ALJDEC decisions subject to certification as final

08A-S026-DEQ · Department of Environmental Quality · 2008-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: June 27, 2008 and August 18, 2008; the record remained open until September 16, 2008 to allow the parties to submit post- hearing memoranda. APPEARANCES: The Arizona Department of Environmental Quality appeared through Mark Horlings, Esq., Assistant Attorney General; Respondent Envirotech Industries Int’l Estrella Point Facility appeared through Jerald C. Thompson, Esq., Gallagher & Kennedy, P.A. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Respondent Envirotech Industries International (“Envirotech”) is in the business of collecting used tires and either reusing tires that are reusable, processing waste tires into crumb rubber, which may be incorporated into other uses, or merely collecting and storing the tires. Steve Robinson is the Chief Executive Officer and president of Envirotech. 2. In 1999, Envirotech leased approximately 640 acres of land owned by the State of Arizona near Mobile, Arizona, southwest of Phoenix (“the Estrella Point Facility” or “the facility”) to use in its business. 3. On March 25, 2008, the Arizona Department of Fire, Building and Life Safety (“ADFBLS”) issued a Cease and Desist Order against Envirotech based on findings by the State Fire Marshal after two inspections, performed on January 14 and February 29, 2008, that it was in violation of certain enumerated sections of the International Fire Code (“IFC”). The Cease and Desist Order concluded that Envirotech’s violations of the IFC constituted an immediate and apparent hazard to life and property and ordered it to cease all operations and activities in violation of the fire code.[1] 4. Envirotech did not appeal the ADFBLS’ Cease and Desist Order. 5. On March 28, 2008, the Arizona Department of Environmental Quality (“ADEQ”) issued an Abatement Order under A.R.S. § 49- 142(A), alleging that the Estrella Point Facility constituted an environmental nuisance as defined by A.R.S. § 49- 141(A)(8). ADEQ’s Abatement Order noted the State Fire Marshal’s finding that Envirotech had violated the IFC and required it to take the following actions: A. Within twenty four (24) hours . . ., provide for twenty four (24) hour, seven (7) day a week on-site security to monitor unauthorized access, and with the ability to contact the appropriate responding fire agencies and other emergency responders.

B. Within two (2) calendar days . . ., remove all combustible ground vegetation in the storage yards for a distance of forty (40) feet from the stored material to grass and weeds; and for a distance of one hundred (100) feet from the stored material to brush and forested areas.

C. Within two (2) calendar days . . ., provide on-site, twenty four (24) hours, (7) days a week, a Fire Water Tender meeting the requirements of the National Fire Protection Standards (NFPA) with a minimum water capacity of five thousand (5,000) gallons.

D. Within five (5) calendar days . . ., make available a water supply to provide the required water flow for fire- fighting to a system arranged such that any part of the storage yard can be reached by using no more than five hundred (500) feet of hose. The existing on-site tank may be used to meet this requirement if an assessment of the current condition, capacity and operability of the tank performed by an appropriate professional registrant concludes that it is able to provide the required water flow for such a system.

E. Within five (5) calendar days . . ., install a fence that controls unauthorized access to the storage piles and that has at least two points of ingress and egress for fire apparatus.

F. Within five (5) calendar days . . ., separate individual tire piles from other piles of salvage by a clear space of at least forty (40) feet.

G. Within five (5) calendar days . . ., ensure that all tire storage piles are located at least fifty (50) feet from lot lines and buildings.

H. Within five (5) calendar days . . ., install key boxes containing the keys needed by the fire code official to gain access in any area where access to, or within, a structure or area is restricted because of secured openings, or where immediate access is necessary for life-saving or fire-fighting purposes.

I. Within five (5) calendar days . . ., ensure all buildings have address numbers, building numbers, or building identification placed in a position that is plainly legible and visible from the street or road fronting the property. . . .

J. Within thirty (30) calendar days . . ., provide fire apparatus access roads in the storage yards:

1) With an unobstructed width of not less than twenty (20) feet;

2) Designed to support the imposed loads of fire apparatus;

3) Surfaced so as to provide all-weather driving capabilities;

4) Extending to within one hundred fifty (150) feet of all portions of the facility and within twenty (20) feet of any storage pile;

5) Allowing for the turning around of fire apparatus (for dead-end apparatus access roads in excess of one hundred fifty (150) feet in length); and

6) With a second means of access to the site for fire apparatus, remote from the main entrance and available to fire apparatus from any location on the site.

