Petitioner: PAUL STILL
Respondent: NEW RIVER SOLID WASTE ASSOCIATION AND DEPARTMENT OF ENVIRONMENTAL PROTECTION
Judges: DON W. DAVIS
Agency: Department of Environmental Protection
Locations: Raiford, Florida
Filed: Aug. 15, 2000
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, October 20, 2000.
Latest Update: Dec. 24, 2024
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
Issue Date |
Proceedings |
Dec. 05, 2000 |
Final Order filed.
|
Nov. 13, 2000 |
New River Solid Waste Association`s Response to Paul Still`s Exceptions to the Administrative Law Judge`s Order Closing File and Dismissing Further Proceedings filed.
|
Oct. 25, 2000 |
Department of Environmental Protection`s Notice of Right to Submit Exceptions (filed via facsimile).
|
Oct. 20, 2000 |
Order Closing File and Dismissing Further Proceedings issued. CASE CLOSED.
|
Oct. 17, 2000 |
Paul Still`s Response to New River Solid Waste Association`s Motion to Dismiss for Lack of Standing and Department of Environmental Protection`s Motion to Dismiss the Amended Petition for Administrative Hearing filed by Paul Still filed.
|
Oct. 09, 2000 |
Department of Environmental Protection`s Motion to Dismiss the Amended Petition for Administrative Hearing (filed via facsimile).
|
Oct. 05, 2000 |
New River Solid Waste Association`s Motion to Dismiss for Lack of Standing the Amended Petition for Administrative Hearing Filed By Paul Still (filed via facsimile).
|
Sep. 26, 2000 |
Amended Petition for Administrative Hearing filed by Petitioner.
|
Sep. 19, 2000 |
Order Granting Motion to Dismiss With Leave to Amend issued.
|
Sep. 12, 2000 |
Paul Still`s Response to New River`s (SIC) Solid Waste Association Motion to Dismiss for Lack of Standing filed.
|
Sep. 06, 2000 |
Department of Environmetal Protection`s Response to New River Solid Waste Association`s Motion to Dismiss for Lack of Standing (filed via facsimile).
|
Aug. 29, 2000 |
Request for Hearing (Respondent) filed.
|
Aug. 28, 2000 |
New River Solid Waste Association`s Compliance with 
Revised Initial Order filed.
|
Aug. 28, 2000 |
New River`s Solid Waste Association Motion to Dismiss for Lack of Standing filed.
|
Aug. 28, 2000 |
New River Solid Waste Association`s Compliance with
Revised Initial Order filed.
|
Aug. 25, 2000 |
Response to Initial Order (Petitioner) filed.
|
Aug. 22, 2000 |
Notice of Appearance (filed by J. Wershow).
|
Aug. 16, 2000 |
Initial Order issued. |
Aug. 15, 2000 |
Intent to Issue filed.
|
Aug. 15, 2000 |
Petition for an Administrative Hearing filed.
|
Aug. 15, 2000 |
Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
|