20-005383EF Department Of Environmental Protection vs. Agricultural Fuels Corp. Status: Closed DOAH Final Order on Wednesday, September 22, 2021.

Summary: The Respondent violated rules of the Department regarding operation of two yard trash processing facilities in Orange County, Florida, for which administrative fines and corrective actions were imposed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Petitioner ,

vs. Case No. 20 - 5383EF

A GRICULTURAL F UELS C ORP . ,

Respondent .

/

S UMMARY F INAL O RDER

Pursuant to notice, a final hearing was held by Zoom videoconference on

August 30, 2021, before the Hon orable Francine M. Ffolkes, a n

Administrative Law Judge of the Division of Administrative Hearings

(DOAH).

A PPEARANCES

For Petiti oner: Ronald Woodrow Hoenstine, Esquire

Kathryn E.D. Lewis, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent: John A. Leklem, Esqui re

John Leklem, P.A.

Suite A

133 East Marks Street

Orlando, Florida 32803

S TATEMENT O F T HE I SSUE S

The issue s are whether Respondent , Agricultural Fuels Corporation

(Respondent), s hould have an administrative penalty assessed, take

corrective action s at its facilities, and pay investigative expenses for the

reasons stated in the Notice of Violation, Orders for Corrective Action, and

Administrative Penalty Assessment issued by the De partment of

Environmental Protection (Department) on March 12, 2020, as amended on

February 9, 2021 (Notice) .

P RELIMINARY S TATEMENT

In the eight - count Notice, the Department allege d that Respondent

operates two source - separated organics facilities (SOPFs) in Orange County,

Florida. The Department alleged that Respondent operated the facilities in

violation of their annual SOPF registrations, including currently operating

without required registrations since August 1, 2020. The Notice propose d to

assess a $ 1 5 ,000.00 administrative penalty, require certain corrective

action s , and recover $ 1,000 .00 in investigative expenses incurred by

Department staff. Respondent timely filed its petition request ing a hearing to

contest the proposed agency action and the Depa rtment referred the matter

to DOAH to conduct a hearing.

On January 4, 2021, the undersigned noticed the hearing for February 23

and 24, 2021, and issued a n Order of Pre - hearing Instructions . The

Department served discovery, including a request for admiss ions on

January 13 and 20, 2021. On February 9, 2021, t he Department filed an

unopposed motion to amend the original Notice and continue the hearing.

The unopposed motion stated that Respondent intended to amend its petition

and any resulting discovery was grounds for a continuance. By Orders issued

on February 16, 2021, the undersigned granted the continuance and accepted

the now amended N otice. Respondent never amended its petition.

On March 2, 2021, the Department filed a Motion to Compel Discovery

Resp onses and Deem Admissions Admitted . The Department represented

that " several attempts to confer with Respondent were made in an effort to

resolve the disputed issues by agreement prior to filing this motion. "

Respondent did not respond to the motion, 1 and on June 16, 2021, the

undersigned issued an Order granting the motion to compel and deeming

admissions admitted. The Order required Respondent to provide outstanding

discovery responses by June 25, 2021. On the same day, the hearing was re -

noticed for Augu st 30 and 31, 2021 , in response to the Joint Status Report

filed on May 17, 2021. On August 4, 2021, the Department filed a Motion to

Strike or In the Alternative, A Motion in Limine . Respondent did not file a

response within the allowed seven day s and on August 18, 2021, the

Department's motion was denied without prejudice.

On August 17, 2021, the Department filed a Motion for Summary Final

Order Based on Respondent's Failure to Comply with this Court's June 16,

2021, Order Granting the Department's Moti on to Compel Discovery, or in

the Alternative, Issue an Order Compelling Respondent to Comply with this

Court's June 16, 2021, Order . Since the hearing was scheduled for August 30

and 31 , 2021, the undersigned issued an Order on August 18, 2021, denying

th e motion for summary final order, and granting the request to compel

Respondent to comply with the June 16, 2021, Order. The Order mandated

that " Respondent shall comply with the June 16, 2021, Order compelling

discovery responses on or before August 20, 2 021. Failure to comply with this

deadline and with the deadlines in the Order of Pre - hearing Instructions

shall result in exclusion of Respondent ' s final hearing exhibits and

witnesses. "

Respondent did not comply with the Order and on August 26, 2021, the

undersigned issued an Order striking Respondent's untimely unilateral pre -

1 Florida Administrative Code Rule 28 - 106.204 provides for written responses to motions

within seven days of service of the motion.

hearing stipulation and excluding Respondent's final hearing witnesses and

exhibits Ñ for failure to comply with the deadlines imposed by prior Orders of

this tribunal relating to di scovery and pre - hearing instructions. Ò

See § 120.569(2)(f), Fla. Stat. (2020); Fla. R. Civ. P. 1.380 . By the time of the

final hearing on August 30, 2021, Respondent still had not complied.

