14-003674 Department Of Environmental Protection vs. South Palafox Properties, Llc
 Status: Closed
Recommended Order on Monday, March 2, 2015.


View Dockets  
Summary: Agency established that Respondent violated conditions of C&D Permit and Consent Order; revocation of permit appropriate.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF ENVIRONMENTAL

11PROTECTION,

12Petitioner ,

13vs. Case No. 1 4 - 3674

20SOUTH PALAFOX PROPERTIES, INC.,

24Respondent.

25______________________ _________/

27RECOMMENDED ORDER

29T his matter was heard before the Division of Administrative

39Hearings (DOAH) by its assigned Administrative Law Judge, D . R.

50Alexander, on December 9 - 1 1 , 2014, in Pensacola , Florida.

61APPEARANCES

62For Petitioner : B. Jack Chisolm, Jr., Esquire

70Mar garet E. Seward, Esquire

75Department of Environmental Protection

79Mail Station 35

823900 Commonwealth Boulevard

85Tallahassee, Florida 32399 - 3000

90For Respondent: V. Nicholas Dancaescu, Esquire

96Christopher T. Dawson, Esquire

100Ashley E. Hoffman, Esquire

104GrayRobinson, P.A.

106Suite 1400

108301 East Pine Street

112Orlando , Florida 32 801 - 2741

118STATEMENT OF THE ISSUE

122The issue is whether Respondent's Construction and

129Demolition Debris Disposal Facility Permit No. 003397 - 013 - SO

140( the Permit) should be revoked and the facility closed for the

152reasons stated in the Department of Environmental Protection's

160(Department's) Notice of Revocation (Notice) issued on July 31,

1692014.

170PRELIMINARY STATEMENT

172In a n eight - count Notice , the Departme nt propose s to revoke

186Respondent's Permit and close its facility for violati ng Permit

196conditions and rules that govern the operation of the facility ,

206including a failure to comply with certain time frames and/or

216deadlines required by a 2012 Consent Order . Respondent timely

226requested a hearing to contest th e proposed agency action, and

237the matter was referred to DOAH to conduct a hearing.

247At the final hearing, the Department presented the

255testimony of five witnesses . Department Exhibits 1 through 8,

26514, 18, 20, 22, 23, 30, 36, and 40 were received in evidence.

278Respondent presented the testimony of four witnesses .

286Respondent 's Exhibits 1 through 5, 27, and 28 were accepted in

298evidence. The deposition of one witness was submitted by

307Respondent on a proff er basis only. Joint Exhibits 1 and 2 were

320also admitted. Finally, official recognition of the following

328matters was taken: chapter 120, Florida Statutes (2014);

336sections 403.021, 403.031, 403.061, 403.087, 403.121, 403.161,

343403.703, 403.704, and 403.70 7; Florida Administrative Code

351C hapters 62 - 4, 62 - 302, 62 - 701, and 62 - 780; rules 62 - 210.200 and

37162 - 296 . 320; and 40 C.F.R. Part 264, Subpart II, adopted by

385reference at rule 62 - 701.630.

391A three - volume Transcript of the hearing has been prepared.

402Proposed Recommended Orders (PROs) were filed by the parties ,

411and they have been considered in the preparation of this

421Recommended Order.

423FINDINGS OF FACT

426A . The Parties , the Property, and the Dispute

4351. The Depar tment administers and enforces t he provisions

445of chapter 403 and the rules promulgated thereunder , including

454those applicable to construction and demolition debris (C & D)

464disposal facilities.

4662. Respondent is a Florida limited liability corporation

474that owns real property located at 6990 Rolling Hills Road,

484Pensacola, Escambia County (County) , Florida . The large, odd -

494shaped p arcel (whose exact size is unknown) is south - south west

507of the intersection of Interstate 10 and Pensacola Boulevard

516(U.S. Highway 29) and has C lass III fresh surface waters run nin g

530in a northeast - southwest direction through the middle of the

541property . See Resp. Ex. 28. The entire site is surrounded by a

554six - foot tall fence or is separated from adjoining properties by

566natural barriers. A railroad track borders on the eastern side

576of the parcel; the western boundary fronts on Rolling Hills

586Road ; and the northern boundary appears to be just south of West

598Pinestead Road . Id. The area immediately south of the parcel

609appears to be largely undeveloped. See Dept. Ex. 40. The

619E merald Coast Utilit ies Authority (ECUA) , a local government

629body, has an easement that runs along the eastern side of the

641property adjacent to the railroad track on which a 48 - inch sewer

654pipe is located.

6573. An older residential area, known as Wedgewood, is

666loc ated northeast of the facility on the north side of West

678Pinestead Road. Id. The closest Wedgewood homes appear to be

688around 4 00 or 500 feet from the edge of Respondent's property.

700A community and recreational center , the Marie K. Young Center ,

710also kno wn as the Wedgewood Center, serves the Wedgewood

720community , is north west of the facility , and lies around 500

731feet from the edge of the property. Established in 2012 where a

743school once stood , it has more than 200 members . Although no n -

757parties, it is fai r to say that the Wedgewood community and

769County strongly support th e Department 's efforts to revoke

779Respondent ' s permit.

7834 . Respondent acquired the property in 2007. At that

793time, an existing C & D disposal facility (the facility) was

804located on the pro perty operating under a p ermit issued by the

817Department. The Permit was re newed in February 2013 and will

828expire in early 2018. Besides the general and specific

837conditions , the renewed Permit incorporate s the terms and

846conditions of a Consent Order execu ted in November 2012 , as well

858as detailed requirements relat ing to the operation of the

868facility, water quality monitoring, an odor remediation plan,

876financial assurance and cost estimates, and closure of the

885facility. The latter requirements are found in four Appendices

894attached to the Permit.

8985 . The facility operates u nder the name of Rolling Hills

910Construction and Demolition Recycling Center. All material

917received by the facility is disposed of in an active disposal

928pile known as cell 2, located in the middle of the northern

940section of the parcel . Cell 1 , southwest of cell 2 and just

953east of Rolling Hills Road , was cl osed a number of years ago by

967the prior operator .

9716. Respondent operates the only C & D facility in the

982County. 1/ It currently ser ves around 50 to 60 active customers ,

994employs 16 persons, and operates between the hours of 7:00 a.m.

1005and 5:00 p.m. The former manager , Charl es Davidson, who had

1016overseen operations since 20 10 , was replaced in June 2014, and

1027Respondent blames him for igno ring or failing to address most of

1039the problems encountered during the last three years . Since

1049June , the managing partner of the LLC, Scott C. Miller, has

1060overseen the operations.

10637 . Unlike Class I or III landfills, a C & D landfill may

1077accept only cons truction and demolition debris. Co nstruction

1086and demolition debris is defined as "discarded materials

1094generally considered to be not water soluble and non - hazardous

1105in nature." § 403.703(6), Fla. Stat.; Fl a. Admin. Code R. 62 -

1118701.200(24). D ebris include s not only items such as steel,

1129glass, brick, concrete, asphalt material, pipe, gypsum

1136wallboard, and lumber that are typically associated with

1144construction or demolition projects , but also rocks, soils, tree

1153remains, trees, and other vegetative matter tha t normally result

1163from land clearing or land development operations. Id. No

1172solid waste other than construction and demolition debris may be

1182disposed of a t the facility. See Fla. Admin. Code R. 62 -

11957 0 1.730(4)(d).

