98-002210 Harllee Packing, Inc. vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Friday, October 16, 1998.


View Dockets  
Summary: DEP revoked permit exemption issued by DER for tomato wash operation although operation used less than 5,000 gpd of wash-water. Evidence not clear why exemption issued. Under proper interpretation of rule, no permit should have been issued. RO: revoke.

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.

Select the PDF icon to view the document.
PDF
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.
PDF:
Date: 10/16/1998
Proceedings: Recommended Order
PDF:
Date: 10/16/1998
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 09/28/98.
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.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
05/14/1998
Date Assignment:
05/15/1998
Last Docket Entry:
03/05/1999
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Environmental Protection
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (1):

Related Florida Rule(s) (1):