STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION PAUL STILL, Petitioner, vs. DOAH Case No. 00-3448 NEW RIVER SOLID WASTE ASSOCIATION and’ DEPARTMENT OF ENVIRONMENTAL PROTECTION, OGC Case No. 00-1395 Respondents, ee ws SSS FINAL ORDER On October 20, 2000, an Administrative Law Judge with the Division of Administrative Hearings (hereafter "DOAH"), submitted an Order Closing File and Dismissing Further Proceedings to the Respondent, Department of Environmental Protection (hereafter "Department"). Copies of this Order were simultaneously served on the Petitioner, Paul Still (nereafter "Petitioner"), and the Respondent, New River Solid Waste Association (hereafter "NRSWA"). A copy of the Order is attached hereto as Exhibit A. On October 25, 2000, the Department served a Notice of Right to Submit Exceptions on Petitioner and the NRSWA. This Notice expressed the Department's position that the Administrative Law Judge's Order Closing File would be considered a Recommended Order of Dismissal for purposes of Sections 120.57(1)(k) and (1), Florida Statutes (F.S.), and gave notice to the parties that they had the right to file exceptions to the Recommended Order within 15 days. Petitioner timely filed exceptions to the Recommended Order, and both the NRSWA and the Department timely filed responses to these exceptions. The matter is now before the Secretary of the Department for final agency action. DUWb- Cloced On July 3, 2000, the Department published its Intent to Issue a permit modification (Permit No. 0013500-004-SC) to the NRSWA to construct and operate the New River Regional Landfill's Bioreactor Landfill system at the New River Regional Landfill. On July 11, Petitioner timely filed a petition for administrative hearing. The Department referred the matter to DOAH for assignment of an Administrative Law Judge to conduct the administrative hearing. On August 25, the NRSWA filed a Motion to Dismiss for Lack of Standing with DOAH, and on September 19 the Administrative Law Judge issued an Order Granting the Motion to Dismiss with Leave to Amend. This Order noted that "allegations of the Petition do not demonstrate that Petitioner has sustained, or is in immediate danger of sustaining, some direct injury as a result of the proposed agency action.” On September 26, Petitioner filed an amended petition, and on September 29 the NRSWA filed a motion to dismiss the amended petition. On October 20, the Administrative Law Judge granted the motion to dismiss, finding that the amended petition "has set forth no new allegations sufficient for a presumption of standing to initiate and sustain these proceedings.” No hearing was held on the Motion to Dismiss nor was any evidentiary hearing held. RULINGS ON EXCEPTIONS Petitioner has filed a document containing 39 numbered paragraphs which purport to be exceptions to the Administrative Law Judge's Order Closing File. Most of these paragraphs do not specifically refer to any findings or conclusions of the Administrative Law Judge which Petitioner alleges to be incorrect, but each is treated as an exception for purposes of this Order. Exceptions 1-5 Petitioner alleges that there is a conflict of interest involving the Department's attorney. There is no record that these allegations were raised before the Administrative Law Judge, nor is there any allegation that the conclusions or findings of the Administrative Law Judge are incorrect. Petitioner provides no argument or explanation of why the alleged conflict of interest is relevant to a determination of Petitioner's standing. These exceptions, even if true, would have no bearing on the outcome of this case and are thus rejected. Exceptions 6-21: These exceptions reiterate the factual allegations that Petitioner has set forth in his Amended Petition. To the extent that these allegations could be construed as pertaining to the question of standing, they are discussed below. However, the factual bases for Petitioner's allegations have never been established in any evidentiary hearing, nor were they addressed in the Administrative Law Judge's Order. While well- pleaded facts are presumed true for purposes of a motion to dismiss, Petitioner's numbered paragraphs do not take exception to any findings or conclusions of the Administrative Law Judge or raise any new legal issues. Petitioner's Exceptions 6-21 are therefore rejected. Exceptions 22-24: These exceptions raise the issue of whether Petitioner has standing to intervene in this action pursuant to Section 403.412, F.S. Paragraph (5) of that statute provides: (5) In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. Petitioner has consistently asserted that the proposed permit modification would have the effect of impairing, polluting, or otherwise injuring the air and water resources of the state. However, Petitioner has never met the requirement of the statute that he file a "verified pleading" setting forth these assertions. While a verified pleading is not specifically defined in Chapter 403, it has long been interpreted by the courts as meaning a pleading that is made under oath and thus sets forth facts that