STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Petitioner,
vs.
KEITH A. HETHINGTON,
Respondent.
)
)
)
)
)
) Case No. 06-3496EF
)
)
)
)
)
FINAL ORDER
This cause came on for formal proceeding and hearing before
P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Pensacola, Florida, on January 9 and 10, 2007. The appearances were as follows:
APPEARANCES
For Petitioner: Karen Bishop, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Stop 35
Tallahassee, Florida 32399-3000
For Respondent: Jesse W. Rigby, Esquire
William J. Dunaway, Esquire Clark, Partington, Hart, Larry,
Bond & Stackhouse
125 West Romana, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the Respondent should have a monetary administrative penalty imposed for violations of the statutes and rules cited herein, and whether the Respondent should be required to take corrective actions concerning those alleged violations and pay related investigative costs.
PRELIMINARY STATEMENT
A Notice of Violation and Orders for Corrective Action were issued by the Department of Environmental Protection (Department) on June 12, 2006. The Notice of Violation (NOV) and Orders for Corrective Action raise allegations that Keith A. Hethington (Respondent), violated the Department's rules regarding operation of land clearing debris facilities.
Specifically, the Respondent was charged with failure to construct a stormwater management system; that the Respondent allowed open burning of solid waste at his land clearing debris disposal Facility; and operated the Facility without a trained "spotter" on duty at the working face of the disposal Facility while waste was being disposed of. Thus, the Respondent is charged with violation, respectively, of Florida Administrative Code Rules 62-701.803(4); 62-701.300(3); and 62-701.803(8).
The Respondent challenged the NOV and order for corrective action by filing a Petition on August 6, 2006, wherein he denied
that the stormwater management system at the Facility was not constructed in accordance with stormwater management site plans submitted with the general permit notification. He denied that open burning had occurred at the Facility, and denied that the Department incurred investigative related expenses of no less than $1,000.00.
The cause was ultimately transferred to the Division of Administrative Hearings and the undersigned Administrative Law Judge. It was noticed for hearing for the dates of January 9 and 10, 2007, in Pensacola, Florida.
Shortly prior to hearing, on January 4, 2007, two Motions in Limine were filed by the Department asking that evidence related to the Respondent's financial inability to comply with the NOV be excluded, and that a witness of the Respondent from Escambia County government be also excluded from testifying.
After receiving the Response to the Motions, the undersigned denied both Motions on January 9, 2007, ruling that the witness from Escambia County might have testimony relevant to the scope or type of corrective action ordered, and also ruling that the Respondent's ability to pay might be possibly a mitigating factor in consideration of any penalty that might be assessed.
The parties also filed a Joint Pre-hearing Stipulation on January 5, 2007. The Respondent admitted to the violation in
Count III of the Department's NOV concerning failure to have a trained spotter on duty on the date alleged.
Thereafter the cause came on for hearing as noticed on January 9, 2007. The Petitioner presented the testimony of Michael Stephen, Marshall Seymore, and Clifford Street.
Clifford Street was accepted as an expert witness in the area of the Department's stormwater rules. Twenty-six of the Petitioner's exhibits were offered and admitted into evidence.
The Respondent presented the testimony of Keith Hethington and Peter Aluotto. Four of the Respondent's exhibits were admitted into evidence.
Upon conclusion of the hearing, the parties elected to have the proceedings transcribed and requested a 14-day period for submission of proposed final orders after the transcript was filed. The Proposed Final Orders were timely submitted and have been considered in the rendition of this Final Order.
FINDINGS OF FACT
The Department is an agency of the State of Florida charged with the duty of protecting Florida's air and resources and administering and enforcing Chapters 373 and 403, Florida Statutes, and the rules promulgated thereunder appearing in Florida Administrative Code, Title 62.
The Respondent owned and operated a permitted land clearing debris disposal Facility known as the Ambush Land
Clearing Debris Disposal Facility (Facility) located in Escambia County, south of Bankhead Road and approximately one-quarter mile west of the intersection of Bankhead Road and Blue Angel Parkway.