K. Within forty five (45) calendar days . . ., reconfigure all tire storage piles to meet the following:

1) Individual piles shall not exceed five thousand (5,000) square feet of continuous area;

2) Piles shall not exceed fifty thousand (50,000) cubic feet in volume; and

3) Piles shall not be more than ten (10) feet in height.

These corrective actions would bring the Estrella Point facility into substantial compliance with the IFC provisions charged in the ADFBLS’ March 25, 2008 Cease and Desist Order. 6. On April 28, 2008, ADEQ received Envirotech’s request for hearing under A.R.S. § 41-1092.03(B), which alleged that ADEQ’s Abatement Order was arbitrary and capricious in that the Estrella Point Facility was in full compliance with A.R.S. §§ 44-1304.01, that ADEQ was not responsible for enforcing the IFC, and that ADEQ was “the only agency of the State of Arizona that can adopt or enforce regulations pertaining to waste tires or waste tire collections sites” under A.R.S. § 44-1306(A). 7. ADEQ referred the matter to the Office of Administrative Hearings under A.R.S. § 41-1092 et seq. and, on May 1, 2008, issued a Notice of Hearing. 8. A hearing was held on June 27, 2008 and, when the parties did not complete their presentation of evidence, on August 18, 2008. ADEQ had admitted into evidence 28 exhibits and presented the testimony of William Thornton, the Director of Solid Waste of the Maricopa County Public Works Department; Phillip Mele, the State Fire Marshal; Frank Fisher, a Deputy Fire Marshal; Henry Darwin, Administrative Counsel to ADEQ; and Steven Bold, an employee of the Arizona Department of Administration (“ADOA”) Office of Emergency Management. Envirotech had admitted into evidence five exhibits and presented Mr. Robinson’s testimony. The Administrative Law Judge kept the record open until September 16, 2008 to allow the parties to submit post-hearing legal memoranda. Events Leading to ADEQ’s Abatement Order Envirotech’s Accumulation of Tires, 1999-2007 9. Pursuant to A.R.S. § 44-1303, on September 24, 1999, Envirotech submitted a Waste Tire Collection Site and Processing Facility Registration Form to ADEQ. According to the Registration Form, Envirotech planned to operate a Waste Tire Collection Site that would store an average of 30,000 tires and a maximum of 60,000 tires.[2] 10. On October 30, 2000, November 21, 2001, April 3, 2003, August 4, 2004, and October 24, 2006, the facility was inspected by John M. Burross, an Environmental Program Specialist for ADEQ’s Solid Waste Inspection and Compliance Unit, Waste Programs Division. Shortly after each inspection, Mr. Burross sent a letter to Mr. Robinson or his designee at Envirotech, informing him that the facility had been found to have been in compliance with the waste tire statutes and regulations at the time of the inspection.[3] 11. In the letters that Mr. Burross sent after the October 30, 2000, November 21, 2001, and April 3, 2003 inspections, he called the Estrella Point Facility “an exemplary waste tire facility.” 12. In the letter that Mr. Burross sent after the October 24, 2006 inspection, he informed Mr. Robinson that “[t]his letter shall not be construed as a determination by ADEQ of your compliance with any other regulations.” In the letters following the August 4, 2004 and October 24, 2006 inspections, Mr. Burross did not comment on the quality of the Estrella Point Facility. 13. A Waste Tire Collection Site Inspection Report that was prepared by ADEQ Inspector Mr. Burross and dated August 4, 2004 was admitted into evidence.[4] Mr. Robinson was the named representative who had met with Mr. Burross and the facility contact. According to the report, “[w]aste tire disposal fee is $1.00 per tire or $45.00 per ton.” 14. Mr. Burross’ Waste Tire Collection Site Inspection Report for Envirotech dated October 24, 2006, also stated that the “[w]aste tire disposal fee is $1.00 per tire or $45.00 per ton.”[5] 15. Mr. Robinson testified that he does not remember ever telling Mr. Burross that Envirotech charged $1.00 per tire or $45.00 per ton. He did not know how much money that Envirotech had made from disposal fees for waste tires in 2005, 2006, or 2007. 16. Mr. Robinson testified that, at the end of 2005, he started formulating a contract with Huntington Renewable Resources, which was finalized in 2006, to put in a “huge microwave system” to process waste tires. The system needed at least 3 million tires on hand to be implemented because it would process approximately 300 tons/day of waste tires. Envirotech would get to keep 30% of what was produced. 17. Mr. Robinson testified that, after the negotiation started, Envirotech started stockpiling waste tires and waiting for word from Huntington Renewable Resources that Envirotech had enough tires to implement the system. Since Envirotech received the ADFLBS Cease and Desist Order, it has stopped taking in any more waste tires. 18. By the time of the first hearing date in this matter, Envirotech had stopped making payments to the state under its lease and was in bankruptcy court. 