10-009448 Coyote Land Co, Inc. vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, April 26, 2011.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8COYOTE LAND COMPANY, INC. , )

13)

14Petitioner , )

16)

17vs. ) Case No s . 10 - 4179

26) 10 - 9445

30DEPARTMENT OF ENVIRONMENTAL ) 10 - 9448

37PROTECTION, )

39)

40Respondent . )

43______________________________ _ )

46RECOMMENDED ORDER

48P ursuant to notice, this matter was heard before the

58Division of Administrative Hearings by its assigned

65Administrative Law Judge, D . R. Alexander, on March 22 , 201 1 , in

78Pensacola, Florida.

80APPEARANCES

81For Petitioner: W. Todd Schweizer, President

87Coyote Land Company, Inc.

914 Laguna Street, Suite 201

96Fort Walton Beach, Florida 32548 - 3600

103For Respondent: Ronda L. Moore , Esquire

109Department of Environmental Protection

1133900 Commonwealth Boulevard

116Mail Station 35

119Tallahassee, Florida 32399 - 3000

124STATEMENT OF THE ISSUE

128The issue is whether to approve Coyote Land Company, Inc.'s

138(Coyote's) applications for renewal permits to continue

145construction and operation of two construction and demolition

153debris facilities and one solid waste processing facility

161located in Santa Rosa County, Walton County, and Bay County,

171respectively.

172PRELIMINARY STATEMENT

174On December 11, 2009, Respondent, Department of

181Environmental Protection (Department), received Coyote's renewal

187permit application for it to continue to construct, operate, or

197modify a construction and demolition debris facility located in

206Santa Rosa County, known a s the Coyote Navarre C&D Disposal

217Facility (Coyote Navarre). On April 2, 2010, the Department

226issued its notice of denial of permit number 000 5651 - 005 - SO on

241the ground s the application was untimely and incomplete and the

252applicant was an "irresponsible ap plicant . " After receiving an

262extension of time, on June 7, 2010, Coyote timely filed a

273petition challenging the proposed agency action . The petition

282was referred by the Department to the Division of Administrative

292Hearings on June 28, 2010, with a reques t that an administrative

304law judge conduct a formal hearing. The matter was assigned

314Case No. 10 - 4179 and , by agreement of the parties, a final

327hearing was scheduled on December 6 - 8, 2010, in Milton, Florida.

339On August 20, 2010, the Department received Co yote's

348renewal permit applications for it to continue to construct,

357operate, or modify a construction and demolition debris facility

366located in Walton County, known as Coyote West C&D Facility

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

386Bay County, known as the Coyote Disposal Facility (Coyote

395Disposal) . On September 17, 2010, the Department issued notices

405of denial of permit numbers 0002039 - 005 - SO and 0007948 - 006 - SO

421for Coyote West and Coyote Disposal, respectively , on the

430ground the applicant was an "irresponsible applicant." On

438September 29, 2010, Coyote filed petitions challenging that

446action. The petitions were referred by the Department to the

456Division of Administrative Hearings on October 5, 2010, with a

466request that an adminis trative law judge conduct a formal

476hearing . They were assigned Case Nos. 10 - 9445 and 10 - 9448 , and

491the three cases were consolidated by Order dated October 22,

5012010.

502At the request of the parties, the final hearing was

512rescheduled to January 26 - 28, 2011. A unilateral pre - hearing

524st atement (statement) was filed by the Department on January 21,

5352011. After a joint motion for continuance was filed, the

545matters were rescheduled to March 22 - 24, 2011, in Pensacola,

556Florida.

557At the final hearing, Mr. Schweizer , who represented his

566corporation, made an ore tenus request for a continuance of the

577hearing for two reasons: (1) to have additional time to hire an

589attorney ; and (2) to allow him 90 days in which to liquidate or

602sell the three facilities. The request w as denied because his

613prior counsel was authorized to withdraw as counsel in Case No.

62410 - 4179 in August 2010 , and the final hearing in that case was

638scheduled in December 2010 in order to allow him adequate time

649to hire a new attorney . Also, the Departme nt is concerned with

662a long history of non - compliance by Coyote and does not want any

676further delays. Other than requesting a continuance, Coyote

684presented no evidence. The Department presented no witnesses

692but offered Department Exhibits 1 - 2 2 and A - D , w hich were

707received in evidence. Also, the admitted facts recited in the

717Department's unilateral statement (Exhibit D) were accepted as

725true. The exhibits and statement form the basis for the

735findings of fact set forth below.

