19-005642 Mw Horticulture Recycling Of North Ft. Myers, Inc. vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, September 17, 2020.

Summary: Petitioners did not provide reasonable assurances for renewal of their registrations to operate yard trash transfer facilities in Fort Myers and North Fort Myers.

For Respondent: Carson Zimmer , Esquire

Department of Environmental Protection

Mail Station 49

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

S TATEMENT OF THE ISSU ES

The issues for determination in this matter are: (1) whether Petitioner,

MW Horticulture Recycling Facility, Inc . (MW) , is entitled to renewal of its

Yard Trash Trans fer Station or Solid Waste Organics Recycling Facility

registration ; (2) whether Petitioner MW is an irresponsible applicant; and (3)

whether Petitioner MW Horticulture Recycling of North Fort Myers, Inc.

(MW - NFM), is entitled to renewal of its Yard Trash Transfer Station or Solid

Waste Organics Recycling Facility registration.

P RELIMINARY S TATEMENT

On April 25, 2019, Petitioners , MW and MW - NFM, submitted their

annual renewal Yard Trash Transfer Station or Solid Waste Organics

Recycling Facility r egistration applications to the Department of

Enviro nmental Protection (Department). Petitioners' facilities are

alternatively known as Source Separated Organics Processing Facilities

( SOPFs ). Petitioner MW's application was designated as file number SOPFD

19 - 02 . Petitioner MW - NFM's application was designated as file number

SOPFD 19 - 01. On August 22, 2019, the Department issued notices of denial

for both registration application renewals .

On September 11, 2019, Petitioners t imely filed petitions for

admin istrative hearing challenging the registration denials. On October 18,

2019, the Department referred the petitions to DOAH to conduct an

evidentiary hearing and submit a recommended order. DOAH consolidated

the cases o n October 31, 2019. The Department fil ed an Emergency Motion to

Strike Witnesses on March 3, 2020. On March 4, 2020, the Petitioners filed

their motion to strike witnesses. Petitioners’ motion was withdrawn at

hearing ; the Department’s motion was denied. The parties filed their Joint

Pre - heari ng Stipulation on March 3, 2020.

At the final hearing, P etitioners presented the expert testimony of

David Hill, who was tendered and accepted as an expert in compost and solid

waste management; and Jeffrey Collins, who was tendered and accepted as

an ex pert in fire prevention and suppression . Petitioners also presented the

fact testimony of Denise Houghtaling, Mark Houghtaling, Mario Scartozzi,

Deborah Schnellenger, Harshad Bhatt, and Rick Roudebush . Petitioners'

Exhibits 3 (Lake Yard photos A, B, D thro ugh J, L, N, P, Q, T, BB, CC, DD;

North Yard photos A, C, D, E, H, I, L, N; South Yard photos A, B, C, E, G, K,

L through T, Z, AA, BB), 6 (page 2 only), 9 through 14, 16, 20, 22, 25, and 26 ,

were admitted into evidence.

The Department presented the fa ct testimony of Lauren O’Connor;

Vincent Berta; the expert testimony of Steve Lennon, who was tendered and

accepted as an expert in fire prevention and suppression; Doug Underwood,

who was tendered and accepted as an expert in fire prevention and

suppression ; and Renee Kwiat, who was tendered and accepted as an expert

in solid waste and air quality. The Department ’ s Exhibits 1 through 3 2 were

admitted into evidence.

A three - volume T ranscript of the hearing was filed with DOAH on

March 27, 2020. The parties filed their P roposed Recommended Orders on

April 16, 2020 , which have been considered in the preparation of this

Recommended Order.

References to Florida Statutes are to the 2019 version, unless otherwise

stated.

F INDINGS OF F ACT

The following Find ings of Fact are based on the stipulations of the parties

and the evidence adduced at the final hearing.

The Parties and the Registration Denials

1. Petitioner MW is a Florida c orporation that operates a n SOP F located

at 6290 Thomas Road, Fort M yers, Lee County, Florida . Th e site is commonly

referred to as the " South Yard. "

2. Petitioner MW - NFM is a Florida c orporation that operates a n SOPF

lo cated at 17560 East Street, North Fort Mye rs, Lee County, Florida . The site

is commonly referred to as the " North Yard. "

3. The Department is the administrative agency of the s tate statutorily

charged with, among other things, protecting Florida ' s air and water

resources. The Department administers and enforces certain provisions of

part IV of chapter 403, Florida St atutes, and t he rules promulgated

thereunder in Florida Administrative Code C hapters 62 - 701 and 62 - 709.

