Florida Department of Environmental Protection
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Rick Scott Governor
Jennifer Carroll Lt. Governor
Herschel T. Vinyard Jr.
Secretary
March 6, 2012
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Re: Out of Bounds, Inc. vs. DEP/Robert E. McCune, et al vs. Out of Bounds, Inc. and DEP DOAH Case No.: 10-2683 & 10-2987
DEP/OGC Case No.: 10-1577 & 10-1773
Dear Clerk:
Attached for filing are the following documents:
Agency Final Order
Out of Bound’s Exceptions to Recommended Order
Petitioners/Objector’s Response to Out of Bounds’ Exceptions to Recommended Order
DEP’s Response to Out of Bounds Exceptions to Recommended Order
Please note that there are four separate documents attached as one document. I would be happy to provide the documents as individual files via e-mail if that would be more convenient for you.
If you have any questions, please do not hesitate to contact me at 245-2212 or lea.crandall@dep.state.fl.us.
Sincerely,
Lea Crandall
Lea Crandall Agency Clerk
Filed March 6, 2012 12:24 PM Division of Administrative Hearings
DEPARTMENT OF ENVIRONMENTAL PROTECTION
OUT OF BOUNDS, INC. | ) ) | |
Petitioner, vs. | ) ) ) OGC CASE NO. | 10-1577 |
) DOAH CASE NO. | 10-2683 | |
DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent. | ) ) ) ) |
ROBERT E. MCCUNE AND HERNANDO )
SSK, LLC, )
)
Petitioners, )
)
)
OGC CASE NO. 10-1773 DOAH CASE NO. 10-2987
OUT OF BOUNDS, INC., AND DEPARTMENT) OF ENVIRONMENTAL PROTECTION, )
)
Respondents. )
FINAL ORDER
An Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH") submitted a Recommended Order ("RO") to the Department of Environmental Protection ("DEP" or "Department") on December 8, 2011. A copy of the RO is attached hereto as Exhibit "A." The RO indicates that copies were sent to counsel for the Petitioner, Out of Bounds, Inc. ("Out of Bounds" or "Applicant"); counsel for the Petitioners, Robert E. McCune and Hernando SSK, LLC ("Objectors"); and counsel for the Respondent, Department. Out of Bounds timely filed Exceptions to the RO on December 27, 2011. The Department and the Objectors responded on January 6,
2012. These consolidated matters are now on administrative review before the Secretary of the Department for final agency action.
On September 8, 2008, Out of Bounds applied to the DEP for a permit to construct, operate, and close an unlined construction and demolition debris disposal facility ("C&D facility") on 26 acres located in Brooksville in Hernando County, Florida, to be known as the Croom C&D Debris Landfill and Recycling Facility. There were four requests by the DEP for additional information, which was provided, and the application was complete on September 3, 2009. In 1994, a previous owner of the property was issued a permit to construct, operate, and close an unlined C&D facility on the property. That owner did not proceed with construction, and the permit expired in 1999.
Therefore, the Out of Bounds application was for a new permit, not for the renewal of an existing permit. On February 19, 2010, the DEP gave notice of its intent to issue the permit. Out of Bounds, in its permit application, did not disclose the existence of two potable water wells within 500 feet of the proposed disposal area. One of the siting requir ments in the Department's rules prohibits disposal within 500 feet of a potable water well.
The DEP granted extensions of time to Robert McCune and Paige Cool to file a petition for a formal administrative hearing. The DEP withdrew the previous notice of intent on April 20, 2010, and gave notice of intent to deny the permit because it came to the Department's attention that there were two potable water wells within 500 feet of the proposed disposal area, and because no liner was proposed. Out of Bounds petitioned for a formal administrative hearing on the denial, which was referred to DOAH and given
Case No. 10-2683. Robert McCune and Paige Cool also filed a petition to ensure that the denial was not reversed, which was also referred to DOAH, and it was given Case No. 10-2987. At DOAH, the cases were consolidated and scheduled for hearing on August 30, 2010.