19. Mr. Robinson conceded at the hearing that Envirotech had at least 4 or 4.5 million tires at the Estrella Point Facility in 186 or 187 piles. 20. ADEQ estimated that Envirotech nearly 10 million tires at the Estrella Point Facility in 186 piles. 21. Mr. Robinson admitted that approximately half the tires were outside the six-foot fence that encloses the buildings on the premises. Envirotech has had problems in the past with vandals who shot guns at fire extinguishers and other equipment or who took tires. 22. By the time of the first hearing date, the state cleared brush away from the tire piles and, by the time of the first hearing date, had employed two capitol police officers to provide 24-hour security for the facility under the authority of the Abatement Order. 23. By the time of the second hearing date, the state had paid a contractor to remove a large pile of creosote-treated wood in the center of the Estrella Point Facility, which had been left by a previous lessee. The State’s Involvement in Envirotech’s Tire Accumulation 24. The City of Phoenix is downwind from the Estrella Point Facility, at least during certain times of the year. 25. In 1999, there was a tire fire at a facility on the Gila River Indian Reservation. In addition, there have been several large tire fires in California and other states, which were the subject of the film, “Rings of Fire” and caused professional firefighters to consider the special dangers associated with large tire fires. 26. Mr. Thornton testified that, between February 2002 and June 2003, Maricopa County transported approximately 9,209 tons of waste tires to the Estrella Point Facility because the county does not have a landfill for waste tires. During this time, he became concerned that Envirotech was not recycling the tires and that the piles of tires at the Estrella Point Facility were getting bigger. 27. Mr. Thornton determined that the land on which the Estrella Point Facility was located was owned by the state. He eventually contacted Nola Barnes from the Arizona Department of Administration (“ADOA”). 28. Before April 2007, pursuant to A.R.S. § 41-2147(C), the State Fire Committee had adopted as the state fire code in Arizona the Uniform Fire Code, 1988 Edition, as modified in A.A.C. R4- 34-1101,[6] which has been renumbered as R4-36-201 et seq. The 1988 Uniform Fire Code regulated “high-piled combustible storage,” including rubber tires, but did not provide specific regulations for tire storage.[7] 29. In April 2007, the State Fire Committee adopted the 2003 IFC as the state fire code in Arizona. The IFC includes Chapter 25, which is devoted exclusively to “Tire Rebuilding and Tire Storage.”[8] Section 2505, which regulates outdoor tire storage, includes the following relevant provisions: 1. Section 2505.1 provides that individual piles shall not exceed 50,000 cubic feet. 2. Section 2505.2 provides that individual tire storage piles shall be separated by a clear space of at least 40’. 3. Section 2505.4 provides that tire storage piles shall be located at least 50’ from lot lines and buildings. 4. Section 2505.5 provides that storage yards shall be maintained free of combustible ground vegetation for a distance of at least 40’ from tire piles. 5. Section 2505.6 provides that, where the bulk volume of stored product is more that 150,000 cubic feet, adjacent storage piles shall be considered as a group and their aggregate volume shall not exceed 150,000 feet. At least 75’ should separate aggregated piles. 6. Section 2506.1 provides that tire storage yards shall provide fire apparatus access roads capable of bearing the weight of firefighting apparatus. 7. Section 2506.2 provides that fire apparatus access roads be located within fire breaks required by section 2505.5 and within 150’ of any point in the storage yard where tire piles are located. 8. Section 2507.1 provides that, where the bulk of stored material is more than 20,000 cubic feet, a firmly anchored fence or other approved method of security that controls unauthorized access to the storage yard shall surround the storage yard. 9. Section 2508.1 requires that a water supply be provided and that any part of the storage yard must be accessible from the water supply with 500’ of hose. 10. Section 2508.2 provides that buildings or structures be provided with portable fire extinguishers. 30. Because the Estrella Point Facility holds more than 20,000 cubic feet of tires, it is subject to the IFC. 31. In September 2007, 8,000 waste tires burned at a waste tire facility in Maricopa for four or five days until fire fighters got the fire under control. The fire was determined to have resulted from arson. 32. Arizona State Fire Marshal Philip Mele was appointed in September 2007. He began his career in 1976 as a firefighter for the City of Yuma and, beginning in 1982, was a fire investigator. After he obtained a masters degree, he became an Assistant Fire Chief to the City of Yuma Fire Department.

