The Issue The issue is whether a permit should be issued to Respondent, Lake Environmental Resources, LLC (LER), authorizing the construction and operation of a construction and demolition debris disposal facility in unincorporated Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties LER, whose mailing address is Post Office Box 2872, Windermere, Florida, is a limited liability company authorized to do business in the State. LER's principals are Linwood Brannon and Richard Bazinet, both of whom have had at least ten years' experience in the operation and construction of demolition debris disposal facilities. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2005)2, to evaluate applications and issue permits for construction and demolition debris disposal and recycling facilities. The permit in issue here was processed, reviewed, and approved for issuance by the Department's Central District Office in Orlando, Florida. Petitioners Miriam Resto and Jim Taylor did not appear at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by the issuance of a permit. Petitioner Timothy L. McCormack resides at 11321 Valley View Road, Howey-in-the-Hills, Florida. Mr. McCormack's home is "a little over a mile" north-northwest of the proposed facility. His concern with the proposed facility is generally over contamination from the landfill, and not contamination occurring at the property. Petitioner John A. Mapp, Jr., resides at 21307 County Road 561, Clermont, Florida, which is approximately one-half mile from the proposed facility. Mr. Mapp's home is upgradient from the facility and consequently he has no "individual concerns" as to how the proposed facility would affect his home. He is concerned, however, with potential groundwater contamination from the facility. Petitioners David and Lisa Cimini did not testify at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by this proceeding. According to the Partial Pre- Hearing Stipulation filed by Respondents, however, they reside at 21423 County Road 455, Clermont, Florida, which is near the proposed facility. Background On July 26, 2005, LER filed an application with the Department for a permit authorizing it to construct and operate a facility for construction and demolition debris disposal and recycling in an unincorporated area of the County. A lengthy definition of construction and demolition debris is found in Florida Administrative Code Rule 62-701.200(27), which reads as follows: discarded materials generally considered to be not water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, including such debris from construction of structures at a site remote from the construction or demolition project site. The term includes rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project; clean cardboard, paper, plastic, wood, and metal scraps from a construction project; effective January 1, 1997, except as provided in Section 403.707(12)(j), F.S., unpainted, non-treated wood scraps from the facilities manufacturing materials used for construction of structures or their components and unpainted, non-treated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and de minimus amounts of other non-hazardous wastes that are generated at construction and demolition projects, provided such amounts are consistent with best management practices of the construction and demolition industries. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The facility will be located on a 44.33-acre site one- half mile west of State Road 561, off County Road 455, in an unincorporated part of Lake County. Based on this description, it appears that the facility will be located east of Howey-in- the Hills, west of Tavares, and approximately half-way between Astatula and where State Road 561 crosses the Florida Turnpike to the southwest. The site presently has an active sand mine (borrow pit) that covers an area of approximately twenty-two acres. The facility intends to recycle metal, concrete, asphalt, wood chips, and PVC (polyvinyl chloride) and will serve areas in Lake County and nearby communities. In response to LER's initial application, the Central District Office submitted a Request for Additional Information dated August 22, 2005, asking for additional well and site information, operations plan details, and financial assurance clarification. On October 20, 200, LER submitted its Response to Request for Additional Information. While the application was being processed, Mr. Cimini advised the Department that two additional wells surrounded the property, including one that had recently been installed on property owned by Mr. Gary Sprauer that lies within five hundred feet of the limits of waste disposal of the facility. On November 18, 2005, the Department submitted an additional Request for Additional Information, in which it brought up the fact that Mr. Cimini had advised the Department of the existence of these wells. On November 28, 2005, LER submitted its Response to Request for Additional Information, in which it stated that only one well, which belonged to a Mr. Sprauer, had been drilled within five hundred feet of the proposed facility; that there was no electricity to the well; that the nearest residence was approximately seven hundred feet away; and that the well was not approved or being used as a potable water well. Therefore, LER asserted that the Department should not treat the Sprauer well as a potable water well subject to the five-hundred-foot setback from potable water wells for landfills established in Florida Administrative Code Rule 62-701.300(2)(b). LER's submittal provided additional information on the geology and operational aspects of its proposed facility. On December 6, 2005, LER submitted additional information in response to items discussed at a meeting held between the Department and LER on December 2, 2005. The submittal contained further information about potential drinking water wells around the proposed facility, and LER reasserted that the Sprauer well should not be treated by the Department as a potable drinking water well. Based upon its own investigation, however, the Department concluded that the Sprauer well "was a bona fide drinking water well for domestic supply." On January 6, 2006, Mr. Bradner, a Department solid and hazardous waste program manager who was assisting in the processing and review of the application, wrote a memorandum to the file confirming that the Department considered the application complete as of December 6, 2005. On February 10, 2006, LER provided additional hydrologic and operational information in order to try to convince the Department not to apply the five-hundred-foot setback to the Sprauer well. This information showed that the Sprauer well would be upgradient from the proposed facility. The Department allows waste to be placed within five hundred feet of an existing potable water well based upon site-specific conditions as demonstrated by an applicant. See Fla. Admin. Code R. 62-701.300(2)(b). On March 27, 2006, in response to the Department's comments on its submittal of this additional information, LER submitted further hydrologic and modeling information to support its contention that groundwater flowed away from the well belonging to Mr. Sprauer. On April 27, 2006, LER provided the Department with further refinement of its groundwater model to demonstrate that there would be no impact to the Sprauer well. On May 4, 2006, the Central District Office issued notice of its intent to approve the application and issue a permit to LER. Of significance here is the fact that the Department did not require LER to install a liner and leachate collection system. This was consistent with the terms of Florida Administrative Code Rule 62-701.730(4)(a), which does not require a liner unless the Department demonstrates that the facility is "reasonably expected to result in violations of ground water standards and criteria." On May 17, 2006, Petitioners filed their Petition challenging the issuance of the permit. As grounds, Petitioners alleged that there is a substantial risk that the surrounding groundwater will be contaminated by leachates from the facility, and that the Department should accordingly require LER to (a) install a liner and associated leachate recovery system in their facility and (b) post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. The Proposed Project Among other things, the application included an engineering report, an operations plan, a geotechnical evaluation of the stability of the site, a hydrological investigation, a stormwater management plan, a reclamation and closure plan, and financial assurance documentation. These elements are required by Florida Administrative Code Rule 62- 701.730, which governs this type of application. The proposed facility is to be located on a 44.33-acre parcel in a rural area