On July 27, 2010, the DEP filed an unopposed Request for Official Recognition regarding an amendment to Section 403.707(9)(b}, Florida Statutes ("F.S.") that was enacted during the 2010 regular legislative session and became effective on July 1, 2010. The amended statute applied to permit applications that were pending as of July 1, 2010. Before the amendment, the statute provided that liners and leachate collection systems were not required for C&D facilities unless the DEP demonstrated that they were necessary to prevent violations of groundwater standards and criteria. As amended, the statute makes liners and leachate collection systems mandatory for all C&D facilities, unless the applicant demonstrates that the facility will not be expected to result in violations of groundwater standards and criteria.
The cases were placed in abeyance on August 16, 2010, until February 28, 2011, to give Out of Bounds time to decide whether to modify its proposal to include a liner and for the parties to determine whether the matter could be settled. At the end of the abeyance period, the parties reported to the ALJ that the application was not being modified and the matter was not being settled. The final hearing was rescheduled and
held on August 22-24, 2011.1 A Tr:anscript of the final hearing was filed at DOAH on October 14, 2011. (The Transcript erroneously uses a circuit court case number
1 On May 2, 2011, Hernando SSK, LLC, was substituted for Paige Cool, who had died.
instead of the DOAH case number.) The parties filed proposed recommended orders and the ALJ subsequently issued the RO on December 8, 2011.
RECOMMENDED ORDER
The ALJ recommended that the Department enter a final order denying Out of Bounds' application for a permit. (RO at page 17). The ALJ concluded that 1) two potable water wells exist within 500 feet and down-gradient of the proposed C&D facility's disposal area, contrary to the facility siting requirements of Rule 62-701.300(2), Florida Administrative Code ("F.A.C."); and 2) the Applicant failed to provide reasonable assurance that the proposed facility would not result in groundwater quality violations if
operated without a liner and leachate collection system. (RO ffll 29, 31-33). Thus the
Applicant failed to make the required showing under Section 403.707(9) (b), F.S. The ALJ also concluded that the third party objector Robert McCune proved standing; but Hernando SSK did not prove standing. (RO ,I 27).
STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS
Section 120.57(1)(1), F.S., prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of an ALJ, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."
§ 120.57(1 )(I}, Fla. Stat. (2011); Charlotte County v. IMC Phosphates Co., 18 So.3d
1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007). The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent substantiai evidence" refers to the existence of some evidence (quantity) as
to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So.2d 287, 289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So.3d 1191, 1192 (Fla. 5th DCA 2010). The reviewing agency cannot reject the ALJ's findings that are supported by competent substantial evidence, even to make alternate findings that are also arguably supported by competent substantial evidence. See, e.g., Resnick v. Flagler ct y. School
Bd., 46 So.3d 1110, 1112 (Fla. 5th DCA 2010); Green v. Fla. Dep't of Business and
Professional Reg., 49 So.3d 315,319 (Fla. 1st DCA 2010)(holding that the agency improperly re-weighed the evidence and substituted its own factual findings for those of the ALJ); strickland v. Fla. A & M Univ., 799 So.2d 276, 278-80 (Fla. 1st DCA 2001)(An agency abused its discretion when it improperly rejected an ALJ's findings).
A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See e.g., Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prof., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands County Sch. Bd., 652 So.2d 894 (Fla. 2d. DCA 1995). These evidentiary-related matters are within the province of the ALJ, as the ''fact-finder' in these administrative proceedings. See e.g., Tedderv. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st DCA 2003); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st OCA 1985). Also, the ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See e.g., Peace River/Manasota Regional Water Supply Authority v. IMC
Phosphates Co., 18 So.3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State, DepY of HRS, 462 So.2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v.
Orlando Utils. Comm'n, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Therefore, if the DOAH record discloses any competent substantial evidence supporting a challenged factual finding of the ALJ, the agency is bound by such factual finding in preparing this Final Order. See, e.g., Walker v. Bd. of Prof. Eng'rs, 946 So.2d 604 (Fla. 1st DCA 2006); Fla. Dep't of Corr. v. Bradley, 510 So.2d 1122, 1123 (Fla. 1st DCA 1987). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994).
