Enclosed is a Notice of Violation for OGC Case No to resolve violations noted in the complaint.

Transcription

1 November 20, 2018 Ms. Denise Houghtaling MW Horticulture Recycling Facility, Inc Thomas Rd. Fort Myers, FL Via Re: Lee County Solid Waste Program Facility WACS ID # Dear Ms. Houghtaling: Enclosed is a Notice of Violation for OGC Case No to resolve violations noted in the complaint. While the Department appreciates that your counsel has made contact to arrange a meeting, MW Horticulture has not demonstrated adequate progress toward compliance within a reasonable timeframe. In the interest of resolving these violations expeditiously, the Department has opted to issue the Notice of Violation for the following reasons. The facility has had five fire events since December 24, 2017 requiring extensive response by the San Carlos Fire Protection and Rescue Service District. The 2019 fire season is rapidly approaching. The Department has conducted 7 compliance assistance inspections since December 28, On January 3, 2018, the facility proposed a full compliance date of July 1, 2018, which was not met. While some progress has been made towards compliance, the facility has not achieved full compliance in nearly 11 months of compliance assistance. The proposed Consent Order to resolve violations that was issued on October 18, 2018, has not been agreed to or signed. Please see the Notice of Rights in the enclosed document for information regarding your rights to negotiate, litigate or transfer this action. The Department looks forward to meeting with you and your counsel on November 29, 2018 at 1:00 PM at the South District Office, to discuss this issue as well as the Warning Letter for MW Horticulture of North Fort Myers, Inc. (WACS ID# ). If you have any questions, please contact Renée Kwiat at Renee.Kwiat@FloridaDEP.gov or Your cooperation in resolving this case is appreciated.

2 Sincerely, Jon M. Iglehart Director of District Management Enclosure cc: Phil Reed, Property Owner, Mike Petrovich, Hopping Green & Sams, P.A.,

3 BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, IN THE OFFICE OF THE SOUTH DISTRICT Petitioner, v. OGC File No MW HORTICULTURE RECYCLING, INC. Respondent. / NOTICE OF VIOLATION, ORDERS FOR CORRECTIVE ACTION AND ADMINISTRATIVE PENALTY ASSESSMENT To: MW Horticulture Recycling, Inc. c/o C. Gary Spaniak, President Denise Houghtaling, Secretary 6250 Thomas Rd Fort Myers, FL (239) deniseisgreen@aol.com Pursuant to the authority of Section (2), Florida Statutes ( Fla. Stat. ), the State of Florida Department of Environmental Protection ( Department ) gives notice to MW Horticulture Recycling, Inc.( Respondent ) of the following findings of fact and conclusions of law with respect to violations of Chapter 403, Fla. Stat. FINDINGS OF FACT PARAGRAPHS APPLICABLE TO ALL COUNTS 1. The Department is the administrative agency of the state of Florida having the power and duty to protect Florida s air and water resources and to administer and enforce the provisions of Chapter 403, Fla. Stat., and the rules promulgated

4 thereunder in Florida Administrative Code (Fla. Admin. Code or F.A.C.) Title Respondent is a Florida for-profit corporation located at 6230, 6250 and 6290 Thomas Rd., Fort Myers, FL 33913, Lee County Strap Numbers A, A and Since 5/8/2013, Respondent has owned and operated a Source-Separated Organics Processing Facility ( Facility ) on the property. The Department has assigned Facility Number to the Facility. 4. A Department inspector verbally notified the Respondent on 12/28/2017 that possible violations existed at your Facility. At that time, the Respondent was encouraged to resolve the problem within 30 days such that enforcement would not be necessary. The identified possible violations included: a. The Facility did not have an all-weather access road, at least 20 feet wide, all around the perimeter of the Facility as required by Fla. Admin. Code Rule (2)(a)3.a.; and b. Piles of yard trash at the Facility existed more than 50 feet from access by motorized firefighting equipment, a violation of Fla. Admin. Code Rule (2)(a)3.c.: and c. Mechanical compaction was observed, a violation of Fla. Admin. Code Rule (2)(a)3.b. d. Unconfined particulate matter was observed impacting offsite property, a violation of Fla. Admin. Code Rule (15).