11988 . To address and resolve certain v iol ations that predated

1210the renewal of the Permit , the Department and Respondent entered

1220into a Consent Order on November 14, 2012. See Dep t. Ex. 2 .

1234These violations occurred in 2011 and included the storage

1243and/or disposal of non - C & D debris, and a failur e to timely

1258submit an appropriate Remedial Action Plan (RAP). Id. Among

1267other things, t he Consent Order required that within a time

1278certain Respondent submit for Department review and approval a n

1288RAP ; and after its approval to " continue to follow the tim e

1300frames and requirements of Ch apter 62 - 780, F.A.C. " Id. Th ose

1313requirements included the initiation of an active remediation

1321system and site rehabilitation within a time certain, and the

1331continued monitoring and related corrective action for any water

1340qu ality violations or impacts . Id.

13479 . To ensure that it ha s the financial ability to

1359undertake any required c orrective action , the Permit requires

1368Respondent t o provide proof of financial assurance for the

1378corrective action program cost estimates. See F la. Admin. Code

1388R. 62 - 701.730(11)(d); § 2, Spec . Cond. F.1. This can be done

1402through a number of mechanisms, such as a performance bond,

1412letter of credit, or cash escrow. The Permit also requires

1422Re spondent to provide proof of financial assurance to

1431demo nstrat e that it has the financial ability to close the

1443facility and otherwise provide for the long - term care cost

1454estimates of the facility. See Fla. Admin. Code R. 62 - 701.630;

1466§ 2, Spec. Cond. F.2. Rather than using a cash escrow or letter

1479of credit , Re spondent has chosen to use a performance bond for

1491both requirements. These bonds must be updated annually to

1500include an inflation adjustment.

150410 . Given the many requirements imposed by the Permit and

1515Consent Order, in 2013 and 2014 s e veral follow - up site

1528inspections of the facility were conducted by the Department ,

1537and a review of the operations was made to determine if the

1549various deadlines had been met. Also, in 2014, the Department

1559received complaints from the County and neighboring property

1567owners , a lmost exclusively by those residing in the Wedgewood

1577community , re garding offensive odors emanating from t he

1586facility.

158711 . Based on field observations , the review of operations ,

1597and odor complaints, on July 31, 2014, t he Department issued a

1609Notice conta ining eight counts of wrongdoing. The Notice was

1619issued under section 403.087(7) (b), which authorizes the

1627Department to revoke a permit when it finds the permit holder

1638has " [ v ] iolated law, department orders, rules, or regulations,

1649or permit conditions." To Respondent's consternation, the

1656Department opted to use that enforcement mechanism rather than

1665initiating an enforcement action under section 403.121 or

1673executing a nother consent order , both of which would likely

1683result in a sanction less severe than pe rmit revocation . 2/

16951 2 . The Notice contains the following charges: exceeding

1705surface water quality standards in r ules 62 - 302.500 and 62 -

1718302.530 (Count I); fail ing to implement a n R AP as required by

1732the Consent Order and Permit (Count II); fail ing to provi de

1744adequate financial assurance s for facility closure costs (Count

1753III); fail ing to provide financial assurances for the corrective

1763action required by the RAP (Count IV); fail ing to reduce on - site

1777and off - site objectionable odors and to implement a routine odor

1789monitoring program (Count V); dispos ing non - C & D waste on site

1803(Count VI); fail ing to remove unauthorized waste (Count VII);

1813and disposing solid waste outside of its permitted (vertical)

1822dimension of 130 feet N ational Geodetic Vertical Datum (N GVD )

1834(Count VIII). These allegations are discussed separately below.

184213. Although the Notice is based on violations that

1851occurred on or before July 31, 2014, the undersigned denied the

1862Department's motion in limine that would preclude Respondent

1870from presen ting mitigating evidence concerning circumstances

1877surrounding the violations and efforts to remediate them after

1886July 31, 2014. Given that ruling, t he Department was allowed to

1898present evidence to show that Respondent's remediation efforts

1906have not been s uccessful and that some violations still existed

1917as of the date of final hearing.

19241 4 . Respondent disputes the allegations and contends that

1934most, if not all, are either untrue, inaccurate, have been

1944remedied, or are in the process of being remedied. As n oted

1956above, Respondent considers the revocation of its permit too

1965harsh a penalty in light of its continued efforts to comply with

1977Department rules and enforcement guidelines. It contends that

1985the Department is acting at the behest of the County, which

1996de sires to close the facility to satisfy the odor complaints of

2008the Wedgewood residents , and to ultimately use the property for

2018a new road that it intends to build in the future.

2029B. Count I - Water Quality Violations

20361 5 . The Notice alleges that two water q uality monitoring

2048reports filed by Respondent reflect that it exceeded surface

2057water quality standards at two monitoring locations (MW - 2 and

2068SW - 6) sampled on August 26, 2013, and at one monitoring location

2081(MW - 2) sampled on March 4, 2014. The Notice alleg e s that these

2096exceedances constitute a failure to comply with Class III fresh

2106surface water quality standards in rules 62 - 302.500 and 62 -

2118302.530 and therefore violate conditions in the P ermit. These

2128standards apply in areas beyond the edge of the discharg e area

2140(or zone of discharge) established by the Permit.

21481 6 . To ensure compliance with water quality standards,

2158w hen the Permit was renewed in 2013, a Water Quality Monitoring

2170Report (Appendix 3) was attached to the Permit. It required

2180Respondent to mo nitor surface water for contamination, identif y

2190the locations at which samples must be collected, and specif y

2201the testing parameters. All of these conditions were accepted

2210by Respondent and its consultant(s).

22151 7 . The monitoring network , already in place when

2225Respondent purchased the facility, consists of six ground water

2234monitoring wells and three surface water monitoring stations.

2242The surface water stations , which must be sampled to determine

2252compliance with water quality criteria , are SW - 5, a backgroun d

2264location, and SW - 6 and MW - 2, both compliance locations located

2277outside the zone of discharge . A background location is placed

2288upstream of an activity in order to determine the quality of the

2300water before any impacts by the activity. A compliance locati on

2311is placed downstream of an activity to determine any impacts of

2322the facility on surface water.

23271 8 . The Water Quality Monitoring Plan and Permit require

2338Respondent to submit semi - annual water quality reports. To

2348conduct the preparation and filing of the reports, Respondent

2357used an outside consulting firm, Enviro Pro Tech, Inc. (EPT).

2367On November 5, 2013, EPT submitted a Second Semi - Annual 2013

2379report. See Dept. Ex. 5. According to Mr. Miller, who now

2390oversees operations at the facility, EPT did not provide

2399Respondent a copy of the report , or even discuss its findings,

2410before filing it with the Department.

24161 9 . A Department engineer reviewed the report and noted

2427that surface water samples exceeded the Class III Fresh Water

2437Quality Standards for iro n, copper, lead, zinc, nickel, and

2447mercury at SW - 6 and for iron at MW - 2. See Dept. Ex. 6. A copy

2465of the Department's report was provided to Respondent and EPT.

2475Notably, the report indicated that background levels were lower

2484than the down - gradient result s. Under Department protocol, if

2495the sample s at the compliance locations exceed both the

2505regulatory levels and the background, th ere is a violation of

2516water quality s tandards. This accepted protocol differs from

2525Respondent's suggested protocol that the b ackground level should

2534be added to the regulatory standard before a comparison with the

2545sample results is made. In sum, e xcept for the reported n ickel

2558value at SW - 6 , a violation which the Department now says it will

2572not pursue, all exceedances shown on De partment Exhibits 5 and 6

2584are violations of the standards.

