STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK STROUT, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3760

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on December 13, 1995, in Arcadia, Florida.

APPEARANCES

For Petitioner: Frank Strout, Pro se

11163 Agnes Street, Southwest Arcadia, Florida 33821

For Respondent: W. Douglas Beason, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

Should Petitioner Frank Strout's application for a general permit for the construction and operation of a construction and demolition debris disposal facility be denied?

PRELIMINARY STATEMENT

In April, 1990, Frank Strout received a construction and demolition disposal permit from the Department for a facility located at 11163 Agnes Street, Southwest, Arcadia, DeSoto County, Florida. However, that permit, which was valid for a period of only five years from the date of issuance, expired before Strout submitted the application which is at issue in this proceeding.

By a Notice of Denial to Use a General Permit (Notice) dated May 16, 1995, the Department notified Strout that his request for operation of a construction and demolition debris disposal facility, identified as Frank Strout Construction & Demolition Debris Landfill, located on Agnes Avenue, Southwest, Arcadia, DeSoto County, Florida did not qualify for a general permit based on the information submitted with his request dated April 26, 1995, and received by the Department on May 2, 1995. After receipt of the above Notice, Petitioner requested a formal hearing. On July 28, 1995, the Department referred this matter to the Division for the assignment of a Hearing Officer and the conduct of a hearing.

At the hearing Petitioner testified in his own behalf but offered no other witness. Joint Exhibit 1 was received as evidence. Petitioner offered no other evidence. The Department presented the testimony of Robert Butera. The Department's exhibits 1, 2A-2E, 3A-3D and 4 were received as evidence.

There was no transcript of the proceeding filed with the Division.

Petitioner and the Department timely filed their proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by Petitioner and the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

l. At all times pertinent to this proceeding, the Department was the state agency responsible for receiving applications for, and the issuance of, general permits for the construction and operation of a construction and demolition debris disposal facility in the State of Florida.

1. Petitioner Frank Strout, submitted an application for a General Permit for the construction and operation of a Construction and Demolition Debris Disposal Facility with the Department dated April 26, 1995, which was received by the Department on May 2, 1995. On May 16, 1995, the Department issued a Notice of Denial to Use a General Permit advising the Petitioner that his request for operation of a construction and demolition debris disposal facility did not qualify for a general permit based on the information submitted by Petitioner in his application dated April 26, 1995, and received by the Department on May 2, 1995.

   
   

2. The property upon which the proposed construction and debris disposal facility was to be placed is located at 11163 Agnes Avenue, Southwest, Arcadia, DeSoto County, Florida, and is owned by Petitioner Frank Strout. This location is the same as the location of the construction and demolition debris facility owned by Petitioner that previously operated under a permit issued to Petitioner in April, 1990, which expired due to Petitioner's failure to timely file for an extension of that permit with the Department. However, the disposal area will not cover the entire area of the disposal area of the previous permitted facility.

   
   

3. The Notice advised Petitioner that he had not provided the Department with supporting information demonstrating compliance with the construction demolition debris disposal requirements of Chapter 62-701, Florida Administrative Code, as follows:

   
   

   1. The prohibitions of Rule 62-701.300(2), Florida Administrative Code, have not been addressed. Documentation indicating that the site does not violate these prohibitions was not provided.

   2. The airport requirement of Rule 62- 701(12), Florida Administrative Code, was not addressed. Information indicating the location of airports within a 5 mile radius of the site was not provided.

   3. A site plan which meets the requirements of Rule 62-701.803(1)(a), Florida Administrative Code, was not submitted.

   4. A geotechnical investigation which meets the requirements of Rule 62-701.420, Florida Administrative Code, was not submitted as required by Rule 62-701.803(1)(b), Florida Administrative Code.

   5. A description of facility operations (operations plan) was not submitted as required by Rule 62-701.803(1)(c), Florida Administrative Code.

   6. A boundary survey was not submitted as required by Rule 62-701.803(1)(d), Florida Administrative Code.

   7. Closure plans and cross section details of the final cover which meets the requirements of Rule 62-701.320(7)(f), Florida Administrative Code, were not submitted as required by Rule 62- 701.803(1)(f), Florida Administrative Code.

