10-009445 Coyote Land Co, Inc. vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, April 26, 2011.

Summary: Applications for renewal of 3 permits for waste disposal facilities denied on ground applicant is an irresponsible applicant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COYOTE LAND COMPANY, INC. , )

)

Petitioner , )

)

vs. ) Case No s . 10 - 4179

) 10 - 9445

DEPARTMENT OF ENVIRONMENTAL ) 10 - 9448

PROTECTION, )

)

Respondent . )

______________________________ _ )

RECOMMENDED ORDER

P ursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on March 22 , 201 1 , in

Pensacola, Florida.

APPEARANCES

For Petitioner: W. Todd Schweizer, President

Coyote Land Company, Inc.

4 Laguna Street, Suite 201

Fort Walton Beach, Florida 32548 - 3600

For Respondent: Ronda L. Moore , Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether to approve Coyote Land Company, Inc.'s

(Coyote's) applications for renewal permits to continue

construction and operation of two construction and demolition

debris facilities and one solid waste processing facility

located in Santa Rosa County, Walton County, and Bay County,

respectively.

PRELIMINARY STATEMENT

On December 11, 2009, Respondent, Department of

Environmental Protection (Department), received Coyote's renewal

permit application for it to continue to construct, operate, or

modify a construction and demolition debris facility located in

Santa Rosa County, known a s the Coyote Navarre C&D Disposal

Facility (Coyote Navarre). On April 2, 2010, the Department

issued its notice of denial of permit number 000 5651 - 005 - SO on

the ground s the application was untimely and incomplete and the

applicant was an "irresponsible ap plicant . " After receiving an

extension of time, on June 7, 2010, Coyote timely filed a

petition challenging the proposed agency action . The petition

was referred by the Department to the Division of Administrative

Hearings on June 28, 2010, with a reques t that an administrative

law judge conduct a formal hearing. The matter was assigned

Case No. 10 - 4179 and , by agreement of the parties, a final

hearing was scheduled on December 6 - 8, 2010, in Milton, Florida.

On August 20, 2010, the Department received Co yote's

renewal permit applications for it to continue to construct,

operate, or modify a construction and demolition debris facility

located in Walton County, known as Coyote West C&D Facility

(Coyote West), and a solid waste processing facility located in

Bay County, known as the Coyote Disposal Facility (Coyote

Disposal) . On September 17, 2010, the Department issued notices

of denial of permit numbers 0002039 - 005 - SO and 0007948 - 006 - SO

for Coyote West and Coyote Disposal, respectively , on the

ground the applicant was an "irresponsible applicant." On

September 29, 2010, Coyote filed petitions challenging that

action. The petitions were referred by the Department to the

Division of Administrative Hearings on October 5, 2010, with a

request that an adminis trative law judge conduct a formal

hearing . They were assigned Case Nos. 10 - 9445 and 10 - 9448 , and

the three cases were consolidated by Order dated October 22,

2010.

At the request of the parties, the final hearing was

rescheduled to January 26 - 28, 2011. A unilateral pre - hearing

st atement (statement) was filed by the Department on January 21,

2011. After a joint motion for continuance was filed, the

matters were rescheduled to March 22 - 24, 2011, in Pensacola,

Florida.

At the final hearing, Mr. Schweizer , who represented his

corporation, made an ore tenus request for a continuance of the

hearing for two reasons: (1) to have additional time to hire an

attorney ; and (2) to allow him 90 days in which to liquidate or

sell the three facilities. The request w as denied because his

prior counsel was authorized to withdraw as counsel in Case No.

10 - 4179 in August 2010 , and the final hearing in that case was

scheduled in December 2010 in order to allow him adequate time

to hire a new attorney . Also, the Departme nt is concerned with

a long history of non - compliance by Coyote and does not want any

further delays. Other than requesting a continuance, Coyote

presented no evidence. The Department presented no witnesses

but offered Department Exhibits 1 - 2 2 and A - D , w hich were

received in evidence. Also, the admitted facts recited in the

Department's unilateral statement (Exhibit D) were accepted as

true. The exhibits and statement form the basis for the

findings of fact set forth below.

The Transcript of the hearing was filed on April 6, 2011.

Proposed findings of fact and conclusions of law were filed by

the Department on April 18, 2011, and they have been considered

by the undersigned in the preparation of this Recommended Order.

None w as filed by Coyote.

FINDI NGS OF FACT

A . The Parties

1. Coyote is a for - profit corporation registered to

conduct business in the State of Florida. W. Todd Schweizer is

the president of the corporation. Coyote owns and operates

Coyote Navarre, Coyote West, and Coyote Disposal, w hich are

seeking permit renewals. It also owns and operates a solid

waste management facility known as Coyote East in Freeport,

Walton County , which is now , along with two other Coyote

facilities, the subject of an enforcement action in circuit

court . Se e Department Ex. 20. However, Coyote East is not a

party to this proceeding. ( That facility's permit expires on

March 4, 2013.)

2. The Department is an administrative agency of the State

which administers and enforces chapters 376 and 403, Florida

Statu tes (2010), and Florida Administrative Code t itle 62.