258920 . On April 1, 2014, EPT submitted a First Semi - Annual

26022014 report. See Dept. Ex. 7. A Department engineer reviewed

2612the report and noted that the surface water samples at one

2623monitoring locat ion, MW - 2, did not meet water quality standards

2635for iron; however, background levels for iron were much higher

2645than downstream. See Dept. Ex. 8. No other exceedances were

2655shown. Although the Department engineer considered the higher

2663background level for iron to be an "inconsistency" since it

2673varied from the prior reports, the reported iron value was

2683treated as a violation when the Notice was drafted. In its PRO,

2695however, the Department concedes that it did not establish a

2705violation of standards for iron , as alleged in paragraph 7 of

2716the Notice.

27182 1 . While having no concerns with sampling taken at MW - 2,

2732Respondent's expert contends that the reported values for SW - 6

2743are unreliable because the samples taken from that location were

2753turbid and filled with lar ge amounts of suspended solid matter.

2764He noted that the well is located in a wetland area that is

" 2777clogged with vegetation ." The expert estimated the turbidity

2786at the site to be in the range of 480 to 500 Nephelometric

2799Turbidity Units (NTUs) and believes the sample was taken in a

"2810high turbid sediment laden area , " thus rendering it unreliable.

2819However, at the time of the sample collection, turbidity was

2829measured at 164 NTUs , or much less than the amount estimated by

2841the expert . See Dept. Ex. 5, p. 147.

28502 2 . There is no rule or procedure that disallows the use

2863of turbid samples. In fact, they can be representative of

2873actual water quality. Also, r ule 62 - 302.500(2)(d) provides that

2884if an applicant for a C & D permit believes that turbid samples

2897are not representative of water quality, it may use filtered

2907samples by establishing a "translator" during the permitting

2915process. Respondent did not request a translator during the

2924permitting process, nor is any such translator provision found

2933in the Permit.

29362 3 . The expert also criticized EPT for holding the 2013

2948sample for iron for 22 days after collection before reanalyzing

2958it without providing any explanation for this delay . A

2968reasonable inference to draw from the data, however, is that

2978iron was present i n the original sample at levels that required

2990dilution and reanalysis.

29932 4 . Respondent 's expert testified that even though off -

3005site stormwater is discharged onto the property, no offsite

3014monitoring locations exist, and therefore any offsite

3021exceedances w ould not be reported. He also criticized the

3031sampling locations that were selected by EPT. In fairness to

3041Respondent, a repositioning of the monitoring network and

3049retesting of the samples might have produced more favorable

3058results . But these are measur es that should have been addressed

3070long before this proceeding was initiated. Finally,

3077Respondent 's expert testified that the implementation of its

3086RAP, now partially completed, will cure all of the reported

3096exceedances. A ssuming this unrefuted testimony is true, it

3105should be taken into account in determining an appropriate

3114penalty.

3115C. Count II - Failure to Implement a n RAP

31252 5 . In this Count, the Department alleges that after the

3137issuance of a n RAP Approval Order on July 3, 2013, Respondent

3149was required to implement the RAP within 120 days. The Notice

3160allege s that as of July 31, 2014, the RAP had not been

3173implemented.

31742 6 . A n RAP was first filed by Respondent on November 15,

31882010. See Dept. Ex. 3. When the Department determined that

3198changes to the R AP were necessary , the Consent Order imposed a

3210requirement that a n RAP addendum be filed within 150 days. The

3222date on which the addendum was filed is n ot known. However, a n

3236RAP Approval Order was issued on July 3, 2013. See Dept. Ex. 4.

3249The terms and c onditions in the RAP were incorporated into the

3261renewed Permit. The work required by the RAP consist s of two

3273phases, with all work to be completed within 365 days , or by

3285early July 2014 .

32892 7 . Phase I related to the initiation of an active

3301remediation sy stem within 120 days, or by October 31, 2013.

3312This phase require s Respondent to install a pump and treat

3323system at the facility, which will withdraw contaminated

3331groundwater through recovery wells, pump the water to aeration

3340basins to treat the water, and then re - infiltrate the treated

3352water back into the ground. As noted below, the system was not

3364operational until the second week in December 2014.

33722 8 . Respondent's failure to implement the approved RAP by

3383the established deadline constitutes a violation of rules 62 -

3393780.700(11) and 62 - 780.790 and Permit conditions, as charged in

3404the Notice.

34062 9 . While Respondent concedes that it did not comply

3417with the deadline for implementing the RAP , it points out that

3428work on Phase I was begun in a timely manner. Ho wever, on

3441October 16, 2013, or just before the 120 days had run, a Notice

3454of Violation was issued by the County. See Resp. Ex. 2. The

3466effect of the Notice of Violation was to halt m uch of the work

3480on Phase I until Respondent obtained a County stormwater permit .

3491Respondent asserts that this was responsible for all, or most,

3501of the delay.

350430. T he record shows that the EPT consultant did not a pply

3517for the County permit until September 10, 2014 , or almost one

3528year after the Notice of Violation was issued . Additional

3538information was required by the County, which was supplied on

3548October 23, 2014, but final sealed documents were not filed by

3559the consultant until a round Thanksgiving. The permit was issued

3569by the County " a week or so " before the final hearin g .

35823 1 . Respondent attributes the delay in applying for a

3593County permit to its former manager and his failure to

3603coordinate with the EPT engineers assigned to the project. It

3613also claims that the County failed to process the application in

3624an expeditiou s fashion . However , the facts suggest otherwise .

3635Once the permit was issued, Phase I was completed on December 8,

36472014 , and it was operational at the time of the final hearing.

36593 2 . Respondent 's expert , hired in August 2014, has

3670proposed a modification to the RAP t hat would avoid impacting

3681the existing stormwater pond. However, the modification must be

3690reviewed and approved by the Department, and as of the date of

3702the hearing, it had not been formally submitted. The Department

3712asserts that the only re ason the modification is being sought is

3724to reduce the cost of a performance bond. In any event, i n its

3738P RO, Respondent does not argue that the proposed modification

3748excuses its 13 - month delay in completing the requirements of

3759Phase I, or the second pha se of the project , which should have

3772been completed by early July 2014.

3778D. Count III - Failure to Provide Financial Assurance

37873 3 . This Count alleges that Respondent failed to provide

3798the required annual 2014 financial assurance mechanism that

3806demonstrate s proof of financial assurance for closure and long -

3817term cost estimates of the facility.

38233 4 . At the beginning of 2014, Respondent had an

3834$836,000.00 financial performance bond in place for closure and

3844long - term costs . T he Permit requires that on or befor e March 1

3860of each year Respondent revise the closure cost estimates to

3870account for inflation in accordance with rule 62 - 701.630(4).

3880See § 2, Spec. Cond. F.2. Once the estimates are approved, the

3892performance bond must be updated within 60 days. In this c ase,

3904an increase of around $18,000.00 was required.

39123 5 . The annual inflation adjustment estimate was not

3922submitted until April 15, 2014. The Department approved the

3931cost estimates the following day and established a due date of

3942June 16, 2014, for submitt ing a revised financial assurance .