Section 120.57(1)(I), F.S., authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." See Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); L.B. Bryan & Co. v. Sch. Bd. of Broward County, 746 So.2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001). If an ALJ improperty labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994). Neither should the agency label what is essentially an ultimate factual determination as a "conclusion of law" in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State, Bd. of Prof/ Eng'rs, 952 So.2d 1224 (Fla. 1st DCA 2007).
An agency's review of legal conclusions in a recommended order is restricted to those that concern matters within the agency's field of expertise. See, e.g., Charlotte County v. IMC Phosphates Co., 18 So.3d 1089 (Fla. 2d DCA 2009); G.E.L. Corp. v.
Dep't of Envtl. Prot., 875 So.2d 1257, 1264 (Fla. 5th DCA 2004). An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee Council, 79 v.
Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985). Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only re sonable interpretations. It is enough if such agency interpretations are "permissible" ones. See, e.g., Suddath Van Unes, Inc. v. Dep't of Envtl. Prot., 668 So.2d 209,212 (Fla. 1st DCA 1996).
Agencies do not have jurisdiction, however, to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations," are not matters over which the agency has "substantive jurisdiction." See Martuccio v. Dep't of Prof/ Regulation, 622 So.2d 607,609 (Fla. 1st DCA 1993);
Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Fla. Power & Light Co. v. Fla. Siting Bd., 693 So.2d 1025, 1028 (Fla. 1st DCA 1997).
Evidentiary rulings are matters within the ALJ's sound "prerogative ... as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So.2d at 609.
Agencies do not have the authority to modify or reject conclusions of law that apply general legal concepts typically resolved by judicial or quasi-judicial officers. See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001).
RULINGS ON EXCEPTIONS
The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See, e.g., Comm'n on Ethics v. Barker, 677 So.2d 254, 256 (Fla. 1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v.
Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to certain findings of fact the party "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003). Even when exceptions are not filed, however, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction. See§ 120.57(1)(1), Fla. Stat. (2011); Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813,816 (Fla. 1st DCA 1994).
Finally, in reviewing a recommended order and any written exceptions, the agency's final order "shall include an explicit ruling on each exception."
See§ 120.57(1)(k), Fla. Stat. (2011). The agency need not rule, however, on an exception that "does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Id.
APPLICANT'S EXCEPTIONS
Exception No. 1
The Applicant takes exception by asserting that the RO "is erroneous, both factually and legally." This general or global exception does not comply with the requirements of Section 120.57(1)(k), F.S. See also Fla. Admin. Code R. 28- 106.217(1). Therefore, this exception is denied.
Exception No. 2
The Applicant takes exception to paragraph number 7, where the ALJ found that,
"Out of Bounds did not disclose the existence of a third potable water well, on property owned by Daniel Knox, which is within 500 feet of the proposed landfill disposal area."
(RO,r 7). The Applicant argues that the ALJ's finding is incorrect and misleading. The
Applicant asserts that "the Knox well was included in the well inventory accompanying [Applicant's] application; it was not discussed in the text of the application as a well existing within 500 feet of the proposed disposal area." See Out of Bounds Exceptions at page 2. The ALJ's findings in paragraph 7 foUow the findings in paragraph 6, where the ALJ found that, "[i]n the application process, Out of Bounds disclosed two potable
water wells within 500 feet of the proposed landfill disposal area. The application provided those wells would be converted to non-potable use." (RO,r 6). The competent substantial record evidence showed that in the application, these wells were depicted
on a map, and described in narrative, as wells within 500 feet of the disposal area which must be converted to non-potable use. (Jt. Exh. 1 p.342; Tr. p.190-91, 223). Since neither the map nor the narrative disclosed the Knox potable water well within the 500 foot setback, the ALJ's reasonable inference from the record evidence is reflected in paragraph 7. (Jt. Exh. 1 p.342; Tr. p.190-91, 223). Non-disclosure may also be inferred
from the DEP engineer's testimony that they did not become aware of the Knox well
until the well was brought to DEP's attention in April 2010. (DEP Exh. 1O; Tr. pp.159-60, 322, 325-32, 339, 410-12).