O n the morning of the hearing, August 30, 2021, Respondent filed a

Motion for Rehearing and/or Reconsideration , and , a Motion for Continuance.

After hearing argument from the parties, the undersigned denied both

motions and issued written Orders memorializing those rulings .

At the hearing, the undersi gned granted the Department's renewed

Motion for Summary Final Order (Motion) , filed on August 20, 2021. The

s even - day period for a response expired on August 27, 2021, without any

response from Respondent. The Department's Motion and its attachments

were considered in the preparation of this Summary Final Order.

See § 120. 57(1)(h), Fla. Stat.

References to the Florida Statutes are to the 2020 version, unless

otherwise noted. 2

F INDINGS O F F ACT

The following Findings of Fact are based on the pleadings and admissions

on file, together with an affidavit and inspection reports . See § 120.57(1)(h),

Fla. Stat.

1. The Department is the administrative agency of the state of Florida

2 Because a final order was n ot yet issued and the alleged violations still existed at the time

of the Notice and the Motion for Summary Final Order, th is case is governed by current law.

See E.J. v. Dep't of Child. & Fams., 219 So. 3d 946 (Fla. 3d DCA 2017).

with the power and duty to protect Florida's air and water resour ces and to

administer and enforce the provisions of chapter 403, Florida Statutes, and

the rules promulgated thereunder in Florida Administrative Code

chapters 62 - 701 and 62 - 709.

2. Respondent operates a SOPF located at 5361 Young Pine Road ,

Orlando, Flori da 32829, also described as Orange County Property Appraiser

Parcel ID 17 - 23 - 31 - 000 - 00 - 008 (Facility 1). The Facility ID Number for

Facility 1 is 95220.

3. Respondent operates another SOPF located at 15851 Lake Pickett

Road , Orlando, Florida 32820, also de scribed as Orange County Property

Appraiser Parcel ID 07 - 22 - 32 - 0000 - 00 - 026 (Facility 2). The Facility ID

Number for Facility 2 is 105000.

4. Facility 1 and Facility 2 are each a yard trash processing facility as

defined by Florida Administrative Code R ule 62 - 709.201(26).

5. As of August 1, 2020, there has been no SOPF registration for Facility 1

and Facility 2.

6. On June 10, 2015, February 1, 2016, February 27, 2019, and

December 20, 2019, the Department inspected the SOPF at Facility 1 and

found that yard trash had not been size - reduced or removed within six

months or within the time needed to receive 3,000 tons or 12,000 cubic yards.

7. On June 10, 2015, February 1, 2016, February 27, 2019, and

December 20, 2019, the Department inspected the SOPF at Facil ity 1 and

found that monthly record s of incoming and outgoing material were not kept

on - site or at another location for at least three years.

8. On December 16, 2019, and July 10, 2020, the Department inspected

the SOPF at Facility 2 and found that unproce ssed yard trash from off - site

was buried on the property. Facility 2 is not permitted to dispose of yard

trash.

9. On July 29, 2019, December 16, 2019, and July 10, 2020, the

Department inspected the SOPF at Facility 2 and found that yard trash was

stored within 50 feet of a water body.

10. On December 16, 2019, and July 10, 2020, the Department inspected

the SOPF at Facility 2 and found the disposal of yard trash in the

groundwater.

11. The Department's Notice charged Respondent with seven separate

counts of violations of Department rules .

C ONCLUSIONS O F L AW

1 2 . DOAH has jurisdiction over the parties and subject matter of this

proceeding under sections 120.569, 120.57, and 403.121 , Florida Statutes .

1 3 . Section 403.121(2)(b) provides that the Department ma y institute an

administrative proceeding to order the abatement of conditions creating a

violation of the law. The Department has the burden of proving by a

preponderance of the evidence that Respondent is responsible for the

violation. See § 403.121(2)(d) , Fla. Stat. The Department met its burden in

this proceeding.