The Respondent operates this Facility under Permit No.
0193476-001-SO. The permit is a general permit issued by the Department subject to the requirements of Florida Administrative Code Rule 62-701.803. The Respondent filed his Notification 0f Intent to use a general permit for a land clearing debris Facility with the Department on January 8, 2002. That general permit notification included a design for a stormwater management system. The Respondent operated the Facility under that general permit until its expiration on February 6, 2007.
Stormwater is required to be controlled in accordance with part four of Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 62-25. See Fla. Admin. Code R. 62- 701.803(4).
The stormwater management system described in the General Permit Notification included the use of a retention pond on adjacent property. The Facility is a three-acre Facility begun as a borrow pit approximately 50 feet deep. Upon issuance of the General Permit, land clearing debris was brought to the pit for disposal.
The Department inspected the Facility on 22 occasions, between August 23, 2005 and January 4, 2006.
Thereafter on June 15, 2006, the Department issued its NOV alleging that the Respondent had violated the permit and Department rules. It was specifically alleged that the Respondent failed to construct the stormwater management system as required by Florida Administrative Code Rule 62-701.803(4); that he allowed open burning of solid waste in violation of Florida Administrative Code Rule 62-701.300(3); and that he operated the Facility without a trained spotter on duty at the working face, while waste was being disposed of, in violation of Florida Administrative Code Rule 62-701.803(8).
On August 7, 2006, the Respondent filed a Petition challenging the NOV. The Respondent denied that the stormwater management system at the Facility was not constructed in accordance with the stormwater management plans submitted with the General Permit Notification. The Petitioner also denied the occurrence of open burning at the Facility and that the Department had incurred expenses of at least $1,000.00.
Page 4 of the Engineers report attached to the General Permit Notification states:
Stormwater will be controlled via a retention swale and retention pond surrounding the site. The swales and retention pond are sized to accommodate one- half inch volume across the site. A shallow
swale on the West boundary will be constructed to allow conveyance of stormwater to a retention pond an the South end of the property. The detail of the retention pond and conveyance swale is shown on Figure 4.
Figure 4, attached to the General Permit Notification, includes design drawings for a retention pond measuring 25 feet wide by
500 feet long, designed to hold three feet of water. Figure 4 also includes design drawings for swales measuring five feet wide at the bottom and 17 feet wide at the top, with a three-to- one ratio slope. The Respondent planned to use his neighbor's property for construction of the retention pond. The retention pond was a part of the design submitted with the General Permit notification, depicted in Figure Four, but was never constructed, and the General Permit Notification with attachments does not clearly indicate that the retention pond would be on adjoining property.
Mike Stephen is an employee of the Department and has been for 13 years. He is an inspector of solid waste facilities. He inspected the site eight times over a one year period. He established that the site was an initially a borrow pit and over time was filled with land clearing debris and chipped hurricane debris from Hurricane Ivan. As a result the facility, instead of remaining a pit, evolved into a raised grade of about 25 feet above the natural land surface. Thus,
the pit has become a knoll. The placement of dirt on the facility, in response to firefighting needs, resulted in the elevation of the facility above the surrounding land surface. This caused stormwater to leave the property rather than to run or peculate through the waste deposited in the original pit.
Mr. Stephen reviewed the General Permit Notification submitted by the Respondent to the Department. It describes a stormwater system design consisting of a swale around the northeast and west sides of the property. The swale was designed to be 17 feet wide and 3 feet deep, and to bring the stormwater around the perimeter of the facility to the south end of the property. The conditions of the General Permit Notification, provided for in Florida Administrative Code Rule 62-701.803, require that the stormwater be controlled during the entire life of the facility.
The Respondent was present during some of
Mr. Stephen's inspections. When the Respondent was present he was told by Mr. Stephen about the violations noted. Some of the inspection reports were given to the Respondent, but most of their communication was verbal.