The balance of the Applicant's second exception argues additional factual findings without any citation to the record or legal authority. See§ 120.57(1)(k), Fla. Stat. (2011). The record, however, contains competent substantial evidence to support the challenged factual finding of the ALJ. In addition, this agency has no authority to make independent or supplemental findings of fact. See, e.g., Walker v. Bd. of Prof.
Eng'rs, 946 So.2d 604 (Fla. 1st DCA 2006); North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994).
Therefore, based on the foregoing reasons, this exception is denied.
Exception No. 3
The Applicant takes exception to paragraph 9 of the RO, where the ALJ found:
Daniel Knox and his brother, Robert Knox, had the Knox well dug and permitted in 1979 in anticipation of using it as the source of potable water for a residence to be built on the property for their parents and sister. The Knoxes have not yet built a residence on the property, but it still is their intention to do so and to use the well as the source of potable water. Since its construction, the well had been maintained and operated periodically using a gasoline- powered generator so that it will be ready for use when needed.
The Applicant argues that the date recited in the first sentence of paragraph 9 is "clearly erroneous." See Out of Bounds' Exceptions at page 2. The record evidence does show that the Knox well was permitted in December of 1994 and dug in December 1994 or early 1995. (DEP Ex. 6, p. 3; Tr. p. 272-273, and 399). Thus, this part of the Applicant's exception is granted.
The Applicant further argues for other findings and conclusions without any citation to the record or legal authority. See§ 120.57(1)(k), Fla. Stat. (2011).
Those findings and conclusions would be contrary to the findings of the ALJ in paragraph 9. It is the ALJ's exclusive authority to weigh the evidence presented at a DOAH final hearing, resolve conflicts therein, and judge the credibility of witnesses. See e.g., Rogers v. DepY of Heafth, 920 So.2d 27, 30 (Fla. 1st DCA 2005). Under the standard of review, this agency cannot reject the ALJ's findings that are supported by competent substantial evidence, even to make alt mate findings that may also arguably be supported by competent substantial evidence. See, e.g., Resnick v. Flagler Cty.
School Bd., 46 So.3d 1110, 1112 (Fla. 5th DCA 2010).
Because the ALJ's findings are supported by competent substantial evidence (Jt.
Exs. 5, 15; DEP Exs. 6, 7, and 9; Tr. pp. 271, 272-279, 321, 322-332, 336-338, 398,
399, and 401-402), this part of the Applicant's exception is denied.
Exception No. 4
The Applicant takes exception to paragraph 10 of the RO, where the ALJ found
that:
During the application process, Out of Bounds also did not disclose the existence of a fourth potable water well within 500 feet of the proposed landfill disposal area on
property once owned by Larry Fannin and now owned by his daughter and son-in-law, Robert McCune. The McCune well was permitted and installed in mid-2005 while the sale of the land from Fannin to the McCunes was pending. The intended purpose of the well was to provide potable water for the use of the McCunes when they started to reside on the property. Despite this intent, and unbeknownst to the McCunes, Fannin had the well permitted as an irrigation well.
The Applicant argues that paragraph 1O is clearly erroneous, but only asserts that there is no evidence that the Fannin to McCune property sale was "pending" when the Fannin/McCune well was permitted, and that the ALJ should not have accepted and credited Mr. McCune's testimony that the well was constructed to provide potable supply to the property_. See Out of Bounds' Exceptions at pages 3-4.
Contrary to the Applicant's assertions, the competent substantial record evidence established that invoices associated with construction of the well were addressed to Larry Fannin because it was the McCunes' plan to buy the property at that point in time, but the McCunes "hadn't had a closing for the property." (Tr. pp. 409-41O; DEP Exh.
10). Moreover, competent substantial record evidence, including testimony, affidavit
and corroborating documentation supports the ALJ's finding regarding the McCunes' intended use of the well on their property. (DEP Exh. 1O; Obj . G; Tr. pp. 159-60, 407- 413).
The Applicant further argues for other findings and conclusions without any citation to the record or legal authority. See§ 120.57(1)(k), Fla . Stat. (2011).