741The Transcript of the hearing was filed on April 6, 2011.

752Proposed findings of fact and conclusions of law were filed by

763the Department on April 18, 2011, and they have been considered

774by the undersigned in the preparation of this Recommended Order.

784None w as filed by Coyote.

790FINDI NGS OF FACT

794A . The Parties

7981. Coyote is a for - profit corporation registered to

808conduct business in the State of Florida. W. Todd Schweizer is

819the president of the corporation. Coyote owns and operates

828Coyote Navarre, Coyote West, and Coyote Disposal, w hich are

838seeking permit renewals. It also owns and operates a solid

848waste management facility known as Coyote East in Freeport,

857Walton County , which is now , along with two other Coyote

867facilities, the subject of an enforcement action in circuit

876court . Se e Department Ex. 20. However, Coyote East is not a

889party to this proceeding. ( That facility's permit expires on

899March 4, 2013.)

9022. The Department is an administrative agency of the State

912which administers and enforces chapters 376 and 403, Florida

921Statu tes (2010), and Florida Administrative Code t itle 62.

931B. Coyote Navarre

9343. The evidence indicates that the Coyote Navarre facility

943has a long history of no t complying with Department regulations

954and orders. In September 2001, Coyote filed an application to

964transfer an existing permit for a construction and demolition

973debris disposal facility located at 3201 Five Forks Road ,

982approximately 3.3 miles north of the U.S. Highway 98 and State

993Road 87 intersection, in Navarre , Santa Rosa County to an entity

1004k now n as Coyote Navarre . The application was approved, with a

1017permit expiration date of May 4, 2003.

10244. To address ground contamination at the facility, in

1033November 2001, Coyote submitted to the Department a

1041Contamination Assessment Plan. In May 2003, Coy ote submitted a

1051renewal permit application, which was approved o n December 17,

10612004. See Department Ex. 1. The new permit had a renewal date

1073of December 17, 2009. Id.

10785 . In September 2006, Coyote submitted a Site Assessment

1088Report (SAR) to the Depar tment t hat assessed benzene, arsenic,

1099aluminum, iron, sulfate, and total dissolved solids (TDS) found

1108in groundwater compliance monitoring wells at Coyote Navarrre in

1117concentrations above allowable groundwater standards.

11226 . The Department reviewed the SAR and advised Coyote by

1133letter dated October 31, 2006, that the SAR was incomplete.

11437 . In January 2007, Coyote notified adjacent property

1152owners that groundwater contamination had reached beyond the

1160property boundaries of its facility.

11658 . During the yea rs 2008 and 2009, Coyote did not submit

1178groundwater monitoring results for the facility to the

1186Department.

11879 . The Department sent Coyote a renewal permit reminder

1197letter on July 9, 2009. The letter reminded Coyote that the

1208application must be submitted on or before October 18, 2009, to

1219be considered timely and sufficient. Coyote eventually

1226submitted an application on December 11, 2009. See Department

1235Ex. 8.

123710 . The application was deemed incomplete and a request

1247for additional information was sent to Coyote. See Department

1256Ex. 9. Coyote did not provide a response to the Department

1267before the permit expired on December 17, 2009.

12751 1 . On April 2, 2010, the Department issued its notice of

1288intent to deny Coyote's permit renewal application. See

1296Dep artment Ex. 10. Besides the application being incomplete and

1306untimely, the Department determined that based upon prior

1314conduct by the applicant, Coyote is an "irresponsible applicant"

1323within the meaning of rule 62 - 701.320(3). Id. Paragraph (3)(a)

1334of the rule provides that a n applicant is "irresponsible" if it

"1346was subject to a state or federal notice of violation, judicial

1357action, or criminal prosecution for activities that constitute

1365violations of Chapter 403, F.S., or the rules promulgated

1374thereunder, and could have prevented the violation through

1382reasonable compliance with Department rules." I f an applicant

1391is deemed to be irresponsible, the rule provides that i n

1402determining whether an applicant has given reasonable assurances

1410that Department standard s will be met, the Department may also

1421consider "repeated violations of applicable statutes, rules,

1428orders, or permit conditions caused by a permit applicant after

1438October 1988 relating to the operation of any solid waste

1448management facility in this state. " Fla. Admin. Code R. 62 -

1459701.320(3).

