98-002210
Harllee Packing, Inc. vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Friday, October 16, 1998.
Recommended Order on Friday, October 16, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8HARLLEE PACKING, INC., )
12)
13Petitioner, )
15)
16vs. ) Case No. 98-2210
21)
22DEPARTMENT OF ENVIRONMENTAL )
26PROTECTION, )
28)
29Respondent. )
31___________________________________)
32RECOMMENDED ORDER
34On September 28, 1998, a formal administrative hearing was
43held in this case in Tallahassee, Florida, before J. Lawrence
53Johnston, Administrative Law Judge, Division of Administrative
60Hearings.
61APPEARANCES
62For Petitioner: Terry Cole, Esquire
67Oertel, Hoffman, Fernandez
70& Cole, P.A.
73Post Office Box 1110
77Tallahassee, Florida 32301
80For Respondent: Ricardo Muratti
84Jennifer Fitzwater
86Assistant General Counsel
89Department of Environmental Protection
933900 Commonwealth Boulevard
96Mail Station 35
99Tallahassee, Florida 32399
102STATEMENT OF THE ISSUE
106The issue in this case is whether the Department of
116Environmental Protection (DEP) should revoke the Petitioner's
123exemption from the requirement to obtain a General Permit for
133Disposal of Tomato Wash Water under Florida Administrative Code
142Rule 62-660.805.
144PRELIMINARY STATEMENT
146On January 28, 1998, DEP issued a Notice of Exemption
156Revocation. The Petitioner, then known as Harllee-Gargiulo,
163Inc., filed a Petitioner for Formal Administrative Proceeding,
171and DEP referred the matter to the Division of Administrative
181Hearings (DOAH) on May 14, 1998. In accordance with the parties'
192response to the Initial Order, final hearing was scheduled for
202September 28-29, 1998.
205On July 21, 1998, the Petitioner filed a M otion to Correct
217Name "due to a corporate restructuring." On August 5, 1998, an
228Order Changing Name of Petitioner and Amending Caption was
237entered.
238On August 7, 1998, the Petitioner filed a Motion for Summary
249Recommended Order. On August 17, 1998, DEP filed a response in
260opposition and a Motion for Relinquishment of Jurisdiction.
268Initially, the parties requested oral argument on the motions,
277but oral argument could not be scheduled promptly, the request
287was withdrawn, and an Amendment to Notice of Final Hearing
297(Limiting Evidence and Reducing Time Set Aside for Final Hearing)
307was entered on August 24, 1998. Oral argument was deferred to
318final hearing, the evidence at final hearing was limited to
328evidence relevant to the proper interpretation of Florida
336Administrative Code Rule 62-660.805, and the time set aside for
346the final hearing was reduced to three hours.
354At final hearing, the Petitioner had one exhibit admitted in
364evidence as Petitioner's Exhibit A, and the Department had two
374exhibits admitted in evidence as Department Exhibits 1 and 2.
384Neither party called a witness. After oral argument, the parties
394were given ten days in which to file proposed recommended orders.
405The parties' proposed recommended orders have been considered.
413FINDINGS OF FACT
4161. The Petitioner, Harllee Packing, Inc., formerly known as
425Harllee-Gargiulo, Inc., is a grower and shipper of Florida
434vegetables that generates wastewater from its tomato-washing
441operation.
4422. On January 8, 1992, the Department of Environmental
451Regulation (DER), the predecessor to the Respondent, the
459Department of Environmental Protection (DEP), adopted Florida
466Administrative Code Rule 17-660.805, which not only provided for
475a General Permit for Disposal of Tomato Wash Water but also
486provided for an exemption from the requirement to obtain a permit
497under certain circumstances and conditions. (The rule was
505renumbered in 1996 and is now Rule 62-660.805.)
5133. In 1992, the Petitioner requested an exemption for its
523tomato-washing operation and entered into discussions with DER
531regarding the tomato-washing operation. On October 6, 1992, the
540Petitioner submitted information in support of its request for an
550exemption. DER issued the Petitioner a Notice of Permit
559Exemption on November 13, 1992. The Notice of Permit Exemption
569stated that the information submitted on October 6, 1992,
578provided "reasonable assurance that proper operation will occur
586to prevent violations of the Department's rules and regulations."