5 5. A follow-up visit was conducted on 01/30/2018. The Department observed the same violations as witnessed on 12/28/ On 02/13/2018 a Warning Letter identifying the aforementioned violations was issued to the Respondent. Since receipt of the letter by the Respondent, the Department met with Facility representatives onsite 4 times to assess compliance. Compliance progress was apparent at the 3/5/2018 and 4/9/2018 onsite meetings, specifically relating to improved conditions for fire protection and control (i.e., progress towards compliance, but not full compliance with 20 foot wide access road ( (2)(a)3.a., F.A.C.) and 50 foot distance from firefighting equipment ( (2)(a)3.c., F.A.C.)). However, substantial fires occurred at the Facility on 5/17/2018, 5/25/18, 7/21/18 and 9/30/2018. During an 8/21/2018 perimeter inspection, Department personnel noted that there was not a 20 foot access road ( (2)(a)3.a., F.A.C.) along the perimeter of the site and mechanical compaction ( (2)(a)3.b., F.A.C.) was occurring. Subsequent to the 9/30/18 fire, the Department was notified by Fire Marshal Lennon of the San Carlos Fire Protection and Rescue Service District that yard trash at the Facility was present more than 50 feet from access for motorized firefighting equipment ( (2)(a)3.c., F.A.C.). No offsite release of unconfined particulate matter has been observed at the Facility since 1/30/ An enforcement meeting was held at the Department s South District Office with Facility representatives on 9/4/2018. The violations at the Facility and a course of action were discussed. Department staff presented the Respondent with a draft

6 Consent Order which included the violations above in 4 (a-c), as well as an additional violation because of the fires at the Facility on 5/17/2018, 5/25/18, 7/21/18 and 9/30/2018, pursuant to Fla. Admin. Code Rule (3). The Respondent requested more time to review the document. 8. A draft Consent Order was sent to the Respondent on 10/2/2018, with a deadline of 10/12/2018 based on the Respondent s request, for any comments,. 9. A draft Consent Order was issued on 10/18/2018 for Respondent signature with a deadline of 11/1/2018. The Respondent failed to sign and return the Consent Order. COUNT I FAILURE TO MAINTAIN AN ACCESS ROAD 9. Respondent has failed to maintain an all-weather access road, at least 20 feet, all around the perimeter of the yard trash recycling site in violation of Fla. Admin. Code Rule (2)(a)3.a. COUNT II FAILURE TO ENSURE ACCESS BY MOTORIZED FIRE FIGHTING EQUIPMENT 10. Respondent has failed to ensure that processed and/or unprocessed yard trash is not more than 50 feet from access by motorized firefighting equipment in violation of Fla. Admin. Code Rule (2)(a)3.c. COUNT III MECHANICAL COMPACTION OF YARD TRASH 11. Respondent has mechanically compacted yard trash in violation of Fla. Admin. Code Rule (2)(a)3.b. COUNT IV

7 UNAUTHORIZED OPEN BURNING OF SOLID WASTE 12. Respondent has allowed open burning of solid waste in violation of Fla. Admin. Code Rule ). COUNT V 13. The Department has incurred expenses to date while investigating this matter in the amount of not less than $2, CONCLUSIONS OF LAW The Department has evaluated the Findings of Fact with regard to the requirements of Chapter 403, Fla. Stat., and Fla. Admin. Code Title 62. Based on the foregoing facts the Department has made the following conclusions of law: 14. Source Separated Organic Processing Facilities are regulated under Fla. Admin. Code Rules and Respondent is a person within the meaning of , Fla. Stat. 16. Respondent is the operator of a solid waste management facility as defined in Fla. Admin. Code Rule (82). 17. The Department is imposing an administrative penalty of less than or equal to $10,000 in this Notice of Violation as calculated in accordance with Section , Fla. Stat. 18. The facts in Count I constitute a violation of Fla. Admin. Code Rule (2)(a)3.a., which requires the Facility have an all-weather access road, at least 20 feet wide, all around the perimeter of the site. The facts also constitute a violation of Section , Fla. Stat., which makes it a violation to fail to

8 comply with Department rules. 19. The violation in Count I requires the assessment of an administrative penalty under Section (5), Fla. Stat., of $ for failure to have an all-weather access road, at least 20 feet wide, all around the perimeter of the site. 20. The facts in Count II constitute a violation of Fla. Admin. Code Rule (2)(a)3.c. which requires that none of the processed or unprocessed material at the Facility shall be more than 50 feet from access by motorized firefighting equipment. The facts also constitute a violation of Section , Fla. Stat., which makes it a violation to fail to comply with Department rules. 21. The violation in Count II requires the assessment of an administrative penalty under Section (5), Fla. Stat., of $ for failure to maintain piles of yard trash within 50 feet of access by motorized firefighting equipment. 22. The facts in Count III constitute a violation of Fla. Admin. Code Rule (2)(a)3. b. F.A.C. which states that none of the processed or unprocessed material at the Facility shall be mechanically compacted. The facts also constitute a violation of Section , Fla. Stat., which makes it a violation to fail to comply with Department rules. 23. The violation in Count III requires the assessment of an administrative penalty under Section (5), Fla. Stat., of $ for mechanically compacting processed or unprocessed material. 24. The facts in Count IV constitute a violation of Fla. Admin. Code Rule (3) for allowing the open burning of solid waste. The facts also constitute a violation of Section , Fla. Stat., which makes it a violation to fail to

