19-005642
Mw Horticulture Recycling Of North Ft. Myers, Inc. vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Thursday, September 17, 2020.
Recommended Order on Thursday, September 17, 2020.
1For Respondent: Carson Zimmer , Esquire
6Department of Environmental Protection
10Mail Station 49
133900 Commonwealth Boulevard
16Tallahassee, Florida 32399 - 3000
21S TATEMENT OF THE ISSU ES
27The issues for determination in this matter are: (1) whether Petitioner,
38MW Horticulture Recycling Facility, Inc . (MW) , is entitled to renewal of its
51Yard Trash Trans fer Station or Solid Waste Organics Recycling Facility
62registration ; (2) whether Petitioner MW is an irresponsible applicant; and (3)
73whether Petitioner MW Horticulture Recycling of North Fort Myers, Inc.
83(MW - NFM), is entitled to renewal of its Yard Trash Transfer Station or Solid
98Waste Organics Recycling Facility registration.
103P RELIMINARY S TATEMENT
107On April 25, 2019, Petitioners , MW and MW - NFM, submitted their
119annual renewal Yard Trash Transfer Station or Solid Waste Organics
129Recycling Facility r egistration applications to the Department of
138Enviro nmental Protection (Department). Petitioners' facilities are
145alternatively known as Source Separated Organics Processing Facilities
153( SOPFs ). Petitioner MW's application was designated as file number SOPFD
16519 - 02 . Petitioner MW - NFM's application was designated as file number
179SOPFD 19 - 01. On August 22, 2019, the Department issued notices of denial
193for both registration application renewals .
199On September 11, 2019, Petitioners t imely filed petitions for
209admin istrative hearing challenging the registration denials. On October 18,
2192019, the Department referred the petitions to DOAH to conduct an
230evidentiary hearing and submit a recommended order. DOAH consolidated
239the cases o n October 31, 2019. The Department fil ed an Emergency Motion to
254Strike Witnesses on March 3, 2020. On March 4, 2020, the Petitioners filed
267their motion to strike witnesses. Petitioners motion was withdrawn at
277hearing ; the Departments motion was denied. The parties filed their Joint
288Pre - heari ng Stipulation on March 3, 2020.
297At the final hearing, P etitioners presented the expert testimony of
308David Hill, who was tendered and accepted as an expert in compost and solid
322waste management; and Jeffrey Collins, who was tendered and accepted as
333an ex pert in fire prevention and suppression . Petitioners also presented the
346fact testimony of Denise Houghtaling, Mark Houghtaling, Mario Scartozzi,
355Deborah Schnellenger, Harshad Bhatt, and Rick Roudebush . Petitioners'
364Exhibits 3 (Lake Yard photos A, B, D thro ugh J, L, N, P, Q, T, BB, CC, DD;
383North Yard photos A, C, D, E, H, I, L, N; South Yard photos A, B, C, E, G, K,
403L through T, Z, AA, BB), 6 (page 2 only), 9 through 14, 16, 20, 22, 25, and 26 ,
422were admitted into evidence.
426The Department presented the fa ct testimony of Lauren OConnor;
436Vincent Berta; the expert testimony of Steve Lennon, who was tendered and
448accepted as an expert in fire prevention and suppression; Doug Underwood,
459who was tendered and accepted as an expert in fire prevention and
471suppression ; and Renee Kwiat, who was tendered and accepted as an expert
483in solid waste and air quality. The Department s Exhibits 1 through 3 2 were
499admitted into evidence.
502A three - volume T ranscript of the hearing was filed with DOAH on
516March 27, 2020. The parties filed their P roposed Recommended Orders on
528April 16, 2020 , which have been considered in the preparation of this
540Recommended Order.
542References to Florida Statutes are to the 2019 version, unless otherwise
553stated.
554F INDINGS OF F ACT
559The following Find ings of Fact are based on the stipulations of the parties
573and the evidence adduced at the final hearing.
581The Parties and the Registration Denials
5871. Petitioner MW is a Florida c orporation that operates a n SOP F located
602at 6290 Thomas Road, Fort M yers, Lee County, Florida . Th e site is commonly
618referred to as the " South Yard. "
6242. Petitioner MW - NFM is a Florida c orporation that operates a n SOPF
639lo cated at 17560 East Street, North Fort Mye rs, Lee County, Florida . The site
655is commonly referred to as the " North Yard. "
6633. The Department is the administrative agency of the s tate statutorily
675charged with, among other things, protecting Florida ' s air and water
687resources. The Department administers and enforces certain provisions of
696part IV of chapter 403, Florida St atutes, and t he rules promulgated
709thereunder in Florida Administrative Code C hapters 62 - 701 and 62 - 709.
723P ursuant to that authority, the Department determines whether to allow
734SOPF s to annually register in lieu of obtaining a solid waste management
747facility permit.