that has been the site of a sand and clay borrow pit. The pit has been mined for the last thirty years, has been permitted by Lake County as a mine since 1986, and before being used as a mine was the site of an orange grove. As explained by Mr. Golden, the proposed facility's project manager, the site is "high and dry" and "a good site for a landfill." The water table is at least one hundred feet below the ground surface. There is a confining layer of clays and sandy clays approximately one hundred fifty feet below the ground surface at the site of the proposed facility, and the layer has very low hydrologic conductivity, that is, 1,000 to 10,000 times less permeable than the surface sands. The Floridan Aquifer is approximately two hundred feet below ground surface. The horizontal velocity of the groundwater at the site is approximately two feet per year, and the vertical velocity about 1.3 inches per year. As a result, the groundwater monitoring system at the proposed facility would detect any contamination that might be emitted. In addition, approximately twenty feet of dry soils underlying the landfill would absorb whatever comes out of the landfill to begin with, just like a septic tank. The confining layer would be approximately one hundred to one hundred twenty feet below the landfill base and would be anywhere from twenty to forty feet deep. As a result, it is highly unlikely that any potential contaminants that hypothetically might be emitted from the facility would ever reach the Floridan Aquifer. The Proposed Permit On May 4, 2006, the Central District Office issued its intent to issue the permit. Attached to that intent to issue was a Draft Permit. The Draft Permit restricts disposal of solid waste exclusively to construction and demolition debris (as defined in the rule cited above) and requires LER to comply with an Operations Plan developed by LER. Among other things, the Operations Plan provides for operators trained in spotting and turning away unacceptable waste and other screening procedures to ensure nondisposal of unacceptable waste. The Operations Plan exceeds minimum Department rule requirements. The Operations Plan prohibits disposal of CCA (chromated copper arsenate) pressure treated wood and has a special screening procedure to ensure that these wood products do not come into the facility. The Draft Permit requires LER to install a system of groundwater monitoring wells that surround the property at both shallow and deep depths to detect any potential contaminants coming off of the site. Thus, LER will be required to monitor the surficial aquifer, the Floridan Aquifer, and adjacent wells to ensure protection of area groundwater. The wells will act as a form of early warning indicator so that corrective action can be undertaken in the event the wells show a potential threat to drinking water beyond the property boundary of the proposed facility. The Draft Permit requires two wells to be installed immediately to the north of the Sprauer well, even though it is upgradient from the site. To be conservative and prudent, the Department is requiring that the number of wells that LER must install be substantially greater than the minimum required under Department rules. Based upon the hydrologic evaluation and the proposed permit conditions, Mr. Golden concluded that LER has provided reasonable assurance that the proposed facility will not discharge pollutants in contravention of Department standards or rules. Mr. Bradner agreed with this conclusion and likewise concluded that LER had provided reasonable assurance that the proposed facility will comply with all of the required statutes and rules. The weight of the evidence supports these conclusions. The weight of the evidence also supports Mr. Golden's conclusion that based upon the hydrologic evaluation and the proposed permit conditions, the proposed facility will not be a source of contamination for wells within or greater than five hundred feet of the proposed facility. In the same vein, Mr. Bradner determined that the Sprauer well was the only existing potable drinking water well within five hundred feet. Both experts concluded that the Sprauer well would not be adversely impacted based upon the Department's review of the groundwater modeling data provided to it by LER. Finally, the weight of the evidence supports Mr. Golden's conclusion that, based upon the hydrologic evaluation and the proposed permit conditions, the Department should not require LER to install a landfill liner at the proposed facility. Mr. Bradner agreed with that conclusion. Petitioners' Objections In their Petition, Petitioners have raised the following objections to the issuance of a permit: That because the proposed facility would have no liner, the local environment and drinking water supplies would not be adequately protected from contamination; That the application significantly underestimates the amount of recharge to local aquifers; That the application ignores or underestimates the ecological fragility of the area; and That the location of the Sprauer well should require a reconfiguration of the footprint of the proposed facility. As relief, the Petition asks that the Department require a liner and associated leachate recovery system and adequate financial assurance to ensure proper operation and cleanup if necessary. During opening argument, Petitioners raised one more issue not previously raised in their Petition — - the potential cumulative impacts of the proposed facility in conjunction with two other landfills in the area. This allegation was not timely raised, however, and has been disregarded. The positions taken by Petitioners (other than cumulative impacts) appear to be interrelated, that is, the Department should require a liner because the area is ecologically fragile and recharge is greater than calculated by LER. In support of their position, Petitioners first presented the testimony of Mr. McCormack, who is engaged in the commercial nursery and landscaping business. Mr. McCormack identified the presence of CCA treated wood as his main concern from a contamination standpoint. His concern is that a possible spread of leachate will result from mingling the wood with rainwater or groundwater and that the surrounding groundwater (which ultimately flows into Double Run Springs, the Harris Chain of Lakes, and the Floridan Aquifer) would be adversely impacted. Mr. McCormack estimated that the edge of the Double Run Springs system was approximately 2,500 feet, or around one- half mile, from the site. He expressed the opinion that it was physically impossible to remove such wood prior to its being landfilled. Mr. McCormack conceded, however, that he was not an expert on landfill management or hydrology and had no personal experience with the operation of a landfill. There is specific language in LER's Operations Plan prohibiting the disposal of CCA treated wood and requiring best management practices to enforce the prohibition against the disposal of CCA treated wood. This requirement is mandatory, and not voluntary, and provides reasonable assurance that CCA treated wood would not be a potential source of contamination. The testimony of expert witnesses Bradner and Golden, who expressed this view, is accepted as being more credible on this issue. Petitioners also presented the testimony of Mr. Mapp, who critiqued the hydrological investigation performed by LER by asserting that the recharge to the Floridan Aquifer is four or five times the amount stated in the application. He also opined that LER's evapotranspiration rates were understated.3 Mr. Mapp is a systems analyst for Lockheed Martin Missiles and has a master's degree in business and an undergraduate degree in physics. While highly educated, Mr. Mapp has no prior experience in any kind of hydrologic, geologic, chemical, or similar types of analyses, or any analyses of the rate of transport of chemicals in the environment. The knowledge and opinions rendered in this case by Mr. Mapp were obtained through personal research after the permit application was filed. Mr. Mapp opined that LER's recharge calculations constitute a "significant discrepancy." He acknowledged, however, that his estimate of the true speed of downward flow of water at the site of the proposed facility was "just off the cuff" and did not factor in the effects of applying cover to, and the filling and capping of, the landfill. He did not know how fast particular contaminants may migrate through the groundwater or what volume of waste might be necessary to cause a violation of groundwater quality standards. He also could not give a specific calculation of where a contaminant might be located after a set period of years. Unlike the other experts in this case, the witness had not calculated Floridan Aquifer recharge rates or otherwise used Darcy's Law.4 