9 comply with Department rules. 25. The violation in Count IV requires the assessment of an administrative penalty under Section (3)(e), Fla. Stat., of $3, for failure to maintain piles of yard trash within 50 feet of access by motorized firefighting equipment. 26. The administrative penalties assessed for Counts I through IV total $4, The costs and expenses related in Count V are reasonable costs and expenses incurred by the Department while investigating this matter, which are recoverable pursuant to Section (1) Fla. Stat. ORDERS FOR CORRECTIVE ACTION The Department has alleged that the activities related in the Findings of Fact constitute violations of Florida law. The Orders for Corrective Action state what you, Respondent, must do in order to correct and redress the violations alleged in this Notice. The Department will adopt the Orders for Corrective Action as part of its Final Order in this case unless Respondent either files a timely request for a formal hearing or informal proceeding, pursuant to Section (2)(c), Fla. Stat., or files written notice with the Department opting out of this administrative process, pursuant to (2)(c), Fla. Stat. (See Notice of Rights). If Respondent fails to comply with the corrective actions ordered by the Final Order, the Department is authorized to file suit seeking judicial enforcement of the Department's Order pursuant to Sections , , and , Fla. Stat. Pursuant to the authority of Sections (8) and , Fla. Stat., the Department proposes to adopt in its Final Order in this case the following specific corrective actions that will redress the alleged violations:

10 28. Respondent shall forthwith comply with all Department rules regarding Solid Waste Management Facilities and Source Separated Organics Processing Facilities in Fla. Admin. Code Chapters and Respondent shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Fla. Admin. Code Chapters and Within 60 days of the effective date of this Order, Respondent shall properly provide a 20 foot wide all weather access road around the perimeter of the site, have all processed or unprocessed material be located no more than 50 feet from access by motorized firefighting equipment, cease the practice of compacting processed or unprocessed materials and cease unauthorized burning of solid waste in accordance with all the requirements of Fla. Admin. Code Rules and Within 7 days of completing the activities outlined in Paragraph 29 above, Respondent shall submit to the Department a written response detailing the corrective actions taken and a written operations plan detailing how the Facility will ensure that these violations will not recur. 31. Within 30 days of the effective date of this Order, Respondent shall pay $4, to the Department for the administrative penalties imposed above. Payment shall be made by cashier s check, money order or on-line payment. Cashier s check or money order shall be made payable to the State of Florida Department of Environmental Protection and shall include thereon the notations OGC Case No and Water Quality Assurance Trust Fund. The payment shall be sent to the State of Florida Department of Environmental Protection, 2295 Victoria Ave, Suite 364 Fort Myers, FL Online payments by e-check can be made by going to the DEP Business Portal

11 at: It will take a number of days after this order becomes final and effective filed with the Clerk of the Department before ability to make online payment is available. 32. In addition to the administrative penalties, within 30 days of the effective date of this Order, Respondent shall pay $2, to the Department for costs and expenses. Payment shall be made by cashier s check or money order. Cashier s check or money order shall be made payable to the State of Florida Department of Environmental Protection and shall include thereon the notations OGC Case No and Water Quality Assurance Trust Fund. The payment shall be sent to the State of Florida Department of Environmental Protection, 2295 Victoria Ave, Suite 364 Fort Myers, FL Online payments by e-check can be made by going to the DEP Business Portal at: It will take a number of days after this order becomes final and effective filed with the Clerk of the Department before ability to make online payment is available. NOTICE OF RIGHTS Respondent s rights to negotiate, litigate or transfer this action are set forth below. Right to Negotiate 33. This matter may be resolved if the Department and Respondent enter into a Consent Order, in accordance with Section (4), Fla. Stat., upon such terms and conditions as may be mutually agreeable. Right to Request a Hearing 34. Respondent has the right to a formal administrative hearing pursuant to Sections

