dirt, Inc. (DDD) and its owner, William H. Stanton, Jr. (Stanton), had operated a solid waste management facility in Polk County, Florida, without a permit and had stored and disposed of solid waste in an area subject to periodic or frequent flooding, without taking adequate flood protection measures, in violation of Florida Administrative Code Rules 62-701.300(1)(a), 62- 701.300(2)(d), and 62-701.320(1), and Section 403.161, Florida Statutes. For violating the statute and rules, the Department seeks to impose administrative penalties in the amount of

$8,000.00, require Respondents to take corrective action, and recover reasonable costs and expenses incurred while investigating this matter. On September 18, 2003, the Department filed a Notice of Scrivener's Error in which it amended the statutory references in paragraphs 12 and 14 of its Notice to reflect the correct citations.

On October 29, 2002, Respondents requested an informal conference. On November 13, 2002, the Department denied this request and granted Respondents twenty days in which to file a petition for formal administrative hearing. On December 2, 2002, Respondents requested a 90-day extension of time "to file [an] appeal" so that the matter could be "worked out for the interest of both parties." This request was denied by Order dated March 24, 2003, and Respondents were given twenty days in which to file a petition. The official file does not show when Respondents filed their initial pleading, but on May 21, 2003, and through counsel, Respondents filed their Amended Petition for Formal Administrative Hearing requesting a formal hearing to contest the Department's proposed agency action. The matter was then referred to the Division of Administrative Hearings on June 11, 2003, with a request that an Administrative Law Judge be assigned to conduct a hearing. By Notice of Hearing dated July 9, 2003, a final hearing was scheduled on October 2 and 3, 2003, in Tampa, Florida.

At the final hearing, Petitioner presented the testimony of

Steven G. Morgan, a Department Engineer II, and Susan Pelz, Department Solid Waste Program Manager and accepted as an expert. Also, it offered Petitioner's Exhibits A, C-H, K-M, and O-S, which were received in evidence. Exhibits P and R are the depositions of Glenn Jackson and Tara Bardie, both employees of

PPB Environmental Laboratories, Inc. Respondents presented the testimony of William H. Stanton, Jr.; George K. Foster, a geologist and accepted as an expert; and Dr. Guerry H. McClellan, a professor in the Geological Sciences Department at the University of Florida and accepted as an expert. Also, they offered Respondents' Exhibits C, D, F, and K-R, which were received in evidence. Exhibit K is the deposition of Richard B. Tedder, a Department employee. Finally, the undersigned took official recognition of Florida Administrative Code Rules 62-

520.410 and 62-550.310(1)(a). The latter rule adopts and incorporates by reference certain drinking water standards (Maximum Contaminant Levels for Inorganic Compounds) found in Table One of Florida Administrative Code Chapter 62-550.

The Transcript of the hearing was filed on October 24, 2003. At the request of the parties, the time for filing proposed findings of fact and conclusions of law was extended to November 24, 2003. The same were timely filed by the parties, and they have been considered by the undersigned in the preparation of this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. DDD is a corporation registered to do business in the

      State of Florida. Its president and sole director is William H. Stanton, Jr. The corporation is engaged in the business of "mobil recycling activities" (reduction recycling services for customers). Mr. Stanton owns a two-acre tract of property located in Section 26, Township 28S, Range 24B, on the northwest corner of Mustang Road and Longhorn Drive, Lakeland, Florida.

      The property is zoned for heavy industrial uses and was formerly used in some form of phosphate mining operations.

   2. The Department is the agency charged with the duty of administering and enforcing the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder. Based upon a complaint made by a Polk County Health Department employee, on October 8, 2001, a Department enforcement coordinator, Steven G. Morgan, inspected Mr. Stanton's property and observed that Respondents had filled and compacted an approximate 150 foot by

      300 foot area of the site with 3 to 5 feet of "wallboard type material," which consisted of "both ground up and large pieces of wallboard." In the middle of the filled area was an additional pile of the same material around 20 to 25 feet high. Petitioner's Exhibits A, D, and E are photographs which provide an accurate representation of the site on the date of the inspection.