7494. On April 25, 2019, Petitioner MW submitted its application for
760registration renewal for the South Yard. On August 22, 2019 , the
771Department issued a notice of denial. The listed reasons for denial focused on
784non - compliance with orders for corrective action in a C onsent O rder (Order)
799between Petitioner MW and the Department entered on February 22, 2019.
810The Order was entered to resolve outstanding violations in a Notice of
822Violation, Orders for Corrective Action and Administrative Penalty As sessment (NOV) , issued on November 20, 2018.
8385. The notice of denial stated that , as of August 9, 2019, Petitioner MW
852had not completed the following corrective actions of the Order by the
864specified timeframes: ( a) w ithin 90 days of the effective date of this Order,
879Respondent shall remove all processed or unprocessed material (yard trash)
889from the Seminole Gulf Railway Right of Way and the swale along Old US 41
904and establish a 20 foot wide all - weather access road, around the entire
918perimeter of the site ; ( b) w ithin 90 days of the effective date of this Order,
935Respondent shall reduce the height of the piles to a height that the facilitys
949equipment can reach without driving (mechanically compacting) onto the
958process ed or unprocessed material; and ( c) w ithi n 90 days of the effective date
975of this Order, Respondent shall have all the processed and unprocessed
986material be no more than 50 feet from access by motorized firefighting
998equipment.
9996. The notice of denial also stated that when Department staff conduct ed
1012compliance visits on April 29, 2019, June 27, 2019, July 7, 2019, and July 18,
10272019 , the following outstanding violations were documented: (a)
1035unauthorized open burning of yard waste; (b) unauthorized mechanical
1044compaction of processed and unprocessed m aterial; (c) an all - weather access
1057road, at least 20 feet wide, around the perimeter of the Facility has not been
1072maintained and yard trash has been stored or deposited within the
1083all - weather access road; and (d) yard trash is being stored more than 50 fee t
1100from access by motorized firefighting equipment.
11067 . On April 25, 2019, Petitioner MW - NFM submitted its application for
1120registration renewal for the North Yard. On August 22, 2019, the
1131Department issued a notice of denial. The notice of denial stated that compliance and site observation visits were conducted on July 9, 2019,
1154July 30, 2019, August 1 and 2, 2019 , and the following non - compliance issues
1169were documented: (a) unauthorized open burning; (b) unauthorized me chanical compaction of processed and unprocessed material; (c) yard trash
1188received has been stored or disposed of within 50 feet of a body of water; and
1204(d) yard t rash received is not being size - reduced or removed, and most of the
1221unprocessed yard trash has been onsite for more than six mont hs.
12338. The notice of denial also stated that on March 27, 2018, May 10, 2018,
1248and October 3, 2018, Department staff conducted inspections of the North
1259Yard. A Warning Let ter was issued on November 2, 2018 . The Warning
1273Letter noted the following violations : (1) u nau thorized burning of solid waste;
1287( 2 ) the absence of the required 20 - foot - wide all - weather perimeter access road
1306along the southern unprocessed yard trash debris pile ; ( 3 ) i nadequate access
1320for motorized firefighting equipment around the southern unprocessed yard
1329trash debris pile (lake pile) ; (4) t he lake pile not size - reduce d or remove d
1347within six months ; (5) m echanical compaction of processed and unprocessed
1358material by heavy equipment ; and (6) y ard trash storage setbacks from
1370wetlands not maint ained .
1375Petitioners' SOPFs
13779. The North Yard is located in North Fort Myers and is bound by the
1392southbound lanes of Interstate 75 to the east and a lake to the west. The
1407South Yard is slightly larger than the North Yard and abuts Thomas Road to the west a nd a railroad owned and operated by the Seminole Gulf Railway
1435Company to the east.
143910. Petitioners' facilities accept vegetative waste and yard trash (material)
1449from the public in exchange for a disposal fee before processing and
1461size - reducing the material into retail products such as organic compost,
1473topso il, and mulch. The unprocessed material is staged in various piles
1485generally according to waste type until it can be processed by grinding or screening.
149911. As of the date of the final heari ng, b oth the North Yard and the South
1517Yard were completely full of large, tall , and long piles of processed and
1530unprocessed material except for a perimeter roadway around each site and
1541paths that meander between the piles themsel ves.
154912. As the material in the piles decomposes, heat is produced from the
1562respiration and metabolization of organic matter. T his heat ignite s the dry
1575material and can cause substantial fires. Both the North Yard and South
1587Yard are susceptible to fires caused by spontaneous combu stion as a result of
1601the ir normal operations of collecting and stockpiling organic waste.
1611Fires
161213. Although spontaneous combustion is an inherent risk with SOPFs, the
1623evi dence at the hearing established that the material at Petitioners ' facilities
1636catch es fire at an abnormally high rate as a result of poor pile management.
1651Piles need to be turned and wet ted to keep down incidents of spontaneous
1665combustion. Monitoring temperatures, rotating the piles, and removing the
1674material at a faster rate would help reduce the incidence of fires. Large piles
1688with no extra land space cannot be managed in a way "to aerate and keep the
1704temperatures at a level where you're not going to have spontaneous
1715combustion." See Tr. Vol. I, pg. 32.