P ursuant to that authority, the Department determines whether to allow

SOPF s to annually register in lieu of obtaining a solid waste management

facility permit.

4. On April 25, 2019, Petitioner MW submitted its application for

registration renewal for the South Yard. On August 22, 2019 , the

Department issued a notice of denial. The listed reasons for denial focused on

non - compliance with orders for corrective action in a C onsent O rder (Order)

between Petitioner MW and the Department entered on February 22, 2019.

The Order was entered to resolve outstanding violations in a Notice of

Violation, Orders for Corrective Action and Administrative Penalty As sessment (NOV) , issued on November 20, 2018.

5. The notice of denial stated that , as of August 9, 2019, Petitioner MW

had not completed the following corrective actions of the Order by the

specified timeframes: ( a) w ithin 90 days of the effective date of this Order,

Respondent shall remove all processed or unprocessed material (yard trash)

from the Seminole Gulf Railway Right of Way and the swale along Old US 41

and establish a 20 foot wide all - weather access road, around the entire

perimeter of the site ; ( b) w ithin 90 days of the effective date of this Order,

Respondent shall reduce the height of the piles to a height that the facility’s

equipment can reach without driving (mechanically compacting) onto the

process ed or unprocessed material; and ( c) w ithi n 90 days of the effective date

of this Order, Respondent shall have all the processed and unprocessed

material be no more than 50 feet from access by motorized firefighting

equipment.

6. The notice of denial also stated that when Department staff conduct ed

compliance visits on April 29, 2019, June 27, 2019, July 7, 2019, and July 18,

2019 , the following outstanding violations were documented: (a)

unauthorized open burning of yard waste; (b) unauthorized mechanical

compaction of processed and unprocessed m aterial; (c) an all - weather access

road, at least 20 feet wide, around the perimeter of the Facility has not been

maintained and yard trash has been stored or deposited within the

all - weather access road; and (d) yard trash is being stored more than 50 fee t

from access by motorized firefighting equipment.

7 . On April 25, 2019, Petitioner MW - NFM submitted its application for

registration renewal for the North Yard. On August 22, 2019, the

Department issued a notice of denial. The notice of denial stated that compliance and site observation visits were conducted on July 9, 2019,

July 30, 2019, August 1 and 2, 2019 , and the following non - compliance issues

were documented: (a) unauthorized open burning; (b) unauthorized me chanical compaction of processed and unprocessed material; (c) yard trash

received has been stored or disposed of within 50 feet of a body of water; and

(d) yard t rash received is not being size - reduced or removed, and most of the

unprocessed yard trash has been onsite for more than six mont hs.

8. The notice of denial also stated that on March 27, 2018, May 10, 2018,

and October 3, 2018, Department staff conducted inspections of the North

Yard. A Warning Let ter was issued on November 2, 2018 . The Warning

Letter noted the following violations : (1) u nau thorized burning of solid waste;

( 2 ) the absence of the required 20 - foot - wide all - weather perimeter access road

along the southern unprocessed yard trash debris pile ; ( 3 ) i nadequate access

for motorized firefighting equipment around the southern unprocessed yard

trash debris pile (lake pile) ; (4) t he lake pile not size - reduce d or remove d

within six months ; (5) m echanical compaction of processed and unprocessed

material by heavy equipment ; and (6) y ard trash storage setbacks from

wetlands not maint ained .

Petitioners' SOPFs

9. The North Yard is located in North Fort Myers and is bound by the

southbound lanes of Interstate 75 to the east and a lake to the west. The

South 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

Company to the east.

10. Petitioners' facilities accept vegetative waste and yard trash (material)

from the public in exchange for a disposal fee before processing and

size - reducing the material into retail products such as organic compost,

topso il, and mulch. The unprocessed material is staged in various piles

generally according to waste type until it can be processed by grinding or screening.

11. As of the date of the final heari ng, b oth the North Yard and the South

Yard were completely full of large, tall , and long piles of processed and

unprocessed material except for a perimeter roadway around each site and

paths that meander between the piles themsel ves.