3953Respondent did not have a revised performance bond in place

3963until a "week or two" before the hearing. Other than

3973Respondent's manager indicating that he had a new bonding agent,

3983no evidence was presented to mitigate thi s violation.

39923 6 . The failure to timely update its financial assurance

4003for closure and long - term costs constitutes a violation of rule

401562 - 701.630, as charged in the Notice.

4023E. Count IV - Financial Assurances for Corrective Action

40323 7 . In the same vein as Count III, the Notice alleges that

4046Respondent failed to maintain a financial assurance mechanism to

4055demonstrate proof that it can undertake the corrective action

4064program required under the RAP.

40693 8 . Respondent was required to submit proof of financial

4080assurance for corrective actions within 120 days after the

4089corrective action remedy was selected. On July 3, 2013, t he RAP

4101Approval Order selected the appropriate remedy . On August 8,

41112013, the Department approved Respondent's corrective action

4118program cost estimates of $566,325.85 and established a deadline

4128of October 31, 2013, for Respondent to submit this proof. When

4139the Notice was issued, a corrective action bond had not been

4150secured , and none was in place at the time of the final hearing .

4164Th is con stitutes a violation of rule 62 - 701.730(11)(d) and

4176applicable Permit conditions.

41793 9 . Respondent's manager , Mr. Miller, concedes that this

4189requirement has not been met. He testified that he was not

4200aware a new bond was required until he took over manageme nt of

4213the facility and met with Department staff on June 17 , 2014.

4224Due to the Notice, Mr. Miller says he has had significant

4235difficulty in securing a bond . He explained that the bonding

4246company is extremely reluctant to issue a bond to an entity

4257faced wi th possible revocation of its permit , especially if such

4268revocation might occur within a matter of months. Mr. Miller

4278says the bonding company wants 100 percent collateralization to

4287put a bond in place . Nonetheless, he is confident that a bond

4300can be sec ured if only because its cost will dramatically drop

4312when the RAP project is completed. However, even at hearing, he

4323gave no timeline on when this requirement will be fulfilled.

4333F. Count V - Objectionable Odors

433940 . One of the driving force s behind the i ssuance of the

4353Notice is the complaint about off - site objectionable odors. A

4364considerable amount of testimony was devoted to this issue by

4374witnesses representing the Department, County, Wedgewood

4380community , and Respondent . The Notice alleges that during

4389routine inspections in April, May, and July 2014, mainly in

4399response to citizen complaints, Department inspectors detected

4406objectionable odors both at the facility and off - site. The

4417Notice further alleges that Respondent failed to immediately

4425take steps t o reduce the odors, submit an odor remediation plan,

4437and implement that plan in violation of rules 62 - 296.320(2) and

444962 - 701.730(7)(e) and section 2, Specific Condition E of the

4460Permit . Notably, the Department has never revoked a landfill

4470permit due solely to objectionable odors.

44764 1 . Several Department rules apply to this Count . First,

4488objectionable odors are defined in rule 62 - 210.200(200).

4497Second, a C & D facility must control objectionable odors in

4508accordance with rule 62 - 296.320(2). Finally, i f odor s are

4520detected off - site, the facility must comply with the

4530requirements of rule 62 - 701.530(3)(b). That rule provides that

4540once off - site odors have been confirmed, as they were here, the

4553facility must "immediately take steps to reduce the

4561objectionable odo rs," "submit to the Department for approval an

4571odor remediation plan," and "implement a routine odor monitoring

4580program to determine the timing and extent of any off - site

4592odors, and to evaluate the effectiveness of the odor remediation

4602plan." These same regulatory requirements are embodied in the

4611Permit conditions. See § 2, Spec. Cond. E.

46194 2 . A t least occasionally, every landfill has

4629objectionable odors emanating from the facility. As one expert

4638noted, "The trick is, how can you treat it." The technic al

4650witnesses who addressed this issue agree that the breakdown of

4660drywall, wall board, and gypsum board , all commonly recycled at

4670C & D facilit ies , will produce hydrogen sulfide, which has a

4682very strong " rotten egg " type smell. The most effective

4691techniqu es for reducing or eliminating these odors are to spray

4702reactant on the affected areas, place more cover, such as dirt

4713or hydrated lime, on the pile, and have employees routinely

4723patrol the perimeters of the property and the active cell to

4734report any odors that they smell.

47404 3 . Although the facility has been accepting waste

4750products for a number of years, the last seven by Respondent,

4761the re is no evidence that the Department was aware of any odor

4774complaints before April 2014. While not an active participa nt

4784in the operations until recently, Mr. Miller also testified that

4794he was unaware of any citizen complaints being reported to the

4805facility prior to that date. However, i n response to citizen

4816complaints that more than likely were directed initially to the

4826County , on April 14, 21, and 24, 2014, the Department conducted

4837routine inspection s of the facility. During at least one of the

4849visit s , objectionable odors were detected both on - site,

4859emanating from cell 2, and off - site on West Pinestead Road, just

4872north of the facility. See Dept. Ex. 14. Because the inspector

4883created a single report for all three visits, he was unsure

4894whether odors were detected on more than one visit. After the

4905inspection report was generated, Department practice was to send

4914a copy b y email to the facility's former manager, Mr. Davidson.

49264 4 . A Department engineer who accompanied the inspector on

4937at least one visit in April 2014 testified that she has visited

4949the site on several occasions, and on two of those visits, the

4961odor was stro ng enough to make her physically ill.

49714 5 . On a follow - up inspection by the Department o n May 22,

49872014, the inspector did not detect any objectionable odors. See

4997Dept. Ex. 17. In June 2014, however, a County inspector visited

5008the Wedgewood Center area in response to a complaint that dust

5019was coming from the facility . He testified that he detected a

5031rotten egg type smell on the Wedgewood Center property.

50404 6 . At a meeting attended by Mr. Miller and County and

5053Department representatives on June 17, 2014 , the Department

5061advised Respondent of its findings and provided Mr. Miller with

5071copies of the inspection reports.

50764 7 . On July 1, 2014, the Department conducted a follow - up

5090inspection of the facility. The inspector noted a hydrogen

5099sulfide odor on the no rth, south, and west sides of the disposal

5112area of the facility, and on the top of the disposal pile at the

5126facility. See Dept. Ex. 18. Another inspection conducted on

5135July 9, 2014, did not find any objectionable odors. See Dept.

5146Ex. 19.

51484 8 . On July 18 , 2014, the Department conducted a follow - up

5162inspection of the facility. The inspector again noted

5170objectionable odors at the facility but none off - site . Id.

518249. On July 24, 2014, Department inspectors noted

5190objectionable odors on top of the pile, the toe of the north

5202slopes, and off - site on West Pinestead Road. See Dept. Ex. 20.

5215An inspection performed the following day noted objectionable

5223odors on top of the pile and the toe of the north slopes , but

5237none off - site . Id. The Notice, which was alread y being drafted

5251in mid - July, was issued a week later.

526050 . In response to the meeting on June 17, 2014,

5271Respondent prepared a draft odor remediation plan, made certain

5280changes suggested by the Department, and then submitted a

5289revised odor remediation plan prior to July 31, 2014. A

5299Department engineer agrees that "in the strict sense it meets

5309the requirements of the rule" and "could work," but there are

"5320two or three things that still needed . . . to be submitted in

5334order for it to be completely approvable. " For example, she was

5345uncertain as to how and when dirt cover would be applied, and

5357how erosion would be controlled. Although the plan was filed,

5367it was never formally approved or rejected , and the "two or

5378three things" that the witness says still neede d to be done were

5391n ever disclosed to Respondent. Under these circumstances, it is

5401reasonable to accept Respondent's assertion that it assumed the

5410plan was satisfactory and complied with the rule .