172214. Fire Marshal Steve Lennon of San Carlos Park Fire and Rescue
1734regarded the South Yard as a fire hazard compared to other similar sites in
1748his district. He testified that the pile heights, widths, and lengths at the
1761South Yard are not in compliance with applicable fire - code size requirements.
1774He also testified that if the pile sizes were in compliance , Petitioner MW
1787would not have to put their motorized firefighting equipment on top of the
1800piles " because [they] would be able to reach it from the ground." See Tr. Vol.
1815I, pg. 41.
181815. As of the date of the hearing, San Carlos Park Fire and Rescue ha d
1834responded to 43 active fire calls at the South Yard in the last two years, and three times in 2020 alone. In 2018, the active fire calls at the South Yard
1865were multi - day suppression operations . In 2019, the active fire calls were
1879mostly hotspots and flare - ups .
188616. Captain Doug Underwood of the Bayshore Fire Rescue and Protection
1897Service District (Bayshore Fire District) testified that his department ha d
1908responded to approximately 75 fire calls at the North Yard in the last two
1922years. The most common cause of the fires was spontaneous combustion . The
1935piles were not in compliance from a size standpoint.
194417. Captain Underwood testified that the majority of th e 75 calls were to
1958the lake pile at the North Yard. See Tr. Vol. I, pg. 59. The lak e pile was a
1977temporary site on the southern end of the lake that borders the North Yard , and for most of 2018 and 2019 , contained debris from Hurricane Irma .
20041 T he
2007lake pil e temporary site was completely cleared by the time of the hearing.
202118. Captain Underwood testified that in 2018 , he recommended to
2031Petitioners that they engage the services of an expert fire engineer.
2042Petitioners engaged Jeff Collins who met with Captain Underwood on
2052multiple occasions. They discussed how to address fires and hotspots and that
2064the facilities should have a written fire protection safety and mitigation plan. Such a plan was created and Captain Underwood was satisfied with its
2088provisions.
208919. Although the lake pile temporary site was completely cleared by the
2101time of the hearing , it was not an entirely voluntary effort on Petitioners'
2114part. Captain Underwood testified that Petitioners' "initial plan of action was
2125to leave it there for . . . eight months or greater, depending on the time frame
2142needed to have the product decompose and cool down to a tempe rature that they could remove it." See Tr. Vol. I, pg. 83. It took Lee County code
2171enforcement effort s "to compel MW to remove this material off - site as quickly
2186as possible." See Tr. Vol. I, pg. 82.
21941 referred to by various names in testimony Throughout this proceeding, the lake pile was
2209and exhibits, such as, "southern unprocessed yard trash debris pile," " lake yard," "trac [ t ] D,"
2226and "temporary site . "
223020 . As recently as February 12 , 2020, a large pile of hardwood, green
2244waste , and compost at the North Yard caught fire as a re sult of spontaneous
2259combustion. The size of the fire was so large and hot that the Bayshore Fire
2274District could not safely extinguish the fire with water or equipment , and
2286allowed it to free - burn openly for 24 hours in order to reduce some of the fuel.
230421 . The fire produced smoke that drifted across the travel lanes of
2317Interstate 75. The free - burn allowed the pile to reduce in size "down to the
2333abilities of the district and the equip ment on - site." See Tr. Vol. I, pgs. 51 - 52.
2352Captain Underwood testified that "once we started putting water on it, then
2364the MW crews with their heavy equipment covered the rest of the smoldering
2377areas with dirt." See Tr. Vol. I, pg . 56.
2387Rule Violations
238922. By Petitioners ' own admission, the facilities have repeatedly violated
2400applicable Department rules throughout the course of their operation s over
2411the last two and one - half years. T he most pertinent of these violations center
2427around the Department ' s standar ds for fire protection and control to deal
2441with accidental burning of solid waste at SOPFs.
244923. Renee Kwiat, the Department ' s expert , testified that the Department
2461cited the South Yard nine times for failing to maintain a 20 - foot all - weather
2478access road. The South Yard consistently violate d the requirement to
2489maintain processed and unprocessed material within 50 feet of access by
2500motorized firefighting equipment, and the North Yard has violated this requirement twice. The North Yard consistently v iolated t he requirement to
2522size - reduce or remove the lake pile material within six months. B oth the
2537North Yard and South Yard were cited multiple times for mechanically
2548compacting processed and unprocessed material.
255324. Following a period of noncompliance and near ly 11 months of
2565compliance assistance at the South Yard, Petitioner MW told the Department
2576it would resolve all outstanding violations by July 1, 2018. The July 1, 2018 ,
2590deadline passed and on October 18, 2018, the Department proposed a consent
2602order to re solve the violations at the So uth Yard. However, Petitioner MW
2616did not respond.