B. Coyote Navarre

3. The evidence indicates that the Coyote Navarre facility

has a long history of no t complying with Department regulations

and orders. In September 2001, Coyote filed an application to

transfer an existing permit for a construction and demolition

debris disposal facility located at 3201 Five Forks Road ,

approximately 3.3 miles north of the U.S. Highway 98 and State

Road 87 intersection, in Navarre , Santa Rosa County to an entity

k now n as Coyote Navarre . The application was approved, with a

permit expiration date of May 4, 2003.

4. To address ground contamination at the facility, in

November 2001, Coyote submitted to the Department a

Contamination Assessment Plan. In May 2003, Coy ote submitted a

renewal permit application, which was approved o n December 17,

2004. See Department Ex. 1. The new permit had a renewal date

of December 17, 2009. Id.

5 . In September 2006, Coyote submitted a Site Assessment

Report (SAR) to the Depar tment t hat assessed benzene, arsenic,

aluminum, iron, sulfate, and total dissolved solids (TDS) found

in groundwater compliance monitoring wells at Coyote Navarrre in

concentrations above allowable groundwater standards.

6 . The Department reviewed the SAR and advised Coyote by

letter dated October 31, 2006, that the SAR was incomplete.

7 . In January 2007, Coyote notified adjacent property

owners that groundwater contamination had reached beyond the

property boundaries of its facility.

8 . During the yea rs 2008 and 2009, Coyote did not submit

groundwater monitoring results for the facility to the

Department.

9 . The Department sent Coyote a renewal permit reminder

letter on July 9, 2009. The letter reminded Coyote that the

application must be submitted on or before October 18, 2009, to

be considered timely and sufficient. Coyote eventually

submitted an application on December 11, 2009. See Department

Ex. 8.

10 . The application was deemed incomplete and a request

for additional information was sent to Coyote. See Department

Ex. 9. Coyote did not provide a response to the Department

before the permit expired on December 17, 2009.

1 1 . On April 2, 2010, the Department issued its notice of

intent to deny Coyote's permit renewal application. See

Dep artment Ex. 10. Besides the application being incomplete and

untimely, the Department determined that based upon prior

conduct by the applicant, Coyote is an "irresponsible applicant"

within the meaning of rule 62 - 701.320(3). Id. Paragraph (3)(a)

of the rule provides that a n applicant is "irresponsible" if it

"was subject to a state or federal notice of violation, judicial

action, or criminal prosecution for activities that constitute

violations of Chapter 403, F.S., or the rules promulgated

thereunder, and could have prevented the violation through

reasonable compliance with Department rules." I f an applicant

is deemed to be irresponsible, the rule provides that i n

determining whether an applicant has given reasonable assurances

that Department standard s will be met, the Department may also

consider "repeated violations of applicable statutes, rules,

orders, or permit conditions caused by a permit applicant after

October 1988 relating to the operation of any solid waste

management facility in this state. " Fla. Admin. Code R. 62 -

701.320(3).

1 2 . On December 9, 2010, the Department sent Coyote a

letter informing it to cease and desist operations at Coyote

Navarre because the facility's permit had expired. See

Department Ex. 11.

1 3 . Because Coyote has c ontinued to operate the facility

without a permit , the Department has filed a complaint in

circuit court. The outcome of that action is unknown.

1 4 . Besides the foregoing civil action, the Department

filed a complaint against Coyote in circuit court on A pril 8,

2008, alleging that the facility had violated chapter 403 and

rule chapters 62 - 210, 62 - 296, and 62 - 701 by causing pollution

and failing to control objectionable odors at the facility. See

Department Ex. 2. This case was later settled through a

St ipulated Order approved by the Court on August 25, 2009, which

required Coyote to install an air monitoring device at Coyote

Navarre and provide the Department with air monitoring results.

See Department Ex. 4. The results were submitted to the

Departmen t for the months of October, November, and December

2010.

1 5 . Another circuit court action w as filed against Coyote

in June 2009 alleging that the facility was causing groundwater

contamination, that it failed to submit groundwater monitoring

results, and that it failed to assess groundwater contamination

or complete a SAR. See Department Ex. 5. A Consent Final

Judgment was executed by the parties and approved by the Court

on March 30, 2010. See Department Ex. 6. However, as of the

date of the hearing, Coyote had failed to submit a SAR Addendum

within 270 days of the entry of the judgment, as required by the

Consent Final Judgment.

1 6 . Although given an opportunity to do so, Coyote

presented no evidence at hearing in support of its application

or to r espond to the Department's reason s for denying the

application.

C. Coyote West

1 7 . Like Coyote Nararre, the documentary evidence

indicates that the Coyote West construction and demolition

debris disposal facility on Hatcher Cemetery Road, south of

State Road 20, near Freeport, Walton County, has a history of

no t complying with Department regulations and orders . In 2002,

Coyote filed an application for the transfer of an existing

permit to an entity to be known as Coyote West . The Department

approved th e transfer of the permit, with an expiration date of

February 19, 2004. Coyote West did not submit a permit renewal

application and the permit expired in 2004.