   3. Based on a visual inspection, but without having the benefit of his own laboratory analysis,2 Mr. Morgan concluded

      that the material was a solid waste made up of discarded industrial products. Under Department rules, the deposit of solid waste on such a site requires a waste facility management permit from the Department. A check of Department records indicated that Respondents do not hold a permit to operate a solid waste management facility. (DDD does hold a valid air pollution permit for grinding concrete.)

   4. During his inspection, Mr. Morgan also observed that the land adjacent to the filled area was wet, had a lower elevation than the compacted area, and contained small pockets of standing water. This was confirmed by photographs received in evidence as Petitioner's Exhibits D and E.

   5. A DDD employee who was present on the site during the inspection indicated that approximately 900 truck loads of the material had been transported to the site from Plant City after Mr. Stanton had "lost" a lease on the property on which the material had previously been placed. This was confirmed by

      Mr. Stanton who arrived at the site shortly after the inspection began, and who indicated that he intended to use the compacted wallboard as a sub-base (or foundation) for a wallboard recycling facility.

   6. A second site inspection by Mr. Morgan conducted on February 5, 2002, confirmed that the conditions (regarding the piles of fill material but not the standing water) at the site

      were unchanged from those found on October 8, 2001. On that visit, Mr. Morgan observed the site from his automobile but did not walk the property. Two other site visits were made, one on June 19, 2002, by other Department personnel. Except for a photograph (Petitioner's Exhibit C) dated June 19, 2002, which indicates the piles of material were still intact and had not been removed, the results of those inspections are not of record.

   7. Shortly after the initial inspection, the Department's Tampa District Office issued a warning letter to Mr. Stanton describing Mr. Morgan's observations and outlining the potential violations. The letter also invited Mr. Stanton to resolve the matter informally and to present a corrective action plan to mitigate the site. When the matter could not be resolved informally, the Department issued its Notice on October 10, 2002, alleging that Respondents had operated a solid waste facility without a permit and had deposited solid waste in an area prone to flooding. Even though the matter was not informally resolved, Mr. Stanton has cooperated with the Department in good faith throughout the regulatory process.

2. The Material on the Site

   
   

   1. Invoices received in evidence reflect that the source of the deposited material was James Hardie Building Products in Plant City, Florida, and that the material was described on the

      invoices as "Dry Waste Material," Wet Waste Material," and "Foreign Material." James Hardie Building Products manufactures HardieBoard, which is a one-half to one-inch thick concrete formulated product used in the construction of homes and other buildings, and HardiePipe, which is used in road and bridge construction, culverts, storm sewers, and concrete pipes. The material being deposited was material used in the manufacture of HardieBoard. Mr. Stanton's long-range plans are to grind up, or recycle, the material (after all necessary permits, if any, are obtained) and then sell it to other persons, including cement manufacturing plants in the area, who will then use it for a variety of purposes, including subbase and base material, cement and concrete re-additive, and cement production.

   2. HardieBoard (as well as HardiePipe) is a variable mixture of Portland cement, water, fine silica sand, less than

      10 percent cellulose (a non-toxic organic material commonly added to such products as ice cream, shampoo, baby diapers, and rayon clothing), and less than 10 percent of inert materials. The cellulose fibers are added to the concrete to avoid cracking and shrinkage and to reduce the weight of the product. Unlike concrete used for driveways and the like, HardiBoard does not have any large aggregate.

3. Disposal of Solid Waste and Clean Debris

   
   

   1. Florida Administrative Code Rule 62-701.300(1)(a) prohibits the storing, processing, or disposing of solid waste except at a permitted solid waste management facility. In addition, no solid waste may be stored or disposed of "[i]n an area subject to frequent and periodic flooding unless flood protection measures are in place[,]" or "[i]n any natural or artificial body of water including ground water." Fla. Admin. Code R. 62-701.300(2)(d) and (e). These requirements form the basis for the charges in the Notice.

   2. Florida Administrative Code Rule 62-701.200(113) defines solid waste in relevant part as "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations."