12. As the material in the piles decomposes, heat is produced from the

respiration and metabolization of organic matter. T his heat ignite s the dry

material and can cause substantial fires. Both the North Yard and South

Yard are susceptible to fires caused by spontaneous combu stion as a result of

the ir normal operations of collecting and stockpiling organic waste.

Fires

13. Although spontaneous combustion is an inherent risk with SOPFs, the

evi dence at the hearing established that the material at Petitioners ' facilities

catch es fire at an abnormally high rate as a result of poor pile management.

Piles need to be turned and wet ted to keep down incidents of spontaneous

combustion. Monitoring temperatures, rotating the piles, and removing the

material at a faster rate would help reduce the incidence of fires. Large piles

with no extra land space cannot be managed in a way "to aerate and keep the

temperatures at a level where you're not going to have spontaneous

combustion." See Tr. Vol. I, pg. 32.

14. Fire Marshal Steve Lennon of San Carlos Park Fire and Rescue

regarded the South Yard as a fire hazard compared to other similar sites in

his district. He testified that the pile heights, widths, and lengths at the

South Yard are not in compliance with applicable fire - code size requirements.

He also testified that if the pile sizes were in compliance , Petitioner MW

would not have to put their motorized firefighting equipment on top of the

piles " because [they] would be able to reach it from the ground." See Tr. Vol.

I, pg. 41.

15. As of the date of the hearing, San Carlos Park Fire and Rescue ha d

responded 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

were multi - day suppression operations . In 2019, the active fire calls were

mostly hotspots and flare - ups .

16. Captain Doug Underwood of the Bayshore Fire Rescue and Protection

Service District (Bayshore Fire District) testified that his department ha d

responded to approximately 75 fire calls at the North Yard in the last two

years. The most common cause of the fires was spontaneous combustion . The

piles were not in compliance from a size standpoint.

17. Captain Underwood testified that the majority of th e 75 calls were to

the lake pile at the North Yard. See Tr. Vol. I, pg. 59. The lak e pile was a

temporary 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 .

1 T he

lake pil e temporary site was completely cleared by the time of the hearing.

18. Captain Underwood testified that in 2018 , he recommended to

Petitioners that they engage the services of an expert fire engineer.

Petitioners engaged Jeff Collins who met with Captain Underwood on

multiple occasions. They discussed how to address fires and hotspots and that

the facilities should have a written fire protection safety and mitigation plan. Such a plan was created and Captain Underwood was satisfied with its

provisions.

19. Although the lake pile temporary site was completely cleared by the

time of the hearing , it was not an entirely voluntary effort on Petitioners'

part. Captain Underwood testified that Petitioners' "initial plan of action was

to leave it there for . . . eight months or greater, depending on the time frame

needed 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

enforcement effort s "to compel MW to remove this material off - site as quickly

as possible." See Tr. Vol. I, pg. 82.

1 referred to by various names in testimony Throughout this proceeding, the lake pile was

and exhibits, such as, "southern unprocessed yard trash debris pile," " lake yard," "trac [ t ] D,"

and "temporary site . "

20 . As recently as February 12 , 2020, a large pile of hardwood, green

waste , and compost at the North Yard caught fire as a re sult of spontaneous

combustion. The size of the fire was so large and hot that the Bayshore Fire

District could not safely extinguish the fire with water or equipment , and

allowed it to free - burn openly for 24 hours in order to reduce some of the fuel.

21 . The fire produced smoke that drifted across the travel lanes of

Interstate 75. The free - burn allowed the pile to reduce in size "down to the

abilities of the district and the equip ment on - site." See Tr. Vol. I, pgs. 51 - 52.

Captain Underwood testified that "once we started putting water on it, then

the MW crews with their heavy equipment covered the rest of the smoldering

areas with dirt." See Tr. Vol. I, pg . 56.

Rule Violations

22. By Petitioners ' own admission, the facilities have repeatedly violated

applicable Department rules throughout the course of their operation s over

the last two and one - half years. T he most pertinent of these violations center

around the Department ' s standar ds for fire protection and control to deal

with accidental burning of solid waste at SOPFs.

23. Renee Kwiat, the Department ' s expert , testified that the Department

cited the South Yard nine times for failing to maintain a 20 - foot all - weather

access road. The South Yard consistently violate d the requirement to

maintain processed and unprocessed material within 50 feet of access by

motorized firefighting equipment, and the North Yard has violated this requirement twice. The North Yard consistently v iolated t he requirement to

size - reduce or remove the lake pile material within six months. B oth the

North Yard and South Yard were cited multiple times for mechanically

compacting processed and unprocessed material.