Those findings and conclusions would be contrary to the findings of the ALJ in paragraph 10. See, e.g., Green v. Fla. Dep't of Business and Professional Reg., 49 So.3d 315, 319 (Fla. 1st DCA 2010)(holding that the agency improperly re-weighed the
evidence and substituted its own factual findings for those of the ALJ); Strickland v. Fla. A & M Univ., 799 So.2d 276, 278-80 (Fla. 1st DCA 2001)(An agency abused its discretion when it improperly rejected an ALJ's findings).
Therefore, based on the foregoing reasons, this exception is denied.
Exception No. 5
In this exception the Applicant argues against the ALJ's interpretation and application of the rule definition of a potable water well, and the rule prohibition regarding siting of a C&D facility within 500 feet of a potable water well. The Applicant asserts that, ''the ALJ's findings concerning the neighboring wells failed to apply a consistent approach to the definition of a potable water well. The intent, at the time of ex vation ofthewell, controls.n See Out of Bounds' Exceptions at page 4. Although this exception does not contain any citations to the record or to legal authority, the Applicant's previous exceptions to the ALJ's findings of fact regarding "neighboring wells," and the ALJ's conclusions in paragraphs 29 and of the RO, appear to be the objectives of this exception.
As pointed out by the Objectors in their response, the competent substantial
record evidence showed that the Department's expert testified that the applicable rules focus on the intended use of the well at the time of the C&D permit proceedings, not at the time of the construction permit for the well. (Tr. pp.157-163). The siting rule mandates a prohibition unless the C&D application was complete "before the potable water well was in existence." Fla. Admin. Code R. 62-701..300(2)(b); see also Tr. pp.
336-342 and RO ,r 29. The ALJ's findings and the record evidence show that the Knox
well was permitted as a potable water well, was in existence before the C&D application
was complete on September 3, 2009, and is within 500 feet of the proposed disposal area. (Jt. Exh. 15; Tr. pp. 338, 349; RO ffll1, 7, 9). The ALJ's findings and the record also show that the McCune well was being used as a potable water well before the C&D
application was complete on September 3, 2009, and is within 500 feet of the proposed disposal area. (Jt. Exh. 15; Tr. pp. 338, 349; RO ffll1, 10, 11). Thus, the ALJ applied an entirely consistent approach in determining that both the McCune and Knox wells were "potable water wells" to which the prohibition applied (RO ffll29, 30) . See Fla. Admin.
Code R. 62-701.300(2)(b) and Fla. Admin. Code R. 62-701.200(86). The testimony of the Department's expert and the plain language of the rules support the ALJ's conclusions. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985)(An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise); see also Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813, 816
(Fla. 1st DCA 1994).
Therefore, based on the foregoing reasons, this exception is denied.
Exception No. 6
The Applicant takes exception to paragraph 13 of the RO, where the ALJ found
that:
13. Out of Bounds represented at the hearing that it would accept a permit condition that no C&D debris, but only clean debris, would be disposed within 500 feet of the Knox and McCune wells. See Fla. Admin. Code R. 62-701.200(15)
(16) and (24). However, there was no evidence of new designs, plans, or operations that would be used to meet such a permit condition.
The Applicant argues that the ALJ's findings is "erroneous" to the extent that the ALJ concluded that changes to design s, plans, or operations were necessary, in addition to the Applicant's agreement to accept the permit condition. See Out of Bounds' Exceptions at page 5. The ALJ's finding in the last sentence of paragraph 13 is supported by competent substantial record evidence. (Tr. pp. 234-237).
In addition, whether record evidence can support a finding that the Applicant can comply with the proposed permit condition; is a matter wholly within the province of the ALJ, as the fact finder in these types of administrative proceedings. See e.g., Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st DCA 2003); § 120.57(1)(k), Fla.
Stat. (2011)("Findings of fact shall be based upon a preponderance of the evidence ... and shall be based exclusively on the evidence of record and on matters officially recognized.").
Therefore, based on the foregoing reasons, this exception is denied.
