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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARLLEE PACKING, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-2210

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On September 28, 1998, a formal administrative hearing was

held in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Terry Cole, Esquire

Oertel, Hoffman, Fernandez

& Cole, P.A.

Post Office Box 1110

Tallahassee, Florida 32301

For Respondent: Ricardo Muratti

Jennifer Fitzwater

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environmental Protection (DEP) should revoke the Petitioner's

exemption from the requirement to obtain a General Permit for

Disposal of Tomato Wash Water under Florida Administrative Code

Rule 62-660.805.

PRELIMINARY STATEMENT

On January 28, 1998, DEP issued a Notice of Exemption

Revocation. The Petitioner, then known as Harllee-Gargiulo,

Inc., filed a Petitioner for Formal Administrative Proceeding,

and DEP referred the matter to the Division of Administrative

Hearings (DOAH) on May 14, 1998. In accordance with the parties'

response to the Initial Order, final hearing was scheduled for

September 28-29, 1998.

On July 21, 1998, the Petitioner filed a M otion to Correct

Name "due to a corporate restructuring." On August 5, 1998, an

Order Changing Name of Petitioner and Amending Caption was

entered.

On August 7, 1998, the Petitioner filed a Motion for Summary

Recommended Order. On August 17, 1998, DEP filed a response in

opposition and a Motion for Relinquishment of Jurisdiction.

Initially, the parties requested oral argument on the motions,

but oral argument could not be scheduled promptly, the request

was withdrawn, and an Amendment to Notice of Final Hearing

(Limiting Evidence and Reducing Time Set Aside for Final Hearing)

was entered on August 24, 1998. Oral argument was deferred to

final hearing, the evidence at final hearing was limited to

evidence relevant to the proper interpretation of Florida

Administrative Code Rule 62-660.805, and the time set aside for

the final hearing was reduced to three hours.

At final hearing, the Petitioner had one exhibit admitted in

evidence as Petitioner's Exhibit A, and the Department had two

exhibits admitted in evidence as Department Exhibits 1 and 2.

Neither party called a witness. After oral argument, the parties

were given ten days in which to file proposed recommended orders.

The parties' proposed recommended orders have been considered.

FINDINGS OF FACT

1. The Petitioner, Harllee Packing, Inc., formerly known as

Harllee-Gargiulo, Inc., is a grower and shipper of Florida

vegetables that generates wastewater from its tomato-washing

operation.

2. On January 8, 1992, the Department of Environmental

Regulation (DER), the predecessor to the Respondent, the

Department of Environmental Protection (DEP), adopted Florida

Administrative Code Rule 17-660.805, which not only provided for

a General Permit for Disposal of Tomato Wash Water but also

provided for an exemption from the requirement to obtain a permit

under certain circumstances and conditions. (The rule was

renumbered in 1996 and is now Rule 62-660.805.)

3. In 1992, the Petitioner requested an exemption for its

tomato-washing operation and entered into discussions with DER

regarding the tomato-washing operation. On October 6, 1992, the

Petitioner submitted information in support of its request for an

exemption. DER issued the Petitioner a Notice of Permit

Exemption on November 13, 1992. The Notice of Permit Exemption

stated that the information submitted on October 6, 1992,

provided "reasonable assurance that proper operation will occur

to prevent violations of the Department's rules and regulations."

There was no other evidence as to why the exemption was issued.

4. At the time of and since issuance of the Notice of

Permit Exemption, the Petitioner's tomato-washing operation has

used approximately 16,500 gallons of wash-water a day. After use

in the tomato-washing operation, the tomato wash-water is loaded

from a storage tank into dedicated tankers for transportation and

uniform distribution on uncultivated agricultural fields in

accordance with the Notice of Permit Exemption.

5. The Notice of Permit Exemption prohibits distribution

during or within 24 hours after a rainfall event greater than a

10-year, 1-hour storm and requires a minimum 5-day resting period

between distributions to any one distribution site. Runoff

outside the prescribed distribution sites also is prohibited.

Although no witness testified, it can be inferred from these

provisions themselves that their purpose was to control entry of

the tomato wash-water into the groundwater and to prevent surface

water runoff.

6. The Notice of Permit Exemption warned that it could be

revoked if the tomato-washing operation was substantially

modified, if the basis for the exemption was determined to be

materially incorrect, or if the Petitioner failed to comply with

the specific conditions in the Notice of Permit Exemption.

7. On January 28, 1998, DEP issued a Notice of Exemption

Revocation. There was no evidence that the tomato-washing

operation has been modified or that the Petitioner failed to

comply with the specific conditions in the Notice of Permit

Exemption. The exemption was revoked because "tomato washing

operations discharging between 5000 and 50,000 gallons per day

are required to obtain industrial wastewater general permits from

the Department."

CONCLUSIONS OF LAW

8. Florida Administrative Code Rule 62-660.805 provides in

pertinent part:

(1) General Requirements.

(a) This rule authorizes a general permit

for any person constructing or operating a

treatment and disposal system for wash water

from the packaging of fresh market tomatoes

with a wash tank discharging between 5,000

and 50,000 gallons per day, provided that all

of the conditions of this rule are met.