261925. On November 20, 2018 , the Department issued the NOV to Petitioner
2631MW regarding the South Yard. The violations included failure to maintain a
264320 - foot all - weather access ro ad around the perimeter of the site, failure to
2660ensure access by motorized firefighting equipment, mechanical compaction,
2668and the unauthorized open burning of solid waste. On February 22, 2019, the
2681Department executed the Order with Petitioner MW to resolv e outstanding
2692violations in the NOV.
269626. By signing the Order , Petitioner MW agreed to undertake the listed
2708c orrective actions within the stated time frames . Compliance visits to the
2721South Yard on April 29, 2019, June 7, 2019, June 27, 2019, July 18, 2019, and
2737August 22, 2019 , documented that many violations outlined above w ere still
2749present at the site.
275327. At the time of the final hearing, the preponderance of the
2765evidence established that no ne of the time period s in the Order were met.
2780The preponderance of the evidence established th e violations listed in
2791paragraphs 5 and 6 above.
279628. At the time of the final hearing, the preponderance of the evidence
2809established that Petitioner MW still had not reduce d the height of the piles
2823such that th eir equipment c ould reach the tops of the piles without driving
2838(mechanically compacting) onto the processed or unprocessed material. Thus,
2847all the processed and unprocessed material was not m ore than 50 feet from
2861access by motorized firefighting equipment .
286729. At the time of the final hearing, t he preponderance of the evidence
2881established more incidents of unauthorized open - burning of solid waste; and
2893continuing unauthorized mechanical compaction of processed and
2900unprocessed material . T he evidence also est ablished that the South Yard
2913d oes not encroach on Seminole's real property interest.
292230. The Department did not issue an NOV for the North Yard. T he
2936preponderance of the evidence established that there were repeated rule
2946violations at the North Yard . These violations formed the basis for denying
2959the North Yard's registration as outlined in paragraph 8 above.
296931. T he Department deferred to Lee County ' s enforcement action for
2982violations of County rules as resolution of the violations of Department rul es .
2996At the time of the final hearing, however, the preponderance of the evidence
3009established more incidents of unauthorized open burning of solid waste , and
3020continuing unauthorized mechanical compaction of processed and
3027unprocessed material at the North Ya rd.
3034Petitioners' Response and Explanation
303832 . Approximately two and one - half years before the date of the hearing in
3054this case, Hurricane Irma, a category four hurricane, made lan dfall in the
3067s tate of Florida. It was September 10, 2017, and Hurricane Irma significantly
3080impacted the southwest coast of Florida, where Petitioners ' facilities are
3091located.
309233. Hurricane Irma cause d extensive damage, including the destruction of
3103trees, vegetation , and other horticultural waste which required dispo sal.
3113Massive amounts of such yard waste and horticultural debris were deposited
3124on roadways and streets throughout Lee County, creating a significant issue
3135that needed to be addressed by local governments, and state and federal
3147agencies.
314834. Due to the threat posed by Hurricane Irma, the s tate of Florida
3162declared a state of emergency on September 4, 2017 , for every county in
3175Florida. This state of emergency was subsequently extended to approximately
3185March 31, 2019, for certain counties, includ ing Lee County, due to the damage caused by Hurricane Irma .
320435. An overwhelming volume of material needed to be processed and
3215disposed of following Hurricane Irma . The Petitioners ' facilities were
3226inundated with material brought there by Lee County, th e Florida
3237Department o f Transportation, the Feder al Emergency Management Agency ,
3247and others.
324936. A fter Hurricane Irma, haulers took considerable time just to get the
3262materials off the streets, and processors like the Petitioners, ran out of space
3275because there was limited space permitted at the time. As a result, these
3288materials stacked up and had to be managed over time at facilities, including
3301Petitioners ' facilities.
330437. To accommodate the material, Petitioner MW - NFM added the
3315temporary site that was l abeled the "lake pile" or " southern unprocessed yard
3328trash debris pile " in Department inspection and compliance reports of the
3339North Yard.
334138. In order to address the volume of material on the site after Hurricane
3355Irma, Petitioner MW - NFM requested approv al from the Depa rtment to move
3369the material off - site to other locations in order to reduce the size of the piles
3386at the North Yard's lake pile. For reasons that remain unclear , such
3398authorization was not obtained, and Petitioner MW - NFM bel ieves that this
3411would have size - reduced the piles and prevented accumulation of material in
3424violation of Department rules.
342839. In order to process the North Yard's lake pile and move it off - site more
3445quickly, Petitioner MW - NFM requested permission from Lee County and the
3457Department to grind unprocessed material on site, which would have
3467size - reduced the lake pile and allowed it to be moved off - site more quickly .
3485Because existing zoning did not authorize this grinding, the request was
3496denied in spite of the fact that a st ate of emergency had been declared which
3512Petitioner MW - NFM believes would have permitted such an activit y. This
3525further hampered Petitioner MW - NFM's ability to size - reduce the lake pile
3539leading to more issues with hot spots and fires.