14601 2 . On December 9, 2010, the Department sent Coyote a

1472letter informing it to cease and desist operations at Coyote

1482Navarre because the facility's permit had expired. See

1490Department Ex. 11.

14931 3 . Because Coyote has c ontinued to operate the facility

1505without a permit , the Department has filed a complaint in

1515circuit court. The outcome of that action is unknown.

15241 4 . Besides the foregoing civil action, the Department

1534filed a complaint against Coyote in circuit court on A pril 8,

15462008, alleging that the facility had violated chapter 403 and

1556rule chapters 62 - 210, 62 - 296, and 62 - 701 by causing pollution

1571and failing to control objectionable odors at the facility. See

1581Department Ex. 2. This case was later settled through a

1591St ipulated Order approved by the Court on August 25, 2009, which

1603required Coyote to install an air monitoring device at Coyote

1613Navarre and provide the Department with air monitoring results.

1622See Department Ex. 4. The results were submitted to the

1632Departmen t for the months of October, November, and December

16422010.

16431 5 . Another circuit court action w as filed against Coyote

1655in June 2009 alleging that the facility was causing groundwater

1665contamination, that it failed to submit groundwater monitoring

1673results, and that it failed to assess groundwater contamination

1682or complete a SAR. See Department Ex. 5. A Consent Final

1693Judgment was executed by the parties and approved by the Court

1704on March 30, 2010. See Department Ex. 6. However, as of the

1716date of the hearing, Coyote had failed to submit a SAR Addendum

1728within 270 days of the entry of the judgment, as required by the

1741Consent Final Judgment.

17441 6 . Although given an opportunity to do so, Coyote

1755presented no evidence at hearing in support of its application

1765or to r espond to the Department's reason s for denying the

1777application.

1778C. Coyote West

17811 7 . Like Coyote Nararre, the documentary evidence

1790indicates that the Coyote West construction and demolition

1798debris disposal facility on Hatcher Cemetery Road, south of

1807State Road 20, near Freeport, Walton County, has a history of

1818no t complying with Department regulations and orders . In 2002,

1829Coyote filed an application for the transfer of an existing

1839permit to an entity to be known as Coyote West . The Department

1852approved th e transfer of the permit, with an expiration date of

1864February 19, 2004. Coyote West did not submit a permit renewal

1875application and the permit expired in 2004.

18821 8 . In April 2005, Coyote West submitted a new permit

1894application, which was approved in Oct ober 2005. See Department

1904Ex. 12. That permit had an expiration date of October 21, 2010.

19161 9 . In November 2005, routine groundwater sampling at the

1927facility indicated the presence of aluminum, iron, and sulfate

1936in concentrations above groundwater stan dards. Coyote submitted

1944a SAR to the Department in December 2006 and a SAR Addendum in

1957April 2007.

195920 . Although the Department advised Coyote in October 2007

1969that the SAR Addendum was incomplete, as of October 2010, Coyote

1980ha d still not provided the requ ested information. See

1990Department Ex. 21.

19932 1 . Also, during 2008 and 2009, Coyote did not file

2005groundwater monitoring results for the Coyote West facility .

20142 2 . On April 28, 2010, the Department sent Coyote a

2026renewal permit reminder letter, which reminded Coyote that its

2035permit renewal application must be filed on or before August 22,

20462010, in order to be considered timely. See Department Ex. 14.

2057An application was filed by Coyote on August 20, 2010. See

2068Department Ex. 16.

20712 3 . On September 17, 2010, th e Department issued its

2083notice of intent to deny the application on the ground Coyote's

2094prior conduct rendered it an irresponsible applicant as d efined

2104in rule 62 - 701.320(3). See Department Ex. 18.

21132 4 . Although given an opportunity to do so, Coyote

2124s ub mitted no evidence at hearing in support of the application

2136for renewal of the permit or to respond to the Department's

2147reason for denying the application.

2152D. Coyote Disposal

21552 5 . In February 2002, Coyote filed an application with the

2167Department seekin g to transfer an existing permit for a solid

2178waste processing facility located at 2101 East 9th Street,

2187Panama City , to an entity to be known as Coyote Disposal. The

2199application for a transfer of the permit was approved, with the

2210permit having an expirat ion date of September 1, 2003.

22202 6 . In August 2003, Coyote submitted a renewal permit

2231application to the Department, which approved the application

2239with a new permit expiration date of October 21, 2010. See

2250Department Ex. 13.