(b) Any tomato wash water disposal system

with a wash tank discharging less than 5,000

gallons per day is exempt from the

requirement to obtain a Department industrial

wastewater permit if:

1. The disposal of the systems

[sic] wash water does not cause a

violation of any Department

standard for surface or ground

water quality, and

2. Wash water is not discharged

directly to surface waters or to

ground waters through wells or

sinkholes that allow direct contact

with Class G-I or Class G-II ground

waters.

Between 1992 and 1996, the rule was numbered 17-660.805, but the

language was the same. The parties agree, as stated in the

Petitioner's Proposed Recommended Order: "The key issue for

resolution at the Final Hearing and on the Motion for Summary

Recommended Order is resolving the question of what is a

'discharge' [for purposes of the exemption rule]."

9. The Petitioner contends that the rule should be

interpreted to allow an exemption so long as a tomato wash

operation is not discharging 5,000 or more gallons a day "into

waters of the State." Accordingly, the Petitioner contends that

its exemption was properly issued and that, in order to revoke

the Petitioner's exemption, DEP would have had to prove that the

Petitioner was discharging 5,000 or more gallons a day "into

waters of the State."

10. In support of its interpretation of the rule, the

Petitioner points to other statutes and rules that modify the

word "discharge" with the limitation "into waters of the State."

See Section 403.031(3), Florida Statutes (1997)(defining

"effluent limitations" in terms of restrictions on the discharge

of constituents "into waters of the state"); Florida

Administrative Code Rule 62-620.200(12)(defining "discharge of a

pollutant" in terms of additions of pollutants "to waters") and

(13) (defining "discharge of wastes" in terms of the

"introduction or addition to waters" of any substance that would

"pollute any waters of the State.")

11. DEP has made to no attempt to prove a discharge into

waters of the State. Instead, DEP contends that Rule

62-660.805(1)(b) restricts permit exemptions to a "tomato wash

water disposal system with a wash tank discharging less than

5,000 gallons per day" regardless of the disposition of the wash-

water.

12. In support of its interpretation of the rule, DEP

points out that the word "discharge" itself is not defined in

either Chapter 403, Florida Statutes (1997), or Florida

Administrative Code Chapter 62-660. DEP also points out that the

statutes and rules cited by the Petitioner concern regulation of

the constituents of wastewater. Meanwhile, other statutes and

rules use the word "discharge" in a broader sense. See Florida

Administrative Code Rule 62-610.200(13)(defining "disposal" as

"the discharge of effluent to injection well, effluent outfalls,

subsurface drain systems, and other facilities utilized strictly

for the release of effluent into the environment") and

(19)(referring to discharges into the "environment of that

state."); Rule 62-610.500(2)(a)(referring to discharges to

absorption fields); Rule 62-610.510(2)(referring to discharges to

land application systems); and Rule 62-610.654 (referring to

"discharges to system storage or the reuse system").

13. While the language of Rule 62-660.805(1)(b) may not be

crystal clear, by limiting exemptions to a "disposal system . . .

with a wash tank discharging less than 5,000 gallons per day,"

the exemption language seems to focus on the quantity of

wastewater exiting the wash tank, regardless of the disposition

of the wash-water. Such an intent makes sense; otherwise, the

exemption would seem to be impractical in that it could well be

much more expensive and onerous to prove entitlement to an

exemption than it would be to obtain a general permit; likewise,

it would seem to be more difficult for DEP to administer such an

exemption process than it would be to administer the general

permit process. Meanwhile, were it the intent to allow

exemptions so long as less than 5,000 gallons a day discharged

into waters of the State, the rule easily could have been written

to make such an intent clear. For these reasons, it is concluded

that the DEP's interpretation of the rule is correct.

14. The Petitioner also argues that, since DER issued the

Notice of Permit Exemption in 1992 with full knowledge that more

than 5,000 gallons a day would be leaving the wash tank for

distribution on agricultural lands, DER must have interpreted the

word "discharging" in the rule to mean "discharging into waters

of the State." If it were clear that the Petitioner's exemption

was being revoked solely because of a change in the agency's

interpretation of a rule, revocation might not be permissible.

Cf. C-Sand Co. v. Dept. of Transp. , 494 So. 2d 267 (Fla. 1st DCA

1986); Food 'N Fun, Inc. v. Dept. of Transp. , 493 So. 2d 23 (Fla.

1st DCA 1986); Wainwright v. Dept. of Transp. , 488 So. 2d 563

(Fla. 1st DCA 1986). However, no witness testified, and the

evidence is not clear as to whether the exemption was based on

DER's interpretation of its rule or whether the exemption was

issued erroneously. If, on the other hand, the exemption was

issued in error, the basis for the exemption was materially

incorrect, and DEP is authorized to revoke it under the terms of

the Notice of Permit Exemption.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order revoking the Petitioner's exemption.

DONE AND ENTERED this 16th day of October, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of October, 1998.

COPIES FURNISHED:

Terry Cole, Esquire

Oertel, Hoffman, Fernandez

& Cole, P.A.

Post Office Box 1110

Tallahassee, Florida 32301

Ricardo Muratti, Assistant General Counsel

Jennifer Fitzwater, Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399

Kathy Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.