San Benito County Supervisor Anthony Botelho is under investigation by regional air quality officials in connection with two incidents of alleged illegal burning.
Botelho acknowledged to BenitoLink that he burned farm debris on his San Juan Bautista land in February.
However, he said he believed the agricultural debris was legal to burn and said he notified fire officials that he’d be doing a burn, as required by law.
The complaints and probe are the result of a misunderstanding and not of flagrant violations of air pollution laws on his part, he told BenitoLink.
“It’s ridiculous, I absolutely deny any wrongdoing,” Botelho said.
“I am not above the law, if I did something wrong I did something wrong. I’m not trying to circumvent any rules or break any laws. Why would I do that right on the highway with 15,000 cars driving by every day? It doesn’t make sense.”
Hollister Fire Department officials acknowledged Botelho notified them that he planned to burn and that the fires occurred on allowable burn days.
Still, they received citizen complaints and responded with an engine and three-man crew each time, took photos and turned their findings over to the Monterey Bay Unified Air Pollution Control District, according to an official incident report and Battalion Chief Rodney Dover.
Botelho is Chair of the San Benito County Board of Supervisors. The long-time farmer and orchardist represents District 2, which includes Aromas, San Juan Bautista, the Union Road corridor in South Hollister and Mission Oaks.
Fellow Supervisor Jerry Muenzer, one of Botelho’s political allies, sits on the board of the pollution control district.
The district alleges that Botelho burned “unapproved material.” The alleged acts took place at the same location on Feb. 15 and 26. Firefighters from Station 4 responded to 10 Flint Road, according to a city report obtained by BenitoLink.
The site is right off Highway 156 just west of Union Road, near expanses of row crop fields and apple orchards.
On Feb 15, firefighters arrived to find a fully involved, unattended “rubbish” fire. After putting it out, they discovered partially burned “carpet, brake pads, aerosol cans and numerous metal parts…which all are illegal to burn,” according to the report. A followup report by the district adds that the Feb. 26 fire also contained “chemically-treated” apple bins, but Botelho told BenitoLink his bins are not treated with chemicals.
If it turns out the county supervisor violated burn laws, he could be considered a repeat offender due to a prior incident and face a possibly stiff fine, air quality officials said.
The HFD report includes about a dozen color photographs that show the items described as illegal among charred pieces of wood and ashes.
One photo shows a stack of industrial-size apple bins piled six high beside a fork lift and near the extinguished burn pile.
Botelho said he was not present during the first burning, that it was overseen by an employee. Fire officials never notified him of the incident, he said.
He was on site when firefighters arrived on Feb. 26, said Botelho.
“The second time the fire department came out I actually accused them of lying,” he recalled.
“There is no reason for there to be any garbage in there, why would I be burning garbage? I know it’s illegal,” is what he said he told firefighters.
Tenants in his houses on the land, along San Juan Road, or Highway 156, have garbage bins and use them, Botelho said.
As for illegal garbage in the fires, he said, “There was a handful of bottles and a couple of aerosol cans at the bottom of the pile but they have been there for years; I have been burning (in the same spot) for years.” Employees toss things such as cans in the pile unbeknownst to him, he said.
He had not seen the fire department’s photos.
On the two occasions, he or his employees were burning plywood apple bins that were old and beyond repair, some of the 7,000 such bins he owns and that cannot be disposed of any other way, Botelho said.
To get rid of them, he also sells the old bins, which cost about $100 each to build, to the public for $10 each. He does not get many takers, he said.
They are too heavy to haul to the dump, and nails and metal braces that hold them together would damage wood grinding equipment, according to Botelho.
So burning them is the only reasonable way to dispose of the bins and that’s why orchardists have always done it, he added.
In fact, last year during a similar burn of bins at the same spot a car pulled over and three employees of the air pollution district who just happened to be driving by on Highway 156 approached him.
After questioning what he was doing and a discussion, he said he was told he could carry on and was not cited.
As far a he was concerned, that was an acknowledgement that his years-long practice of burning old bins was legal, he told BenitoLink.
Had he been told otherwise, he would not have burned them this year, he said.
If in fact it is illegal, he won’t do it again, he promised. But if that is the case, then the district bureaucracy needs to operate with more consistency, Botelho said.
Also, he acknowledged he was cited and fined in 2012 for, he said, burning on a non-burn day and failing to notify the fire department beforehand.
That incident spurred him to create a binder with all the rules and he has followed them ever since, he said.
At the pollution district, Supervising Air Quality Compliance Inspector Theresa Sewell said that Botelho was fined $547 in 2012 for burning an old, wooden orchard ladder among apple tree trimmings off Olympia Avenue in San Juan Bautista, which is not far from the Flint Road site.
This year, on Feb. 27, the day after the second burn, and incredulous that fire officials had written him up, Botelho went to the district’s Monterey office in an attempted to explain and straighten things out, he said.
He brought his regulations binder and cited them in his discussion with the district staff, he said, including the fact that it’s legal to burn plastic pesticide containers.
If that’s legal, surely wood can be burned, is what Botelho was thinking, he said.
But the discussion did not go well and he left, “disappointed,” he told BenitoLink, and so upset that he forgot his binder.
That is because David Frisbey, the MBUAPCD’s Planning and Air Monitoring Manager, told Botelho the same thing he told BenitoLink.
Plywood bins are not considered agricultural waste and burning them is as illegal as burning carpet, aerosol cans and other metal items, Frisbey said.
He acknowledged it’s legal to burn plastic pesticide containers, but said that’s because it’s the best way to restrict the residue to the farm site.
So, what happens now in the case of the Botelho fires?
The matter has been turned over to the district’s field investigators in Watsonville, according to Sewell.
If they determine Botelho violated the law, the matter will be written up as a “report of noncompliance” and referred to the district’s Mutual Settlement Program in lieu of filing a criminal complaint with the San Benito County District Attorney.
The program is designed to save time and money while holding violators responsible for their actions.
In it, alleged offenders are sent notices soliciting their side of the story. Botelho said he has received that notice. He gave BenitoLink a copy of it and his responses.
In the notice, the air quality district asked him to respond to four questions. They include how the “violation” occurred, what remedial steps have been taken to correct things, a list of procedures to prevent another incident and his operation’s gross income for the past year.
In his typed responses, Botelho denied he was burning garbage, says he believed burning wooden bins was legal and states, “I have stopped burning the bins.”
As for his gross income, he wrote in part, “Do I look like a million dollar operation, when I am trying to survive in a small farming business? I think this is a terrible question and does not make any sense other than to get deep into pockets as you can for your own bureaucracy. I did not violate any law, was not a danger to anyone and cost the state nothing. Of course you ask about gross, because what this agency and the State of California is doing to any small business is only interested in putting them out of business, because there is no net. This seems like a big deal over nothing.”
Once the district receives Botelho’s responses, the sides will attempt to reach an agreement on how to resolve the matter. Such agreements typically include a fine.
Fines are based on a variety of factors including whether the person has prior offenses, the nature of the violation, the type of emissions produced and the severity of the resultant air pollution.
Based upon the 2012 incident and that Botelho should know the rules, and on the apparent evidence discovered by firefighters, if Botelho is found to be out of compliance with clean air laws, it’s likely that any fine imposed this time will be hefty, Frisbey said.
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