1 4 . Because the Department is requesting the imposition of

administrative penalties, " [f]ollowing the close of the hearing, the

administrative law judge shall issue a final order on all matters , including

the imposition of administrative penalty. " Id .

1 5 . Under s ection 120.57(1)(h):

[a] ny party to a proceeding in which an

administrative law judge has final order authority

may move for a summary final order when there is

no genuine issue as to an y material fact. A

summary final order shall be rendered if the

administrative law judge determines from the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if

any, that no genuine issue as to any mater ial fact

exists and that the moving party is entitled as a

matter of law to the entry of a final order. A

summary final order shall consist of findings of

fact, if any, conclusions of law, a disposition or

penalty, if applicable, and any other information

required by law to be contained in the final order.

Count I and A ssociated Administrative Penalty

1 6 . Rule 62 - 709.320(2)(e)1 . requires that any yard trash, including clean

wood, received at the facility shall be size - reduced or removed within six

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

yards, whichever is greater. The facts establish four documented violations of

this rule at Facility 1. These undisputed facts also constitute a violation of

section 403.161, which states that failure to comply with Department rules

constitutes a violation.

1 7 . Under section 403.121(5), the required administrative penalty is

$ 1,0 00.00. The administrative penalty may be assessed per day per violation

under section 403.121(6). Th e assessment based on the four inspections is

$4,000.00 as a matter of law.

Count II and A ssociated Administrative Penalty

1 8 . Rule 62 - 709.320(4)(a) requires that monthly records of incoming and

outgoing material be kept on - site or at another location as indicated on the

registration form for at least three years. The facts establish four documented

violations of this rule at Facility 1. These undisputed facts also constitute a

violation of section 403.161, which states that failure to comply with

Department rules cons titutes a violation.

1 9 . Under section 403.121( 4 ) (f) , the required administrative penalty is

$ 7 50.00. The administrative penalty may be assessed per day per violation

under section 403.121(6). The assessment based on the four inspections is

$3,000.00 as a matter of law.

Count II I & VII and A ssociated Administrative Penalties

20 . Rules 62 - 709.300(2) and 62 - 709.320(3) require that owners or

operators of organic processing facilities obtain a registration or permit from

the Department. The SOPF registrations for both Facility 1 and Facility 2

expired on August 1, 2020. To date, Respondent has not renewed the required

registrations and has been operating unregistered SOPFs. These undisputed

facts also constitute a violation of section 403.161, which states tha t failure to

comply with Department rules constitutes a violation.

2 1 . Under section 403.121( 3 )( e ), the required administrative penalty is

$ 3,000 .00. The administrative penalty may be assessed per day per violation

under section 403.121(6). The assessment is $ 3,000 .00 for each of the two

unregistered facilities. Therefore, the total assessment is $ 6 ,000.00 as a

matter of law.

Count IV and A ssociated Administrative Penalty

2 2 . Rule 62 - 701.300(1)(a) prohibits any person from storing, processing, or

disposing of solid waste except as authorized at a permitted solid waste

management facility or a facility exempt from permitting under chapter 62 -

701. It is undisputed that unprocessed yard trash from an off - site location

was buried at Facility 2. Facility 2 is no t authorized to dispose of yard trash.

These undisputed facts also constitute a violation of section 403.161, which

states that failure to comply with Department rules constitutes a violation.

2 3 . Under section 403.121( 3 ) ( e ) , the required administrative pe nalty is

$ 3 ,000 .00. The administrative penalty may be assessed per day per violation

under section 403.121(6). The total assessment for the two inspections is

$6,000.00 as a matter of law .

Count V and A ssociated Administrative Penalty

2 4 . Rules 62 - 701.30 0(12)(b) and 62 - 709.300(7)(b) require the storage,

processing, or disposal of yard trash at least 50 feet from water bodies. It is

undisputed that yard trash was stored within 50 feet of a waterbody at

Facility 2 during the July 29, 2019, D ecember 16, 2019 , and July 10, 2020,

inspections. These facts also constitute a violation of section 403.161, which

states that failure to comply with Department rules constitutes a violation.

2 5 . Under section 403.121( 5 ), the required administrative penalty is

$ 1,0 00 .00. The administrative penalty may be assessed per day per violation

under section 403.121(6). The assessment for the three inspections is

$3,000.00 as a matter of law .