   8. The Department has received a copy of a letter from Southwest Florida Water Management District (District) to the applicant, dated May 23, 1995, which indicates that the District is concerned about the proximity of the C&D debris to on- site wetlands. The letter from District, dated March 13, 1990, provided an exemption from surface water permitting requirements based on the District's understanding that the proposed operation would not change surface water drainage patterns, stormwater runoff quantities or quality. However, site inspections by the Department and District staff have indicated that surface water drainage patterns have been changed by the operation at the site. Therefore, a copy of a permit for stormwater control issued by the Department or the District shall be required pursuant to Rule 62-701.803(4), Florida Administrative Code.

   9. Information indicating the availability of equipment for the temporary storage of unacceptable wastes at the site, and segregation methods were not submitted as required by Rule 62-701.803(5), Florida Administrative Code.

   10. Compaction procedures and equipment were not described as required by Rule 62- 701.803(6), Florida Administrative Code.

   11. A description of access control methods and devices was not submitted as required by Rule 62-701,803(7), Florida Administrative Code.

   12. A description of waste inspection procedures was not submitted as required by

       Rule 62-701.803(8), Florida Administrative Code.

   13. The facility's operating hours were not provided to ensure compliance with Rule 62- 701.803(9), Florida Administrative Code.

   14. The closure plan submitted as required by Rule 62-701.803(10), Florida Administrative Code, is insufficient.

   15. Pursuant to Rule 62-4.070(5), Florida Administrative Code, the Department shall take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met. Reasonable assurance that Department standards will be met has not been provided. Pursuant to Rule 62-701.803(10), Florida Administrative Code, final cover and vegetation shall be established on each disposal unit within 180 days of final receipt of wastes for that unit. Since waste has not been disposed at the site since approximately March, 1993, and the area has not been closed, the requirements of Rule 62- 701.803(10), Florida Administrative Code, has not been met.

       
       

4. There is pond on the Petitioner's property which is located to the north of both the existing and proposed disposal areas.

   
   

5. The pond is located within 200 feet of the proposed disposal area. The pond is contained completely within the boundaries of the disposal site and on at least one occasion has discharged to surface waters. However, there is no evidence to show that there was at least a 25 year/24 hour storm event on the occasion when the pond discharged to surface waters.

   
   

6. Petitioner has failed to furnish the Department with the necessary information for the Department to determine if the pond discharges from the site to surface waters in a 25 year/24 hour storm event. Likewise, Petitioner has failed to provide the Department with either a copy of a storm water permit or documentation that a storm water permit was not necessary

   
   

7. Wetlands are located along the southern boundary of Petitioner's property upon which the proposed construction and debris disposal facility will be located. These wetlands are located within 200 feet of the proposed disposal area.

   
   

8. Petitioner has offered to reconfigure the disposal area to meet the 200 feet setback. However, Petitioner has not submitted a site plan to demonstrate the manner in which compliance with the 200 feet setback would be achieved.

   
   

9. There is a potable water well located on Petitioner's property upon which the proposed facility is to be located which is located within 500 feet of the proposed disposal area.

10. The permit application proposes a maximum elevation of 84 feet for the disposal area with a 3:1 slope for the entire disposal area.

    
    

11. Petitioner has not furnished the Department with the existing elevations within the proposed disposal area. Without these elevations the Petitioner cannot show how he would comply with the proposed maximum elevation while maintaining the required 3:1 slope. Likewise, without these elevations, the Department would be unable to determine if Petitioner is complying with the proposed maximum elevation while maintaining the required 3:1 slope.

    
    

12. Petitioner has not provided the Department with a geotechnical investigation so as to allow the Department to determine if the site's subsurface features would adequately support the proposed disposal area.

    
    

13. The evidence in the record shows that Petitioner has not addressed all of the Department's concerns set out in Finding of Fact 4 (a) through (o). However, based on the testimony of Petitioner and Robert Butera, the Department's witness, it appears that the Department would consider the concerns set out in Finding of Fact 4 (b), (e), (f), (k), and (m) to have been adequately addressed by Petitioner.

    
    

14. Petitioner has failed to provide the Department with reasonable assurance that the construction or operation of the facility would be in accord with applicable laws or rules.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes.