12 , (1), and (2), Fla. Stat., if Respondent disputes issues of material fact raised by this Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment ("Notice"). At a formal hearing, Respondent will have the opportunity to be represented by counsel or qualified representative, to present evidence and argument on all issues involved, and to conduct cross-examination and submit rebuttal evidence. 35. Respondent has the right to an informal administrative proceeding pursuant to Sections and (2), Fla. Stat., if Respondent does not dispute issues of material fact raised by this Notice. If an informal proceeding is held, Respondent will have the opportunity to be represented by counsel or qualified representative, to present to the agency written or oral evidence in opposition to the Department's proposed action, or to present a written statement challenging the grounds upon which the Department is justifying its proposed action. 36. If Respondent desires a formal hearing or an informal proceeding, Respondent must file a written responsive pleading entitled "Request for Administrative Proceeding" within 20 days of receipt of this Notice. The request must be in the form required by Fla. Admin. Code Rule and include the following: (a) The name, address, and telephone number, and facsimile number (if any) of each respondent if the respondent is not represented by an attorney or qualified representative; (b) The name, address, telephone number, and facsimile number of the attorney or qualified representative of respondent, if any, upon whom service of pleadings and other papers shall be made; (c) A statement of when respondent received the Notice;

13 (d) A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the request for hearing must so indicate; and (e) The notation OGC Case No shall be included in the request. A request for hearing is filed when it is received by the Department's Office of General Counsel, 3900 Commonwealth Boulevard, MS-35, Tallahassee, Florida Right to Mediation 37. If Respondent timely files a request challenging the Notice, the Respondent has the right to mediate the issues raised in the Notice. If requested, a mediator will be appointed to assist the Department and Respondent to reach a resolution of some or all of the issues. The mediator is chosen from a list of mediators provided by the FCRC Consensus Center ( FCRC ). The FCRC will provide up to 8 hours of free mediation services to the Respondent. A mediator cannot require the parties to settle the case. If mediation is unsuccessful, both parties retain their full rights to litigate the issues before an administrative law judge. The Respondent must select the mediator and notify the FCRC within 15 days of receipt of the list of mediators. The mediation process does not interrupt the time frames of the administrative proceedings and the mediation must be completed at least 15 days before the date of the final hearing. 38. The written request to appoint a mediator must be made within 10 days after receipt of the Initial Order from the administrative law judge appointed to hear the case. The request must be received by the FCRC Consensus Center, Attn. Chris Pedersen, 2035 East Paul Dirac Drive, Room 236 HMB, Tallahassee, Florida, 32310, (850) , cpedersen@fsu.edu. Once the request is timely received, the FCRC will provide the parties with a list of mediators and the necessary information.

14 Right to Opt Out of the Administrative Proceeding 39. If Respondent does not wish to contest the issues before an administrative law judge, Respondent may file a notice with the Department opting out of the administrative process. Respondent must file its written opt out notice within 20 days after service of the Notice. The written notice to opt out is filed when it is received by the Department's Office of General Counsel, 3900 Commonwealth Boulevard, MS-35, Tallahassee, Florida Once the Respondent opts out of the administrative process, the Department may sue the Respondent for injunctive relief, damages, costs and expenses and civil penalties. If the Respondent opts out of the administrative process, the Department may ask the judge to assess civil penalties in excess of the amounts in this Notice up to $10, per day per violation. The election to opt out of the administrative process is permanent and once the election is made the administrative process cannot be restarted. Waivers 41. Respondent will waive the right to a formal hearing or an informal proceeding if either a. a request for a formal hearing or informal proceeding is not filed with the Department within 20 days of receipt of this Notice, or b. a notice opting out of the administrative proceeding is not filed with the Department within 20 days of receipt of this Notice. These time limits may be varied only by written consent of the Department. General Provisions 42. The findings of fact and conclusions of law of this Notice together with the Orders for Corrective Action will be adopted by the Department in a Final Order if Respondent fails to timely file a request for a formal hearing or informal proceeding, pursuant to Section ,

15 Fla. Stat. A Final Order will constitute a full and final adjudication of the matters alleged in this Notice. 43. If Respondent fails to comply with the Final Order, the Department is authorized to file suit in circuit court seeking a mandatory injunction to compel compliance with the Order, pursuant to Sections , , and , Fla. Stat. The Department may also seek to recover damages, all costs of litigation including reasonable attorney's fees and expert witness fees, and civil penalties of not more than $10, per day for each day that Respondent has failed to comply with the Final Order. 44. Copies of Department rules referenced in this Notice may be examined at any Department Office or may be obtained by written request to the District Office. DATED this day of, 20. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Jon M. Iglehart Director, South District Copies furnished to: Chad Stevens, OGC Litigation Section