33. After the Maricopa tire fire and after Mr. Thornton called ADOA employee Ms. Barnes’ attention to the Estrella Point Facility, she contacted other state agencies, including the Arizona State Fire Marshal. Ms. Barnes subsequently arranged a meeting between Mr. Thornton and other agencies, including State Fire Marshal Mr. Mele. 34. Mr. Mele testified that tire fires may be started by the process used to recycle tires or by vandals. Tire fires are difficult to fight because they generate enormous heat, which returns the tires to their component parts, including oil. A tire fire looks like an oil fire and generates dense, black, oily smoke. 35. Mr. Mele testified that water is not effective in fighting a large tire fire. Usually, the tactic is to separate the burning tires from the unburned tires, using a backhoe or excavator, and then using foam to extinguish the fire or allowing it to burn itself out. However, safety considerations may limit how close firefighting crews can get to the fire with equipment to separate the piles. 36. Mr. Mele testified that, because the main tactic used to fight a large tire fire is to move unburned tires away from the fire, it is important that tires be stored such that they provide defensible parameters, including access, height of piles, and space between piles. 37. The Estrella Point Facility was assigned to Deputy State Fire Marshals Ron Gonos and John Wrobel to investigate. On January 14, 2008, Mr. Gonos and Mr. Wrobel inspected the facility and, on January 15, 2005, issued an Arizona State Fire Marshal Inspection report, finding that Envirotech was in violation of the IFC in 16 enumerated respects, including the size of tire piles, separation of tire piles, fire department access, water supply, and lack of fencing or security.[9] The report required Envirotech to correct the violations by February 22, 2008. 38. Envirotech did not correct any of the violations. 39. On February 29, 2008, State Fire Resource Coordinator Frank Fisher inspected the Estrella Point Facility and, on March 6, 2008, issued an Arizona State Fire Marshal Inspection Report, finding that Envirotech was in violation of the IFC in 15 enumerated respects,[10] which violations were for the most part the same as charged in the January 14, 2008 Arizona State Fire Marshal Inspection Report. The March 6, 2008 inspection report required Envirotech to correct the violations by March 14, 2008. 40. Mr. Mele testified that the second citation was served by personal service upon Envirotech, which meant that the Fire Marshal’s Office considered the Estrella Point Facility to pose an immediate hazard. 41. Mr. Fisher testified that, when he first went to the Estrella Point Facility for the second inspection, no one was on site. There was a chain across the gate that was locked, which would have prevented fire department personnel from accessing the site in the event of an emergency. Mr. Robinson eventually showed up and let him into the site. 42. On March 14, 2008, the Fire Marshall received a 2-page response from Envirotech. Ronald L. Todd, on behalf of Envirotech, promised that Envirotech would implement a program to bring the Estrella Point Facility into compliance with the IFC. However, the response contained no benchmarks or dates by which Envirotech anticipated that a corrective plan would be implemented or the dates by which various violations would be cured. Although the response referred to “attached files,” no files were attached to the response that the Fire Marshal’s office received. 43. Envirotech had admitted into evidence the documents that Mr. Robinson testified had been attached to Envirotech’s response to the Fire Marshal’s March 6, 2008 inspection report, which estimated that Envirotech would need at least 18 months to bring the Estrella Point Facility into compliance with the IFC. But Mr. Robinson had no first-hand knowledge of the documents that were attached to the response, which had been prepared by a consultant who wished to be awarded the contract. At the time of the hearing dates in this matter, Mr. Robinson testified that ADEQ had excluded Envirotech from the facility. 44. On March 25, 2008, as noted above, the ADFBLS issued the Cease and Desist Order, which found Envirotech in violation of IFC and prohibited Envirotech from accepting any more waste tires. 45. Mr. Mele recommended that ADOA and ADEQ have a pre-fire emergency plan in place regarding the Estrella Point Facility, due to the extreme risk that he felt that it presented. 