On the dates alleged in Count I, no stormwater management system had been constructed at the facility. At one time the Respondent began constructing a stormwater ditch along the western side of the property, but never finished it. As of
September 29, 2005, upon inspection in response to a neighbor's complaint, it was revealed that sediment and stormwater had run off the facility onto a government easement directly west of the facility, as shown by photographs in evidence as Petitioner's Exhibits 9 through 10. The neighbor had complained that stormwater was running onto her property from the facility.
Marshall Seymore, has been an employee for the Department for four years, and is the supervisor of the solid waste program for the Department's northwest district. He established that Florida Administrative Code Rule 62-701.804(3) requires a copy of a stormwater permit, or documentation that none is required, to be submitted to the Department before waste can be accepted at such a facility.
Cliff Street, is a 17-year employee of the Department.
He is the Engineering Supervisor for the Submerged Lands and Environmental Resources Program. He testified as an expert witness on the stormwater violation issued at the Facility. He established that any modification occurring in a Facility after February 1, 1982, requires stormwater treatment. A modification could be an increase in stormwater discharge, an increase in pollutant loading, or changes in points of discharge on a particular site. A landfill would be a modification, if it increases the run-off or increases the pollution from the site. A hole in the ground, or pit, that is created for deposition of
demolition or land clearing debris, requires treatment when the landfill debris accumulates and exceeds the natural grade surrounding the facility, resulting in more run-off.
The inspection reports and photographs of the site, establish, according to Mr. Street's testimony, that in his professional opinion the sediment that traveled across the government property adjacent to the site resulted from water that traveled across the site. It was thus established, along with the photographs in evidence, taken on September 29, 2005 (Petitioner's Exhibits 9 and 10) that the run-off is occurring from the western slope or southwestern corner of the site.
On September 29, 2005, as established by Mr. Street, the site was well above natural grade and run-off was coming from the site. Under those conditions, treatment of the run-off would be required in accordance with Florida Administrative Code Rule Chapter 62-25. Therefore the stormwater management system described in the General Permit Notification documents should have been constructed before September 29, 2005, the point where the debris and associated dirt cover exceeded natural grade.
Mr. Street also established that no stormwater management system existed on the site on October 16, 2005, based upon his review of a boundary and topographic survey bearing that date. Stormwater cannot be retained on the site in its current condition and the contours on the survey show that
stormwater is able to run off from the entire southwestern quadrant of the property.
Open Burning
Mike Stephen inspected the Respondent's facility on the dates alleged in Count II in the Notice. He observed flames or smoke at those various times, commencing on August 23, 2005, through January 4, 2006. A photograph from September 6, 2005, and that inspection, shows smoke arising from the site, but also shows that dirt had been placed in an effort to extinguish the fire. Later photographs in evidence for the Petitioner in September through December 2005, show smoke coming from the area of the south slope of the facility.
Mr. Stephen acknowledged that the Respondent, at
Mr. Stephen's behest, would occasionally put dirt over areas in an effort to extinguish the fire, but usually had to be prompted to do so by Mr. Stephen.
Mr. Seymour of the Department also conducted six of the inspections referenced in the Notice. He observed smoke from the northwest corner of the facility upon his November 2, 2005, inspection. He established that those photographs and his observances show that open burning was occurring on that occasion. He testified that either visual flames or smoke is used as a direct indicator of a fire, but that it is common for vapors to emit from these types of facilities and that it could
be difficult to establish, just from observed vapor, if there actually is a fire. One means of determining whether waste is burning is to measure the internal temperature. Mr. Seymour stated that studies show that when internal temperatures in a waste facility rise above 160 degrees Fahrenheit, that a chemical reaction or burning is likely taking place, although that is not a certainty. The Department has a policy or guideline, with regard to the corrective action proposed in this case, to the effect that the fire is deemed extinguished when all sub-surface temperatures are below 160 degrees Fahrenheit.
This avoids the necessity of digging up the waste to determine, visually, if a fire is occurring. Inserting a probe into the ground to measure temperature is the most economical, simplest way to determine sub-surface temperatures.