Count VI and A ssociated Administrative Penalty

2 6 . Rules 62 - 701.300(2)(d) and 62 - 709.300(7 )(b) prohibit any person from

storing or disposing of solid waste in any natural or artificial body of water ,

including groundwater and wetlands , within the Department's jurisdiction. It

is undisputed that yard trash was disposed of in groundwater at Facil ity 2

during the December 1 6 , 2019, and July 20, 2020, inspections. These facts

also constitute a violation of section 403.161, which states that failure to

comply with Department rules constitutes a violation.

2 7 . Under section 403.121( 3 ) (e) , the required administrative penalty is

$ 1, 5 00 .00. The administrative penalty may be assessed per day per violation

under section 403.121(6). The assess ment for the two inspections is $ 3 ,000.00

as a matter of law .

2 8 . The total assessment for Counts I through VII is $ 25,000 .00.

2 9 . There is no evidence to establish the accuracy or reasonableness of the

investigative expenses in Count VIII. Therefore, the request for

reimbursement of these expenses is denied.

30 . The Department did not cite any legal basis for a lack of good faith

administrative penalty. Therefore, the request for a lack of good faith

administrative penalty is denied.

3 1 . The corrective actions ordered in the Notice are reasonable and should

be imposed .

Respondent's Affirmative Defenses

3 2 . Respondent as serted in its petition that Facility 2 was exempt from

the registration or permitting requirements applicable to yard trash

processing facilities. Respondent allege d that it submitted a letter requesting

an exemption for Facility 2 on January 14, 2020 ; a nd because Respondent

allegedly did not receive a response from the Department in 90 days , the

alleged result was approval of the exemption .

3 3 . Respondent did not cite any legal authority for its contention that it

had an exemption by default for Facility 2 . The permitting provisions

applicable in this case do not authorize exemption by default. See §§ 120.60(1)

and 403.0876, Fla. Stat.

3 4 . In addition, as the Department argued in its Motion, the facts

establish that the March 12, 2020, Notice was issued les s than 90 days from

Respondent's January 14, 2020 , letter . The Notice informed Respondent that

the Department considered the activities at Facility 2 to be illegal yard trash

disposal as described in Counts IV, V, and VI of the Notice . See, e.g., Sumner

v. Bd. of Psychological Examiners, 555 So. 2d 919 (Fla. 1st DCA 1990); Dep't

of Transp. v . Calusa Trace Dev. Corp., 571 So. 2d 543 (Fla. 2d DCA 1990).

3 5 . Respondent also asserted that the Department is prohibited from

regulating the activities at Respondent 's facilities under the Florida Right to

Farm Act, section 823.14, Florida Statutes. As a matter of law, the purpose of

th at provision is to " protect reasonable agricultural activities and

compl e mentary agritourism activities conducted on farm land from nu isance

suits. " § 823.14(2), Fla. Stat. T h is administrative enforcement proceeding is

not a "nuisance suit" and the violations cited in the N otice are not nuisance

claims .

3 6 . The Florida Right to Farm Act prohibits local government regulation

that limits o r restricts farming activities. The Florida Right to Farm Act has

no application to the instant administrative enforcement proceeding. See

Wilson v. Palm Beach C ty . , 62 So. 3d 1247 (Fla. 4th DCA 2011).

O RDER

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

O RDERED that Respondent shall comply with the Orders for Corrective Action

set forth in the Notice .

A n administrative penalty of $ 2 5 ,0 00.00 is imposed. Recovery of a good

faith administrative penalty and of investigative expenses is denied.

All deadlines in the Notice shall be calculated from the date of this

Summary Final Order.

D ONE A ND O RDERED this 2 2n d day of September , 2021 , in Tallahassee,

Leon County, Florida.

S

F RANCINE M. F FOLKES

Admi nistrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2n d day of September , 2021 .

C OPIES F URNISHED :

John A. Leklem, Esquire Ronald Woodrow Hoenstine, Esquire

John Leklem, P.A. Department of Environmental Protection

133 East Marks Street , Suite A Douglas Building , Mail Station 35

Orlando, Florida 32803 3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk Justin G. Wolfe, General Counsel

Department of Environmental Protection Department o f Environmental Protection

Douglas Building, Mail Station 35 Legal Department, Suite 1051 - J

3900 Commonwealth Boulevard Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 300 0 3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kathryn E.D. Le wis, Esquire

Department of Environmental Protection

Douglas Building , Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Shawn Hamilton, Interim Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boule vard

Tallahassee, Florida 32399 - 3000

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entit led to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.