24. Following a period of noncompliance and near ly 11 months of

compliance assistance at the South Yard, Petitioner MW told the Department

it would resolve all outstanding violations by July 1, 2018. The July 1, 2018 ,

deadline passed and on October 18, 2018, the Department proposed a consent

order to re solve the violations at the So uth Yard. However, Petitioner MW

did not respond.

25. On November 20, 2018 , the Department issued the NOV to Petitioner

MW regarding the South Yard. The violations included failure to maintain a

20 - foot all - weather access ro ad around the perimeter of the site, failure to

ensure access by motorized firefighting equipment, mechanical compaction,

and the unauthorized open burning of solid waste. On February 22, 2019, the

Department executed the Order with Petitioner MW to resolv e outstanding

violations in the NOV.

26. By signing the Order , Petitioner MW agreed to undertake the listed

c orrective actions within the stated time frames . Compliance visits to the

South Yard on April 29, 2019, June 7, 2019, June 27, 2019, July 18, 2019, and

August 22, 2019 , documented that many violations outlined above w ere still

present at the site.

27. At the time of the final hearing, the preponderance of the

evidence established that no ne of the time period s in the Order were met.

The preponderance of the evidence established th e violations listed in

paragraphs 5 and 6 above.

28. At the time of the final hearing, the preponderance of the evidence

established that Petitioner MW still had not reduce d the height of the piles

such that th eir equipment c ould reach the tops of the piles without driving

(mechanically compacting) onto the processed or unprocessed material. Thus,

all the processed and unprocessed material was not m ore than 50 feet from

access by motorized firefighting equipment .

29. At the time of the final hearing, t he preponderance of the evidence

established more incidents of unauthorized open - burning of solid waste; and

continuing unauthorized mechanical compaction of processed and

unprocessed material . T he evidence also est ablished that the South Yard

d oes not encroach on Seminole's real property interest.

30. The Department did not issue an NOV for the North Yard. T he

preponderance of the evidence established that there were repeated rule

violations at the North Yard . These violations formed the basis for denying

the North Yard's registration as outlined in paragraph 8 above.

31. T he Department deferred to Lee County ' s enforcement action for

violations of County rules as resolution of the violations of Department rul es .

At the time of the final hearing, however, the preponderance of the evidence

established more incidents of unauthorized open burning of solid waste , and

continuing unauthorized mechanical compaction of processed and

unprocessed material at the North Ya rd.

Petitioners' Response and Explanation

32 . Approximately two and one - half years before the date of the hearing in

this case, Hurricane Irma, a category four hurricane, made lan dfall in the

s tate of Florida. It was September 10, 2017, and Hurricane Irma significantly

impacted the southwest coast of Florida, where Petitioners ' facilities are

located.

33. Hurricane Irma cause d extensive damage, including the destruction of

trees, vegetation , and other horticultural waste which required dispo sal.

Massive amounts of such yard waste and horticultural debris were deposited

on roadways and streets throughout Lee County, creating a significant issue

that needed to be addressed by local governments, and state and federal

agencies.

34. Due to the threat posed by Hurricane Irma, the s tate of Florida

declared a state of emergency on September 4, 2017 , for every county in

Florida. This state of emergency was subsequently extended to approximately

March 31, 2019, for certain counties, includ ing Lee County, due to the damage caused by Hurricane Irma .

35. An overwhelming volume of material needed to be processed and

disposed of following Hurricane Irma . The Petitioners ' facilities were

inundated with material brought there by Lee County, th e Florida

Department o f Transportation, the Feder al Emergency Management Agency ,

and others.

36. A fter Hurricane Irma, haulers took considerable time just to get the

materials off the streets, and processors like the Petitioners, ran out of space

because there was limited space permitted at the time. As a result, these

materials stacked up and had to be managed over time at facilities, including

Petitioners ' facilities.

37. To accommodate the material, Petitioner MW - NFM added the

temporary site that was l abeled the "lake pile" or " southern unprocessed yard

trash debris pile " in Department inspection and compliance reports of the

North Yard.