Even if the permit application underestimated the recharge rate, the thickness of the confining layer below the base of the proposed facility, which was conservatively estimated, would cause groundwater to flow horizontally, not vertically, once the confining layer is reached. As explained by Mr. Golden, LER did not rely exclusively on the recharge calculations that Mr. Mapp relied upon in determining recharge rates. Separate information regarding the permeability of the confining layer provides additional support for the recharge calculations. Mr. Mapp also opined that LER's evapotranspiration rate calculations were underestimated, based upon his review of a study of a deforested site elsewhere in the Lake Wales Ridge. He assumed the evapotranspiration rate in that study (for a site located fifteen miles away) would be applicable to the site of the proposed facility, and he then assumed that the evapotranspiration rate identified in the permit application for the proposed facility would be applicable only to the properties adjacent to the proposed facility. There is, however, no scientific basis for drawing an analogy between the borrow pit that is the location of the proposed facility and the deforested site with different geological characteristics about which Mr. Mapp read in the study he relied upon for his conclusions. Furthermore, LER undertook site-specific analyses of the permeability of the soils underlying the site of the proposed facility, whereas Mr. Mapp's calculations were based upon assumptions drawn from a study of a site fifteen miles away. The testimony of Mr. Golden is found to be credible and persuasive on this issue. Finally, there was no evidence concerning Petitioners' contention that LER should post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. Therefore, no modification to the permit in this respect is required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Lake Environmental Resources, LLC, for a permit authorizing the construction and operation of a construction and demolition debris disposal and recycling facility in unincorporated lake County. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2006.
Findings Of Fact At all times pertinent hereto, Respondent held a valid Class "W" Concealed Weapon or Firearm License issued by the Petitioner. Petitioner alleges that Respondent was convicted of Assault with Intent to Murder on June 8, 1960 in the State of Georgia and his civil rights have not been restored. A person by the name of John P. Piner was sentenced by the Superior Court of Richmond County, Georgia, on June 8, 1960, to serve a term of imprisonment at hard labor for a period of not less than three (3) years and not more that four (4) years for the crime of Assault with Intent to Murder. The sentence was suspended and the Defendant was placed on probation and fined. Respondent, John P. Piner, during all relevant times was on active duty with the United States Army and remained so until his honorable separation from the service on June 23, 1969, after more than twenty years of service. The evidence failed to show that the person named in the Sentencing document found in the records of Richmond County, Georgia was the same person as the Respondent named in the Administrative Complaint. The evidence failed to show that the Respondent, John P. Piner, was adjudicated guilty of the felony of Assault with Intent to Murder in the State of Georgia by a court of competent jurisdiction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent be DISMISSED and that Petitioner's application for renewal of his concealed weapon or firearm license be GRANTED. DONE and ENTERED this 30th day of November, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 Rejected as against the greater weight of evidence: paragraphs 2, 3, 4. Proposed findings of fact submitted by Respondent. Accepted in substance: Section 1. COPIES FURNISHED: Richard R. Whidden, Jr. Assistant General Counsel Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Donald R. Henderson, Esquire Mateer Harbert & Bates Post Office Box 2854 Orlando, Florida 32802-2854 Honorable Jim Smith, Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact On December 30, 1991, the Petitioner, Peter B. Dolinger, filed a Petition for Administrative Determination of Rule Validity. In the Petition, the Petitioner challenged Rule 33-11.013, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner alleged that he was serving a county jail sentence of one year, imposed on March 4, 1991. Subsequent to the filing of the Petition, the Petitioner was released from custody. The Petitioner is no longer subject to the rules of the Respondent, including the Challenged Rule. The Petitioner has failed to allege any facts which would support a conclusion that he is currently subject to the Challenged Rule or that the Challenged Rule has any continuing impact on him. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida.
The Issue The issue in this case is whether a reasonable attorney's fee should be assessed against Respondents, Paul and Barbara Corbiey, and their attorneys, and awarded to Petitioner, Action Instant Concrete, LLC (AIC), under Section 57.105, Florida Statutes,2 after the Corbieys unsuccessfully challenged AIC's use the Concrete Batching Plant Air General Permit promulgated by the Department of Environmental Protection (DEP) in Florida Administrative Code Rule 62-210.300(4)(a)2.3
Findings Of Fact No Service Without Filing AIC made no motion or request for attorney's fees under Section 57.105, Florida Statutes, prior to the filing of proposed recommended orders (PROs) in DOAH Case 05-2891. The joint PRO filed by DEP and AIC in DOAH Case 05-2891 proposed a reservation of jurisdiction to enter an award of costs and attorney fees to DEP and AIC pursuant to Section 57.105(1) and (5), Florida Statutes. The Recommended Order in DOAH Case 05-2891 granted the request and retained jurisdiction to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the Final Order. AIC did not serve a motion seeking sanctions under Section 57.105, Florida Statutes, without filing it, prior to either its PRO in Case 05-2891 or its Motion for Award of Attorney's Fees, which was filed within 30 days of the Final Order in Case 05-2891 and initiated this Case 06-1552F. Failure to Present Evidentiary Record Under a pre-hearing Order entered in this case, AIC was required to present the evidentiary record from DOAH Case 05- 2891, which had been transmitted to DEP, for use in this case. AIC failed to present the evidentiary record. But no findings made in this Final Order require the evidentiary record (i.e., the exhibits) from Case 05-2891, and AIC was not required to present a transcript of the final hearing in that case since the hearing had not been transcribed. Unsupported Claims AIC proved that some claims raised by the Corbieys in DOAH Case 05-2891 were not supported by the material facts necessary to establish the claims. The Corbieys had and presented no evidence to prove that visual emissions (VE) in excess of five percent opacity occurred during cement loading of the silo, which is the demonstration clearly established by Rule 62-296.414(1) for determining compliance of stack emissions. Their entire case on that issue was based on two claims: questioning the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge; and questioning the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. The first claim was speculation and was rejected as unfounded; and, besides having no evidence to counter the expert testimony on the inability to use videotapes for the stack emission demonstration, the videotape presented in evidence by the Corbieys did not even show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo, or that AIC's stack emission demonstration was invalid. AIC proved that some claims raised by the Corbieys in Case 05-2891--specifically, claims relating to zoning, the location and hours of operation of AIC's facility, local construction permitting and licensing, roadway debris, diesel truck emissions, noise, and bright lights on trucks and on a billboard on the property--were not supported by the application of then-existing law to the material facts necessary to establish the claims, and were not presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success were stricken as irrelevant. The other claims made by the Corbieys in DOAH Case 05-2891 either were supported by the application of then-existing law to the material facts necessary to establish the claims, or were presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
The Issue The issue in this case is whether Suncoast Concrete, Inc. (Suncoast), is entitled to Permit No. 194919-003-SO, to construct and operate a construction and demolition debris disposal facility (C & D facility) in Santa Rosa County, Florida.