22532 7 . Coyote's January 2006 Se mi - Annual Water Quality Report

2266reflected aluminum, arsenic, iron, sulfate, and TDS in

2274compliance monitoring wells at levels well above the allowable

2283groundwater standards. After the Department confirmed these

2290findings in September 2006, Coyote submitted a SAR in

2299March 2008.

23012 8 . The Department sent Coyote letters on May 20, 2008,

2313and October 17, 2008, informing Coyote that the March 2008 SAR

2324was incomplete. See Department Ex. 22. Coyote has never

2333responded to these letters.

23372 9 . On April 28, 2010, the De partment sent Coyote a

2350renewal permit reminder letter advising that an application must

2359be submitted by August 22, 2010, in order to be considered

2370timely. See Department Ex. 15.

237530 . On August 20, 2010, Coyote filed its permit renewal

2386application for Co yote Disposal. See Department Ex. 17.

23953 1 . On September 17, 2010, the Department issued its

2406intent to deny the application on the ground that Coyote's prior

2417conduct rendered it an irresponsible applicant within the

2425meaning of rule 62 - 701.320(3). See Depa rtment Ex. 1 9 .

24383 2 . Although given an opportunity to do so, Coyote

2449presented n o evidence at hearing in support of the application

2460for renewal of the permit or to respond to the Department's

2471reason for denying the application.

2476CONCLUSION S OF LAW

24803 3 . As t he applicant for the permit renewals, Coyote bears

2493the burden of proving by a preponderance of the evidence that it

2505has given reasonable assurances that all permitting criteria

2513will be satisfied. See Fla. Dep't of Transp. v. J.W.C. Co.,

2524Inc. , 396 So. 2d 7 78, 788 (Fla. 1st DCA 1981) . See also Fla.

2539Admin. Code R . 62 - 4.070(1)("[a] permit shall be issued to the

2553applicant upon such conditions as the Department may direct,

2562only if the applicant affirmatively provides the Department with

2571reasonable assurance . . . that the construction, expansion,

2580modifications, operation, or activity of the installation will

2588not discharge, emit, or cause pollution in contravention of

2597Department standards or rules") .

260334. Coyote has failed to pr ovide reasonable assurances

2612that all permitting criteria will be met. See Fla. Admin. Code

2623R. 62 - 4.070(1). Also, i t failed to submit evidence to re fute

2637the Department's assertion s that the Coyote Navarre application

2646was untimely and incomplete and that , as to all three

2656applications, Coy ote is an irresponsible applicant.

2663Accordingly, it is concluded that the applications should be

2672denied.

2673RECOMMENDATION

2674Based on the foregoing Findings of Fact and Conclusions of

2684Law, it is

2687RECOMMENDED that the Department of Environmental Protection

2694enter a final order denying the application s of Coyote Land

2705Company, Inc. , for renewal of permits 0005651 - 005 - SO (Coyote

2717Navarre) , 0 002039 - 005 - SO (Coyote West) , and 0007948 - 006 - SO

2732(Coyote Disposal).

2734DONE AND ENTERED this 26th day of April , 201 1 , in

2745Tallah assee, Leon County, Florida.

2750S

2751D. R. ALEXANDER

2754Administrative Law Judge

2757Division of Administrative Hearings

2761The DeSoto Building

27641230 Apalachee Parkway

2767Tallahassee, Florida 32399 - 3060

2772(850) 488 - 9675

2776Fax Filing (850) 921 - 6 847

2783www.doah.state.fl.us

2784Filed with the Clerk of the

2790Division of Administrative Hearings

2794t his 26th day of April, 201 1 .

2803COPIES FURNISHED:

2805Lea Crandall, Clerk

2808Department of Environmental Protection

28123900 Commonwealth Boulevard

2815Mail Station 35

2818Tallahassee, Florida 32399 - 3000

2823Herschel T. Vinyard, Jr., Secretary

2828Department of Environmental Protection

28323900 Commonwealth Boulevard

2835Mail Station 35

2838Tallahassee, Florida 32399 - 3000

2843Thomas M. Beason, General Counsel

2848Department of Environmental Protection

28523900 Com monwealth Boulevard

2856Mail Station 35

2859Tallahassee, Florida 32399 - 3000

2864W. Todd Schweizer, President

2868Coyote Land Company, Inc.