595There was no other evidence as to why the exemption was issued.
6074. At the time of and since issuance of the Notice of
619Permit Exemption, the Petitioner's tomato-washing operation has
626used approximately 16,500 gallons of wash-water a day. After use
637in the tomato-washing operation, the tomato wash-water is loaded
646from a storage tank into dedicated tankers for transportation and
656uniform distribution on uncultivated agricultural fields in
663accordance with the Notice of Permit Exemption.
6705. The Notice of Permit Exemption prohibits distribution
678during or within 24 hours after a rainfall event greater than a
69010-year, 1-hour storm and requires a minimum 5-day resting period
700between distributions to any one distribution site. Runoff
708outside the prescribed distribution sites also is prohibited.
716Although no witness testified, it can be inferred from these
726provisions themselves that their purpose was to control entry of
736the tomato wash-water into the groundwater and to prevent surface
746water runoff.
7486. The Notice of Permit Exemption warned that it could be
759revoked if the tomato-washing operation was substantially
766modified, if the basis for the exemption was determined to be
777materially incorrect, or if the Petitioner failed to comply with
787the specific conditions in the Notice of Permit Exemption.
7967. On January 28, 1998, DEP issued a Notice of Exemption
807Revocation. There was no evidence that the tomato-washing
815operation has been modified or that the Petitioner failed to
825comply with the specific conditions in the Notice of Permit
835Exemption. The exemption was revoked because "tomato washing
843operations discharging between 5000 and 50,000 gallons per day
853are required to obtain industrial wastewater general permits from
862the Department."
864CONCLUSIONS OF LAW
8678. Florida Administrative Code Rule 62-660.805 provides in
875pertinent part:
877(1) General Requirements.
880(a) This rule authorizes a general permit
887for any person constructing or operating a
894treatment and disposal system for wash water
901from the packaging of fresh market tomatoes
908with a wash tank discharging between 5,000
916and 50,000 gallons per day, provided that all
925of the conditions of this rule are met.
933(b) Any tomato wash water disposal system
940with a wash tank discharging less than 5,000
949gallons per day is exempt from the
956requirement to obtain a Department industrial
962wastewater permit if:
9651. The disposal of the systems
971[sic] wash water does not cause a
978violation of any Department
982standard for surface or ground
987water quality, and
9902. Wash water is not discharged
996directly to surface waters or to
1002ground waters through wells or
1007sinkholes that allow direct contact
1012with Class G-I or Class G-II ground
1019waters.
1020Between 1992 and 1996, the rule was numbered 17-660.805, but the
1031language was the same. The parties agree, as stated in the
1042Petitioner's Proposed Recommended Order: "The key issue for
1050resolution at the Final Hearing and on the Motion for Summary
1061Recommended Order is resolving the question of what is a
1071'discharge' [for purposes of the exemption rule]."
10789. The Petitioner contends that the rule should be
1087interpreted to allow an exemption so long as a tomato wash
1098operation is not discharging 5,000 or more gallons a day "into
1110waters of the State." Accordingly, the Petitioner contends that
1119its exemption was properly issued and that, in order to revoke
1130the Petitioner's exemption, DEP would have had to prove that the
1141Petitioner was discharging 5,000 or more gallons a day "into
1152waters of the State."
115610. In support of its interpretation of the rule, the
1166Petitioner points to other statutes and rules that modify the
1176word "discharge" with the limitation "into waters of the State."
1186See Section 403.031(3), Florida Statutes (1997)(defining
"1192effluent limitations" in terms of restrictions on the discharge
1201of constituents "into waters of the state"); Florida
1210Administrative Code Rule 62-620.200(12)(defining "discharge of a
1217pollutant" in terms of additions of pollutants "to waters") and
1228(13) (defining "discharge of wastes" in terms of the
"1237introduction or addition to waters" of any substance that would
"1247pollute any waters of the State.")
125411. DEP has made to no attempt to prove a discharge into
1266waters of the State. Instead, DEP contends that Rule
127562-660.805(1)(b) restricts permit exemptions to a "tomato wash
1283water disposal system with a wash tank discharging less than
12935,000 gallons per day" regardless of the disposition of the wash-
1305water.