Mr. Seymour established that the Department, by policy and by rule, has a position that a fire should be extinguished as quickly as possible to lessen the public health risk and the risk that a fire can enlarge as to become dangerous in landfills and other waste disposal facilities. Based upon Mr. Seymour's experience with enforcement of the rules, nothing in rule Florida Administrative Code Rule 62-256.700 allows land clearing debris to be burned at a facility such as the Respondent's.
The Respondent testified that Escambia County shut down his site because of the occurrence of a fire. He maintains
that he did not ignite the fire and was not aware that anyone had set a fire. He believes that spontaneous combustion could have caused the fire. When he became aware of the fire, he brought equipment to the site and covered the fire with dirt. During the time the pit was on fire the Respondent took between two and three hundred loads of dirt to the site to cover the fire to make efforts to extinguish it. In fact, the dirt cover placed on the site resulted in the elevation of the site being raised to such an extent as to require an operable stormwater management system.
Count III
The Department alleges in Count III that on
December 19, 2005, no trained spotter was on duty on the working face of the waste disposal facility, while trees, tree trunks, and tree limbs were disposed of. The Respondent concedes this and admits to this allegation.
Investigative Costs
The Department has contended that it has incurred costs of not less than $1,000.00 while investigating this matter. In this regard it adduced evidence that the cost of Mr. Stephen's work is $21.50 per hour and he spent approximately
55 hours making inspections. Mr. Seymore's salary is $26.60 per hour. He spent approximately 30 hours inspecting the facility.
This results in a total apparent cost of $1,182.50 for Mr. Stephen's work and $798.00 for Mr. Seymour's work.
Although the undersigned has ruled that the Respondent's financial condition is irrelevant to the legal issues presented by the statutes and rules governing this case, some testimony regarding the Respondent's financial condition was allowed on a possibility that it might have relevance on the question of any mitigation of penalties. The Respondent began carrying debris to the site shortly after he received the permit, operating the site in conjunction with his land clearing business. It accepted waste until the middle of 2005. He did not charge a fee for the disposal because he was taking the waste from his own Ambush Land Clearing and Hauling Corporation without charging it any fees. He also accepted between 250,000 and 280,000 cubic yards of debris from FEMA following the destruction cased by Hurricane Ivan. He charged that federal agency $1.00 per cubic yard for disposal of that waste. The Respondent dissolved Ambush Land Clearing and Hauling, Incorporated at the end of 2005, retaining none of that company's assets. He now works for an employer and earns approximately $800.00 gross per week, before taxes, and also owns a Harley Davidson motorcycle.
Escambia County Closure Permit
The Respondent has applied for a closure permit to Escambia County. He offered evidence apparently in an effort to show that it would be impossible to comply with the Department's NOV as well as the Escambia County ordinance.
Mr. Peter Aluotto, is the Director of Planning and Zoning for Escambia County. He testified regarding the County Development Review Committee (DRC) and Escambia County Ordinance 2006-24. Section 82-227(5) of the Escambia County Ordinance prohibits volume reduction at land clearing debris facilities. "Volume Reduction" includes chipping, shredding, or burning of debris. Section 82.236 of the Escambia County Ordinance determines that variances may be granted if the board of adjustment determines that granting such variances will not result in the maintenance or creation of a nuisance. Although he has applied for a closure permit, there is no evidence presented that the Respondent applied for a variance from this ordinance, as for instance to place himself in a position where he could perform grinding of debris material in order to generate revenue.
Both the DRC and the Escambia County Waste Department have to collaborate on issuance of a closure permit.
Mr. Alleuto does not know what action might be taken on the closure permit application. In any event, his testimony is
irrelevant to the corrective action sought by the Department because the Department is not requiring any grinding, or otherwise reduction in volume of debris material. The fact that the Respondent would like to grind debris material in order to generate revenue is irrelevant to actions sought by the NOV and the Department's position in this case.