54195 1 . After the Notice was issued, Respondent set up a

5431hot line for community members to call and report odors. A sign

5443on the property gives a telephone number to call in the event of

5456odors. At an undisclosed point in time, Respondent began

5465requiring employees to walk the perimeter of the facility each

5475day to mo nitor for odors; spreading and mixing hydrated lime to

5487reduce the odors around the facility; and increasing the amount

5497of cover applied to the working face of the facility. The

5508parties agree that the se measures are the best available

5518practices to monitor and eliminate objectionable odors at a

5527C & D facility. Despite these good faith measures, Mr. Miller

5538acknowledged that he visited the facility during the evening a

5548few days before the final hearing in December 2014 and smelled

5559hydrogen sulfide around the ECUA sewer pipe and "a very mild

5570level" by the debris pile.

55755 2 . Respondent does not deny that odors were emanating

5586from the facility during the months leading up to the issuance

5597of the Notice. But i n April 2014, the County experienced a 500 -

5611year stor m event which caused significant flooding and damaged a

5622number of homes. Because Respondent operates the only C & D

5633facility in the County and charges less than the County

5643landfill , it received a n abnormal amount of soaked and damaged

5654C & D debris , which it contends could have generated some, if

5666not all , of the odors that month . Given the magnitude of the

5679storm, this is a reasonable explanation for the source of the

5690odors at that time .

569553. Respondent also presented evidence that an underground

5703ECUA se wer pipe that runs on the eastern side of the property

5716was damaged during the storm, causing it to rupture and be

5727exposed. Although ECUA eventually repaired the damaged pipe at

5736a later date , the pipe is still exposed above ground. Until the

5748pipe was repa ired, Respondent's assumption that it likely

5757contributed to some of the odors detected by the Department

5767appears to be valid . Finally, Respondent's expert attributes

5776some of the odors to biological degradation from other sources

5786both on - site and off - site , including a large wetland area

5799running through the middle of the property . To a small degree,

5811County testing later that fall confirms this assertion.

58195 4 . The County has also been a n active participant in the

5833odor complaint issue. In response to complai nts re ceived from

5844residents of Wedgewood , in July 2014 it began collecting

5853hydrogen sulfide data using a device known as the Jerome 631X

5864Hydrogen Sulfur D etector . This equipment is used to monitor for

5876the presence of hydrogen sulfur.

58815 5 . On July 21 and 22, 2014, samples were taken

5893documenting that hydrogen sulfide was coming from the facility.

5902In early September the County set up a fixed station at the

5914Wedgewood Center, around 500 feet from the edge of Respondent's

5924property, to continuously and automat ically collect the data.

5933During September and October 2014 the detector reported the

5942presence of hydrogen sulfide at that location 64 percent of the

5953days in those months, and this continued into the month of

5964November. Seventy - five percent of the exceedan ces occurred when

5975wind was blowing from the south, or when winds were calm. The

5987data also reflect ed that when the wind was blowing from the

5999meter to the facility , or to the south, hydrogen sulfide was

6010still detected on some occasions .

60165 6 . A resident of the Wedgewood community testified that

6027on multiple occasions she has smelled objectionable odors in her

6037home and yard and at the Wedgewood Center , and that the se odors

6050have been emanating from the facility for a number of years.

6061Because of the odors, she says fewer citizens are participating

6071i n programs hosted by the Wedgewood Center. 3 /

60815 7 . The evidence establishes that b efore the Notice was

6093issued, Respondent filed an odor remediation plan that was never

6103rejected; therefore, the allegation that a plan was not

6112submitted has not been proven . However, ob jectionable odors

6122were detected off - site in June and July 2014 , or after the April

6136inspection reports were provided to the facility, and they

6145continued throughout much of the fall . Therefore, the

6154Departme nt has established that the plan was not properly

6164implemented. These same findings sustain the allegation that

6172s teps were not immediately taken to reduce the objectionable

6182odors.

6183G. Count s VI and V II - Disposal and Failure to Remove

6196Unauthorized Waste

61985 8 . Count s V I and V II allege that on April 14, 2014, the

6215Department documented the disposal of prohibited or unauthorized

6223waste, including waste tires ; and that on July 18, 2014, the

6234Department conducted a follow - up inspection that documented the

6244disposal of unauthorized waste, including waste tires, clothing,

6252shoes, and Class I waste, including one electronic item and a

6263grill, in violation of rule 62 - 701.730(4)(d).

62715 9 . The Permit specifies that the facility can only accept

6283for disposal C & D debris. Se e § 2, Spec. Cond. C.2. Another

6297condition provides that if unauthorized debris is spotted after

6306a load is received, the unpermitted waste should be removed and

6317placed in temporary storage in a bin at the sorting area. See

6329§ 2, Spec. Cond. C.3. The Oper ations Plan spells out th ese

6342procedures in great detail.

634660 . Photographs received in evidence show that during the

6356inspection on April 14, 2014, the following unauthorized items

6365were observed at the facility : tires, a basketball goal,

6375Quiklube material, chromated copper arsenate treated wood, a

6383toy, and a crushed electronic item. See Dept. Ex. 22.

63936 1 . Photographs received in evidence show that during an

6404inspection on July 18, 2014, the following unauthorized items

6413were observed at the facility : blan ket or clothing, a shoe, a

6426bag of Class I garbage, several bags of household garbage,

6436furniture, an electronic item and garbage, drilling mud, a

6445suitcase, and tires. See Dept. Ex. 23.

64526 2 . Respondent's expert , who has trained numerous

6461spotters, includi ng a current Department inspector , established

6469that a de minimis amount of unpermitted waste, which is easily

6480hidden in the debris, is not unusual and would not constitute a

6492violation of the rule. For example, when a building is torn

6503down, numerous thermo stats containing mercury vile will be in a

6514C & D container but very difficult to see. Also, workers at

6526construction sites may throw small amounts of leftover food in

6536the pile of debris that goes to the facility. However, he

6547agrees that most , if not all, of the items observed during the

6559two inspection s would not be considered de minim i s.

65706 3 . Respondent does not deny that the unauthorized waste

6581was present on two occasions. However, it contends that one

6591would expect to find some of the items in a C & D dumpster. It

6606also argues that the amount of unauthorized waste was minimal

6616and not so serious as to warrant revocation of its Permit.

66276 4 . The evidence supports a finding that on two occasions

6639Respondent violated two condition s in its Permit by accepting

6649non - C & D waste and failing to remove it . Therefore, the

6663charges in Counts VI and VII have been proven.

6672H. Count VIII - Facility Outside of Permitted Dimensions

66816 5 . This Count alleges that on May 22, 2014, the

6693Department conducted a n inspection of the f acility in response

6704to a complaint that Respondent had disposed of solid waste

6714outside its permitted (vertical) limit of 130 NGVD ; that on

6724July 25, 2014, the Department had a survey performed at the

6735facility that confirmed this violation ; and that this ac tivity

6745violated s ection 2.3 of the facility's Operation Plan and

6755Specific Condition C.10 in the Permit.