Findings Of Fact Petitioners Lois and Wallis Mahute live within two miles of the proposed C & D facility. Petitioner Nathaniel Williams, Jr., resides less than one mile from the proposed facility. Suncoast is a Florida corporation and is the applicant for Permit No. 194919-003-SO. The site of the proposed C & D facility is already permitted by the Department as a disposal facility for land clearing debris. It is located on U. S. Highway 90, 1.9 miles east of State Road 87. The disposal area is 7.2 acres on a parcel of land that is 57.8 acres. Suncoast provided all of the information required by the Department for applications for C & D facilities, including geotechnical data, hydrologic data, and financial assurance for closure. The proposed permit includes numerous conditions, including the use of an impermeable liner, groundwater monitoring, stormwater controls, leachate collection and storage, and access control. The requirement for an impermeable liner is uncommon for C & D facilities and adds greater protection for groundwater. Issues Raised by Petitioners Petitioners expressed concern about groundwater contamination. The required liner is designed to prevent rainwater that might become contaminated after contact with the materials in the landfill from entering the groundwater. The proposed facility would be located over some existing land clearing debris. The existing debris is located on part of one side of the proposed landfill. Before the liner is installed, the base would be prepared by covering the area with six inches of compacted soil. After the liner is installed, two feet of clean soil is placed on top of the liner. The liner would be installed in a manner to prevent the liner from being punctured or torn. Groundwater monitoring is required so that any contamination that occurs will be detected and remediated. There are no potable water wells within 500 feet of the proposed facility. The nearest public water supply well is approximately 4,000 feet away. Petitioners presented the testimony of Kyle Holley, who expressed his views on hydrogeologic conditions in the area. Mr. Holley is not a geologist or hydrologist and was not competent to testify regarding the hydrogeologic conditions in the area. Petitioners expressed concern about odors, but presented no competent evidence that foul or unhealthy odors would be generated by the facility. The permit conditions that require a small working face and weekly cover with soil would minimize odors. Petitioners expressed concern about fires, partly because fires have occurred at other C & D facilities. The evidence shows that the requirements of the proposed permit, including the prohibition against burning and requirements to maintain a small working face and to cover with soil on a weekly basis, would minimize the possibility of fires at the facility. The facility must maintain access for fire trucks to the disposal area so that, if a fire occurs, it can be suppressed. Petitioners expressed concerns that the facility would not be safely closed in the event that Suncoast became bankrupt or otherwise ceased operations at the facility. The evidence shows that the financial assurance requirements of the proposed permit provide a means to close the facility in the event that Suncoast was unwilling or unable to close the facility. Petitioners expressed concerns about the “pattern of abuse” by landfill owners. However, Petitioners presented no evidence that Suncoast has shown a pattern of noncompliance, or that the landfills where these alleged abuses have occurred are similar to Suncoast’s proposed C & D landfill with respect to physical conditions and permit requirements. Suncoast provided reasonable assurance by a preponderance of the evidence that the facility, with the conditions in the permit, will comply with all applicable rule requirements regarding the protection of groundwater, odor and fire control, and proper closure of the facilities. In summary, Suncoast proved by a preponderance of the evidence that it has provided reasonable assurance that the proposed facility meets all regulatory criteria for entitlement to Permit No. 194919-003-SO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Permit No. 194919-003-SO, subject to all the conditions set forth in the Department’s Notice of Intent to Issue, for the construction and operation of a construction and demolition debris disposal facility in Santa Rosa County, Florida. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009. COPIES FURNISHED: Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandell, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William J. Dunaway, Esquire Clark, Partington, Hart, Larry Bond & Stackhouse 125 West Romana, Suite 800 Pensacola, Florida 37502 Ronda L. Moore, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathaniel Williams, Jr. 8984 Tara Circle Milton, Florida Wallis Mahute 32583 5500 Cox Road Milton, Florida 32583 Lois Mahute 5504 Cox Road Milton, Florida 32583
Findings Of Fact At all times pertinent to the allegations contained herein, Pioneer Oil Company was a licensed distributor of petroleum products in Florida, and the Department was the state agency responsible for overseeing and regulating the sale of petroleum products in this state. On May 9, 1990, the owner of Port Stop #4 in Duette, Florida, a seller of Pioneer's petroleum products at retail, requested Pioneer, as its supplier, to change over a storage tank, previously used for the storage of diesel fuel, to storage for gasoline and vice versa. Petitioner agreed but waited until the customer was nearly out of product to make the switch, and when that had happened, sent its pump truck to the facility to pump the remaining fuel out of the tankss. Pioneer's employee did pump out what he believed was all the fuel remaining in the tanks. However, because unknown to him or to anyone else, the tanks were tilted in the ground, the pumping operations left some of each fuel in its respective tank. When the fresh fuel was then placed into these new tanks, it was contaminated by that previous stock remaining therein after the pumping. On May 29, 1990, an inspector from the Department took samples of the diesel fuel, suppled from Petitioner, from the underground tank. When this sample was tested, it was found to be contaminated by the gasoline remaining in the tank after pumping. That diesel fuel did not meet state standards and was illegal. Because the unleaded pump was not working that day, that product could not be sampled. Therefore, a second sample, this time of unleaded gasoline, was taken on May 31, 1990, and it, too, was found to be contaminated by the diesel fuel which remained in that tank after pump out. This fuel did not meet state standards, either, and also was illegal. The diesel fuel sold at retail for $1.159 per gallon, and 1,359 gallons of the product had been sold. The unleaded gasoline sold at retail for $1.099 per gallon, and 4,997 gallons of that product had been sold. The Department is authorized to assess a penalty of up to $1,000 for each illegal product sold, depending on the amount sold. Since more than 1,000 gallons of each product was sold, the maximum penalty was assessed in each case. Mr. McGary claims that since the station where the incident took place was not owned by Pioneer, which is merely the product supplier, it was not legally obligated to pay the assessment. However, he admits that as a matter of business practice, since the products in issue were Pioneer products, since Port Stop #4 was a customer, and since it was a Pioneer employee who made the swap, it agreed to do so. Had it not made the swap, the dealer, (Port Stop #4) would have had to hire someone else to do it and Pioneer would have felt no obligation to assume the financial burden. He also claims that had the unleaded gasoline pump been working on May 29, 1990, the contamination of that product would have