In summary it has been established that open burning occurred at the site and that the Respondent "allowed" it to occur. It has not been established by preponderant evidence that the Respondent actually ignited the materials in question. Moreover, it has been established by preponderant evidence that the Respondent made extensive efforts to extinguish the fire. It is also true that he was somewhat slow to do so, and did so only upon prompting by the Department's personnel. In any event, however slowly he complied, he did cooperate with the Department in making an effort in extinguishing the fire. There is no preponderant evidence to show that the fire is still burning and that it was not extinguished. Additionally, it has been established that the stormwater management system has not been, constructed as represented to the Department in the Notice regarding the General Permit. In fairness to the Respondent, however, the Stormwater Management System was not required to be in place under the rules until the site generated stormwater migrating off the site. That did not occur until the elevation
was raised above the surrounding land surface elevation. That in turn, occurred because of the Respondent's efforts to extinguish the fire by hauling numerous truck loads of dirt and placing them on the site, such that it ultimately attained a raised elevation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).
The issues in this proceeding implicate two different statutory chapters. The stormwater related issues relate to part IV of Chapter 373, Florida Statutes (2006), and the issues regarding solid waste arise under Chapter 403, Florida Statutes (2006).
Section 373.430(1)(b), Florida Statutes (2006), provides that "it is a violation of this part, and it shall be prohibited for any person . . . to violate or fail to comply with any rule, regulation, order, or permit adopted or issued by a water management district, the department, or local government pursuant to their lawful authority under this part."
Section 403.161(1)(b), Florida Statutes (2006), states that "it is a violation of this chapter, and it shall be prohibited for any person . . . 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."
The Petitioner has the burden of proving by preponderant evidence that the Respondent is responsible for the violations charged. § 403.121(2)(d), Fla. Stat. (2006). In accordance with Section 403.121(2)(d), Florida Statutes (2006), "the administrative law judge shall issue a final order on all matters, including the imposition of an administrative penalty."
The Department has alleged in Count I that Florida Administrative Code Rule 62-701.803(4) has been violated because Respondent failed to construct a stormwater management system in accordance with the General Permit Notification he gave the Department when he was in the process of obtaining his General Permit. Florida Administrative Code Rule 62-701.803(4) states "stormwater shall be controlled in accordance with Chapter 373, Florida Statutes and the rules promulgated thereunder. A copy of any permit for stormwater control issued by the Department or documentation that no such permit is required, shall be submitted to the Department before the facility receives waste for disposal."
Florida Administrative Code Rule 62-25.040(1) requires that any person intending to construct a new stormwater discharge facility apply to the Department for a construction permit prior to commencement of construction of such a facility.
Construction is defined in Florida Administrative Code Rule 62- 25.020(4) as "any on-site activity which will result in the creation of a new stormwater discharge facility, including the building, assembling, expansion, modification or alteration of the existing contours of the property, the erection of buildings or other structures, or any part thereof, or land clearing."
Florida Administrative Code Rule 62-25.040(3) provides that modifications to an existing stormwater management system that will increase the discharge of the stormwater discharge facility beyond its previously designed and constructed capacity, or increase pollution loading, or change points of discharge, are considered new stormwater discharge facilities.
The Department has established by preponderant evidence that a stormwater management system was required when the debris and dirt cover associated with the facility and associated with extinguishing the fire, exceeded natural grade. The Respondent did not have a stormwater management system on the dates alleged in Count I.
Section 403.121(3), Florida Statutes (2006), set forth the administrative penalties that must be imposed absent mitigating circumstances, for specified violations. Subsection (3)(e) of that provision provides "the Department shall assess a penalty of $2,000.00 for failure to construct or maintain a required stormwater management system." The Respondent failed
to construct the required stormwater management system depicted in his Notice for his General Permit and which became required once the site assumed a configuration and contour which resulted in stormwater migrating off the site. Because he failed to construct the system and administrative penalty of $2,000.00 must be imposed.
Section 403.121(10), Florida Statutes (2006), provides the following guidelines on the issue of mitigation:
(10) The administrative law judge may receive evidence in mitigation. The penalties identified in subsection (3), subsection (4), and subsection (5) may be reduced up to 50 percent by the administrative law judge for mitigating circumstances, including good faith efforts to comply prior to or after discovery of the violations by the department. Upon an affirmative finding that the violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by respondent's due diligence, the administrative law judge may further reduce the penalty. (Emphasis supplied).