38. In order to address the volume of material on the site after Hurricane

Irma, Petitioner MW - NFM requested approv al from the Depa rtment to move

the material off - site to other locations in order to reduce the size of the piles

at the North Yard's lake pile. For reasons that remain unclear , such

authorization was not obtained, and Petitioner MW - NFM bel ieves that this

would have size - reduced the piles and prevented accumulation of material in

violation of Department rules.

39. In order to process the North Yard's lake pile and move it off - site more

quickly, Petitioner MW - NFM requested permission from Lee County and the

Department to grind unprocessed material on site, which would have

size - reduced the lake pile and allowed it to be moved off - site more quickly .

Because existing zoning did not authorize this grinding, the request was

denied in spite of the fact that a st ate of emergency had been declared which

Petitioner MW - NFM believes would have permitted such an activit y. This

further hampered Petitioner MW - NFM's ability to size - reduce the lake pile

leading to more issues with hot spots and fires.

40. Because the mate rial was of such volume , and was decomposing, a

major fire erupted in 2018 at the North Yard's lake pile. Petitioners ' fire

safety engineer , Jeff Collins, wrote reports to address this issue and

recommended to the local fire department that the pile be smo thered in dirt

until the fire was extinguished. The request was denied by the Bayshore Fire

District , which instead directed that Petitioners break into the pile in order

to extinguish the fire. When Petitioners did so, the piles immediately erupted

into flames as predicted by Petitioners ' fire safety engineer. Moving the

smoldering material to the South Yard also led to fires at the South Yard.

41. In spite of the large volume of material at the North Yard's lake pile,

Petitioners made steady progress i n size reducing the material and moving it

off - site. However, as of the date of the final hearing, both the North Yard and

the South Yard were still completely full of large, tall, and long piles of

processed and unprocessed material except for a perimeter roadway around

each site and paths that meander ed between the piles themselves.

Mechanical Compaction

42. Each party presented testimony regarding the question of whether

Petitioners ' facilities violated the prohibition that any processed or

unprocessed material shall not be mechanically compacted. The parties

disagreed over how the prohibition against mechanical compaction was

applied to yard trash transfer facilities. In March of 2018, Petitioners '

representative, Denise Houghtaling, wrote an email to t he Department

requesting clarification of the Department ' s definition of " mechanical

compaction " because it is undefined in the rules.

43. On April 3, 2018, Lauren O' Connor, a g overnment o perations

c onsultant for the Department ' s Division of Solid Waste Management,

responded to Petitioners ' request . The response stated that the Department

interprets " mechanical compaction " as the use of heavy equipment over

processed or unprocessed material that increases the density of waste

material stored. Mechanical c ompaction is authorized at permitted disposal

sites and waste processing facilities , but i s not permissible under a

registration for a yard trash transfer facility. 2 Mechanical compaction

contributes to spontaneous combustion fires, which is the primary reason for

its prohibition at yard trash transfer facilities .

44. Petitioners ' interpretation of mechanical compaction as running over

material in " stages " or " lifts " was not supported by their expert witnesses.

Both David Hill and Jeff Collins agreed with the Department ' s interpretation

that operating heavy equipment on piles of material is mechanical

compaction.

45. The persuasive and credible evidence established that Petitioners

mechanically compact material at their facili ties . Mechanical compaction was

apparent at both sites by either direct observation of equipment on the piles

of material, or by observation of paths worn into the material by regular and

repeated trips. Department personnel observed evidence of mechanical

compaction on eight separate inspections between December 2017 and

January 2019. Additional compaction was observed at the South Yard on June 7, 2019 , and in aerial surveillance footage from August 28, 2019,

September 5, 2019, January 30, 2020 , and Februa ry 12, 2020.

46. Petitioners' fire safety engineer, who assisted them at the North Yard

lake pile, testified that the fire code require d access ramps or pathways for

equipment onto the piles in order to suppress or prevent fire. However,

Captain Underwood and Fire Marshal Lennon testified they do not and have

never required Petitioners to maintain such access ramps or paths on the

piles. The fire code provision cited by Petitioners ' expert does not apply to

their piles. See Tr. Vol. II, pgs. 78 - 80 . In addition, Fire Marshal Lennon

testified that placing firefighting equipment on top of piles is not an

accept able and safe way to fight fires at the site by his fire department.