1 8 . In April 2005, Coyote West submitted a new permit

application, which was approved in Oct ober 2005. See Department

Ex. 12. That permit had an expiration date of October 21, 2010.

1 9 . In November 2005, routine groundwater sampling at the

facility indicated the presence of aluminum, iron, and sulfate

in concentrations above groundwater stan dards. Coyote submitted

a SAR to the Department in December 2006 and a SAR Addendum in

April 2007.

20 . Although the Department advised Coyote in October 2007

that the SAR Addendum was incomplete, as of October 2010, Coyote

ha d still not provided the requ ested information. See

Department Ex. 21.

2 1 . Also, during 2008 and 2009, Coyote did not file

groundwater monitoring results for the Coyote West facility .

2 2 . On April 28, 2010, the Department sent Coyote a

renewal permit reminder letter, which reminded Coyote that its

permit renewal application must be filed on or before August 22,

2010, in order to be considered timely. See Department Ex. 14.

An application was filed by Coyote on August 20, 2010. See

Department Ex. 16.

2 3 . On September 17, 2010, th e Department issued its

notice of intent to deny the application on the ground Coyote's

prior conduct rendered it an irresponsible applicant as d efined

in rule 62 - 701.320(3). See Department Ex. 18.

2 4 . Although given an opportunity to do so, Coyote

s ub mitted no evidence at hearing in support of the application

for renewal of the permit or to respond to the Department's

reason for denying the application.

D. Coyote Disposal

2 5 . In February 2002, Coyote filed an application with the

Department seekin g to transfer an existing permit for a solid

waste processing facility located at 2101 East 9th Street,

Panama City , to an entity to be known as Coyote Disposal. The

application for a transfer of the permit was approved, with the

permit having an expirat ion date of September 1, 2003.

2 6 . In August 2003, Coyote submitted a renewal permit

application to the Department, which approved the application

with a new permit expiration date of October 21, 2010. See

Department Ex. 13.

2 7 . Coyote's January 2006 Se mi - Annual Water Quality Report

reflected aluminum, arsenic, iron, sulfate, and TDS in

compliance monitoring wells at levels well above the allowable

groundwater standards. After the Department confirmed these

findings in September 2006, Coyote submitted a SAR in

March 2008.

2 8 . The Department sent Coyote letters on May 20, 2008,

and October 17, 2008, informing Coyote that the March 2008 SAR

was incomplete. See Department Ex. 22. Coyote has never

responded to these letters.

2 9 . On April 28, 2010, the De partment sent Coyote a

renewal permit reminder letter advising that an application must

be submitted by August 22, 2010, in order to be considered

timely. See Department Ex. 15.

30 . On August 20, 2010, Coyote filed its permit renewal

application for Co yote Disposal. See Department Ex. 17.

3 1 . On September 17, 2010, the Department issued its

intent to deny the application on the ground that Coyote's prior

conduct rendered it an irresponsible applicant within the

meaning of rule 62 - 701.320(3). See Depa rtment Ex. 1 9 .

3 2 . Although given an opportunity to do so, Coyote

presented n o evidence at hearing in support of the application

for renewal of the permit or to respond to the Department's

reason for denying the application.

CONCLUSION S OF LAW

3 3 . As t he applicant for the permit renewals, Coyote bears

the burden of proving by a preponderance of the evidence that it

has given reasonable assurances that all permitting criteria

will be satisfied. See Fla. Dep't of Transp. v. J.W.C. Co.,

Inc. , 396 So. 2d 7 78, 788 (Fla. 1st DCA 1981) . See also 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 if the applicant affirmatively provides the Department with

reasonable assurance . . . that the construction, expansion,

modifications, operation, or activity of the installation will

not discharge, emit, or cause pollution in contravention of

Department standards or rules") .

34. Coyote has failed to pr ovide reasonable assurances

that all permitting criteria will be met. See Fla. Admin. Code

R. 62 - 4.070(1). Also, i t failed to submit evidence to re fute

the Department's assertion s that the Coyote Navarre application

was untimely and incomplete and that , as to all three

applications, Coy ote is an irresponsible applicant.

Accordingly, it is concluded that the applications should be

denied.

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 denying the application s of Coyote Land

Company, Inc. , for renewal of permits 0005651 - 005 - SO (Coyote

Navarre) , 0 002039 - 005 - SO (Coyote West) , and 0007948 - 006 - SO

(Coyote Disposal).

DONE AND ENTERED this 26th day of April , 201 1 , in

Tallah assee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 26th day of April, 201 1 .

COPIES FURNISHED:

Lea Crandall, Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Thomas M. Beason, General Counsel

Department of Environmental Protection

3900 Com monwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

W. Todd Schweizer, President

Coyote Land Company, Inc.

4 Lagu na Drive, Suite 201

Fort Walton Beach, Florida 32548 - 3600

Rhonda L. Moore, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recom mended Order should be filed with the agency that will

render a final order in this matter.