67616 6 . Section 2.3 provides that "the proposed upper

6771elevation of waste at the [facility] will range up to 130 - feet,

6784NGVD, which is slightly above origi nal grade[,]" while Specific

6795Condition C.10 provides that "[t]he final (maximum) elevation of

6804the disposal facility shall not exceed 130 feet NGVD as shown on

6816Attachment 3 - Cell 2 Closure Grading Plan."

68246 7 . Respondent admits that on July 25, 2014, the maximum

6836height of the disposal pile exceeded 130 feet NGVD. However, it

6847argues that, pursuant to Specific Condition C.10, which in turn

6857refers to the Permit 's Cell 2 Closure Grading Plan, the 1 30 - foot

6872height limitation comes into play only when c ell 2 is being

6884closed and is no longer active. This interpretation of the

6894condition s is rejected for at least two reasons. First, a

6905disposal pile in excess of the established height would trigger

6915concerns about the integrity of the foundation of the facility.

6925Wh en the 130 - foot ceiling was established by the Department at

6938the permitting stage, it was based on calculations that the

6948ground could support the weight of the waste. Second, the

6958facility's financial assurance calculations are based on a set

6967dimension of the site; these calculations would likely be

6976impacted if there were no height restrictions. The Department's

6985interpretation is more reasonable and limits the height of the

6995pile to no more than 130 feet NVGD at any time when the cell is

7010active .

70126 8 . The De partment has established that Respondent

7022violated Permit condition s by disposing of waste outside its

7032maximum permitted height of 130 feet NVGD.

703969 . To Respondent's credit, its new consultant, Charles

7048Miller, completed preparation of a height reduction pl an on

7058September 3, 2014 . See Resp. Ex. 4. Although Mr. Miller says

7070the plan was being implemented at the time of final hearing, it

7082has never been formally submitted to the Department for

7091approval. Under the plan, Respondent proposes to extract all of

7101th e existing waste from the pile in the next two years. To

7114reduce the volume of new waste being accepted, Respondent

7123recently purchased a Caterpillar bulldozer , low - speed grinder ,

7132and Trommel screener . New waste will be shred d ed , screened to

7145separate sand and dirt from the material, and then ground and

7156compacted. Mr. Miller anticipates that the facility can achieve

7165u p to an eight to one (or at a minimum a five to one) reduction

7181in the size of the waste . This will dramatically reduce the

7193height of the pile and bring it well below 130 feet at closure.

7206But w hether c ell 2 is now below 130 feet NGVD is unknown. In

7221any event, t hese proposed remediation steps should be taken into

7232account in assessing an appropriate penalty.

7238CONCLUSION S OF LAW

72427 0 . Section 403 .087(7) (b) authorizes the Department to

7253revoke any permit issued if it finds that the permit holder has

"7265[v]iolated law, department orders, rules, or conditions that

7273directly relate to the permit." See also Fla. Admin. Code R.

728462 - 4.100(3)(b) ; § 403.704(10 ) , Fla. Stat.

72927 1 . The Department a rgues that it must prove the

7304allegations in the Notice by a preponderance of the evidence .

7315Respondent asserts that the charges should be proven by clear

7325and convincing evidence. Neither party has cited an

7333administrativ e decision or appellate case that directly

7341addresses th is issue , probably because section 403.087 (7) is an

7352enforcement tool that is rarely used. Notably, most of the

7362charges in the Notice were admitted by Respondent, and m uch of

7374its evidence was to mitiga te those violations.

73827 2 . Section 120.57(1)(j) provides that "[f]indings of fact

7392shall be based on a preponderance of the evidence, except in

7403penal or licensure disciplinary proceedings or except as

7411otherwise provided by statute." Un like an enforcement action

7420under section 403.121(2) (d) , the Legislature did not provide a

7430burden of proof to be applied in revocation proceedings under

7440section 403.087 (7) . By definition, h owever, the term "license"

7451includes a permit and "licensing" includes the agency proces s of

7462revocation . See § 120.52(10) and (11), Fla. Stat. Also, permit

7473revocation proceedings are penal in nature. Thus, the

7481proceeding can be fairly characterized as a "penal or licensure

7491disciplinary proceeding" because Respondent has contested the

7498Depar tment's decision to revoke its permit.

75057 3 . Case law makes a distinction between proceedings in

7516which sanctions involving a professional license are being

7524sought and other licensure disciplinary proceedings. In a

7532professional license setting, sanctions against the licensee

7539must be proven by clear and convincing evidence. See, e.g. ,

7549Dep't of Banking & Fin . v. Osborne , 670 So. 2d 932 (Fla. 1996).

7563In contrast, a C & D permit is not a professional license and

7576does not implicate the loss of livelihood . And , section 403.087

7587specifically provides that a permit issued under that provision

"7596shall not become a vested interest in the permittee . " Where

7607these circumstances are present, at least one court has held

7617that the proper standard of proof is preponderance of the

7627evidence. See Haines v. Dep't of Children and Famil i es , 983 So.

76402d 602 (Fla. 5th DCA 2008) (where statute provide s that a foster

7653care license d oes not create a property right in the rec i pient,

7667a preponderance of the evidence is the appropriate stand ard to

7678use in a license revocation proceeding) . 4 / But no matter which

7691standard is used, the Department has proven the charges set

7701forth below by clear and convincing evidence .

77097 4 . In a ruling at hearing, the undersigned denied the

7721Department's motion in limine that would preclude Respondent

7729from presenting evidence in mitigation of the charges. In its

7739PRO, the Department again argues that this proceeding is limited

7749to nothing more than proving (or disproving) that the permit

7759holder committed the alleg ed violation s . It points out that ,

7771unlike section 403.121 (10) , section 403.087 does not require it

7781to consider mitigating factors before revoking a permit.

778975. T he Department has allowed mitigating evidence in at

7799least two permit revocation proceeding s . See Dep't of Envtl.

7810Prot. v. Mahon , Case No. 11 - 2276 (Fla. DOAH Dec. 30, 2011; Fla.

7824DEP Mar. 20, 2012) ; Dep't of Envtl. Reg. v. Vail , Case No. 87 -

78384242 (Fla. DOAH Mar. 11, 1988; Fla. DER May 11, 1988) . While

7851the Department cites four revocation cases in which it contends

7861mi ti gating evidence was not allowed , all are distinguishable.

7871In three cases, the permit holder did not request a hearing.

7882The fourth case was decided primarily on a stipulation of facts

7893submitted by the parties . The Recommended and F inal Orders do

7905not say one way or the other whether evidence of mitigation was

7917presented. See Dep 't of Envtl. Reg. v. City of North Miami ,

7929Case No. 80 - 1168, 1981 Fla. ENV LEXIS 24 (Fla. DOAH Feb. 24,

79431981; DER Mar. 18, 1981). The undersigned is persuaded that the

7954concept of due process accords a permit holder the right to

7965present evidence of mitigation. The ruling on the motion in

7975limine is reaffirmed.

79787 6 . By clear and convincing evidence, the Department has

7989proven that Respondent exceeded surface water quality standards

7997for all analytes except nickel , as alleged in paragraph 6 of

8008Count I; that it failed to timely implement an RAP, as alleged

8020in Count II; that it failed to timely provide adequate financial

8031assurance for the facility, as alleged in Count III; that it

8042failed to provide financial assurance for corrective action, as

8051alleged in Count IV; that it failed to timely take steps to

8063reduce objectionable odors, and it failed to timely implement a

8073routine odor monitoring program, as alleged in Count V; that it

8084disposed of unauthorized waste, as alleged in Count VI; that it

8095failed to remove unauthorized waste, as alleged in Count VII;

8105and that it disposed of solid waste outside of its permitted

8116dimension of 130 feet NGVD, as alleged in Count VIII. The

8127r emaining charges should be dismissed.

