Judges: R. T. CARPENTER
Agency: Department of Environmental Protection
Latest Update: Sep. 10, 1985
Summary: Respondents are jointly liable for ditch filled with solid waste without dredge and fill or solid waste permit.
84-4011STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 84-4011
)
KEN JORDAN, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Fort Myers, Florida on August 7, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer R. T. Carpenter. The appearances were as follows:
For Petitioner: Douglas H. MacLaughlin, Esquire
James I. Briggs, Jr., Legal Intern Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Respondent: Gregory E. White, Esquire
PAVESE, SHIELDS, GARNER, HAVERFIELD, DALTON & HARRISON
Post Office Drawer 1507 Fort Myers, Florida 33902
This matter arose on Petitioner's Notice of Violation and Orders for Corrective Action issued to Respondent. The parties submitted proposed findings of fact pursuant to Subsection 120.57(1)(b)4, Florida Statutes (F.S.). A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.
FINDINGS OF FACT
Respondent is a rancher who obtained cattle grazing rights to property owned by Florida Power and Light Company (FP&L) in Lee County, Florida. Essentially, Respondent became a tenant on the FP&L property pursuant to the terms of a contract or "license" entered into by FP&L and Respondent. The license was in effect between May 1, 1980 and April 30, 1986, when FP&L evicted Respondent from the property.
After his entry onto the FP&L property in 1980, Respondent undertook several projects to improve the land for cattle grazing. One such project involved the filling of a ditch dug by FP&L to build a power line access road. This ditch is water-filled much of the time and drains into the Caloosahatchee River, a Class III Florida Water Body.
Respondent did not seek a dredge and fill permit for the ditch project. As "fill" he arranged for the dumping of waste tires over about a one year period. He intended to cover the tires with dirt but lacked sufficient financial resources to complete the project.
At present, the tires are strewn over a distance of about 2,000 feet in this ditch, and are "migrating" downstream. Tire cleanup and disposal costs will be substantial and are estimated by FP&L at $130,000.
Respondent refuses to remove these tires and contends that he would be financially unable to do so even if he were willing to remove them. He believes the tires should remain in place and be covered with dirt as he originally intended.
Petitioner learned of the tire-filled ditch on July 6, 1984, and has thereafter sought to force Respondent to remove these tires without success. 1/ Prior to DER involvement, FP&L became aware of Respondent's fill activities and instructed him to complete the project by relocating some of the tires and covering them with dirt.
After DER became involved, FP&L changed its instructions to Respondent and required him to remove the tires as ordered by DER. When he failed to do so, FP&L evicted him.
FP&L and Respondent are in disagreement as to the terms of the license and are apparently in litigation over Respondent's eviction. For purposes of the instant proceedings, however, FP&L was aware of the tire dumping project while it was under way and did nothing to stop it prior to action by Petitioner.
CONCLUSIONS OF LAW
Section 403.927, F.S. (1984) provides in part:
(2) Agricultural activities and agricultural water management systems are authorized by this section and are not subject to the provisions of s. 403.087 or ss. 403.91 403.929, nor shall the department enforce water quality standards within an agricultural water management system. . . .
* * *
(4) As used in this section, the term:
(a) "Agricultural activities" includes all necessary farming and forestry operations which are normal and customary for the area, such as site preparation, clearing, fencing, contouring to prevent soil erosion, soil preparation, plowing, planting, harvesting, construction of access roads, and placement of bridges and culverts, provided such operations do not impede or divert the flow of surface waters.
Respondent argues that he was engaged in agricultural activity when he placed tires in the FP&L ditch, and is therefore exempt from DER regulation. This argument must be rejected since there is no evidence to indicate that the use of waste tires, as here, constitutes a "necessary," "normal" or "customary" farming activity. Rather, it is an issue of waste disposal and dredge/fill as charged by Petitioner, and is within its jurisdiction to regulate.
Section 403.704, F.S. 2/ states, "[DER] shall have responsibility for the implementation and enforcement of the provisions of [the Florida Resource Recover and Management Act]." (Sections 403.701 - 403.73, Florida Statutes).
F.A.C. Rule 17-7.01 states that the Florida Resource Recovery and Management Act directs DER to regulate the disposal of solid waste in order to assure that the residue is disposed of in a manner which embraces the environment.
F.A.C. Rule 17-12.03 (replaced 17-4.28(2)) states: "Pursuant to Section 403.913, F.S., dredging and filling conducted in, on, or over those surface waters of the state listed in Subsection 17-12.030(2), F.A.C., require a permit from the department unless specifically exempted in Sections 403.813, 403.913, 403.927 F.S., or Section 17-12.050, F.A.C."
Respondent obtained neither the solid waste nor dredge/fill permits required by these and other provisions of law. He is therefore in violation of Section 403.161, F.S. which states:
It shall be a violation of this Chapter, and it shall be prohibited . . . 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 certificate adopted by [DER] pursuant to its lawful authority.
Respondent is liable to the State for the $145.92 in administrative and enforcement costs of DER because of the Section 403.161(1), F.S., violations, pursuant to Section 403.141(1), which provides:
Whoever commits a violation specified in 403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating
the source and the pollutants, and in restoring the air, waters, and property, including animal, plant, and aquatic life, of the state to their former condition. . . .
The more serious issue of site cleanup will likely be determined in Circuit Court. See Sections 120.69, 403.121 and 403.131, F.S. In this regard, Respondent argues that FP&L should be joined as a party in such enforcement
action. FP&L owns this property and acquiesced in Respondent's unlawful tire disposal fill project. Further, FP&L now exclusively controls this prope rty, having ejected Respondent. As a practical matter, FP&L will necessarily be involved in any cleanup and restoration of the jurisdictional wetland.