130612. In support of its interpretation of the rule, DEP
1316points out that the word "discharge" itself is not defined in
1327either Chapter 403, Florida Statutes (1997), or Florida
1335Administrative Code Chapter 62-660. DEP also points out that the
1345statutes and rules cited by the Petitioner concern regulation of
1355the constituents of wastewater. Meanwhile, other statutes and
1363rules use the word "discharge" in a broader sense. See Florida
1374Administrative Code Rule 62-610.200(13)(defining "disposal" as
"1380the discharge of effluent to injection well, effluent outfalls,
1389subsurface drain systems, and other facilities utilized strictly
1397for the release of effluent into the environment") and
1407(19)(referring to discharges into the "environment of that
1415state."); Rule 62-610.500(2)(a)(referring to discharges to
1422absorption fields); Rule 62-610.510(2)(referring to discharges to
1429land application systems); and Rule 62-610.654 (referring to
"1437discharges to system storage or the reuse system").
144613. While the language of Rule 62-660.805(1)(b) may not be
1456crystal clear, by limiting exemptions to a "disposal system . . .
1468with a wash tank discharging less than 5,000 gallons per day,"
1480the exemption language seems to focus on the quantity of
1490wastewater exiting the wash tank, regardless of the disposition
1499of the wash-water. Such an intent makes sense; otherwise, the
1509exemption would seem to be impractical in that it could well be
1521much more expensive and onerous to prove entitlement to an
1531exemption than it would be to obtain a general permit; likewise,
1542it would seem to be more difficult for DEP to administer such an
1555exemption process than it would be to administer the general
1565permit process. Meanwhile, were it the intent to allow
1574exemptions so long as less than 5,000 gallons a day discharged
1586into waters of the State, the rule easily could have been written
1598to make such an intent clear. For these reasons, it is concluded
1610that the DEP's interpretation of the rule is correct.
161914. The Petitioner also argues that, since DER issued the
1629Notice of Permit Exemption in 1992 with full knowledge that more
1640than 5,000 gallons a day would be leaving the wash tank for
1653distribution on agricultural lands, DER must have interpreted the
1662word "discharging" in the rule to mean "discharging into waters
1672of the State." If it were clear that the Petitioner's exemption
1683was being revoked solely because of a change in the agency's
1694interpretation of a rule, revocation might not be permissible.
1703Cf. C-Sand Co. v. Dept. of Transp. , 494 So. 2d 267 (Fla. 1st DCA
17171986); Food 'N Fun, Inc. v. Dept. of Transp. , 493 So. 2d 23 (Fla.
17311st DCA 1986); Wainwright v. Dept. of Transp. , 488 So. 2d 563
1743(Fla. 1st DCA 1986). However, no witness testified, and the
1753evidence is not clear as to whether the exemption was based on
1765DER's interpretation of its rule or whether the exemption was
1775issued erroneously. If, on the other hand, the exemption was
1785issued in error, the basis for the exemption was materially
1795incorrect, and DEP is authorized to revoke it under the terms of
1807the Notice of Permit Exemption.
1812RECOMMENDATION
1813Based upon the foregoing Findings of Fact and Conclusions of
1823Law, it is
1826RECOMMENDED that the Department of Environmental Protection
1833enter a final order revoking the Petitioner's exemption.
1841DONE AND ENTERED this 16th day of October, 1998, in
1851Tallahassee, Leon County, Florida.
1855___________________________________
1856J. LAWRENCE JOHNSTON
1859Administrative Law Judge
1862Division of Administrative Hearings
1866The DeSoto Building
18691230 Apalachee Parkway
1872Tallahassee, Florida 32399-3060
1875(850) 488-9675 SUNCOM 278-9675
1879Fax Filing (850) 921-6847
1883Filed with the Clerk of the
1889Division of Administrative Hearings
1893this 16th day of October, 1998.
1899COPIES FURNISHED:
1901Terry Cole, Esquire
1904Oertel, Hoffman, Fernandez
1907& Cole, P.A.
