DEP Investigating Closed Dumping Facility

The Florida Department of Environmental Protection is investigating a closed construction and demolition (C&D) debris disposal pit on the Farm Road property of Charles Howerton, according to a DEP attorney's response to a public records request.

Capt. Preston Colby of Florida Public Safety has filed public records requests with DEP for all records relating to the disposal pit on the property.

Acting on a public records request by Highlands Today, the DEP released a letter dated Jan. 9 to Colby from Tracey Hartman, a senior attorney for the agency.

Hartman's letter states that Colby's public records request for "the criminal investigative file maintained by the Department regarding the 'Howerton pit'" is exempt from release.

"The exempt material is part of an ongoing criminal investigation of an identifiable person or group of persons which has been compiled by the agency in the course of conduction (sic) a criminal investigation of a specific act or omission," Hartman wrote.

"The purpose," he continued in the letter, "in asserting this exemption is to prevent premature disclosure of information that could impede the investigation or allow the subject/s to avoid apprehension or escape detection."

Elijah Fleishauer, external affairs manager in the DEP's South District office in Fort Myers, said the agency has to honor public records requests for Hartman's letter, which confirms an ongoing investigation while pointing out that records relating to the probe cannot be released.

"The situation was not handled as well as it could have been," he said about events leading up to public records requests for Hartman's letter.

Relatively new staff in the DEP's Sebring office don't handle many requests for public records, most of which are held in the agency's Fort Myers office, and weren't familiar with the "nuances of that law," Fleishauer said. As a result, he said, they released regulatory public records when they could have legally claimed them as exempt because of the criminal investigation.

"In this instance, what had happened was people (in the DEP Sebring office) didn't realize that when you have regulatory staff doing an investigation and there is also a criminal investigation, the inspections of the regulatory staff can also be exempt" from release under a public records request, he said.

Release of the regulatory public records, he said, apparently indicated there might also be a criminal investigation by DEP.

It is not known if the DEP's investigation concerns hundreds of truck loads of fill material dumped on the Howerton property in late September and early October 2007 by the Highlands County Road and Bridge department.

The dumping came to light in early November 2008 in a report by the internal compliance and audit department of the Highlands County Clerk of Courts office compiled in late October 2007. That report estimated 977 truckloads of material taken to the Howerton property by Road and Bridge trucks between Sept. 25 and Oct. 3, 2007, based on spot-check observations, odometer readings and analysis.

A full, regularly scheduled audit of the Road and Bridge department is under way by the clerk's internal compliance and audit department.

County Administrator Michael Wright, in a Jan. 7 e-mail responding to Colby's request at the Jan. 5 county commission meeting for information on the county's dumping, said Road and Bridge records show that 460 truck loads of material were transported to the Howerton property from the department's Sebring yard between Sept. 25 and Oct. 3, 2007.

Wright said Kyle Green, superintendent of Road and Bridge, "described the material as several years of accumulated spoil material from ditch cleanings (including vegetative material), road reconstruction projects, old concrete pipes and driveways and some incidental asphalt."

Wright also said Green "said it was not what he would describe as 'clean fill dirt.'"

Colby filed a complaint with Sebring police in December and another with the Highlands County Sheriff's Office this month claiming DEP has not fully complied with his public records requests.

Cmdr. Steve Carr of the Sebring police said the investigation of the complaint is still pending. Mike Durham, attorney for the sheriff's office, also said the investigation into Colby's complaint is pending.