81337 7 . Section 403.087( 7 ) provides that the Department "may"

8145revoke any permit if it finds that the permit holder has

"8156violated law, department orders, rules, or regulations, or

8164permit conditions." The Department has st eadfastly contended

8172that the Permit should be revoked . On the other hand ,

8183Respondent recommends that it be given a date certain on which

8194to obtain a bond, placed on probation for a specified period of

8206time, required to reduce the height of cell 2 below 13 0 feet

8219NGVD by a date certain, and required to continue to follow

8230Permit conditions related to monitoring , screening of waste , and

8239implementation of the RAP. In short, Respondent is seeking a

8249new set of deadlines to replace those first established in

8259Nove mber 2012 and February 2013 by the Consent Order and Permit,

8271respectively.

827278. The troubling aspect of this case is Respondent's

8281across - the - board failure to adhere to a number of deadlines and

8295Permit conditions established several years ago , and to make a ny

8306serious effort to comply with those requirements until it was

8316faced with possible revocation of its Permit. P erhaps this was

8327due to negligence and/or inattention by the former manager , who

8337was replaced in June 2014 , but this does not excuse its conduct .

8350At the same time, t he undersigned recognizes that once the

8361Notice was issued, with a new manager at the helm, Respondent

8372has inve sted a large amount of capital to purchase new equipment

8384and retain new consultants in an effort to bring the facility

8395into compliance. Even so , the date on which full compliance can

8406be achieved cannot be predicted.

841179. While revocation of the Permit seems especially harsh,

8420and the undersigned would impose a less draconian measure than

8430revocation given the evidence of mitig ation, the Department has

8440established the facts necessary to take that action.

8448Accordingly, Respondent's Permit should be revoked.

8454RECOMMENDATION

8455Based on the foregoing Findings of Fact and Conclusions of

8465Law, it is

8468RECOMMENDED that the Department of Envi ronmental Protection

8476enter a final order revoking Respondent's C & D Permit.

8486DONE AND ENTERED this 2nd day of March , 201 5 , in

8497Tallahassee, Leon County, Florida.

8501S

8502D. R. ALEXANDER

8505Administrative Law Judge

8508Division of Admi nistrative Hearings

8513The DeSoto Building

85161230 Apalachee Parkway

8519Tallahassee, Florida 32399 - 3060

8524(850) 488 - 9675

8528Fax Filing (850) 921 - 6847

8534www.doah.state.fl.us

8535Filed with the Clerk of the

8541Division of Administrative Hearings

8545this 2nd day of March , 201 5 .

8553EN DNOTE S

85561/ The County operates a large landfill that also accepts C & D

8569waste products. However, it is located west of Pensacola on the

8580Alabama state line , and the charges for using that service are

8591higher than Respondent's charges .

85962/ The Departmen t has a wide range of options in implementing its

8609enforcement process, ranging from a noncompliance letter to a

8618criminal referral. Thus, it has the discretion to use a notice

8629of revocation under section 403.087(7).

86343/ A Wedgewood resident testified that she believes the facility

8644has been contaminating her water supply. However, the water

8653supply in the Wedgewood community is served by the City of

8664Pensacola . There are no wells .

86714/ In contrast, where the imposition of an administrative fine is

8682sought i n an enforcement action under section 161.054, the

8692Department m ust prove those charges by clear and convincing

8702evidence. See, e.g. , Withers v. Dep't of Envtl. Prot. , Case No.

871302 - 0621 (Fla. DOAH Jan. 9, 2003; Fla. DEP Feb. 21, 2003).

8726COPIES FURNISHED:

8728Le a Crandall, Agency Clerk

8733Department of Environmental Protection

8737Mail Station 35

87403900 Commonwealth Boulevard

8743Tallahassee, Florida 32399 - 3000

8748(eServed)

8749B. Jack Chisolm, Jr., Esquire

8754Department of Environmental Protection

8758Mail Station 35

87613900 Commonwealth B oulevard

8765Tallahassee , Florida 32 399 - 3000

8771(eServed)

8772V. Nicholas Dancaescu, Esquire

8776GrayRobinson, P.A.

8778Post Office Box 3068

8782Orlando , Florida 32 802 - 3068

8788(eServed)

8789Craig D. Varn, General Counsel

8794Department of Environmental Protection

8798Mail Station 35

88013900 Commonwealth Boulevard

8804Tallahassee, Florida 32399 - 3000

8809(eServed)

8810Jonathan P. Steverson, Secretary

8814Department of Environmental Protection

8818Mail Station 35

88213900 Commonwealth Boulevard

8824Tallahassee, Florida 32399 - 3000

8829(eServed)

8830NOTICE OF RIGHT TO SUBMIT EXCE PTIONS

8837All parties have the right to submit written exceptions within 15

8848days of the date of this Recommended Order. Any exceptions to

8859this Recommended Order should be filed with the agency that will

8870render a final order in this matter.