   3. Section 403.707(2)(f), Florida Statutes (2003), provides, however, that a permit is not required for "[t]he use of clean debris as fill material in any area." See also Fla. Admin. Code R. 62-701.220(2)(f). "Clean debris" is defined in Florida Administrative Code Rule 62-701.200(15) as:

      any solid waste which is virtually inert, which is not a pollution threat to ground water or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes brick, glass, ceramics, and uncontaminated concrete including embedded pipe or steel.

      
      

   4. The term "virtually inert" is not defined by statute or rule. However, the parties agree that in order for a material to be "virtually inert," it must have no potential for leaking contaminants into the groundwater. In addition, if a deposited material releases contaminants into the groundwater thereby posing a threat to human health, it is considered a "threat to [groundwater]" within the meaning of the rule. The rule also provides that the material must not be a fire hazard. Finally, if a material decomposes over time after being used as fill, and releases contaminants into the groundwater, it is not "likely to retain its physical and chemical structure under expected conditions of disposal or use." Therefore, if a material has no potential for leaking contaminants into the groundwater, is not a threat to groundwater, is not a fire hazard, and is not likely to decompose over time, it constitutes clean debris and is exempt from the waste management facility permitting requirements.

   5. As noted above, Florida Administrative Code Rule 62-

      
      

      701.200(15) identifies four materials that are considered to be clean debris: brick, glass, ceramics, and uncontaminated concrete. If a waste product is classified as uncontaminated concrete, it constitutes clean debris and may be used as fill without a permit from the Department. Further, clean debris may

      be deposited in an area subject to frequent or periodic flooding so long as flood protection measures are taken, or in a natural or artificial body of water so long as other appropriate permits (such as an Environmental Resource Permit) are obtained.

   6. Here, the central issue is whether the material deposited on Mr. Stanton's property is solid waste or clean debris. This issue turns on whether the material is virtually inert, is not a pollution threat to groundwater or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Assuming these criteria are satisfied, the material is exempt from Department permitting requirements for solid wastes. On this issue, the Department contends that the material is not virtually inert and is unlikely to retain its physical and chemical structure. Conversely, Respondents assert that the material is clean debris and falls within the category of uncontaminated concrete.

4. Is the Deposited Material Clean Debris?

   
   

   1. In determining whether a material is virtually inert, or is a pollution threat to ground or surface waters, two extraction procedures have been sanctioned by the United States Environmental Protection Agency to assist in the measurement of the amount of contaminants that will leak from a material: the Toxicity Characteristic Leaching Procedure (TCLP) and the

      Synthetic Precipitation Leaching Procedure (SPLP). Under both procedures, the material being tested is ground up into small sand-size particles, mixed with an extraction fluid, and tumbled for 18 hours in a rotary agitator while the liquid solution extracts various metals that are found in the solids. The extracted liquid solution is then filtered and analyzed to determine the concentration of metals actually leached from the solids.

   2. Under state water drinking standards found in Table 1 of Florida Administrative Code Chapter 62-550, the maximum contaminant levels for chromium and barium (stated in milligrams per liter (mg/L)) are 0.1 mg/L and 2 mg/L, respectively.

   3. In reaching its conclusion that the fill material is a solid waste, the Department relied principally on certain tests of the material run by various laboratories between 1998 and 2000, which showed that the amount of chromium and barium leaking out of the product exceeded the State drinking water standards. See Petitioner's Exhibits K, L, M, and O. However, in every one of those tests, the laboratories used the TCLP, rather than the SPLC, which produced a worst case scenario. For the reasons stated below, the TCLP is not the appropriate procedure to be used for this purpose.

   4. The TCLP is the more aggressive of the two procedures, uses a much harsher solution than the SPLC, and generally

      leaches higher concentrations of metals. However, its principal purpose is to determine whether a material should be classified as a hazardous waste based on its leaching properties or characteristics. Using it to predict whether a material will leach into ground water is inappropriate because it will "leach things out in the laboratory that will never leach in the field." This is because it does not mimic conditions in the field and is "just not supposed to be used for this purpose." Therefore, TCLP leachate values should not be applied to drinking water standards.

