95-003760 Frank Strout vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Friday, January 19, 1996.

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Summary: Petitioner failed to present sufficient evidence to overcome his burdern of reasonable assurance.





12Petitioner, )


15vs. ) CASE NO. 95-3760





31Respondent. )



36Upon due notice, William R. Cave, Hearing Officer, Division of

46Administrative Hearings, held a formal hearing in this matter on December 13,

581995, in Arcadia, Florida.


63For Petitioner: Frank Strout, Pro se

6911163 Agnes Street, Southwest

73Arcadia, Florida 33821

76For Respondent: W. Douglas Beason, Esquire

82Department of Environmental Protection

863900 Commonwealth Boulevard

89Tallahassee, Florida 32399-3000


96Should Petitioner Frank Strout's application for a general permit for the

107construction and operation of a construction and demolition debris disposal

117facility be denied?


122In April, 1990, Frank Strout received a construction and demolition

132disposal permit from the Department for a facility located at 11163 Agnes

144Street, Southwest, Arcadia, DeSoto County, Florida. However, that permit, which

154was valid for a period of only five years from the date of issuance, expired

169before Strout submitted the application which is at issue in this proceeding.

181By a Notice of Denial to Use a General Permit (Notice) dated May 16, 1995, the

197Department notified Strout that his request for operation of a construction and

209demolition debris disposal facility, identified as Frank Strout Construction &

219Demolition Debris Landfill, located on Agnes Avenue, Southwest, Arcadia, DeSoto

229County, Florida did not qualify for a general permit based on the information

242submitted with his request dated April 26, 1995, and received by the Department

255on May 2, 1995. After receipt of the above Notice, Petitioner requested a

268formal hearing. On July 28, 1995, the Department referred this matter to the

281Division for the assignment of a Hearing Officer and the conduct of a hearing.

295At the hearing Petitioner testified in his own behalf but offered no other

308witness. Joint Exhibit 1 was received as evidence. Petitioner offered no other

320evidence. The Department presented the testimony of Robert Butera. The

330Department's exhibits 1, 2A-2E, 3A-3D and 4 were received as evidence.

341There was no transcript of the proceeding filed with the Division.

352Petitioner and the Department timely filed their proposed findings of fact and

364conclusions of law. A ruling on each proposed finding of fact submitted by

377Petitioner and the Department has been made as reflected in an Appendix to the

391Recommended Order.


396Upon consideration of the oral and documentary evidence adduced at the

407hearing, the following relevant findings of fact are made:

416l. At all times pertinent to this proceeding, the Department was the state

429agency responsible for receiving applications for, and the issuance of, general

440permits for the construction and operation of a construction and demolition

451debris disposal facility in the State of Florida.

4592. Petitioner Frank Strout, submitted an application for a General Permit

470for the construction and operation of a Construction and Demolition Debris

481Disposal Facility with the Department dated April 26, 1995, which was received

493by the Department on May 2, 1995. On May 16, 1995, the Department issued a

508Notice of Denial to Use a General Permit advising the Petitioner that his

521request for operation of a construction and demolition debris disposal facility

532did not qualify for a general permit based on the information submitted by

545Petitioner in his application dated April 26, 1995, and received by the

557Department on May 2, 1995.

5623. The property upon which the proposed construction and debris disposal

573facility was to be placed is located at 11163 Agnes Avenue, Southwest, Arcadia,

586DeSoto County, Florida, and is owned by Petitioner Frank Strout. This location

598is the same as the location of the construction and demolition debris facility

611owned by Petitioner that previously operated under a permit issued to Petitioner

623in April, 1990, which expired due to Petitioner's failure to timely file for an

637extension of that permit with the Department. However, the disposal area will

649not cover the entire area of the disposal area of the previous permitted


6634. The Notice advised Petitioner that he had not provided the Department

675with supporting information demonstrating compliance with the construction

683demolition debris disposal requirements of Chapter 62-701, Florida

691Administrative Code, as follows:

695(a) The prohibitions of Rule 62-701.300(2),

701Florida Administrative Code, have not been

707addressed. Documentation indicating that the

712site does not violate these prohibitions was

719not provided.

721(b) The airport requirement of Rule 62-

728701(12), Florida Administrative Code, was not

734addressed. Information indicating the

738location of airports within a 5 mile radius

746of the site was not provided.

752(c) A site plan which meets the requirements

760of Rule 62-701.803(1)(a), Florida

764Administrative Code, was not submitted.

