10-005691EF Department Of Environmental Protection vs. Kenneth Steven Landers, Individually, D/B/A Trackside Tires Status: Closed DOAH Final Order on Friday, October 22, 2010.

Summary: Respondent is ordered to pay $4,000 in administrative penalties and $500 for the Department's investigative costs for violating Department rules applicable to the storage of waste tires.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 5 691EF

)

KENNETH STEVEN LANDERS, d/b/a )

TRACKSIDE TIRES , )

)

Respondent . )

)

FINAL ORDER

The final hearing in this case was held on September 20,

2010, by video teleconference at sites in Tallahassee and

Jacksonville, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Heari ngs (DOAH).

APPEARANCES

For Petitioner: Matthew Smith - Kennedy, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent: Kenneth Steven Landers, pro se

3707 Main Street , North

Jacksonville, Florida 32205

STATEMENT OF THE ISSUES

The issues to be determined in t his case are whether the

Respondent, Kenneth Landers, violated state regulations related

to the operation of a waste tire site, as charged by the

Department of Environmental Protection ("Department") , and, if

so, whether he should pay the administrative pe nalties and

investigative costs and undertake the corrective actions that

are demanded by the Department.

PRELIMINARY STATEMENT

On May 18, 2010, the Department issued a Notice of

Violation, Orders for Corrective Action, and Administrative

Penalty Assessme nt ("NOV") which included seven counts against

Respondent for the violation of laws related to waste tires .

Respondent requested an administrative hearing to contest the

charges , and the Department referred the matter to DOAH to

conduct an evidentiary hea ring and issue a final order.

At the final hearing, the Department presented the

testimony of Brian Durden. The Department's Exhibit A was

admitted into evidence. Petitioner testified on his own behalf

and presented the testimony of Rebecca Gooding . Pe titioner had

no exhibits that were admitted into evidence.

The one - volume T ranscript of the final hearing was filed

with DOAH. The Department submitted a proposed final order.

Petitioner did not file a post - hearing submittal.

FINDINGS OF FACT

1. The D epartment is the state agency charged with the

power and duty to protect FloridaÓs air and water resources and

to administer and enforce the provisions of Chapter 403, Fl orida

Statutes, and Florida Administrative Code Title 62.

2 . Respondent is a person doing business as Trackside

Tires on property located at Zero 23rd Street East,

Jacksonville, Duval County, Florida ( Ð the p ropertyÑ ) .

Respondent leases the property from its owner. Respondent sells

used tires and recycles waste tires.

3. Respondent is responsible for the day - to - day operation

of the facility, including compliance with environmental

regulations .

4. Under Florida Administrative Code Chapter 62 - 711, the

Department regulates waste tires. No person may maintain a

waste tire site except as part of a permitted waste tire

processing facility. Fla. Admin. C ode R . 62 - 711.400(1).

5. A "waste tire" is defined in Florida Administrative

Code Rule 62 - 701.200(1 26 ) as a tire that has been removed from a

motor vehicle and includes used tires.

6. A "waste tire site" is defined in Rule 62 - 701.200(131)

as a site at which 1,500 or more waste tires are accumulated.

Respondent did not dispute that he had accumulated over 1,500

tires on the property.

7 . On July 29, 2009, Brian Durden of the Department 's

solid waste staff visited the p roperty . He observed and

measured a waste tire pile on the property which was 210 feet by

40 feet and averaged 6 f eet i n height. Using a method for

estimating the number of tires in a pile by its cubic volume,

and adding a n estimate for the number of tires in four truck

trailers on the property, Durden estimated that there were over

23, 000 waste tires on the property.

8. On July 29, 2009, the property was a waste tire site.

9. In order to operate a waste tire site, a pe rmit must be

obtained from the Department. Respondent does not have a permit

to operate a waste tire site.

10. Respondent w as previously cited by the Department for

operating four other un permitted waste tire sites, which was

resolved by c onsent o rder i n 2009. The consent order required

Respondent to clean up the four sites and to pay penalties and

costs.

11. Respondent stated that he took many of the tires from

the four sites and stored them in a warehouse, but was then

forced to bring about 10,000 u sed tires to the property that is

the subject of this proceeding because he lost the lease on the

warehouse.

12. On the day of the hearing, September 20, 2010,

Respondent stated that he still had approximately 1,800 tires on

the property that he could se ll for reuse and other tires in

trailers. He agreed with Durden's estimate that there are over

5,000 tires still on the property.

13 . In August 2009, the Department issued a w arning l etter

to Respondent . The Department issued the NOV on May 8, 2010.

1 4. Respondent contends that he is attempting to obtain a

permit from the Department to operate a waste tire site.

However, to date he has been mostly involved in "processing"

tires at his property and has not made substantial progress in

obtaining a perm it.

CONCLUSIONS OF LAW

15. The Department may institute an administrative

proceeding to establish liability for the violation of the laws

that the Department administers. See § 403.121(2), Fla. Stat.

(20 10 ).

1 6 . The Department has the burden of provin g by a

preponderance of the evidence that Respondent is liable for the

violations charged in the NOV. See § 403.121(2)(d), Fla. Stat.

1 7 . The Department begins its Proposed Final Order with a

description of "unconstested" findings of fact. However, for

some of these proposed findings of fact, there is no

stipulation, admission, or supporting facts in the record. The

Department 's burden to prove a particular charge contained in

the NOV is not met simply because Respondent did not present

evidence to ref ute the charge at the final hearing.

1 8 . Count I of the NOV charges Respondent with storing and

disposing of waste tires on the property without a permit or

other authorization from the Department. The Department proved

that Respondent is liable under C ount I.