    
    

16. Rule 62-4.070(2), Florida Administrative Code, provides as follows:

    
    

    (2) If, after review of the application and all information, the Department determines that the applicant has not provided reasonable assurance that the construction, modification, expansion, or operation of the installation will be in accord with applicable laws or rules, including rules of approved local programs, the Department shall deny the permit.

    
    

17. Rules 62-701.300(2)(a), (c) and (g), Florida Administrative Code, provide in pertinent part as follows:

1. Disposal. Unless authorized by a Department permit or site certification in effect on January 6, 1993, no solid waste shall be stored or disposed of by being placed:

   1. In an area where geological formations or subsurface features would not provide support for the solid waste;

(c) Within 500 feet of an existing or approved potable water well unless disposal takes place at a facility for which a

complete permit application was filed or which originally permitted before the potable

water well was in existence. This prohibition shall not apply to any renewal of an existing permit that does not involve lateral expansion, nor to any vertical expansion at a permitted facility;

(g) Within 200 feet of any natural or artificial body of water, including wetlands within the jurisdiction of the Department, except bodies of water contained completely within the property boundaries of the disposal site, which do not discharge from the site to surface waters. .

19. Rules 62-701.803(1)(a), (b), (e) and (f), (4), (6), (9) and (10),

Florida Administrative Code, provide in pertinent part as follows:

1. Notification. The owner or operator of the construction and demolition debris disposal facility shall notify the Department in writing on Form 62-701.900(3) of the intent to use this general permit. . . The notification shall be signed and sealed by a professional engineer and shall include:

   1. A site plan, of a scale not greater than

      200 feet to the inch, which shows the project location and identifies the proposed disposal areas, total acreage of the site and the proposed disposal area, and any other relevant features such as water bodies, wetlands, or potable water wells on or within

      500 feet of the site;

   2. A geotechnical investigation which meets the criteria of Rule 62-701.420, F.A.C.;

* * *

1. The planned active life of the facility, and designed height of the facility;

2. Closure plans and cross section details of the final cover;

* * *

(4) Stormwater. Stormwater shall be controlled in accordance with Chapters 62-25 and 62-330, F.A.C. A copy of any permit for stormwater control issued by the Department, or documentation that no such permit is required, shall be submitted to the Department before the facility receives waste

for disposal. Applicants should be aware that other government agencies may also regulate stormwater management and may require

separate permits.

* * *

(6) Compaction. Construction and demolition debris shall be compacted and sloped as necessary to assure that the requirements of subsection (9) of this section can be met.

* * *

1. Inspections, Operation of a facility under a general permit constitutes consent for the Department personnel to inspect the site during normal business hours for compliance with Department rules.

2. Closure. The side slopes of all above- grade disposal areas shall be no greater than three feet horizontal to one foot vertical rise. (Emphasis suppled).

20. As the applicant for the permit, Petitioner has the burden to establish facts to demonstrate his entitlement to the permit by a preponderance of the evidence. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 787 (1st DCA Fla. 1989). Initially, the Department denied Petitioner's application for a permit because Petitioner had failed to comply those matters set out in Finding of Fact 4 (a) through (o), and thereby, failed to provide the Department with reasonable assurance that the construction, modification, expansion, or operation of the facility would be in accord with applicable laws and rules. Subsequent to the initial denial, Petitioner has furnished the Department with certain information that may resolve the Department's concerns in regard to some of those matters set out in Finding of Fact 4. However, Petitioner's efforts fall short of carrying the "reasonable assurance" burden cast upon the Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying Petitioner's application for a permit for the construction and operation of a demolition and debris disposal facility.

DONE and ENTERED this 19th day of January, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3760

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case.

Petitioner's Proposed Findings of Fact.

Petitioner's proposed findings of fact are set out in three unnumbered paragraphs which shall be considered as proposed findings of fact 1 through 3.

1. Proposed findings of fact 1-2 are not supported by evidence in the record.

2. Adopted in substance as modified in Finding of Fact 14.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 15.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante, Esquire

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Frank Strout, Pro se

11163 Agnes Street, Southwest Arcadia, Florida 33821

W. Douglas Beason, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You Should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-003760

Orders for Case No: 95-003760