354840. Because the mate rial was of such volume , and was decomposing, a
3561major fire erupted in 2018 at the North Yard's lake pile. Petitioners ' fire
3575safety engineer , Jeff Collins, wrote reports to address this issue and
3586recommended to the local fire department that the pile be smo thered in dirt
3600until the fire was extinguished. The request was denied by the Bayshore Fire
3613District , which instead directed that Petitioners break into the pile in order
3625to extinguish the fire. When Petitioners did so, the piles immediately erupted
3637into flames as predicted by Petitioners ' fire safety engineer. Moving the
3649smoldering material to the South Yard also led to fires at the South Yard.
366341. In spite of the large volume of material at the North Yard's lake pile,
3678Petitioners made steady progress i n size reducing the material and moving it
3691off - site. However, as of the date of the final hearing, both the North Yard and
3708the South Yard were still completely full of large, tall, and long piles of
3722processed and unprocessed material except for a perimeter roadway around
3732each site and paths that meander ed between the piles themselves.
3743Mechanical Compaction
374542. Each party presented testimony regarding the question of whether
3755Petitioners ' facilities violated the prohibition that any processed or
3765unprocessed material shall not be mechanically compacted. The parties
3774disagreed over how the prohibition against mechanical compaction was
3783applied to yard trash transfer facilities. In March of 2018, Petitioners '
3795representative, Denise Houghtaling, wrote an email to t he Department
3805requesting clarification of the Department ' s definition of " mechanical
3815compaction " because it is undefined in the rules.
382343. On April 3, 2018, Lauren O' Connor, a g overnment o perations
3836c onsultant for the Department ' s Division of Solid Waste Management,
3848responded to Petitioners ' request . The response stated that the Department
3860interprets " mechanical compaction " as the use of heavy equipment over
3870processed or unprocessed material that increases the density of waste
3880material stored. Mechanical c ompaction is authorized at permitted disposal
3890sites and waste processing facilities , but i s not permissible under a
3902registration for a yard trash transfer facility. 2 Mechanical compaction
3912contributes to spontaneous combustion fires, which is the primary reason for
3923its prohibition at yard trash transfer facilities .
393144. Petitioners ' interpretation of mechanical compaction as running over
3941material in " stages " or " lifts " was not supported by their expert witnesses.
3953Both David Hill and Jeff Collins agreed with the Department ' s interpretation
3966that operating heavy equipment on piles of material is mechanical
3976compaction.
397745. The persuasive and credible evidence established that Petitioners
3986mechanically compact material at their facili ties . Mechanical compaction was
3997apparent at both sites by either direct observation of equipment on the piles
4010of material, or by observation of paths worn into the material by regular and
4024repeated trips. Department personnel observed evidence of mechanical
4032compaction on eight separate inspections between December 2017 and
4041January 2019. Additional compaction was observed at the South Yard on June 7, 2019 , and in aerial surveillance footage from August 28, 2019,
4064September 5, 2019, January 30, 2020 , and Februa ry 12, 2020.
407546. Petitioners' fire safety engineer, who assisted them at the North Yard
4087lake pile, testified that the fire code require d access ramps or pathways for
4101equipment onto the piles in order to suppress or prevent fire. However,
4113Captain Underwood and Fire Marshal Lennon testified they do not and have
4125never required Petitioners to maintain such access ramps or paths on the
4137piles. The fire code provision cited by Petitioners ' expert does not apply to
4151their piles. See Tr. Vol. II, pgs. 78 - 80 . In addition, Fire Marshal Lennon
4167testified that placing firefighting equipment on top of piles is not an
4179accept able and safe way to fight fires at the site by his fire department.
41942 R ule 62 - 701.710 prohibits the operation of a waste processing facility without a
4210permit iss ued by the Department. See also Fla. Admin. Code R. 62 - 701. 803(4). R ule 62 -
4230701. 320 (16) (b) contemplates the availability of equipment for excavating, spreading,
4242compacting , and covering waste at a permitted solid waste disposal facility.
425347. Despite receiving clarification from the Depa rtment in April of 2018,
4265Petitioners cho o se to ignore the Department ' s prohibition against
4277mechanically compacting unprocessed or processed material piles. In
4285addition, the persuasive and credible evidence suggests that Petitioners
4294blanket the piles with d irt to both suppress fires and accommodate the
"4307access roads" or "paths" on the piles. 3
4315Ultimate findings
431748. The persuasive and credible evidence established th e violations cited
4328in the Department's registration denial for the North Yard. The Department
4339also established by a preponderance of the evidence the alleged subsequent
4350violations through to the time of the final hearing.
435949. The persuasive and credible evidence established the violations cited
4369in the Department's registration denial for the South Yard. The Department
4380also established by a preponderance of the evidence the alleged subsequent
4391violations through to the time of the final hearing.