28724 Lagu na Drive, Suite 201

2878Fort Walton Beach, Florida 32548 - 3600

2885Rhonda L. Moore, Esquire

2889Department of Environmental Protection

28933900 Commonwealth Boulevard

2896Mail Station 35

2899Tallahassee, Florida 32399 - 3000

2904NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2910All parties have the right to submit written exceptions within 15

2921days of the date of this Recommended Order. Any exceptions to

2932this Recom mended Order should be filed with the agency that will

2944render a final order in this matter.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/25/2011
Proceedings: (Agency) Final Order filed.
PDF:
Date: 07/15/2011
Proceedings: Agency Final Order
PDF:
Date: 04/26/2011
Proceedings: Recommended Order
PDF:
Date: 04/26/2011
Proceedings: Recommended Order (hearing held March 22, 2011). CASE CLOSED.
PDF:
Date: 04/26/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/18/2011
Proceedings: Department of Environmental Protection's Proposed Recommended Order filed.
Date: 04/06/2011
Proceedings: Transcript (not available for viewing) filed.
PDF:
Date: 03/30/2011
Proceedings: Order (Petitioner to file written proof confirming order and payment of transcript no later than April 4, 2011).
PDF:
Date: 03/29/2011
Proceedings: Departmental of Environmental Protection's Motion on Ordering Hearing Transcript (filed in Case No. 10-009445).
Date: 03/22/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/21/2011
Proceedings: Amended Notice of Hearing (hearing set for March 22 and 23, 2011; 9:00 a.m., Central Time; Pensacola, FL; amended as to location of the hearing).
PDF:
Date: 03/18/2011
Proceedings: Letter to Clerk of the Division from Ronda Moore regarding exhibits to be offered at hearing (exhibits not available for viewing) filed.
PDF:
Date: 03/11/2011
Proceedings: Notice of Preservation of Testimony filed.
PDF:
Date: 01/25/2011
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for March 22 through 24, 2011; 9:00 a.m., Central Time; Pensacola and Tallahassee, FL; amended as to hearing dates).
PDF:
Date: 01/24/2011
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 01/21/2011
Proceedings: Department of Environmental Protection's Pre-hearing Stipulation filed.
PDF:
Date: 11/30/2010
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 26 through 28, 2011; 9:00 a.m., Central Time; Pensacola and Tallahassee, FL; amended as to hearing dates and setting hearing via video teleconference).
PDF:
Date: 11/29/2010
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 10/29/2010
Proceedings: Department of Environmental Protection's Certificate of Service of First Set of Interrogatories to Coyote Land Co., Inc. (filed in Case No. 10-009448).
PDF:
Date: 10/29/2010
Proceedings: Department of Environmental Protection's First Request for Production to Coyote Land Co., Inc. (filed in Case No. 10-009448).
PDF:
Date: 10/29/2010
Proceedings: Department of Environemntal Protection's First Request for Admissions to Coyote Land Co., Inc. (filed in Case No. 10-009448).
PDF:
Date: 10/29/2010
Proceedings: Department of Environmental Protection's Certificate of Service of First Set of Interrogatories to Coyote Land Co., Inc. (filed in Case No. 10-009445).
PDF:
Date: 10/29/2010
Proceedings: Department of Environmental Protection's First Request for Admissions to Coyote Land Co., Inc. (filed in Case No. 10-009445).
PDF:
Date: 10/29/2010
Proceedings: Department of Environmental Protection's First Request for Production to Coyote Land Co., Inc. (filed in Case No. 10-009445).
PDF:
Date: 10/22/2010
Proceedings: Order of Consolidation (DOAH Case Nos. 10-4179, 10-9445, 10-9448).
PDF:
Date: 10/20/2010
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 10/11/2010
Proceedings: Joint Motion for Extension of Time to File Response to Initial Order filed.
PDF:
Date: 10/05/2010
Proceedings: Notice of Related Case and Motion to Consolidate by Respondent Department of Environmental Protection filed.
PDF:
Date: 10/05/2010
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 10/05/2010
Proceedings: Agency action letter filed.
PDF:
Date: 10/05/2010
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
PDF:
Date: 10/05/2010
Proceedings: Initial Order.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
10/05/2010
Date Assignment:
03/21/2011
Last Docket Entry:
07/25/2011
Location:
Pensacola, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (2):

Related Florida Rule(s) (1):