46. At the time of the hearing dates, the Estrella Point Facility stored tires on approximate 60 acres of the 640-acre site. Numerous photographs of the Estrella Point Facility were admitted into evidence, including photographs of the large tire sorting pile, which appears to exceed 50’ x 100’. Mr. Robinson testified that was a “working pile,” whose size he had been told was unrestricted under Title 44. Because Envirotech’s defense was that Chapter 25 of the IFC was void because it conflicted with Title 44, rather than that Envirotech was in compliance with the IFC, this recommended decision does not include a detailed description of conditions at the Estrella Point Facility. 47. ADEQ presented testimony concerning all 16 IFC violations charged in the Cease and Desist Order. Because Mr. Robinson testified that Envirotech did not contest the facts underlying the charged violations of the IFC in the Fire Marshal’s January 15 and March 14, 2008 Inspection Reports and offered no evidences to controvert the facts of any violations cited in the Cease and Desist Order, the Administrative Law Judge does not detail additional evidence in this recommended decision regarding the testimony of Mr. Mele and Mr. Fisher substantiating the charged violations. 48. ADEQ’s Administrative Counsel Henry Darwin testified that it issued the Abatement Order after ADEQ realized that conditions at the Estrella Point Facility threatened a tire fire and that the State Fire Marshal had identified numerous violations of the IFC at the facility, which Envirotech was unable or unwilling to correct. 49. Mr. Darwin testified that he knew that ADEQ had inspected the Estrella Point Facility for several years and that those inspections had found the facility to be in compliance with Title 44. Mr. Darwin also knew that ADEQ had conducted its last inspection before the State Fire Safety Committee had adopted the 2003 IFC as the State Fire Code. His first contact with the Estrella Point Facility was after ADEQ officials had been denied access and he called Mr. Robinson to arrange access. 50. Mr. Darwin is familiar with the environmental risks of tire tires and that he relied on the Fire Marshal’s expertise to evaluate the extent of the risk. Mr. Darwin’s concern was heightened by the number of IFC violations and the nature of the violations. He felt that the Estrella Point Facility potentially represented a very hazardous situation. 51. Mr. Darwin testified that he regarded Title 44 as the primary waste tire statute that ADEQ enforces, that he knew of no Title 44 violations at the Facility, and that ADEQ’s Abatement Order did not enforce the IFC. ADEQ regarded the potential harm to public health to create an environmental nuisance and ordered remedies consistent with the IFC. Mr. Darwin testified that tires at the Estrella Point Facility were an objectionable waste under A.R.S. § 49-141(A)(8) because of the conditions in which they were stored. Mr. Darwin testified that ADEQ did not take the position that tires were objectionable waste under any circumstances. 52. Mr. Darwin testified that he had drafted the Abatement Order and that it was approved by ADEQ’s Director Steven Owens, Assistant Director Patrick Cunningham, and Assistant Director of the Waste Programs Division Mike Fulton. The Abatement Order provided access, allowed ADEQ to set a detailed schedule for Envirotech’s remedial actions, and allowed ADEQ to perform remedial work itself if Envirotech was unable or unwilling to do so. Among the safety problems requiring immediate work was weed control and 24-hour security to reduce the risk of arson. 53. Mr. Darwin explained that the statutes governing waste tires, including Title 44 applies to tire piles containing more than 100 tires and gives waste tire collection sites (“WTCS”) status to sites containing more than 500 tires. Mr. Darwin also identified the provision in the solid waste statutes governing Waste Tire Facilities, which hold more than 5,000 waste tires, and noted that the solid waste statues in Title authorize ADEQ to take action to control fire hazards. APPLICABLE STATUTES Title 41 (Relating to ADFBLS, including Fire Prevention and Protection) 1. A.R.S. § 41-2146(A) establishes a state fire safety committee consisting of seven members, including fire chiefs, a registered architects, chief public building officials, and members of the public. 2. A.R.S. § 41-2146(C) requires the state fire committee to “adopt by rule a state fire code establishing minimum standards for” the following: 1. Safeguarding life and property from fire and fire hazards.