the reviewing body can consider. Bay Convalescent Center, Inc. v. Alice W. Carroll, 352 So.2d 900 (Fla. 1 DCA 1977). The word "verify" is defined in Black's Law Dictionary, 6" Edition, as "to confirm or substantiate by oath or affidavit. Particularly used of making formal oath to accounts, petitions, pleadings, and other papers. The word ‘verified,’ when used in a statute, ordinarily imports a verity attested by the sanctity of an oath.” It is undisputed that Petitioner has not submitted any sworn allegations of fact in this case, whether by a verified pleading or affidavit. Petitioner's claim that the act of the Department in forwarding the Amended Petition to DOAH somehow served to verify the petition has no basis in law. Section 403.412(5), F.S., clearly requires the Petitioner to file a verified pleading. Petitioner has failed to comply with Section 403.412(5), F.S. Petitioner's Exceptions 22-24 are therefore rejected. Exceptions 29-35: Petitioner makes several more factual allegations regarding the potential for the landfill design to result in explosive mixtures of air and landfill gas. He then argues that this design could threaten his personal safety if he happened to be at the landfill and an explosion occurred, and that this threat is sufficient to confer standing in this case. In Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2" DCA 1981), the court established a two-prong test for standing under Section 120.57, F.S. The first prong of the test requires that Petitioner allege that "ne will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing.” Id. at 482. The First District Court of Appeal explained this first prong in Village Park Mobile Home Association, Inc. v. State Department of Business Regulation, 506 So.2d 426, 433 (Fla. 1** DCA 1987): The injury or threat of injury must be both real and immediate, not conjectural or hypothetical. A petitioner must allege that he has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged official conduct. The Administrative Law Judge did not specifically refer to Agrico in his Order. However, he did conclude that Petitioner had not demonstrated that he had sustained, or was in immediate danger of sustaining, some direct injury as a result of the proposed agency action. Nothing in Petitioner's Exceptions provides any legal or factual justification for overturning the Administrative Law Judge's conclusion. The second prong of the Agrico test requires that Petitioner allege that "his substantial injury is of a type or nature which the proceeding is designed to protect." Agrico at 482. There was no conclusion by the Administrative Law Judge that Petitioner had not met the second prong. Furthermore, the Department conceded in its Response to New River Solid Waste Association's Motion to Dismiss for Lack of Standing that Petitioner's alleged injuries are in fact of a type or nature which this proceeding is designed to protect. Nonetheless, Petitioner must demonstrate that both prongs of the Agrico test have been met in order to have standing to bring this proceeding, and Petitioner has failed to make this demonstration. Petitioner's Exceptions 29-35 are therefore rejected. Exceptions 36 through 39 Petitioner's Exceptions 36-39 consist of citations and conclusions which have no basis in the record or which have been addressed in responses to other exceptions. These Exceptions are therefore rejected. Having considered the Recommended Order Closing File and Dismissing Further Proceedings, and having reviewed the applicable law, | conclude that the factual findings, legal conclusions, and recommendation of the Administrative Law Judge are correct. It is therefore ORDERED: A. The Recommended Order is adopted in its entirety and is incorporated herein by reference. B. Petitioner's Amended Petition for Administrative Hearing is dismissed for lack of standing. C. The Department shall forthwith issue permit number 0013500-004-SC to New River Solid Waste Association. Any party to this order has the right to seek judicial review of it under Section 120.68, F.S., by filing a notice of appeal under Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within thirty days after this order is filed with the clerk of the Department. DONE AND ORDEREB this \ day of Nevember, 2000, in Tallahassee, Florida. : STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION David B. Struhs Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 FILING AND ACKNOWLEDGEMENT FILED on this date pursuant to Section 120.52, Florida Statutes, with the CERTIFICATE OF SERVICE | HEREBY CERTIFY that a cop pt the foregoing Final Order has been sent via United States Postal Service on this day of November, 2000, to: Decom Paul Still Route 4, Box 1297H Starke, FL 32901 Jonathan F. Wershow, Esq. P.O. Box 1260 Gainesville, FL 32602 Ann Cole, Clerk and Don W. Davis, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL_ 32399-3060 and by hand delivery to: Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Chris McGuire Senior Assistant General Counsel 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/488-9314

Docket for Case No: 00-003448