been found at the same time the other was found, and there would have been only one violation. This does not necessarily follow, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Department of Agriculture and Consumer Services affirming the imposition of bond and assessment against the bond posted by Petitioner, Pioneer Oil Company, in each of the incidents of illegal product discovered at Port Stop #4 in Duette, Florida, on May 29 and 13, 1990. RECOMMENDED this 31 day of October, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31 day of October, 1990. COPIES FURNISHED: Larry McGary General Manager Pioneer Oil Company 878 12th Street East P.O. Box 9046 Bradenton, Florida 34206 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact Respondent, American Radiochemical Corporation, prior to July 25, 1981, manufactured radioactive tracer materials to be used by customers for their own medical or experimental purposes. The tracers are manufactured by combining the particular material to be used as a tracer with carbon 14, a radioactive isotope. Respondent has not been engaged in manufacturing since July 25, 1981. Petitioner, through its Office of Radiation Control, deals with the licensure of corporations and universities which utilize radioactive materials in the State of Florida. The license in question, Radioactive Materials License number 578-1, was first issued to Respondent in 1969. Radioactive materials licenses are subject to amendment periodically by Petitioner, and the subject of the hearing herein is the original license with amendment number eight. Said license currently authorizes storage of radioactive materials only, and not manufacturing. Respondent did not seek renewal of its license in 1979. Petitioner, after failing in its efforts to get Respondent to file an application for renewal, finally issued a license for storage only of radioactive materials which was effective from June 25, 1981, to September 30, 1981. Petitioner, still seeking a renewal application, filed an administrative complaint against Respondent about August 5, 1982. Respondent subsequently filed a renewal application and Petitioner withdrew the administrative complaint. The renewal application, however, was incomplete in that it lacked certain information concerning procedures and facilities to insure radiation safety. Petitioner sent a deficiency letter about October 22, 1982, to Respondent requesting additional information, but has not received the required information. Petitioner did, however, consider that it had a sufficiently valid renewal application in hand to undertake a prelicensure inspection of Respondent's facility on November 29, 1982. The HRS Office of Radiation Control does not terminate a license when the expiration date is reached, but instead encourages the licensee to submit a complete and appropriate application for renewal. Once the renewal application is received, the license will not be revoked except through appropriate administrative proceedings. The purpose of this procedure is to avoid having a radioactive materials license simply terminate on its expiration date, leaving no one responsible for disposition of the radioactive materials which are the subject of the license. Respondent currently is in arrears in payment of license fees in the amount of $1,870, with $935 due in January, 1983 for the year 1983, and $935 due in January, 1984, for the year 1984. The conditions of Respondent's radioactive materials license include: Except for the inside of radiochemical hoods and glove boxes, the licensee shall permit no removable radioactive contamination to exist in its restricted areas in excess of 1000 disintegrations per minute per one hundred square centimeters. The licensee shall permit no removable radioactive contamination to exist in any unrestricted area in excess of 200 disintegrations per minute per one hundred square centimeters. * * * 15. The licensee shall observe and follow the emergency procedures contained in American Radiochemical Corporation Handbook entitled 'Major Spills Involving Radioactive Hazard to Personnel' for all spills involving radioactive material. Those procedures shall be followed by the licensee for any spill, whether considered `major' or otherwise by the licensee. The American Radiochemical Corporation Handbook entitled "Major Spills Involving Radioactive Hazard to Personnel," which is affixed to and a part of the license, provides: 1. Surface contamination: Smear surveys shall be conducted in such a manner that the entire facility shall be surveyed every week. Any contamination within the restricted area, with the exception of the inside of the radiochemical fume hoods, in excess of 1000 DPN per 100 square centimeters shall be decontaminated upon discovery. In the event of spills or other incidents leading to removable contamination, smear surveys shall be made immediately in the affected area. A permanent record shall be kept of both routine and smears taken after incidents. Probe surveys shall be made each day to insure the maintenance of a level of contamination which is in the above limits. Respondent's licensed facility was inspected in April, 1982, by Petitioner's employees. This was a routine, annual inspection which included some 18 "wipes" obtained at the facility. This test is made utilizing a circular piece of filter paper about an inch and a half in diameter which is wiped over an area totaling about one hundred square centimeters. The filter paper is then put into an individual envelope, labelled, and sent to an HRS lab where it is analyzed for radioactive contaminants. These 18 wipes were analyzed for the isotope carbon-14. The test results indicated that a cabinet top in the restricted, or work area, of the building had 240,000 disintegrations per minute ("DPM's") of carbon-14; that refrigerator handles not under the radiochemical hood in the restricted area had 3,000 DPM's; that another wipe in the restricted area which was not under the radiochemical hood had 2,000 DPM's; and that four wipes in the office area, an unrestricted area, were above 200 DPM's. All these readings exceeded permissible limits contained in Respondent's license. On November 29, 1982, Petitioner's employees performed a second on- site inspection of Respondent's facility. The basis for this inspection was Respondent's pending September, 1982, license renewal application. Of the 45 wipes taken during this inspection, 16 demonstrated contamination levels above those authorized by the license. After the inspection of November 29, 1982, the Office of Radiation Control forwarded letters (received into evidence) to Respondent about December 16, 1982, February 1, 1983, and March 15, 1983, pertaining to license renewal and decontamination of the facility. Office of Radiation Control personnel also made personal visits to Respondent's facility prior to the filing of the instant administrative complaint in an effort to discuss license renewal and decontamination. No written response to those letters was made by Respondent.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner issue a Final Order revoking Respondent's Radioactive Materials license. DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1984. COPIES FURNISHED: Gerry L. Clark, Esquire Assistant District Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida 32801 Mr. Harold D. Jordan American Radiochemical Corporation Post Office Box 1938 Sanford, Florida 32771 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 gram of lead per gallon and, therefore, violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted. DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609
The Issue The issue in this case is whether Southwest Land Developers, Inc. is entitled to a general permit for the operation of a construction and demolition debris disposal facility at the site of a previously permitted operation in Port Charlotte.