769(d) A geotechnical investigation which meets

775the requirements of Rule 62-701.420, Florida

781Administrative Code, was not submitted as

787required by Rule 62-701.803(1)(b), Florida

792Administrative Code.

794(e) A description of facility operations

800(operations plan) was not submitted as

806required by Rule 62-701.803(1)(c), Florida

811Administrative Code.

813(f) A boundary survey was not submitted as

821required by Rule 62-701.803(1)(d), Florida

826Administrative Code.

828(g) Closure plans and cross section details

835of the final cover which meets the

842requirements of Rule 62-701.320(7)(f),

846Florida Administrative Code, were not

851submitted as required by Rule 62-

857701.803(1)(f), Florida Administrative Code.

861(h) The Department has received a copy of a

870letter from Southwest Florida Water

875Management District (District) to the

880applicant, dated May 23, 1995, which

886indicates that the District is concerned

892about the proximity of the C&D debris to on-

901site wetlands. The letter from District,

907dated March 13, 1990, provided an exemption

914from surface water permitting requirements

919based on the District's understanding that

925the proposed operation would not change

931surface water drainage patterns, stormwater

936runoff quantities or quality. However, site

942inspections by the Department and District

948staff have indicated that surface water

954drainage patterns have been changed by the

961operation at the site. Therefore, a copy of

969a permit for stormwater control issued by the

977Department or the District shall be required

984pursuant to Rule 62-701.803(4), Florida

989Administrative Code.

991(i) Information indicating the availability

996of equipment for the temporary storage of

1003unacceptable wastes at the site, and

1009segregation methods were not submitted as

1015required by Rule 62-701.803(5), Florida

1020Administrative Code.

1022(j) Compaction procedures and equipment were

1028not described as required by Rule 62-

1035701.803(6), Florida Administrative Code.

1039(k) A description of access control methods

1046and devices was not submitted as required by

1054Rule 62-701,803(7), Florida Administrative


1060(l) A description of waste inspection

1066procedures was not submitted as required by

1073Rule 62-701.803(8), Florida Administrative


1078(m) The facility's operating hours were not

1085provided to ensure compliance with Rule 62-

1092701.803(9), Florida Administrative Code.

1096(n) The closure plan submitted as required by

1104Rule 62-701.803(10), Florida Administrative

1108Code, is insufficient.

1111(o) Pursuant to Rule 62-4.070(5), Florida

1117Administrative Code, the Department shall

1122take into consideration a permit applicant's

1128violation of any Department rules at any

1135installation when determining whether the

1140applicant has provided reasonable assurances

1145that Department standards will be met.

1151Reasonable assurance that Department

1155standards will be met has not been provided.

1163Pursuant to Rule 62-701.803(10), Florida

1168Administrative Code, final cover and

1173vegetation shall be established on each

1179disposal unit within 180 days of final

1186receipt of wastes for that unit. Since waste

1194has not been disposed at the site since

1202approximately March, 1993, and the area has

1209not been closed, the requirements of Rule 62-

1217701.803(10), Florida Administrative Code, has

1222not been met.

12255. There is pond on the Petitioner's property which is located to the

1238north of both the existing and proposed disposal areas.

12476. The pond is located within 200 feet of the proposed disposal area. The

1261pond is contained completely within the boundaries of the disposal site and on

1274at least one occasion has discharged to surface waters. However, there is no

1287evidence to show that there was at least a 25 year/24 hour storm event on the

1303occasion when the pond discharged to surface waters.

13117. Petitioner has failed to furnish the Department with the necessary

1322information for the Department to determine if the pond discharges from the site

1335to surface waters in a 25 year/24 hour storm event. Likewise, Petitioner has

1348failed to provide the Department with either a copy of a storm water permit or

1363documentation that a storm water permit was not necessary

13728. Wetlands are located along the southern boundary of Petitioner's

1382property upon which the proposed construction and debris disposal facility will

1393be located. These wetlands are located within 200 feet of the proposed disposal


14079. Petitioner has offered to reconfigure the disposal area to meet the 200

1420feet setback. However, Petitioner has not submitted a site plan to demonstrate

1432the manner in which compliance with the 200 feet setback would be achieved.

144510. There is a potable water well located on Petitioner's property upon

1457which the proposed facility is to be located which is located within 500 feet of

1472the proposed disposal area.