440050. The persuasive and credible evidence established that Petitioners did
4410not consistently compl y with Depa rtment rules over the two and one - half
4425years prior to the final hearing. However, Petitioners established through
4435persuasive and credible evidence that because of the impacts of Hurricane Irma , and the subsequent circumstances , they could not have reasonab ly
4457prevented the violation s. The totality of the evidence does not justify labeling
4470the Petitioners as irresponsible applicants under the relevant statute and Department rule.
448251. However, Petitioners did not prov ide reasonable assurances that they
4493would comply with Department standards for annual registration of yard
4503trash transfer facilities.
45063 The evidence sugg ests that Petitioners may prefer to follow the advice of their hired expert s
4524wi th regard to the practice of mechanical compaction and blanketing the piles with dirt. See ,
4540e.g., Petitioners' Ex. 16. However, the evidence suggests that the experts' level of experience
4554is with large commercial composting and recycling facilities that may be regulated by solid
4568waste management facility permits and not simple annual registrations.
4577C ONCLUSIONS OF L AW
4582N ature and Scope of this Proceeding
458952. This is a de novo proceeding for the purpose of formulating final
4602agency action. See Capeletti Bros. v. Dep ' t of Gen. Servs ., 432 So. 2d 1359,
46191363 - 64 (Fla. 1st DCA 1983).
4626Burden and Standard of Proof
463153. Petitioners, as the applicant s for the registrations, have the burden to
4644prove that they are entitled to the r egistrations by meeting all applicable
4657regulatory criteria. See Fla. Admin. Code R. 62 - 709.320 ; Fla. Dep't of Transp.
4671v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).
468354. Rule 62 - 701.320(9) directs the Department to deny a solid waste
4696permit if reasonable assurance is not provided that the requirements of
4707chapters 62 - 4 and 62 - 701 will be satisfied. See also Fla. Admin. Code R. 62 -
47264.070(2). A solid waste permit may include registrations. See § 403.707(1),
4737Fla. Stat.
473955. Findings of fact must be based on a preponderance of the evidence.
4752See § 120.57(1)(j), Fla. Stat.
4757Registration Criteria
475956. Rule 62 - 709.320(1)(a) states that owners or operators of yard trash
4772processing facilities, facilities composting vegetative waste, animal
4779byproducts or manure with or without yard trash, and manure blending
4790operations that meet the criteria of r ules 62 - 709.320, 62 - 709.330, and/or
480562 - 709.350, shall register with the Department in lieu of obtaining a solid
4819waste management facility permit . It further states that if these criteria are
4832not met , then a solid waste management facility permit is required in
4844accordance with chapter 62 - 701 for disposal operations, or with c hapter 62 -
4859709 for recycling operations.
486357. Rule 62 - 709.320(2) sets forth the design a nd operating criteria that
4877must be met by a facility seeking to register in lieu of obtaining a solid waste
4893management facility permit. The rule provides:
4899(2) Design and operating requirements.
4904(a) The facility shall have the operational features and
4913equipment necessary to maintain a clean and orderly
4921operation. Unless otherwise specified in Rule 62 - 709.330 or
493162 - 709.350, F.A.C., these provisions shall include:
49391. An effective barrier to prevent unauthorized entry and
4948dumping into the facility site;
49532. Dust and litter control methods; and,
49603. Fire protection and control provisions to deal with
4969accidental burning of solid waste, including:
4975a. There shall be an all - weather access road, at least 20 feet
4989wide, all around the perimeter of the site,
4997b. None o f the processed or unprocessed material shall be mechanically compacted; and,
5011c. None of the processed or unprocessed material shall be more
5022than 50 feet from access by motorized firefighting equipment.
5031(b) The facility shall be operated in a manner to co ntrol
5043vectors.
5044(c) The facility shall be operated in a manner to control
5055objectionable odors in accordance with subsection 62 -
5063296.320(2), F.A.C.
5065(d) Any drains and leachate or condensate conveyances that
5074have been installed shall be kept clean so that fl ow is not
5087impeded.
5088(e) Solid waste received at a registered facility must be processed timely as follows:
51021. Any yard trash, including clean wood, received at the facility shall be size - reduced or removed within 6 months, or
5124within the period required to receive 3,000 tons or 12,000
5136cubic yards, whichever is greater. However, logs with a
5145diameter of 6 inches or greater may be stored for up to 12
5158months before they are size - reduced or removed, provided the
5169logs are separated and stored apart from other mate rials
5179onsite.
51802. Any putrescible waste such as vegetative wastes, animal
5189byproducts or manure received at a facility shall be processed and incorporated into the composting material, or removed
5207from the facility, within 48 hours of receipt.
5215(f) If any o f the following materials are discovered, they shall
5227be immediately containerized and removed from the facility:
5235treated or untreated biomedical waste; hazardous waste; or
5243any materials containing a polychlorinated biphenyl (PCB)
5250concentration of 50 parts per million or greater.