Exception Nos. 7 through 11
In these exception numbers 7 through 11, the Applicant asserts that the ALJ "imposedan incorrect burden of proof on the Applicant." The Applicant argues that the "ALJ recommended denial of [the] application on the grounds that [Applicant] failed to 'guarantee' that groundwater standards would not be violated." See Out of Bounds' Exceptions at page 5. The Applicant points to the ALJ's use of the word "guarantee" in
paragraphs 15 and 16, when discussing potential arsenic and benzene groundwater
pollution. (RO,m 15 and 16). The Applicant also points to paragraphs 17, 18 and 19, seeming to suggest that the ALJ meant to use the word 'guarantee' in those
paragraphs, although the ALJ did not. (RO ffll 17, 18, 19).2 The Applicant argues that
the ALJ demands a burden "that is plainly contrary to Florida law," because 'the statute does not require guarantees." See Out of Bounds' Exceptions at pages 5-11.
The Applicant's argument is directed to the statute that the ALJ cites in paragraph 31 regarding the Department's duty to require liner and leachate collection systems. See§ 403.707(9)(b), Fla. Stat. (2011). The statute requires that the Applicant demonstrate "that the facility is not expected to result in violations of the groundwater standards and criteria if built without a liner." Id. The Applicant is required to make the demonstration "based upon the types of waste received, the methods for controlling types of waste disposed of, the proximity of the groundwater and surface water, and the results of the hydrogeological and geotechnical investigations." Id. The ALJ concluded that, "Out of Bounds failed to make the required demonstration and did not provide reasonable assurance that its proposed facility would not result in groundwater quality
violations." (RO,r 31 ). This conclusion is contrary to the Applicant's argument that the
"ALJ recommended denial of [the] application on the grounds that [Applicant] failed to 'guarantee' that groundwater standards would not be violated." See Out of Bounds' Exceptions at page 5.3
2 The Applicant does not contend that paragraphs 15, 16, 17, 18, and 19, are not supported by competent substantial evidence.
3 To the extent that the Applicant may be confusing the case law that prevents the Department from requiring "absolute guarantees" from a permit applicant with the requirements of Section 403.707(9)(b), F.S.; the ALJ's use of the word "guarantee" in paragraphs 15 and 16 is not construed in this Final Order to implicate that case law. See, e.g., Save our Suwannee v. Fla. Dep't of Envtl. Protection and Piechocki, 18
F.A.L.R. 1467, 1472 (DEP 1996).
The ALJ applied the legal standard mandated by Section 403.707(9)(b), F.S., and Rule 62-4.070(1), F.A.C. See RO1J 28; Fla. Admin. Code R. 62-4.070(1)("[a] permit shall be issued to the applicant upon such conditions as the Department may direct,
only of the applicant affirmatively provides the Department with reasonable assurance .
. . that the construction . . . operation or activity of the installation will not . . . cause pollution in contravention of Department standards or rules."). The ALJ's conclusion in paragraph 31 is supported by the factual findings in paragraphs 14 through 24.
The competent substantial record evidence and the plain language of Section 403.707(9)(b), F.S., support the ALJ's findings and conclusions. See, e.g., Pub.
Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987,
989 (Fla. 1985)(An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise); see also Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Therefore, based on
the foregoing reasons, the Applicant's Exception Nos. 7, 8, 9, 10, and 11, are denied.
Exception Nos. 12 through 14
The Applicant argues, in these exceptions, that the ALJ "erred in applying Florida Statutes 403.707(9)(b) (eff. July 1, 2010)." See Out of Bounds' Exceptions at page 9.
Although these exceptions do not contain any citations to the record or to legal authority, the Applicant seems to object to paragraph 32, where the ALJ concludes that:
32. The prior version of the statute prohibited DEP from requiring a liner unless it demonstrated that the facility is expected to result in violations of the groundwater standards and criteria if built without a liner. Out of Bounds argues that the former version of the statute should govern and that DEP should be required to prove that a liner is needed. That argument is rejected. See Lavemia v. Dep't of Prof. Reg.• Bd. of Med., 616 S9. 2d 53, 54 (Fla. 1st DCA 1993){the law
in effect at the time of the agency's final decision governs unless the agency unreasonably delays acting on the application until after the effective date of the new law).
Since the record includes no competent substantial evidence of unreasonable delay or of a decision to apply the new law before its effective date, Section 403.707(9) (b), Florida Statutes (eff. July 1, 2010) required the Applicant to demonstrate "that the facility is not expected to result in violations of the groundwater standards and criteria if built without a liner."§ 403.707(9)(b), Fla. Stat. (2010). The ALJ concluded that, "Out of Bounds failed to make the required demonstration and did not provide reasonable assurance that its proposed facility would not result in groundwater quality violations."