1910Post Office Box 1110
1914Tallahassee, Florida 32301
1917Ricardo Muratti, Assistant General Counsel
1922Jennifer Fitzwater, Assistant General Counsel
1927Department of Environmental Protection
19313900 Commonwealth Boulevard, Mail Station 35
1937Tallahassee, Florida 32399
1940Kathy Carter, Agency Clerk
1944Office of General Counsel
1948Department of Environmental Protection
19523900 Commonwealth Boulevard, Mail Station 35
1958Tallahassee, Florida 32399-3000
1961F. Perry Odom, General Counsel
1966Department of Environmental Protection
19703900 Commonwealth Boulevard, Mail Station 35
1976Tallahassee, Florida 32399-3000
1979NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1985All parties have the right to submit written exceptions within 15
1996days from the date of this Recommended Order. Any exceptions to
2007this Recommended Order should be filed with the agency that will
2018issue the final order in this case.
- Date
- Proceedings
- Date: 03/05/1999
- Proceedings: Order Dismissing Remand and Closing File sent out.
- Date: 03/04/1999
- Proceedings: Settlement Stipulation and Motion to Relinquish Jurisdiction (Petitioner) rec`d
- Date: 02/05/1999
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 01/11/1999
- Proceedings: (Respondent) Status Report (filed via facsimile).
- Date: 12/11/1998
- Proceedings: Order for Status Reports sent out.
- Date: 12/10/1998
- Proceedings: Joint Motion for Abeyance of Hearing on Remand filed.
- Date: 11/30/1998
- Proceedings: Order of Remand filed.
- Date: 10/07/1998
- Proceedings: (Petitioner) Proposed Recommended Order; Disk filed.
- Date: 10/07/1998
- Proceedings: Department`s Proposed Recommended Order filed.
- Date: 10/02/1998
- Proceedings: (Petitioner) Notice of Confirmation of Correct Name filed.
- Date: 09/30/1998
- Proceedings: 1992 version of FAC Rule 17-660.805 filed.
- Date: 09/28/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 09/11/1998
- Proceedings: Response of Harllee Packing, Inc. to DEP`s Request for Production of Documents; Notice of Service of Responses to Interrogatories filed.
- Date: 08/31/1998
- Proceedings: Amendment to Notice of Final Hearing (Limiting Evidence and Reducing Time Set Aside) sent out.
- Date: 08/26/1998
- Proceedings: Harllee Packing, Inc.`s Reply to the Department`s Response to Petitioner`s Motion for Summary Recommended Order and Motion for Relinquishment of Jurisdiction filed.
- Date: 08/24/1998
- Proceedings: Department of Environmental Protection`s Response to Petitioner`s First Interrogatories filed.
- Date: 08/20/1998
- Proceedings: Department of Environmental Protection`s Response to Petitioner`s Request for Production filed.
- Date: 08/17/1998
- Proceedings: Department of Environmental Protection`s Response to Petitioner`s Motion for Summary Recommended Order and Department`s Motion for Relinquishment of Jurisdiction (filed via facsimile).
- Date: 08/12/1998
- Proceedings: (Respondent) Notice and Certificate of Service of Interrogatories; Department of Environmental Protection`s First Request for Production of Documents to Petitioner, Harllee Packaging, Inc. filed.
- Date: 08/07/1998
- Proceedings: (Petitioner) Motion for Summary Recommended Order filed.
- Date: 08/05/1998
- Proceedings: Order Changing Name of Petitioner and Amending Caption sent out.
- Date: 08/05/1998
- Proceedings: Department of Environmental Protection`s Response to Request for Admissions filed.
- Date: 07/21/1998
- Proceedings: Harllee Packaging, Inc.`s First Request for Production; Notice of Service of Petitioner`s First Interrogatories; Motion to Correct Name filed.
- Date: 06/29/1998
- Proceedings: Harlee-Gargiulo, Inc.`s Requests for Admission filed.
- Date: 06/04/1998
- Proceedings: Notice of Final Hearing sent out. (hearing set for Sept. 28-29, 1998; 9:00am; Tallahassee)
- Date: 05/27/1998
- Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
- Date: 05/15/1998
- Proceedings: Initial Order issued.
- Date: 05/14/1998
- Proceedings: Petition For Formal Administrative Proceeding; Agency Action Letter; Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.