1 9 . Section 403.121(3)(e), Florida Statutes, provides

that, for solid waste violations, the Department shall assess a

penalty of $2,000 for the unpermitted or unauthorized disposal

or storage of solid waste. Waste tires are a form of solid

waste . Therefore, Respondent must pay a penalty of $2,000 for

the violation charged in Count I.

20 . Section 403.121(3)(e) also provides that, if the solid

waste is Class I or Class III waste, an additional $1,000

penalty shall be imposed. The Department dem ands the imposition

of this additional penalty based on an allegation that waste

tires are a Class I waste, but presented no evidence in support

of the allegation. Florida Administrative Code Rule 62 -

701.200(13) defines " Class I waste " as solid waste that is not

hazardous waste and is not prohibited from disposal in a lined

landfill under Rule 62 - 701.300 . T he latter rule does not

expressly prohibit the disposal of waste tires in a lined

landfill . Therefore, it is concluded that Respondent is liable

for the additional $1,000 penalty.

2 1 . Count II of the NOV charges Respondent with failing to

demonstrate financial assurance, issued in favor of the State of

Florida, in the amount of the estimated cost of closing the

waste tires site. No evidence was pres ented on this charge and,

therefore, the Department failed to prove that Respondent is

liable under Count II.

2 2 . Count III of the NOV charges Respondent with failing

to maintain fire protection at the property. No evidence was

presented on this charge and, therefore, the Department failed

to prove that Respondent is liable under Count III.

2 3 . Count IV of the NOV charges Respondent with failing to

demonstrate that the owner of the property is aware of and

approves t he waste tire operation on the p rope rty. No evidence

was presented on this charge and, therefore, the Department

failed to prove that Respondent is liable under Count IV.

2 4 . Count V of the NOV charges the Respondent with failing

to spray the waste tire pile for insects or rodents and , in

general , not providing adequate mosquito control at the

p roperty. No evidence was presented on this charge and,

therefore, the Department failed to prove that Respondent is

liable under Count V.

2 5 . Count VI of the NOV charges Respondent with

maintaini ng a waste tire pile larger than permitted by law.

Florida Administrative Code Rule 62 - 711.540(2)(a) provides that

a waste tire pile cannot exceed 50 feet in width. The

Department proved that Respondent is liable under Count VI.

2 6 . Section 403.121(5), Florida Statutes, provides that,

for failure to comply with any Department regulatory statute or

rule requirement not specifically identified in Section 403.121,

the Department shall assess a penalty of $500. There is no

specific penalty stated in the st atute for maintaining a waste

tire pile greater than allowed by rule. Therefore, Respondent

must pay a penalty of $500 for the violation charged in Count

V I.

2 7 . Evidence may be received in mitigation and the

Administrative Law Judge may reduce a penalt y up to 50 percent

for mitigating factors. See § 403.121(10), Fla. Stat.

Respondent did not present evidence that justified a reduction

of the penalties. His assertion that he is a small businessman

and cannot afford to pay the penalties is not a suffic ient basis

for reducing the penalty, but has been taken into account in

setting the deadline for payment of the penalties assessed

herein.

Investigative Costs

2 8 . Count VII of the NOV seeks recovery of t he

Department 's investigative costs incurred in th is enforcement

matter of "no less than $500. " The record demonstrates that

$500 is a reasonable amount for the Department's enforcement

efforts reflected in the record.

2 9 . Because the Department seeks to impose administrative

penalties, a final order is issued by the Administrative Law

Judge. See § 403.121(2)(d), Fla. Stat.

Corrective Actions

30 . The corrective actions demanded in the NOV are

restated below, but with modifications to make them consistent

with the findings of fact and conclusions of la w set forth

above.

Disposition

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that

1. Respondent shall forthwith comply with all Department

rules regarding storage and disposal of waste tires. Respondent

Landers shall cor rect and redress all violations in the time

periods required below and shall comply with all applicable

rules in Fl orida Administrative Code Chapter 62 - 711.

2 . Within 60 days of th is Final Order, Respondent shall

reduce the amount of waste tires being st ored on the p roperty to

less than 1 , 500 or shall obtain a waste tire site permit from

the Department in accordance with the requirements of Fl orida

Administrative Code Chapter 62 - 711.

3 . Within 12 0 days of th is Final Order , Respondent shall

pay $ 3 ,00 0 to the Department for the administrative penalties

assessed herein. Payment shall be made by cashier's check or

money order payable to the ÐState of Florida Department of

Environmental ProtectionÑ and shall include thereon the OGC Case

Number 09 - 4141 and th e notation "Ecosystem Management and

Restoration Trust Fund." The payment shall be sent to the

Department of Environmental Protection, Northeast District, 7825

Baymeadows Way, Suite 200B, Jacksonville, Florida 32256 - 7590.

4 . W ithin 3 0 days of th is Final Order , Respondent shall

pay $500.00 to the Department for its investigative costs.

Payment shall be made by cashier's check or money order payable

to the "State of Florida Department of Environmental ProtectionÑ

and shall include thereon OGC Case number 09 - 4141 and the

notation "Ecosystem Management and Restoration Trust Fund." The

payment shall be sent to the Department of Environmental

Protection, Northeast District, 7825 Baymeadows Way, Suite 200B,

Jacksonville, Florida 32256 - 7590.

5 . Respondent sha ll allow authorized representatives of

the Department access to the p roperty at reasonable times for

the purpose of determining compliance with th is Final Order and

the rules of the Department.

DONE AND ORDERED this 21st day of October , 2010 , in

Tallahasse e, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of October , 2010 .

COPIES FURNISHED :

Kenneth Steven Landers

3707 Main Street North

Jacksonville, Florida 32205

Matthew Smith - Kennedy, Esquire

Departm ent of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Mimi Drew, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Build ing, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Revi ew proceeding are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by l aw, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.