2 R ule 62 - 701.710 prohibits the operation of a waste processing facility without a

permit iss ued by the Department. See also Fla. Admin. Code R. 62 - 701. 803(4). R ule 62 -

701. 320 (16) (b) contemplates the availability of equipment for excavating, spreading,

compacting , and covering waste at a permitted solid waste disposal facility.

47. Despite receiving clarification from the Depa rtment in April of 2018,

Petitioners cho o se to ignore the Department ' s prohibition against

mechanically compacting unprocessed or processed material piles. In

addition, the persuasive and credible evidence suggests that Petitioners

blanket the piles with d irt to both suppress fires and accommodate the

"access roads" or "paths" on the piles. 3

Ultimate findings

48. The persuasive and credible evidence established th e violations cited

in the Department's registration denial for the North Yard. The Department

also established by a preponderance of the evidence the alleged subsequent

violations through to the time of the final hearing.

49. The persuasive and credible evidence established the violations cited

in the Department's registration denial for the South Yard. The Department

also established by a preponderance of the evidence the alleged subsequent

violations through to the time of the final hearing.

50. The persuasive and credible evidence established that Petitioners did

not consistently compl y with Depa rtment rules over the two and one - half

years prior to the final hearing. However, Petitioners established through

persuasive and credible evidence that because of the impacts of Hurricane Irma , and the subsequent circumstances , they could not have reasonab ly

prevented the violation s. The totality of the evidence does not justify labeling

the Petitioners as irresponsible applicants under the relevant statute and Department rule.

51. However, Petitioners did not prov ide reasonable assurances that they

would comply with Department standards for annual registration of yard

trash transfer facilities.

3 The evidence sugg ests that Petitioners may prefer to follow the advice of their hired expert s

wi th regard to the practice of mechanical compaction and blanketing the piles with dirt. See ,

e.g., Petitioners' Ex. 16. However, the evidence suggests that the experts' level of experience

is with large commercial composting and recycling facilities that may be regulated by solid

waste management facility permits and not simple annual registrations.

C ONCLUSIONS OF L AW

N ature and Scope of this Proceeding

52. This is a de novo proceeding for the purpose of formulating final

agency action. See Capeletti Bros. v. Dep ' t of Gen. Servs ., 432 So. 2d 1359,

1363 - 64 (Fla. 1st DCA 1983).

Burden and Standard of Proof

53. Petitioners, as the applicant s for the registrations, have the burden to

prove that they are entitled to the r egistrations by meeting all applicable

regulatory criteria. See Fla. Admin. Code R. 62 - 709.320 ; Fla. Dep't of Transp.

v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

54. Rule 62 - 701.320(9) directs the Department to deny a solid waste

permit if reasonable assurance is not provided that the requirements of

chapters 62 - 4 and 62 - 701 will be satisfied. See also Fla. Admin. Code R. 62 -

4.070(2). A solid waste permit may include registrations. See § 403.707(1),

Fla. Stat.

55. Findings of fact must be based on a preponderance of the evidence.

See § 120.57(1)(j), Fla. Stat.

Registration Criteria

56. Rule 62 - 709.320(1)(a) states that owners or operators of yard trash

processing facilities, facilities composting vegetative waste, animal

byproducts or manure with or without yard trash, and manure blending

operations that meet the criteria of r ules 62 - 709.320, 62 - 709.330, and/or

62 - 709.350, shall register with the Department in lieu of obtaining a solid

waste management facility permit . It further states that if these criteria are

not met , then a solid waste management facility permit is required in

accordance with chapter 62 - 701 for disposal operations, or with c hapter 62 -

709 for recycling operations.

57. Rule 62 - 709.320(2) sets forth the design a nd operating criteria that

must be met by a facility seeking to register in lieu of obtaining a solid waste

management facility permit. The rule provides:

(2) Design and operating requirements.

(a) The facility shall have the operational features and

equipment necessary to maintain a clean and orderly

operation. Unless otherwise specified in Rule 62 - 709.330 or

62 - 709.350, F.A.C., these provisions shall include:

1. An effective barrier to prevent unauthorized entry and

dumping into the facility site;

2. Dust and litter control methods; and,

3. Fire protection and control provisions to deal with

accidental burning of solid waste, including:

a. There shall be an all - weather access road, at least 20 feet

wide, all around the perimeter of the site,

b. None o f the processed or unprocessed material shall be mechanically compacted; and,

c. None of the processed or unprocessed material shall be more

than 50 feet from access by motorized firefighting equipment.