5258(g) When a registered facility ceases operation, all residuals,
5267solid waste, and recyclable materials shall be removed from
5276the site and recycled, or disposed of pursuant to the requirements of Chapter 62 - 701, F.A.C. Any remaining
5295processed material shall be used in accordance with the requirements of this rule or disposed of pursuant to the
5314requirements of Chapter 62 - 701, F.A.C.
532158. Petitioner MW did not prove by a preponderance of the evidence that
5334it would meet the design and operating requirements for yard trash
5345processing facilities . More specifically, Petitioner MW did not provide
5355reasonable assurances that it would meet the requirement s that none of the
5368processed or unprocessed material shall be mechanically compacted, and that
5378n one of the processed or unprocessed material shall be more than 50 feet
5392from access by motorized firefighting equipment.
539859. Petitioner MW - NFM did not prove by a preponderance of the evidence
5412that it would meet the design and operating requirements for yard trash
5424processing facilities. More specifically, Petitioner MW - NFM did not provide
5435reasonable assurances that it would meet the requirements that none of the
5447processed or unprocessed material shall be mechanically compacted, and that
5457none of the processed or unprocessed material shall be more than 50 feet
5470from access by motorized firefighting equipment .
547760. Petitioners did not provide reasonab le assurance that they can
5488effectively control and prevent unauthorized open burning at the North Yard
5499and South Yard. See Fla. Admin Code R. 62 - 701.300(3).
5510I rresponsible Applicant
551361. R ule 62 - 701. 320 (3) defines an "irresponsible applicant " as one that
" 5528o wned or operated a solid waste management facility in this state, including
5541transportation equipment or mobile processing equipment used by or on
5551behalf of the applicant, which was subject to a state or federal notice of
5565violation, judicial action, or crim inal prosecution for activities that constitute
5576violations of chapter 403, F.S., or the rules promulgated thereunder, and
5587could have prevented the violation through reasonable compliance with
5596Department rules . " (Emphasis added).
560162. The preponderance of t he evidence established that Petitioners did not
5613consistently comply with Department rules over the two and one - half years
5626prior to the final hearing. However, Petitioners established through
5635persuasive and credible evidence that because of the impacts of Hurricane
5646Irma , and the subsequent circumstances , they could not have reasonably
5656prevented the violations. The totality of the evidence does not justify labeling Petitioners as irresponsible applicants under the relevant Department rule.
5677R ECOMMENDATION
5679Based on the foregoing Findings of Fact and Conclusions of Law, it is
5692R ECOMMENDED that the Department of Environmental Protection enter a
5702final order denying Petitioners' annual registration renewal applications for
5711the North Yard and South Yard.
5717D ONE A ND E NTERED this this 17 th day of September, 2020 , in Tallahassee,
5733Leon County, Florida.
5736F RANCINE M. F FOLKES
5741Administrative Law Judge
5744Division of Administrative Hearings
5748The DeSoto Building
57511230 Apalachee Parkway
5754Tallahassee, Florida 32399 - 3060
5759(850) 488 - 9675
5763Fax Filing (850) 921 - 6847
5769www.doah.state.fl.us
5770Filed with the Clerk of the
5776Division of Administrative Hearings
5780this 17 th day of September, 2020.
5787C OPIES F URNISHED :
5792Clayton W. Crevasse, Esquire
5796Roetzel & Andress
57992320 First Street , Suite 1000
5804F ort Myers, Florida 33901
5809(eServed)
5810Sarah E. Spector, Esquire
5814Roetzel & Andress
58172320 First Street , Suite 1000
5822Fort Myers, Florida 33901
5826(eServed)
5827Carson Zimmer, Esquire
5830Department of Environmental Protection
5834Mail Station 49
58373900 Commonwealth Boulevard
5840Tallahassee, Florida 32399 - 3000
5845(eServed)
5846Lea Crandall, Agency Clerk
5850Department of Environmental Protection
5854Douglas Building, Mail Station 35
58593900 Commonwealth Boulevard
5862Tallahassee, Florida 32399 - 3000
5867(eServed)
5868Justin G. Wolfe, General Counsel
5873Department of Environmental Protection
5877Legal Department, Suite 1051 - J
5883Douglas Building, Mail Station 35
58883900 Commonwealth Boulevard
5891Tallahassee, Florida 32399 - 3000
5896(eServed)
5897Noah Valenstein, Secretary
5900Department of Environmental Protection
5904Douglas Building
59063900 Commonwealth Boulevard
5909Tallahassee, Florida 32399 - 3000
5914(eServed)
5915N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
5926All parties have the right to submit written exceptions within 15 days from
5939the date of this Recommended Order. Any exceptions to this Re commended
5951Order should be filed with the agency that will issue the Final Order in this
5966c ase.
- Date
- Proceedings
- PDF:
- Date: 12/15/2020
- Proceedings: Florida Department of Environmetal Protection's Exceptions to Recommended Order filed.
- PDF:
- Date: 10/14/2020
- Proceedings: Petitioner's Exceptions to Recommended Order (filed in Case No. 19-005642).