Findings Of Fact Southwest Land Developers, Inc. (Applicant) is a Florida corporation whose shares are divided equally between Bruce Laishley and Rick Treworgy. Applicant owns and operates a construction and demolition debris disposal (C&D) facility located at 27595 North Jones Loop Road in Punta Gorda. Applicant's shareholders quitclaimed the property to Applicant on March 11, 1993. References to "Applicant" prior to this date are to Applicant's shareholders. Applicant intends to continue operating the facility under a general permit. Applicant filed a Notification of Intent to Use a General Permit for a Construction and Demolition Debris Disposal Facility dated June 5, 1995 (NOI) (Applicant Exhibit Number 1). The NOI describes the facility as a receiving site for construction and demolition materials for recycling and disposal. The NOI states that the facility shall be constructed 28 feet high and covered with two feet of clean soil and grass, thus reaching a total height of 30 feet above existing ground level. By letter dated July 18, 1995, Department of Environmental Protection (DEP) informed Applicant that the agency did not object to Applicant's use of the general permit through July 18, 2000, for the activities described in the NOI. Applicant opened the C&D facility in 1990 under a general permit. Applicant filed on May 30, 1990, a Notification of Intent to Use a General Permit for a Construction and Demolition Debris Solid Waste Facility (1990 NOI) (Petitioner Exhibit Number 5). The 1990 NOI states that the property consists of 19.18 acres, including two acres devoted to waste disposal. (A diagram accompanying the 1990 NOI accurately reports that the actual acreage is 18.18 acres.) The 1990 NOI states that the planned active life of the facility would be two years. The general description of operations contained in the 1990 NOI mentions that two acres would be used for waste disposal. The 1990 NOI describes normal business hours as Monday through Saturday 7:30 am to 5 pm. The 1990 NOI assures that gates would be used to prevent unauthorized dumping, only clean debris and C&D materials would be accepted, unauthorized materials would be transported to the County landfill, and all areas would be covered with two feet of clean soil and sodded or seeded to control erosion. After closure, the 1990 NOI promises that: "All filled areas then will serve as a landscaped berm to provide a privacy barrier to future home owners." Two diagrams accompany the 1990 NOI. The first is a facility illustration depicting a rectangular piece of property with two proposed wooded homesites toward the front (north) facing North Jones Loop Road, an excavation site/lake taking up at least half of the back of the property, and a thin strip designated to receive C&D debris behind (and, for a short distance, alongside the rear of) the excavation site/lake. The first diagram also reveals that a creek (Alligator Creek) crosses the northwest corner of the property. The second diagram accompanying the 1990 NOI is a diagram of the proposed landscape berm running along the south property line behind the lake. The proposed landscape berm is the above-described strip to be formed from C&D debris. The strip is 80 feet wide running along 600 feet at the back of the property and extending about 150 feet to the north at either end. and is tapered with a 2:1 (two feet horizontal to one foot vertical) slope. The second diagram displays all elevations as "ELEV. x," such as the high water table as "ELEV. 15.0'." The elevation of the ground is "ELEV. 21.0'" to "ELEV. 17.0'." The elevation of the top of the C&D mound is "ELEV. 33.0'," which includes two feet of clean fill capping the mound. Thus, the second diagram represents that the C&D mound would extend from the high water table at 15' NGVD to 33' NGVD for an apparent height, from existing ground, of 12-16 feet. The second diagram shows that the elevation of the proposed 8.18-acre lake would be 15 feet NGVD. The second diagram also reveals a 10-foot wide swale running between the strip and the south property line. Prior to authorizing Applicant to proceed under the general permit in 1990, DEP required Applicant to obtain a permit for the management and storage of surface water (MSSW) from the Southwest Florida Water Management District (SWFWMD). Instead, Applicant obtained a letter from SWFWMD stating that the project was exempt from permitting due to the small area of land involved. The SWFWMD exemption letter was erroneously issued, based partly on a confusion between the disposal area, which was below the MSSW threshold of ten acres, and the total, contiguous land under common ownership, which exceeded the 10-acre threshold. SWFWMD personnel also believed at the time that Applicant proposed the "construction of a landscape berm and filling a borrow pit; not a 30 foot high C&D Facility" (Petitioner Exhibit Number 4). In a letter dated July 25, 1995, SWFWMD noted this misconception and determined that the project was not exempt from the requirement of an MSSW permit. In any event, after receiving the SWFWMD exemption letter in 1990, DEP allowed Applicant to construct the C&D facility under the general permit, which remained effective for five years. The first phase of Applicant's activities on the site involved the removal of marketable fill from the rear of the property. Most of the original two-acre fill site was contained in this larger excavation area. During the first phase of construction, no offsite material was used to fill the excavation. Later, during the second phase of Applicant's activities, clean offsite debris, consisting of earth and concrete, was added below the water table. Once the fill reached the elevation of the water table, Applicant began allowing the addition of construction and demolition debris. Applicant first received construction and demolition debris at the end of 1993 or early 1994. Shortly after construction began on the facility, a DEP employee noticed that the facility had exceeded what Applicant had described in the 1990 NOI. Instead of demanding a new NOI, the DEP employee told Applicant to supply an engineering update. By letter to DEP dated September 25, 1991, Applicant provided new drawings, showing, among other things, that all water was to be retained onsite (1991 Update) (Petitioner Exhibit Number 2a). The 1991 Update contains three drawings: a diagram of existing conditions with elevations, a diagram of proposed conditions with elevations, and a cross-section of part of the second diagram. The first diagram attached to the 1991 Update shows a rectangle of land with prevailing elevations ranging from 10-12 feet. Perimeter elevations are 18-22 feet. A large area inside the rectangle contains elevations of 2.3- 5.8 feet. Absent dewatering, this large area would be a lake typically 9-12 feet deep. Compared with information from the 1990 NOI, the first diagram reveals that Applicant had already removed about eight feet of fill from the uplands and 15 feet of fill from the lake, which was somewhat smaller than the ultimate size proposed in the first diagram of the 1990 NOI. The second diagram attached to the 1991 Update confirms substantial departures from the plans contained in the 1990 NOI. The lake is relocated to the north, still south of what was depicted as proposed homesites on the first diagram of the 1990 NOI, and it is reduced from 8.18 acres to 2 acres. The second diagram of the 1991 Update reveals that the area designated to receive C&D debris has been expanded. Formerly ending about 250 feet from the southeast corner of the property, the area now extends to about 600 feet from the southeast corner of the property. The second diagram reveals that the proposed C&D mound as grown by 17 feet since the 1990 NOI. Previously reaching a height of 33' NGVD, the proposed mound in the 1991 Update would reach a height of 50' NGVD. As before, the mound would be capped by two feet of clean fill. From existing ground level, the height of the capped C&D mound has grown from 12 feet high in the 1990 NOI to 29 feet high in the 1991 Update, using the value of 21' NGVD from existing ground level, as set forth in the 1990 NOI. As depicted in the 1991 Update, the fill area is expanded from an 80- foot wide strip covering about two acres to a much larger area. The scale on the diagrams showing existing and proposed conditions is wrong, due to reduction in photocopying. The actual scale is one inch equals about 83 feet, as is obvious in the relationship of the eight-inch south property line to the 662.3 feet it is intended to represent. (The 1199.89-foot measurement