FP&L, through Petitioner, argues that it is innocent of wrongdoing by the terms of its license contract with Respondent. This contract appears to prohibit fill activities without FP&L's written permission. However, FP&L chose not to enforce this provision until after DER became involved. Therefore, FP&L should be considered jointly liable with Respondent. See Section 403.141(2),
This does not, however, preclude the continuation of these proceedings against Respondent who conceived and carried out the illegal activity unaided by FP&L.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That Petitioner enter a Final Order:
Directing Respondent, within sixty days of the effective date of the Final Order, to remove and transfer all tires from the subject property to a DER approved sanitary landfill or a DER approved incinerator, or properly recycle the tires in a DER approved manner. Within seven days thereafter, Respondent is required to submit landfill, incinerator, or recycling receipts to DER as proof of proper disposal.
Pursuant to Section 403.141(1), F.S., Respondent is directed to pay
$145.92 to DER for expenses of the State in tracing, controlling, and abating this source of pollution. Payment is to be made by certified check to the "Pollution Recovery Fund," delivered to the South Florida District Office, 2269 Bay Street, Fort Myers, Florida 33901, within ten days of the effective date of the Final Order.
It is further RECOMMENDED:
That any civil enforcement suit filed pursuant to Section 120.69, 403.121 or 403.131, F.S., join Florida Power and Light Company as a Party Respondent.
DONE and ENTERED this 10th day of September, 1985 in Tallahassee, Florida.
R. T. CARPENTER, 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 10th day of September, 1985.
ENDNOTES
1/ Petitioner demonstrated that it had expended $145.92 in administrative and enforcement costs prior to hearing.
2/ Florida Statutes (1983) except where otherwise noted.
COPIES FURNISHED:
Douglas H. MacLaughlin, Esquire James I. Briggs, Jr., Certified Legal Intern Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Gregory E. White, Esquire
PAVESE, SHIELDS, GARNER, HAVERFIELD, DALTON & HARRISON
Post Office Drawer 1507 Fort Myers, Florida 33902
Philip R. Edwards, District Mgr. South Florida District
2269 Bay Street
Fort Myers, Florida 33901
Victoria Tschinkel, Secretary Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
KEN JORDAN,
Petitioner,
vs. DOAH CASE NO. 84-4011
OGC FILE NO. 84-0612
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On September 10, 1985, the Hearing Officer in the above-styled case submitted a Recommended Order (attached as Exhibit 1). This Recommended Order was issued following a administrative hearing concerning Ken Jordan's objection to the Department's Notice of Violation and Orders for Corrective Action issued to him.
The Notice of Violation (attached as Exhibit 2) alleged that Mr. Jordan dumped several hundred tires in a ditch connected via culverts to the Calaoosahatchee River, a Class III waterbody, with no Department solid waste disposal or dredge and fill permits, and ordered that Mr. Jordan remove and properly dispose of the tires within 60 days, and also pay Department expenses in pursing the enforcement action. The Hearing Officer concluded that Mr.
Jordan dumped tires over a distance of about 2000 feet in the canal, that he did not obtain either a dredge and fill permit or solid waste permit, and that the ditch drains into the Caloosahatchee River, a Class III waterbody. The Hearing Officer concluded that the Department had authority to require permits under its solid waste and dredge and fill rules The Hearing Officer recommended the same remedies as proposed by the Department, that Mr. Jordan properly remove the tires within 60 days, and that DER be paid expenses for its investigation in this matter. Finally, although not relevant to this Final Order, the Hearing Officer recommended that Florida Power and Light Company, the landowner who had leased the property to Mr. Jordan, with a contractual clause prohibiting fill activities, should be included in further DER enforcement proceedings in this matter.
Pursuant to Florida Administrative Code Rule 17-103.200 and Section 120.57(1)(b)8, Florida Statutes, all parties were allowed ten (10) days in which to submit exceptions to the Hearing Officer's orders. No exceptions have been timely filed. The Recommended Order thereafter came before me, as head of the Department, for final agency action in this matter.
Having carefully considered the Recommended Order submitted herein and being otherwise fully advised, it is therefore,
ORDERED that:
Mr. Jordan, within sixty days of the effective date of the Final Order, remove and transfer all tires from the subject property to DER approved sanitary landfill or a DER approved incinerator, or properly recycle the tires in a DER approved manner. Within seven days thereafter, Mr. Jordan is required to submit landfill, incinerator, or recycling receipts to DER as proof of proper disposal.
Pursuant to Section 403.141(1), F.S., Mr. Jordan is directed to pay
$145.92 to DER for expenses of the State in tracing, controlling and abating this source of pollution. Payment is to be made by certified check to the "Pollution Recovery Fund," delivered to the South Florida District Officer, 2269 Bay Street, Fort Myers, Florida 33901, within ten days of the effective date of this Final Order.
Any Party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rule of Appellate Procedure, with the clerk of the Department in the office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 27th day of November, 1985, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Officer Building 2600 Blair Stone Road Tallahassee, Florida Telephone: (909) 488-4805
I HEREBY CERTIFY that a copy of the foregoing FINAL ORDER has been furnished to R. T. Carpenter, Hearing Officer, Division of Administrative Hearings, the Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, and Gregory E. White, Esquire, PAVESE, SHIELDS, GARNER, HAVERFIELD,
DALTON & HARRISON, Post Office Drawer 1507, Fort Myers, Florida 33902, on this 2nd day of December, 1985.
Douglas H. MacLaughlin Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Docket for Case No: 84-004011
Orders for Case No: 84-004011
| Issue Date |
Document |
Summary |
|
Nov. 27, 1985 |
Agency Final Order
|
|
|
Sep. 10, 1985 |
Recommended Order
|
Respondents are jointly liable for ditch filled with solid waste without dredge and fill or solid waste permit.
|