- PDF:
- Date: 09/30/2020
- Proceedings: Motion for Extension of Time to Submit Exceptions (filed in Case No. 19-005642).
- PDF:
- Date: 09/30/2020
- Proceedings: Notice of Appearance (Barry Mittelberg; filed in Case No. 19-005642).
- PDF:
- Date: 09/17/2020
- Proceedings: Recommended Order (hearing held March 5 and 6, 2020). CASE CLOSED.
- PDF:
- Date: 09/17/2020
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 04/16/2020
- Proceedings: Florida Department of Environmental Protection's Proposed Recommended Order filed.
- PDF:
- Date: 04/01/2020
- Proceedings: Petitioners' Motion for Extension of Time to File Recommended Orders filed.
- Date: 03/27/2020
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- PDF:
- Date: 03/20/2020
- Proceedings: Petitioner's Admitted Exhibits (Exhibits not available for viewing) filed.
- Date: 03/05/2020
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 03/04/2020
- Proceedings: Respondent State of Florida Department of Environmental Protections' Amended Exhibit List filed.
- PDF:
- Date: 03/03/2020
- Proceedings: Respondent Department of Environmental Protection's Objections to Petitioners Exhibits filed.
- PDF:
- Date: 03/03/2020
- Proceedings: Respondent State of Florida Department of Environmental Protections' Exhibit List filed.
- PDF:
- Date: 02/25/2020
- Proceedings: Order Denying Renewed Emergency Verified Motion to Withdraw as Counsel.
- PDF:
- Date: 02/21/2020
- Proceedings: Respondent, State of Florida Department of Environmental Protection's Response in Opposition to Emergency Verified Motion to Withdraw as Counsel filed.
- PDF:
- Date: 02/11/2020
- Proceedings: Respondent Department of Environmental Protection's Notice of Taking Video Deposition filed.
- PDF:
- Date: 02/11/2020
- Proceedings: Petitioners' Notice of Taking Deposition via Video Teleconferencing filed.
- PDF:
- Date: 01/22/2020
- Proceedings: Petitioners' Response to Respondent's First Request for Production of Documents to Petitioners filed.
- PDF:
- Date: 01/22/2020
- Proceedings: Petitioners' Notice of Service of Answers to Respondent's First Set of Interrogatories to Petitioners filed.
- PDF:
- Date: 01/14/2020
- Proceedings: Notice of Case Under Chapter 11 of United States Bankruptcy Code and Notice of Automatic Stay filed.
- PDF:
- Date: 01/14/2020
- Proceedings: Notice of Hearing (hearing set for March 5 and 6, 2020; 9:00 a.m.; Fort Myers).
- PDF:
- Date: 01/07/2020
- Proceedings: Respondent Department of Environmental Protection's Motion to Compel Answers to Discovery filed.
- PDF:
- Date: 01/02/2020
- Proceedings: Order Granting Continuance (parties to advise status by January 13, 2020).
- PDF:
- Date: 01/02/2020
- Proceedings: Respondent, Department of Environmental Protection's Response to Petitioner's Motion for Continuance filed.
- PDF:
- Date: 12/26/2019
- Proceedings: Petitioners' Motion for Continuance of Final Hearing on January 15 and 16, 2020, filed.
- PDF:
- Date: 12/23/2019
- Proceedings: Respondent Department of Environmental Protection's Witness List filed.
- PDF:
- Date: 12/11/2019
- Proceedings: Notice of Service of Petitioners' First Interrogatories to Respondent filed.
- PDF:
- Date: 12/04/2019
- Proceedings: Respondent Department of Environmental Protection's Notice of Taking Deposition filed.
- PDF:
- Date: 11/22/2019
- Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioners filed.
- PDF:
- Date: 11/22/2019
- Proceedings: Notice and Certificate of Service of Respondent DEP's First Set of Interrogatories to Petitioners filed.
- PDF:
- Date: 11/21/2019
- Proceedings: Amended Notice of Hearing (hearing set for January 15 and 16, 2020; 9:00 a.m.; Fort Myers; amended as to Location).
- PDF:
- Date: 11/20/2019
- Proceedings: Notice of Hearing (hearing set for January 15 and 16, 2020; 9:00 a.m.; Fort Myers).
- PDF:
- Date: 11/13/2019
- Proceedings: Order Granting Continuance (parties to advise status by November 18, 2019).
- PDF:
- Date: 10/31/2019
- Proceedings: Notice of Hearing (hearing set for December 10 through 12, 2019; 9:00 a.m.; Fort Myers, FL).
Case Information
- Judge:
- FRANCINE M. FFOLKES
- Date Filed:
- 10/21/2019
- Date Assignment:
- 10/21/2019
- Last Docket Entry:
- 12/15/2020
- Location:
- Fort Myers, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Barry S Mittelberg, Esquire
Address of Record -
Carson Zimmer, Esquire
Address of Record