Here, the Respondent did not make any significant good faith effort to construct the stormwater management system described in his general permit notification after repeated warnings and promptings by the Department that it was required and after having knowledge that stormwater was leaving his property. The strormwater management system at the facility still had not been constructed as of the date of the hearing.
There is no evidence to show that the violation as to stormwater management was caused by circumstances beyond the Respondent's control or could not have been prevented by exercise of due diligence by the Respondent. The Respondent's lack of money is not a mitigating circumstance numerated in Section 403.121(10), Florida Statutes (2006). Compare
Department of Environmental Protections v. Holmes Dirt Service, Inc., 864 So. 2d 507 (Fla. 1st DCA 2004) (Benton, J., dissenting) (where competent substantial evidence showed that violations were beyond the landowner's control, order mitigating a fine was sustained. In his dissent, Judge Benton noted that inadequate financial resources to pay a fine is not a mitigating circumstance contemplated by the statute.) Holmes at 508.
The Department contends in Count II of its Notice of Violation that the Respondent violated Florida Administrative Code Rule 62-701.300(3) by allowing open burning at the facility. Open burning is defined in Florida Administrative Code Rule 62-701.200(88) as "the burning of any material under such conditions that the products of combustion are emitted directly into the atmosphere." The rule does not require that the burning be intentional, rather it is a violation of the rule to allow the burning, without regard whether to the Respondent started the fire.
Florida Administrative Code Rule 62-701.300(3) states that "open burning of solid waste is prohibited except in accordance with Chapter 62-256 Florida Administrative Code. Controlled burning of solid waste is prohibited except in a permitted incinerator, or in a facility in which the burning of solid waste is authorized by a site certification order issued under Chapter 403, Part II, Florida Statutes."
There has been no evidence presented that open burning as alleged in Count II was done in accordance with Florida Administrative Code Chapter 62-256. The Department has established by preponderant evidence that open burning occurred on the dates in question, cited in the NOV and in the evidence adduced by the Department.
Section 403.121(3)(e), Florida Statutes (2006), provides that "the department shall assess a penalty of
$3,000.00 for unauthorized burning." The evidence does not show that the Respondent ignited the facility or started the fire, but he was responsible for operating the facility in accordance with the Department's rules. The burning occurred while that responsibility attached to him as the holder of the permit and operator of the facility. Thus, it has been established by preponderant evidence that he "allowed" the unauthorized burning at the facility.
The evidence also established, however, that although he was slow to take action and did so only after prompting by the Department's inspector, that the Respondent appears to have made substantial efforts in extinguishing the fire. He ultimately hauled several hundred loads of dirt to deposit on the facility to smother the fire. This, ironically, caused the triggering of his liability to actually construct the planned stormwater management system because the deposition of the dirt on the site raised the elevation above the surrounding land surface, such that stormwater was able to migrate off the site because the pit became a hill. There was no evidence to show how the fire actually started, nor was there any evidence which showed that the Respondent ignited the fire. There was no direct evidence to show that the fire resulted from circumstances either within or beyond the Respondent's control.
It must be inferred, however, that the circumstances were within his control because he was the owner and operator of the disposal site when the fire or fires occurred. The evidence shows that he did exercise due diligence in extinguishing the fire, but it also shows that he was not very timely in doing so. His efforts were strenuous, however, once he did make them.
The above-referenced statute provides that the "the department shall assess a penalty of $3,000.00 for unauthorized burning." The above-quoted statutory provision regarding
mitigation of penalty, Section 403.121(10), Florida Statutes (2006), allows for the administrative law judge to mitigate up to 50 percent of the penalty for good faith efforts to comply, either prior to or after discovery of the violations, and penalty mitigation beyond 50 percent if the violation was caused by circumstances beyond the reasonable control of the Respondent and could not have been prevented by Respondent's due diligence. It has not been established that the violation regarding burning was caused by circumstances beyond the Respondent's reasonable control, and it has not been established that the burning could not have been prevented if the Respondent had exercised due diligence. It has, however, been established that the Respondent made strenuous and good faith efforts to extinguish the fire after its discovery and after it was discovered by Department personnel. Thus, some mitigation is in order.