   5. Conversely, the SPLC uses a less harsh solution during the preparation process, evaluates the potential for leaching metals into ground and surface waters, and is designed to provide a more realistic assessment of metal mobility under actual field conditions. In other words, the SPLC simulates what would happen if the sample were exposed to groundwater and rain to determine if under those conditions metals might leach into the water system below. Therefore, the SPLC is the more appropriate procedure to use here to determine whether the HardieBoard material will leach certain metals into the groundwater at levels that exceed State drinking water standards. Even various Department guidance documents provide that the SPLC (rather than the TCLP) should be used to determine

      if a material will leach metals into the ground water. See Respondents' Exhibits M, N, and O.

   6. Respondents' witness Foster collected three samples of HardieBoard deposited by Respondents at another site and submitted them to PPB Environmental Laboratories, Inc., in Gainesville, Florida, for a clinical analysis using the SPLC test. Those results, which have been accepted as being reliable,3 indicate that none of the leachate concentrations for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver exceed (or even approach) the drinking water standards. Therefore, the material is virtually inert, and the groundwater quality will not be adversely impacted by use of this material as fill.

   7. The parties agree that the material is not a fire hazard.

   8. Prior to depositing the material, Mr. Stanton used a commercial waste reduction machine (a Smorcazy Bandit Beast 3680 Horizontal Trough Grinder) to grind or pulverize some of the material into fine particles. As noted earlier, a small amount of cellulose fibers are added to the product during the manufacturing process. The Department contends that after the grinding process occurs, these fibers will separate from the remaining fine particles and dissolve into the ground water. Because of this separation, the Department asserts that the

      material does not retain its physical or chemical structure after being deposited onto the property.

   9. Although cellulose fibers are added to the product during its preparation to strengthen the material (and have been added by cement manufacturers since the 1920s), they are distributed throughout the matrix in the material. This means that the fibers become "part and parcel of the mixture" and will not deteriorate, fall out, or leach out of the material even after routine grinding processes, such as that done by Respondents. As such, the cellulose is not biodegradable, and there is no concern that the cellulose will dissolve into the groundwater. Indeed, HardiePipe, which is used in the construction of culverts, storm sewers, and drainage pipes and has essentially the same constituents as HardieBoard, was approved by the Florida Department of Transportation in 2001 for use on State road and bridge projects. Therefore, it is found that the fill material will retain its physical and chemical structure after being deposited onto the ground.

   10. Expert testimony by Dr. McClellan established that the

       
       

       material meets the general definition of concrete, and because it is uncontaminated, it should properly be classified as uncontaminated concrete. As such, the material is clean debris and is not subject to the Department's solid waste management permitting requirements.

   11. Finally, the Department points out that the compressive strength (measured in pounds per square inch (PSI)) is much greater for concrete used in driveways than for HardiBoard (2500 PSI versus 20 to 30 PSI), and therefore Hardiboard is not a true concrete product. While the PSI values are indeed substantially different, the load bearing ratio or compressive strength of the material does not determine whether a material falls within the generic category of concrete.

5. Water Issues

   
   

   1. As noted above, if a material is classified as clean debris, it may be deposited into an area prone to flooding or in a natural or artificial body of water, including groundwater (subject, of course, to other unrelated requirements or safeguards). There is no evidence that the filling occurred in a "natural or artificial water body," or directly into the groundwater. In addition, the evidence demonstrates that in October 2001, the ground next to the filled area had small pockets of standing water measuring no more than a few inches deep. However, when the inspection was made, and the photographs taken, Polk County was experiencing rather heavy rainfall, presumably due to the El Nino phenomenon. Whether these conditions (pockets of standing water) exist on the property only during the rainy season is not of record.

      Further, prior to the filling, Mr. Stanton contacted both the

      Southwest Florida Water Management District and the United States Geodetic Survey and he asserted, without contradiction, that neither agency indicated that his property was prone to flooding. In any event, even assuming that the area is subject to "frequent and periodic flooding," the permit requirements or other necessary safeguards, if any, associated with filling clean debris in such an area are not the subject of this proceeding.

6. Investigative Costs

1. A Department representative spent 66 hours investigating this matter for the Department. At a then-hourly rate of $18.54, this totals $1,223.64 in investigative costs. The reasonableness of this amount was not disputed by Respondents.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569, 120.57(1), and 403.121, Florida Statutes.