2. Prevention of fires and alleviation of fire hazards.

3. Storage, sale, distribution and use of dangerous . . . combustibles . . . .

3. A.R.S. § 41-2161 creates the office of the state fire marshal “[t]o promote public health and safety and to reduce hazards to life, limb and property . . . .” 4. A.R.S. § 41-2163 requires the state fire marshal, under the authority and direction of ADFBLS, to do the following: 1. Assist in the enforcement of state laws . . . relating to fire prevention and fire protection.

2. Enforce compliance with the fire code adopted by the state fire safety committee throughout the state . . . .

3. Cooperate and coordinate with other state agencies in the administration of the state fire code.

5. A.R.S. § 41-2196 sets provides enforcement procures for the state fire code, in relevant part as follows: A. If the state fire marshal or his deputies have reasonable cause to believe that any person has committed or is committing a violation of [the state fire code], which does not constitute an immediate and apparent hazard to life or property, the state fire marshal through the deputy director may issue and serve upon the person by certified mail a cease and desist order. . . . .

C. Upon the failure or refusal of a person to comply with a cease and desist order issued by the deputy director pursuant to subsection A, the deputy director may file an action in the superior court in the county in which the violation is alleged to have occurred to enjoin the person from engaging in further acts in violation of the cease and desist order. . . .

Title 44 (Relating to Trade Practices Generally, Including Waste Tire Disposal) 6. A.R.S. § 44-1301(4) defines a “waste tire collection site” as “a site where waste tires are collected before being offered for recycling or reuse and where more than five hundred tires are kept on site on any day.” 7. A.R.S. § 44-1304.01(A) provides as follows: It is unlawful to store one hundred or more used motor vehicle tires outdoors as follows:

1. In any fashion that exceeds twenty feet in height.

2. In a pile that is more than one hundred fifty feet from a twenty foot wide access route that allows fire control apparatus to approach the pile. Access routes between and around tire piles shall be at least twenty feet wide and maintained free of accumulations of rubbish, equipment or other materials. Access routes shall be spaced so that a maximum grid system unit of fifty feet by one hundred fifty feet is maintained.

3. Within three feet of any property line.

4. In any fashion that exceeds six feet in height if the used tires are stored between three and ten feet of any property line.

5. Within fifty feet of any area in which smoking of tobacco or any other substance by persons is permitted. "No smoking" signs shall be posted in suitable and conspicuous locations.

6. At any area in which the used motor vehicle tires are stored and in which electrical wiring, fixtures or appliances do not comply with the national electrical code.

7. Without placing class "2A-10BC" type fire extinguishers at well marked points throughout the storage area so that the travel distance from any point in the storage area to a fire extinguisher is not more than seventy-five feet.

8. A.R.S. § 44-1306(A) provides that ADEQ “shall adopt and enforce rules to carry out the provisions of this article.” 9. A.R.S. § 44-1307 provides that a person who violates the provisions of Title 44 relating to waste tire collection sites is subject to a civil penalty of not more than $500 per violation and to a citation under A.R.S. § 49-141 relating to environmental nuisances. Title 49 (Relating to ADEQ and the Environment) 10. A.R.S. § 49-141(A) defines an environmental nuisance as follows: [A]n environmental nuisance is the creation or maintenance of a condition in the soil, air or water that causes or threatens to cause harm to the public health or the environment and that is not otherwise subject to regulation under this title. Subject to this limitation, the following conditions may constitute environmental nuisances: . . . .

8. The storage, collection, transportation, disposal and reclamation of garbage, trash, rubbish, manure and other objectionable wastes other than as provided and authorized by law and rule.

11. A.R.S. § 49-142(A) provides in relevant part as follows: If the director has reasonable cause to believe from information furnished to the director or from the director's own investigation that a person is maintaining an environmental nuisance, the director may serve, by certified mail, an abatement order on the person requiring the person to abate the nuisance. If the person fails or refuses to comply with the order within the time specified in the order or if after reasonable attempts the director is unable to serve the order, the director may abate the nuisance at the department's expense. The director shall be entitled to recover the reasonable costs of abatement incurred in accordance with any terms of the order that have been upheld after all rights to appeal or judicial review have been exhausted or waived.