Therefore, instead of a $3,000.00 fine for this violation the Respondent should be assessed a fine of $1,500.00.
The Department has alleged in Count III of the NOV that on December 19, 2005, the facility was operated without a trained spotter on duty on the working face, while waste was being disposed of. This is a violation of Florida Administrative Code Rule 62-701.803(8), and the Respondent has candidly admitted to this allegation. This was a one-time occurrence and apparently the facility is receiving no waste any
longer. Indeed, the permit for the facility has now expired. Moreover, it is somewhat mitigatory that the Respondent conceded this violation, without the Petitioner being put to the cost and effort of proof. Thus, a penalty of $500.00 for failure to have a trained spotter on duty at the working face of the waste disposal facility on that one occasion is assessed.
Section 403.141(1), Florida Statutes, allows the Department to recover the "reasonable costs and expenses of the state" in investigating "damage caused to the air, waters, or property . . . of the state." Here the Department has incurred such expenses. Given the totality of circumstances, including mitigatory ones found and concluded above, it is determined that expenses in the amount $1,000.00 are reasonable and appropriate under the circumstances established by preponderant evidence in this case.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
ORDERED: That the Respondent shall comply forthwith with all above-referenced rules and statutes enforced by the Department regarding solid waste management and stormwater management. The Respondent shall correct and re-dress all violations in the time periods required below and comply with
all applicable rules in Florida Administrative Code Chapters 62- 701 and 62-25.
The Respondent shall construct the stormwater management system within 30 days of the effective date of this Final Order in accordance with the documentation already submitted with the "Notice of Intent to use a General Permit for Land Clearing Debris Disposal Facility."
The Respondent shall not receive any waste at the subject facility until a final determination has been made by the Department regarding the Closure Permit Application of the Respondent with regard to the relevant rules and statutes of the Department concerning closure. If waste is ultimately to be received at the facility, as for instance the facility is not closed for any reason, no waste shall be received until spotters have been properly trained and hired. Spotters, if ultimately necessary, shall be trained within 30 days after a Final Order by the Department determining that the solid waster disposal permit is re-newed and that the facility may operate.
The Respondent shall within 30 days of the date of this Final Order provide to the Department a time line or schedule showing its closure plan for the facility (including its efforts with Escambia County to meet the closure time table and deadlines). Closure shall be in accordance with Florida Administrative Code Chapter 62-701.803(10) and subject to Final
Order approval by the Department. Within 30 days of the effective date of this Final Order the Respondent shall pay the Department $4,000.00 for the administrative penalties assessed above. Payment shall be made by cashier's check or money order payable to the "State of Florida, Department of Environmental Protection" and shall "note the case number and address."
In addition to the administrative penalties, within 30 days of the effective date of this Final Order, the Respondent shall pay $1,000.00 to the Department for costs and expenses. Payment shall be made by cashier's check or money order payable to the "State of Florida, Department of Environmental Protection" and shall "note the case number and address."
The Respondent shall remain liable to the Department for any damages resulting from the violations alleged herein and for the correction, control, and abatement of any pollution emanating from the Respondent's facility.
DONE AND ORDERED this 20th day of April, 2007, in Tallahassee, Leon County, Florida.
S
P. MICHAEL RUFF 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 Clerk of the
Division of Administrative Hearings this 20th day of April, 2007.
COPIES FURNISHED:
Karen Bishop, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35
Tallahassee, Florida 32399-3000
Jesse W. Rigby, Esquire William J. Dunaway, Esquire
Clark, Partington, Hart, Larry, Bond & Stackhouse
125 West Romana, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Tom Beason, General Counsel
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Michael W. Sole, Secretary
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
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 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.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 20, 2007 | DOAH Final Order | Petitioner in a notice of violation proved that Respondent had not built the required stormwater system; allowed open burning, and on one day, did not have the required personnel present. Due to mitigating circumstances the penalty should be reduced. |