3. Section 403.121(2), Florida Statutes, prescribes the administrative enforcement process for the Department "to establish liability and to recover damages for any injury to the air, waters, or property . . . of the state caused by any violation." Under that process, the Department is authorized to

"institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action." § 403.121(2)(b), Fla. Stat. The process is initiated by "the department's serving of a written notice of violation upon the alleged violator by certified mail." § 403.121(2)(c), Fla. Stat. If a hearing is requested by the alleged violator, "the department has the burden of proving with the preponderance of the evidence that the respondent is responsible for the violation." § 403.121(2)(d), Fla. Stat. Thereafter, "the administrative law judge shall issue a final order on all matters, including the imposition of an administrative penalty." Id.

31 . The dispositive issue in this case is whether the material being deposited as fill (HardieBoard) by Respondents constitutes solid waste and is therefore subject to Department permitting requirements.

1. The evidence establishes that the material falls within the category of uncontaminated concrete and is therefore clean debris within the meaning of Section 403.707(2)(f), Florida Statutes, and Florida Administrative Code Rule 62- 701.200(15). This being so, Respondents do not require a solid waste management facility permit under Florida Administrative Code Rule 62-701.300(1)(a). Likewise, they have not violated Florida Administrative Code Rule 62-701.300(2)(d) and (e), which

   prohibits the disposal of solid waste in an area subject to frequent or periodic flooding unless flood protection measures are in place, or in any natural or artificial body of water, including ground water. Finally, because there are no rule violations, Section 403.161, Florida Statutes, has not been violated. Therefore, administrative penalties and corrective action are not warranted, and the Notice must necessarily fail.

2. Finally, Section 403.121(2)(f), Florida Statutes, provides as follows:

   In any administrative proceeding brought by the department, the prevailing party shall recover all costs as provided in ss. 57.041 and 57.071. The costs must be included in the final order. The respondent is the prevailing party when an order is entered awarding no penalties to the department and such order has not been reversed on appeal or the time for seeking judicial review has expired. The respondent shall be entitled to an award of attorney's fees if the administrative law judge determines that the notice of violation issued by the department seeking the imposition of administrative penalties was not substantially justified as defined in s. 57.111(3)(e). No award of attorney's fees as provided by this subsection shall exceed $15,000.

   
   

3. Because no penalties have been awarded to the Department, Respondents are the prevailing party in this proceeding. Accordingly, jurisdiction is retained for the limited purpose of determining the amount of costs, if any, incurred by Respondents in defending this action, and determining whether the Department was substantially justified in issuing its Notice, as contemplated by Section 57.111(3)(e),

Florida Statutes. When (and if) this Order becomes final, an appropriate order will be entered containing further instructions for the parties on this issue.4

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment issued against Respondents be dismissed, with prejudice. Jurisdiction is retained in this matter to determine whether Respondents are entitled to an award of costs and fees, and if so, in what amount.

DONE AND ORDERED this 5th day of December, 2003, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 5th day of December, 2003.

ENDNOTES

1/ Unless otherwise noted, all future references are to Florida Statutes (2002).

2/ The Department does not conduct its own laboratory tests to determine if a material is a solid waste or qualifies for an exemption from permitting requirements. Rather, it places the burden of doing so on the alleged violator.

3/ Although the Department suggested that the laboratory may have actually used the TCLP, rather than the SPLC, procedure for its analysis, the deposition testimony of witness Jackson indicates otherwise, and the documentation reflects that when the samples were submitted to the laboratory, a specific request to use the SPLC procedure was made by witness Foster.

4/ Even though Section 403.121(2)(f), Florida Statutes, provides that "[t]he [award of] costs must be included in the final order[,]" which implies that this issue, and all others, be addressed in a single final order, the more practical and efficient manner of handling the fees and costs issue is in a separate and supplementary final order.

COPIES FURNISHED:

Lisa G. London, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Thomas S. Hogan, Jr., Esquire The Hogan Law Firm

Post Office Box 485

Brooksville, Florida 34605-0485

Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 03-002180EF

Orders for Case No: 03-002180EF