12. A.R.S. § 49-701(39), which concerns solid waste management, defines a "waste tire facility" as “a solid waste facility at which five thousand or more waste tires are stored outdoors on any day.” 13. A.R.S. § 49-762.07(F)(1) provides that, “[i]n the absence of design and operating rules adopted by the director . . . , owners and operators shall operate those facilities in a manner that . . . [c]ontrols wind dispersion . . . so that the solid waste does not create a public nuisance or pose an imminent and substantial endangerment to public health or the environment.” CONCLUSIONS OF LAW ADEQ bears the burden of proof and must establish that the Estrella Point Facility constitutes an environmental nuisance under A.R.S. § 49-141(A) and that it therefore had jurisdiction to enter the Abatement Order under A.R.S. § 49-142(A) by a preponderance of the evidence.[11] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[12] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[13] The IFC Provisions Concerning Tire Storage Does Not Conflict with or Preempt Title 44 Provisions Concerning to “Waste Tire Collection Sites”

ADFLBS adopted the IFC as the state fire code by administrative regulation, as required by A.R.S. § 41-2146(C).[14] “[A]n administrative rule has the same effect and force as a statute.”[15] Under the doctrine of preemption, if the state, through Title 44, completely occupies the field with a comprehensive scheme, Title 44 would preempt any regulations promulgated by ADFBLS, such as the IFC.[16] Title does not address many of the requirements of the IFC, including access road compaction and distance of tire piles from lot lines and buildings. Title 44 does not occupy the field and does not preempt the IFC. “[A] rule adopted by an administrative agency must be in accordance with the statutory authority vested in it, must be reasonable, and must be adequately related to the purpose of the act and neither arbitrary nor in contravention of any expressed statutory provision.”[17] But, if a rule and statute appear to conflict, they must be construed in such a way to harmonize them if possible.[18] “When two statutes appear to conflict, [courts] will attempt to harmonize their language to give effect to each.”[19] In construing potential conflicts, courts should promote “consistency, harmony and function.”[20] A.R.S. § 44-1304.01 conflicts with the IFC if the statute creates a safe haven by requiring storage of tires only under the conditions described therein, precluding any additional regulation of tire collection and storage, regardless of the size of or conditions at the facility. But A.R.S. § 44-1304.01(A) merely states merely that “[i]t is unlawful to store one hundred or more used motor tires” under the described conditions. A.R.S. § 44-1304.01 applies to anyone who stores more than 100 tires outdoors. A.R.S. § 44-1301(4) describes a “waste tire collection site” as having more than 500 tires. A.R.S. § 49-701(39) defines a “waste tire facility as having more than 5,000 waste tires. A.R.S. § 49-762.07 authorizes ADEQ to regulate a large waste tire facility under Title 49. These statutes recognize ADEQ’s authority to impose additional restrictions on larger storage facilities to protect the public, based on the legislature’s implicit recognition of their greater risk of such larger facilities. Facilities that store more than 100 tire outdoors must comply with A.R.S. § 44-1304.01. That does not mean that larger facilities’ compliance with A.R.S. § 44-1304.01 exempts them from other laws or regulations. The IFC applies only to the largest tire collection and storage facilities, those having more than 20,000 cubic feet of tires. Because the IFC provisions regarding tire storage only provide greater protections to larger sites, which A.R.S. § 44-1304.01(A) does not disallow, the IFC provisions do not conflict with Title 44. ADEQ Can Find that the Estrella Point Facility Constitutes an Environmental Nuisance Based on Envirotech’s Violations of the IFC