on the east property line is inaccurate. It represents the entire east property line, including the area reserved for homesites. See first diagram in 1990 NOI. The area actually depicted on the two diagrams omits the northerly 162 feet of the entire parcel.) The fill area in the second diagram attached to the 1991 Update is 6.67 acres. About 3.5 acres of the fill area would be covered by 33 feet of C&D fill, with the remainder under progressively less fill due to the tapering off of the sides of the roughly 30-foot high mound. The first and second diagrams reveal that the excavation area has consumed 75-100 feet of the area to the north, which had been reserved for wooded homesites under the first diagram of the 1990 NOI. The second diagram depicts a swale running along the entire south perimeter and east and west perimeters north to the beginning of the relocated lake, where the swale empties into the lake. The interior swale mound (closer to the C&D fill) is a constant elevation of 20 feet NGVD. The third diagram attached to the 1991 Update shows that, although the slope of the fill area is reduced to 3:1, the height of C&D debris is increased from 31 feet NGVD to 48 feet NGVD. For stormwater calculations, the third diagram projects that 1/2 inch retention over 18.18 acres would raise the lake level by 4.5 inches, as opposed to merely 1.11 inches for the larger lake shown in the second diagram of the 1990 NOI. Satisfied with the 1991 Update, despite the substantial changes in the proposed project, DEP's representative merely added the three new drawings to the file. The representative did not revisit the general permit under which Applicant was then operating because DEP does not allow the modification of a general permit. The NOI contains a narrative and illustrative description of the C&D facility, as described above, including the 1991 Update. The first diagram of the NOI is the second diagram of the 1991 Update, except for a correction in the bottom elevation of the relocated lake. The second diagram of the NOI is the third diagram of the 1991 Update. The third diagram of the NOI accurately depicts the changes through the 1991 Update. The third diagram reveals that the northeast corner of the facility is within 200 feet of a potable water well. The third diagram, which is entitled a Site & Closure Plan, states that the north line of the permitted area, which does not include the proposed wooded homesites to the north, depicts the "limits of original footprint." Actually, the northeast corner of the permitted part of the property is almost 200 feet farther north than depicted in the first diagram of the 1990 NOI. In the 1990 NOI, the northeast corner of the permitted area was about 450 feet from the northeast corner of the property. In the 1991 Update, assuming that Applicant could unilaterally extend the permitted area without a new notice of intent, the northeast corner of the permitted area cannot be located with any certainty due to the roughness of the hand- drawn perimeter in the first and second diagrams and their failure to disclose the northeast property corner. In the NOI, the northeast corner of the permitted area is less than 400 feet from the northeast corner of the property. Other relevant features of the NOI are assurances in the operational plan that no odor problems "are expected" due to the inert nature of the fill. In the event of objectionable odors, Applicant promises to control them by "covering any decaying materials periodically as required." The NOI summarizes the results of a geotechnical investigation, which was a requirement added since the 1991 Update. The Summary states that the report results lead Applicant to "anticipate the ground will have no problem supporting the facility to a height of 30' above existing ground." The geotechnical report indicates that the purpose of the investigation was to determine the suitability of subsurface soils (to an excavation depth of 15-20 feet) for use as fill. The geotechnical report concludes that the "proposed Quarry Development" is feasible, but recommends excavation no deeper than 15 feet, which would leave a three-foot undisturbed layer between the bottom of the excavation and the top of the confining layer. In a subsequent addendum, the report was amended to recommend excavating no deeper than 18 feet. Since beginning operation in 1990, the C&D facility has received discarded construction materials, as intended. Applicant recycles some of the materials that it receives, such as copper, aluminum, and steel. Two years ago, DEP prohibited C&D facilities from accepting containers, so Applicant placed a dumpster in the front to collect containers for later removal to approved sites. In the typical transaction, a spotter employed by Applicant meets the truck in the staging area for unloading. The spotter determines that the load is in compliance before permitting the truck driver to dump. If the load is completely unacceptable, the spotter orders the truck driver to leave the site without dumping. Otherwise, the spotter tells the driver to discard all containers in the dumpster in the front of the facility. Then, after the remaining load is dumped, the spotter removes recyclables and places them in a temporary storage area before they are taken by contractors or transported to approved locations elsewhere. The spotter also removes unauthorized items, such as appliances, hazardous materials, tires, furniture, batteries, and oil-based paint, and sets these materials aside in a designated area for transporting to approved locations elsewhere. Next, Applicant's equipment operator crushes the load. If he sees anything unauthorized in the pile, he orders the spotter to remove it. In the five years that the C&D facility has operated, there have been two cited violations. Neither is indicative of a intentional or reckless disregard of the law. It is questionable whether the violations even suggest negligence on the part of the operator of the facility. The first violation involved a 55-gallon drum of lacquer thinner, which the spotter had detected and placed to one side while the manager decided how to dispose of it properly. Due to its surveillance of the customer who left the drum, DEP inspected the facility immediately after Applicant's facility received the drum and issued a warning letter to Applicant dated December 22, 1992. Applicant complied with DEP's orders and disposed of the drum correctly. The other violation involved the acceptance of containers. Due to a misunderstanding of a change in the law, Applicant allowed containers to be dumped, as it had previously done lawfully. DEP inspected the facility in mid- 1993 and informed Applicant that it could not accept containers anymore. Applicant removed all of the accessible containers, and DEP reinspected and determined that the facility was in compliance. Applicant's employees remove litter from Jones Loop Road, 1.5 miles in one direction and one mile in the other, three days a week. Applicant operates the facility from 7 am to 5 pm Monday to Friday and 7 am to 2 pm on Saturday, which represents one-half hour less weekly than permitted (three hours less on Saturday, but one-half hour more each weekday, as the facility was to open at 7:30 am, not 7 am). During the two summers since Applicant began accepting C&D debris-- 1994 and 1995--strong, noxious odors have emanated from the site. Smelling like sewage or sludge, the odors irritate the throats and trigger headaches of nearby persons. One of the Petitioners noted that the odor permeated the air conditioning ducts of a nearby home if the garage door were left open. The source of the odor is unknown, but is suspected to be some form of sulphur, perhaps leaching from the gypsum in the drywall debris. There were no odor problems before Applicant began accepting C&D debris and dramatically deepened the retention pond. Applicant has spent up to $15,000 trying to eliminate the odor, but has not yet succeeded. There are other complaints concerning offsite runoff and groundwater contamination involving Alligator Creek and nearby property not owned by Applicant. The evidence in the record concerning these matters is anecdotal and best reserved for more systematic consideration in the MSSW permit (now known as environmental resource permit) for which Applicant from SWFWMD. By letter dated September 22, 1995, SWFWMD acknowledged that it is reviewing Applicant's application for an MSSW permit and requested Applicant to "[c]urtail all landfill activity to the greatest extent possible until the permit application has been approved by the District."