(RO1f 31).
The Applicant also argues for other findings and conclusions without any citation to the record or legal authority. See § 120.57(1)(k), Fla. Stat. (2011). Those findings and conclusions would be contrary to the ALJ's conclusions in paragraph 32, and would be supplemental to the findings contained in the RO. Under the standard of review, this agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994).
Therefore, based on the foregoing reasons, the Applicant's Exception Nos. 12, 13, and 14, are denied.
Exception No. 15
The Applicant argues, in this exception, for additional findings and conclusions without any citation to the record or to legal authority. See§ 120.57(1)(k), Fla. Stat. (2011). Those findings and conclusions would be contrary to the ALJ's ultimate conclusions in paragraphs 29 through 33, and would be supplemental to the findings
contained in the RO. Under the standard of review, this agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994). Therefore, this exception is denied. Exception No. 16
The Applicant argues, in this exception, that the ALJ's decision was based solely on data from other facilities and not site-specific data. The Applicant, however, fails to "identify the disputed portion of the recommended order by page number and paragraph," or to "identify the legal basis for the exception," or to "include any appropriate and specific citations to the record." See§ 120.57(1)(k), Fla. Stat. (2011).
In addition, contrary to the Applicant's assertion, the ALJ made extensive findings
regarding the site and the site conditions that suggest groundwater quality will not be protected. (RO,m12, and 20 through 24). The Applicant did not.take exception to these findings, which include other relevant facts and data considered by the ALJ. See, e.g., Envtl. Coalition of Fla., Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991)(Having filed no exceptions to certain findings of fact the party "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact."). Therefore, this exception is denied.
Exception No. 17
The Applicant seeks to incorporate in this exception its proposed recommended order, "which contains the findings of fact and conclusions of law that [Applicant] proposed should be made." See Out of Bounds' Exceptions at page 11. This exception is not appropriate under the provisions of Section 120.57(1)(k), F.S. To the extent that the Applicant seeks to supplement or replace the ALJ's findings of fact, this agency has
no authority to make independent or supplemental findings of fact. See Walker v. Bd. of Prof. Eng'rs, 946 So.2d 604 (Fla. 1st DCA 2006); see also Green v. Fla. DepYof Business and Professional Reg., 49 So.3d 315, 319 (Fla. 1st DCA 2010)(holding that the agency improperly re-weighed the evidence and substituted its own factual findings for those of the ALJ). Therefore, this exception is denied.
CONCLUSION
Having considered the applicable law in light of the rulings on the above Exceptions, and being otherwise duly advised, it is ORDERED that:
The Recommend d Order (Exhibit A), as modified by the above rulings, is adopted and incorporated herein by reference.
The Applicant's application for a C&D Permit in File No. 291449-001-SO/22 , is DENIED.
JUDICIAL REVIEW
Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,
M.S. 35, 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 30 days from the date this Final Order is filed
with the clerk of the Department.
,,--"-
DONE AND ORDERED this _v_ day of March, 2012, in Tallahassee, Florida.
ecretary
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILED ON THIS DATE PURSUANT TO§ 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWl:.EDGED.
3 -<,•/l.
DATE
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing Final Order has been sent by United
States Postal Service to:
John R. Thomas, Esquire
Law Office of John R. Thomas, P.A.
233 Third Street North, Suite 101 St. Petersburg, FL 33701-3818
by electronic filing to:
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550 and by hand delivery to:
Ronda L. Moore, Esquire
Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000
this{Jkay ofMarch, 2012.
Timothy W. Weber, Esquire Battaglia, Ross, Dicus & Wein, P.A. Post Office Box 41100
St. Petersburg, FL 33743-1100
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000 Telephone 850/245-2242
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 06, 2012 | Agency Final Order | |
| Dec. 08, 2011 | Recommended Order | Applicant for C&D landfill permit did not provide reasonable assurance that no liner was needed and that potable wells within 500 feet were protected. |
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