(b) The facility shall be operated in a manner to co ntrol

vectors.

(c) The facility shall be operated in a manner to control

objectionable odors in accordance with subsection 62 -

296.320(2), F.A.C.

(d) Any drains and leachate or condensate conveyances that

have been installed shall be kept clean so that fl ow is not

impeded.

(e) Solid waste received at a registered facility must be processed timely as follows:

1. Any yard trash, including clean wood, received at the facility shall be size - reduced or removed within 6 months, or

within the period required to receive 3,000 tons or 12,000

cubic yards, whichever is greater. However, logs with a

diameter of 6 inches or greater may be stored for up to 12

months before they are size - reduced or removed, provided the

logs are separated and stored apart from other mate rials

onsite.

2. Any putrescible waste such as vegetative wastes, animal

byproducts or manure received at a facility shall be processed and incorporated into the composting material, or removed

from the facility, within 48 hours of receipt.

(f) If any o f the following materials are discovered, they shall

be immediately containerized and removed from the facility:

treated or untreated biomedical waste; hazardous waste; or

any materials containing a polychlorinated biphenyl (PCB)

concentration of 50 parts per million or greater.

(g) When a registered facility ceases operation, all residuals,

solid waste, and recyclable materials shall be removed from

the site and recycled, or disposed of pursuant to the requirements of Chapter 62 - 701, F.A.C. Any remaining

processed material shall be used in accordance with the requirements of this rule or disposed of pursuant to the

requirements of Chapter 62 - 701, F.A.C.

58. Petitioner MW did not prove by a preponderance of the evidence that

it would meet the design and operating requirements for yard trash

processing facilities . More specifically, Petitioner MW did not provide

reasonable assurances that it would meet the requirement s that none of the

processed or unprocessed material shall be mechanically compacted, and that

n one of the processed or unprocessed material shall be more than 50 feet

from access by motorized firefighting equipment.

59. Petitioner MW - NFM did not prove by a preponderance of the evidence

that it would meet the design and operating requirements for yard trash

processing facilities. More specifically, Petitioner MW - NFM did not provide

reasonable assurances that it would meet the requirements that none of the

processed or unprocessed material shall be mechanically compacted, and that

none of the processed or unprocessed material shall be more than 50 feet

from access by motorized firefighting equipment .

60. Petitioners did not provide reasonab le assurance that they can

effectively control and prevent unauthorized open burning at the North Yard

and South Yard. See Fla. Admin Code R. 62 - 701.300(3).

I rresponsible Applicant

61. R ule 62 - 701. 320 (3) defines an "irresponsible applicant " as one that

" o wned or operated a solid waste management facility in this state, including

transportation equipment or mobile processing equipment used by or on

behalf of the applicant, which was subject to a state or federal notice of

violation, judicial action, or crim inal prosecution for activities that constitute

violations of chapter 403, F.S., or the rules promulgated thereunder, and

could have prevented the violation through reasonable compliance with

Department rules . " (Emphasis added).

62. The preponderance of t he evidence established that Petitioners did not

consistently comply with Department rules over the two and one - half years

prior to the final hearing. However, Petitioners established through

persuasive and credible evidence that because of the impacts of Hurricane

Irma , and the subsequent circumstances , they could not have reasonably

prevented the violations. The totality of the evidence does not justify labeling Petitioners as irresponsible applicants under the relevant Department rule.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Environmental Protection enter a

final order denying Petitioners' annual registration renewal applications for

the North Yard and South Yard.

D ONE A ND E NTERED this this 17 th day of September, 2020 , in Tallahassee,

Leon County, Florida.

F RANCINE M. F FOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17 th day of September, 2020.

C OPIES F URNISHED :

Clayton W. Crevasse, Esquire

Roetzel & Andress

2320 First Street , Suite 1000

F ort Myers, Florida 33901

(eServed)

Sarah E. Spector, Esquire

Roetzel & Andress

2320 First Street , Suite 1000

Fort Myers, Florida 33901

(eServed)

Carson Zimmer, Esquire

Department of Environmental Protection

Mail Station 49

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Justin G. Wolfe, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Re commended

Order should be filed with the agency that will issue the Final Order in this

c ase.