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the subject general permit. ENTERED on December 29, 1995, in Tallahassee, Florida. ROBERT E. MEALE, 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 December 29, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3712, 95-3713 and 95-3714 Rulings on Petitioners' Proposed Findings 1-4: adopted or adopted in substance, except that discrepancies between the proposal and actual work is rejected as irrelevant. Such matters are appropriate to enforcement proceedings, not permitting proceedings. 5 (first sentence): adopted or adopted in substance. 5 (second sentence): rejected as irrelevant. The original individual applicants remained liable on the original general permit until they notified DEP and obtained DEP's consent to the transfer. Rule 62-4.120(5). This violation of Chapter 62-4 is thus technical and not a suitable basis on which to deny a new permit. 5: rejected as unnecessary. 6: adopted or adopted in substance. 7-8: rejected as irrelevant. See ruling on 1-4 above. 9: adopted or adopted in substance. 10: rejected as unsupported by the appropriate weight of the evidence, as to proposed implication that this incident constitutes evidence of Applicant's "irresponsibility." The sole evidence of "irresponsibility" is based on the repeated noxious odors. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as irrelevant. See ruling on 5 (second sentence) above. Rulings on Applicant's Proposed Findings 1a: adopted or adopted in substance, except as to acreage. 1b-1f: adopted or adopted in substance. 1g: rejected as unsupported by the appropriate weight of the evidence, as to characterization of minor violations noted in the recommended order. 1h: rejected as unsupported by the appropriate weight of the evidence. 1i: rejected as irrelevant, unsupported by the appropriate weight of the evidence, and recitation of evidence. 1j: rejected as irrelevant. COPIES FURNISHED: Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 W. Douglas Beason Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Southwest Land Developers, Inc. c/o Bruce Laishley 28062-A Mitchell Ave. Punta Gorda, FL 33982 William Nelson Edwards 27365 Jones Loop Rd. Punta Gorda, FL 33982 Sharon B. Winesett 27650 Jones Loop Rd. Punta Gorda, FL 33982 Richard W. and Sherra Winesett 1574 Passaic Ave. Ft. Myers, FL 33901
Findings Of Fact Respondent has been employed since October, 1972, by Petitioners and at all times material hereto he has been a heavy equipment operator with permanent status in the civil service system. There is no factual dispute that on January 2, 1986, Respondent was involved in an accident causing damage to the right rear fender of a city vehicle in the approximate amount of $100. Respondent admits he was at fault in this accident. The accident review board determined this was a `"chargeable" accident and Respondent was suspended for one day, without pay, on January 31, 1966, upon the recommendation of R. Gardner Smith. In recommending a one day suspension, without pay, Mr. Smith considered other chargeable accidents occurring within a two year period prior to January 2, 1966, in which Respondent was involved. There were two such chargeable accidents within this period: 2/1/64 Respondent was charged with striking a tree and breaking a mirror on the city vehicle for which he received verbal counseling, 11/6/65 Respondent was charged with breaking a turn signal and headlight on a city vehicle for which he received a written warning. Three other non-chargeable accidents also occurred during this periods but were not considered in recommending the one day suspension imposed in January, 1966. During the hearing, Respondent disputed whether he was at fault for the two previous chargeable accidents. He explained that the February, 1964 accident occurred in a sandy area which was very wet due to heavy rains. As he was driving his vehicle into the sandy area, one wheel sunk into the sand causing the vehicle to come in contact with a tree limb which broke a mirror on the vehicle. This is confirmed by Jesse Myrick a co-worker. Regarding the November, 1965 accident, Respondent contends that the headlight was already broken on the vehicle and he only damaged the turn signal. By letter dated April 4, 1966 his supervisor, John Stout, expressed his opinion that Respondent was not at fault in the November, 1965 incident. Nevertheless, the accident review board did determine that these were both chargeable accidents, and Respondent took no formal action to appeal prior disciplinary action based on these two accidents. Respondent's accident record prior to February 1, 1964 was not considered by Smith when he recommended the one day suspension, without pay, and is therefore irrelevant in this case.
Recommendation Based upon the foregoing, it is recommended that Respondent's appeal be DISMISSED, and a Final Order be issued confirming the disciplinary action of a one day suspension, without pay, which has been taken against Respondent. DONE and ENTERED this 7th day of May, 1986, at Tallahassee Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0887 Rulings on Petitioner's proposed findings of fact: Adopted in Finding of Fact number 2. Adopted in Finding of Fact number 3. Rulings on Respondent's proposed findings of fact: 1-2. Adopted in Finding of Fact number 4. Adopted in Finding of Fact number 2. COPIES FURNISHED: Miles A. Lancer, Esquire Assistant City Attorney Post Office Box 4746 Clearwater, Florida 33516 William Trullard 1620 Rainbow Drive Clearwater, Florida 33515