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Proceedings
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Date: 01/15/2016
Proceedings: Order Correcting Scrivener's Error filed.
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Date: 12/16/2015
Proceedings: Motion for Expedited Review of Motion Stay Pending Appeal filed.
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Date: 11/20/2015
Proceedings: Exhibits to Motion to Stay Pending Appeal filed.
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Date: 11/20/2015
Proceedings: Motion for Stay Pending Appeal filed.
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Date: 06/23/2015
Proceedings: Amended Notice of Appeal filed.
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Date: 06/23/2015
Proceedings: Notice of Appeal filed.
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Date: 05/29/2015
Proceedings: Agency Final Order
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Date: 05/29/2015
Proceedings: Department's Response to South Palafox's Exceptions to Recommended Order filed.
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Date: 05/29/2015
Proceedings: Department's Exceptions to Recommended Order filed.
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Date: 05/29/2015
Proceedings: Agency Final Order filed.
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Date: 05/19/2015
Proceedings: (Proposed) Order for Substitution of Counsel filed.
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Date: 05/13/2015
Proceedings: Notice of Substitution of Counsel (Christine Cook) filed.
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Date: 03/17/2015
Proceedings: (Respondent's) Exceptions to Recommended Order filed.
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Date: 03/02/2015
Proceedings: Recommended Order
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Date: 03/02/2015
Proceedings: Recommended Order (hearing held December 9 through 11, 2014). CASE CLOSED.
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Date: 03/02/2015
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
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Date: 02/10/2015
Proceedings: (Respondent's) Proposed Findings of Fact and Conclusions of Law and Recommended Order filed.
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Date: 02/09/2015
Proceedings: Department of Environmental Protection's Proposed Recommended Order filed.
Date: 01/09/2015
Proceedings: Transcript Volumes I-III (not available for viewing) filed.
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Date: 12/30/2014
Proceedings: South Palafox Properties, LLC's Designation of Deposition Excerpts (Mike Keethler) filed.
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Date: 12/30/2014
Proceedings: South Palafox Properties, LLC's Designation of Deposition Excerpts (Rosa Sestnov) filed.
PDF:
Date: 12/17/2014
Proceedings: DEP's Designation of Deposition Excerpts (Mike Keethler) filed.
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Date: 12/17/2014
Proceedings: DEP's Designation of Deposition Excerpts (Roza Sestnov) filed.
Date: 12/09/2014
Proceedings: CASE STATUS: Hearing Held.
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Date: 12/09/2014
Proceedings: Respondent's Notice of Filing filed.
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Date: 12/08/2014
Proceedings: Deposition of Mike Keethler filed.
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Date: 12/08/2014
Proceedings: Deposition of Roza Sestnov filed.
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Date: 12/08/2014
Proceedings: Deposition of Charles Miller filed.
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Date: 12/08/2014
Proceedings: Deposition of Scott Craig Miller filed.
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Date: 12/08/2014
Proceedings: Deposition of Kevin Parsley filed.
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Date: 12/08/2014
Proceedings: Department's Notice of Filing filed.
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Date: 12/08/2014
Proceedings: Department's Notice of Filing filed.
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Date: 12/08/2014
Proceedings: Department's Notice of Filing filed.
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Date: 12/08/2014
Proceedings: Department's Notice of Filing filed.
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Date: 12/08/2014
Proceedings: Department's Notice of Filing filed.
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Date: 12/08/2014
Proceedings: South Palafox Motion in Limine to Exclude Evidence Related to Height of Facility filed.
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Date: 12/05/2014
Proceedings: Department's Notice of Filing filed.
PDF:
Date: 12/05/2014
Proceedings: Amended Joint Pre-hearing Stipulation filed.
PDF:
Date: 12/05/2014
Proceedings: South Palafox's Motion in Limine to Exclude Odor Evidence filed.
PDF:
Date: 12/05/2014
Proceedings: Florida Department of Environmental Protections Motion in Limine filed.
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Date: 12/04/2014
Proceedings: Order Granting Motion for Official Recognition.
PDF:
Date: 12/03/2014
Proceedings: Florida Department of Environmental Protection's Motion for Official Recognition filed.
PDF:
Date: 12/03/2014
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 12/01/2014
Proceedings: Notice of Taking Deposition (of Judy Cook) filed.
PDF:
Date: 11/26/2014
Proceedings: FDEP's Response to South Palafox Properties, LLC's First Request for Production to Petitioner filed.
PDF:
Date: 11/26/2014
Proceedings: Notice of Serving State of Florida Department of Environmental Protection's Answers of First Interrogatories to Respondent filed.
PDF:
Date: 11/25/2014
Proceedings: FDEP's Response to South Palafox Properties, LLC's First Requests for Admission to FDEP filed.
PDF:
Date: 11/24/2014
Proceedings: Amended Notice of Taking Deposition (of Mike Keethler) filed.
PDF:
Date: 11/19/2014
Proceedings: Notice of Taking Deposition (of Mike Keethler) filed.
PDF:
Date: 11/18/2014
Proceedings: Notice of Taking Deposition (of Charlie Miller) filed.
PDF:
Date: 11/18/2014
Proceedings: Cross-notice of Taking Deposition (of Rosa Sestnov) filed.
PDF:
Date: 11/18/2014
Proceedings: Notice of Taking Depositions (of Terrance Davis, Chips Kirschenfeld, and Judy Cook) filed.
PDF:
Date: 11/18/2014
Proceedings: Notice of Taking Depositions (of Chad Nowling, Dawn Templin, Alex Webster, Shawn Hamilton, and Rosa Setnov) filed.
PDF:
Date: 11/18/2014
Proceedings: Notice of Taking Deposition (of Judy Cook) filed.
PDF:
Date: 11/18/2014
Proceedings: Amended Notice of Hearing (hearing set for December 9 through 12, 2014; 9:00 a.m., Central Time; Pensacola, FL; amended as to hearing room location).
PDF:
Date: 11/17/2014
Proceedings: Respondent's Amended Witness List filed.
PDF:
Date: 11/17/2014
Proceedings: FDEP's List of Witnesses filed.
PDF:
Date: 11/17/2014
Proceedings: Notice of Taking Deposition (of Gerry Hartman) filed.
PDF:
Date: 11/14/2014
Proceedings: Order Denying Motion for Continuance.
Date: 11/13/2014
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 11/10/2014
Proceedings: (Respondent's) Motion for Continuance of Final Hearing filed.
PDF:
Date: 11/10/2014
Proceedings: Amended Notice of Taking Deposition (of Scott Miller, Kevin Parsley, and Gary Bishop) filed.
PDF:
Date: 11/10/2014
Proceedings: Notice of Taking Deposition (of Brent Wipf) filed.
PDF:
Date: 11/06/2014
Proceedings: Amended Order of Pre-hearing Instructions.
PDF:
Date: 11/05/2014
Proceedings: Notice of Taking Deposition (of Kevin Parsley, Scott Miller, Charlie Miller, and Gary Bishop) filed.
PDF:
Date: 11/04/2014
Proceedings: FDEP's List of Potential Witnesses filed.
PDF:
Date: 11/03/2014
Proceedings: Respondent's Witness List filed.
PDF:
Date: 10/27/2014
Proceedings: Respondent South Palafox Properties, LLC's First Request for Production to Petitioner filed.
PDF:
Date: 10/27/2014
Proceedings: Notice of Service of Respondent's First Set of Interrogatories filed.
PDF:
Date: 10/27/2014
Proceedings: Notice of Service of Respondent's First Set of Interrogatories filed.
PDF:
Date: 10/27/2014
Proceedings: Respondent South Palafox Properties. LLC's First Requests for Admissions to Petitioner filed.
PDF:
Date: 10/27/2014
Proceedings: Respondent's Response to First Request for Production filed.
PDF:
Date: 10/27/2014
Proceedings: Respondent's Response to First Request for Admissions filed.
PDF:
Date: 10/27/2014
Proceedings: Respondent's Response to First Interrogatories filed.
PDF:
Date: 09/18/2014
Proceedings: State of Florida Department of Environmental Protection's First Request for Production to Respondent filed.
PDF:
Date: 09/18/2014
Proceedings: State of Florida Department of Environmental Protection's First Request for Admissions to Respondent filed.
PDF:
Date: 09/18/2014
Proceedings: Notice of Serving State of Florida Department of Environmental Protection's First Interrogatories to Respondent filed.
PDF:
Date: 09/17/2014
Proceedings: Order Denying Request for Mediation.
PDF:
Date: 09/12/2014
Proceedings: Department of Environmental Protection's Response in Opposition to Respondent South Palafox Properties, LLC's Request for Mediation filed.
PDF:
Date: 09/09/2014
Proceedings: Petitioner's Unopposed Motion for Extension of Time to File Response to Respondent's Request for Mediation filed.
PDF:
Date: 09/09/2014
Proceedings: Respondent South Palafox Properties, LLC's Request for Mediation filed.
PDF:
Date: 08/20/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/20/2014
Proceedings: Notice of Hearing (hearing set for December 9 through 12, 2014; 9:00 a.m., Central Time; Pensacola, FL).
PDF:
Date: 08/19/2014
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 08/12/2014
Proceedings: Initial Order.
PDF:
Date: 08/12/2014
Proceedings: Notice of Revocation filed.
PDF:
Date: 08/12/2014
Proceedings: Petition for Administrative Proceeding filed.
PDF:
Date: 08/12/2014
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
08/12/2014
Date Assignment:
08/14/2014
Last Docket Entry:
01/15/2016
Location:
Pensacola, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (10):

Related Florida Rule(s) (1):