Envirotech argued that ADEQ’s Abatement Order was improper because ADEQ attempted under the authority of A.R.S. § 49-142(A) to enforce the IFC against Envirotech. The only enforcement procedure allowed under A.R.S. § 41-2196(C) is that the deputy director of ADFBLS may request the superior court to enjoin persons against whom a cease and desist order has been entered to refrain from further acts in violation of the IFC. Envirotech has stopped taking in tires. It is in bankruptcy and may be unable or unwilling to take further steps to bring the Estrella Point Facility into compliance with the IFC. Under these circumstances, Title 41 does not provide any further meaningful remedy against Envirotech or for protection for the public in Arizona. Envirotech did not argue that that a very real possibility of a potentially disastrous tire fire at the Estrella Point Facility did not exist. It did not argue that the presence of between 4 and 10 million waste tires in an unsecured facility upwind of a major metropolitan area did not constitute an environmental nuisance as defined by A.R.S. § 49- 141(A)(8). Instead, Envirotech argues that, by adopting Title 44’s provisions regarding waste tire disposal, the legislature intended to prevent ADEQ from protecting the public by abating an environmental nuisance under Title if the nuisance involves waste tires. As noted above, the relevant provisions of Titles 41, 44, and 49 can be harmonized. Title 44 relates to Trade and Commerce, not the environment. Chapter 9 of Title 44, which includes A.R.S. § 44-1304.01, is entitled “Trade Practices Generally” and provides minimum requirements for the conduct of many industries, including the sale of Indian arts and crafts, fraudulent practices in the sale of petroleum products, beverage containers, motor vehicle warranties, telephone solicitations, aftermarket crash parts, sale and disposal of batteries, check cashers, credit card transactions receipts, and motor vehicle transactions, in addition to waste tire disposal. The structure and contents of Title 44 itself does not indicate that the legislature intended the restrictive construction that Envirotech urges. ADEQ’s witness Mr. Darwin testified that the IFC violations that the Fire Marshal found evidenced the dangerous conditions at the Estrella Point Facility. The specific acts of abatement ordered were designed to remedy the dangerous conditions that the IFC violations evidenced. ADEQ’s abatement order did not “enforce the IFC” but, rather, addressed an environmental nuisance, which the legislature has empowered it to do under Title 49. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of ADEQ affirm its March 27, 2008 Abatement Order and dismiss Envirotech’s appeal. Done this day, October 6, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of October, 2008, to:

Department of Environmental Quality Stephen A. Owens, Director Attn: Judy Fought 1110 W. Washington, Sixth Floor Phoenix, AZ 85007

By ________________________ ----------------------- [1] See ADEQ’s Ex. 1. [2] See ADEQ’s Ex. 27. [3] See Envirotech’s Ex. A. [4] See ADEQ’s Ex. 28. [5] See ADEQ’s Ex. 29. [6] See ADEQ’s Ex. 22. [7] See ADEQ’s Ex. 23. [8] Relevant sections of the IFC relating to outdoor tire storage were admitted into evidence as ADEQ’s Ex. 6. [9] See ADEQ’s Ex. 2. [10] See ADEQ’s Ex. 4. [11] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [12] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [13] Black’s Law Dictionary at page 1220 (8th ed. 1999). [14] See A.A.C. R4-36-201. [15] LaWall v. Pima County Merit System Comm’n, 212 Ariz. 489, 494 ¶ 25, 134 P.3d 394, 399 (App. 2006) (citing Gibbons v. Arizona Corp. Comm’n, 95 Ariz. 343, 347, 390 P.2d 582, 585 (1964)). [16] E.g.,State ex. Rel. Baumert v. Municipal Court, 124 Ariz. 159, 161, 602 P.2d 827, 829 (App. 1979); State v. Jacobson, 121 Ariz. 65, 69, 588 P.2d 358, 360 (App. 1978). [17] Grove v. Arizona Crim. Intelligence System Agency, 143 Ariz. 166, 169, 692 P.2d 1015, 1018 (App. 1984). [18] See Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433, 937 P.2d 353 (App. 1996) (quoted in Brush Wellman, Inc. v. Lee, 196 Ariz. 344, 348 ¶ 12, 996 P.2d 1248, 1252 (App. 2000) (“If a procedural rule and a statute appear to conflict, the rule is construed in harmony with the statute.”). [19] True v. Stewart, 199 Ariz. 396, 399 ¶ 12, 18 P.3d 707, 710 (2001); see also Achen-Gardner, Inc. v. Superior Court, 173 Ariz. 48, 839 P.2d 1093 (1992). [20][21] Welch-Doden v. Roberts, 202 Ariz. 201, 206 ¶ 22, 42 P.3d 1166, 1171 (App. 2002).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826