147611. The permit application proposes a maximum elevation of 84 feet for the

1489disposal area with a 3:1 slope for the entire disposal area.

150012. Petitioner has not furnished the Department with the existing

1510elevations within the proposed disposal area. Without these elevations the

1520Petitioner cannot show how he would comply with the proposed maximum elevation

1532while maintaining the required 3:1 slope. Likewise, without these elevations,

1542the Department would be unable to determine if Petitioner is complying with the

1555proposed maximum elevation while maintaining the required 3:1 slope.

156413. Petitioner has not provided the Department with a geotechnical

1574investigation so as to allow the Department to determine if the site's

1586subsurface features would adequately support the proposed disposal area.

159514. The evidence in the record shows that Petitioner has not addressed all

1608of the Department's concerns set out in Finding of Fact 4 (a) through (o).

1622However, based on the testimony of Petitioner and Robert Butera, the

1633Department's witness, it appears that the Department would consider the concerns

1644set out in Finding of Fact 4 (b), (e), (f), (k), and (m) to have been adequately

1661addressed by Petitioner.

166415. Petitioner has failed to provide the Department with reasonable

1674assurance that the construction or operation of the facility would be in accord

1687with applicable laws or rules.


169516. The Division of Administrative Hearings has jurisdiction over the

1705parties to, and the subject matter of, these proceedings pursuant to Section

1717120.57(1), Florida Statutes.

172017. Rule 62-4.070(2), Florida Administrative Code, provides as follows:

1729(2) If, after review of the application and

1737all information, the Department determines

1742that the applicant has not provided

1748reasonable assurance that the construction,

1753modification, expansion, or operation of the

1759installation will be in accord with

1765applicable laws or rules, including rules of

1772approved local programs, the Department shall

1778deny the permit.

178118. Rules 62-701.300(2)(a), (c) and (g), Florida Administrative Code,

1790provide in pertinent part as follows:

1796(2) Disposal. Unless authorized by a

1802Department permit or site certification in

1808effect on January 6, 1993, no solid waste

1816shall be stored or disposed of by being


1825(a) In an area where geological formations or

1833subsurface features would not provide support

1839for the solid waste;

1843(c) Within 500 feet of an existing or

1851approved potable water well unless disposal

1857takes place at a facility for which a

1865complete permit application was filed or

1871which originally permitted before the potable

1877water well was in existence. This prohibition

1884shall not apply to any renewal of an existing

1893permit that does not involve lateral

1899expansion, nor to any vertical expansion at a

1907permitted facility;

1909(g) Within 200 feet of any natural or

1917artificial body of water, including wetlands

1923within the jurisdiction of the Department,

1929except bodies of water contained completely

1935within the property boundaries of the

1941disposal site, which do not discharge from

1948the site to surface waters. .

195419. Rules 62-701.803(1)(a), (b), (e) and (f), (4), (6), (9) and (10),

1966Florida Administrative Code, provide in pertinent part as follows:

1975(1) Notification. The owner or operator of

1982the construction and demolition debris

1987disposal facility shall notify the Department

1993in writing on Form 62-701.900(3) of the

2000intent to use this general permit. . . The

2009notification shall be signed and sealed by a

2017professional engineer and shall include:

2022(a) A site plan, of a scale not greater than

2032200 feet to the inch, which shows the project

2041location and identifies the proposed disposal

2047areas, total acreage of the site and the

2055proposed disposal area, and any other

2061relevant features such as water bodies,

2067wetlands, or potable water wells on or within

2075500 feet of the site;

2080(b) A geotechnical investigation which meets

2086the criteria of Rule 62-701.420, F.A.C.;

2092* * *

2095(e) The planned active life of the facility,

2103and designed height of the facility;

2109(f) Closure plans and cross section details

2116of the final cover;

2120* * *

2123(4) Stormwater. Stormwater shall be

2128controlled in accordance with Chapters 62-25

2134and 62-330, F.A.C. A copy of any permit for

2143stormwater control issued by the Department,

2149or documentation that no such permit is

2156required, shall be submitted to the

2162Department before the facility receives waste

2168for disposal. Applicants should be aware that

2175other government agencies may also regulate

2181stormwater management and may require

2186separate permits.

2188* * *

2191(6) Compaction. Construction and demolition

2196debris shall be compacted and sloped as

2203necessary to assure that the requirements of

2210subsection (9) of this section can be met.

2218* * *

2221(9) Inspections, Operation of a facility

2227under a general permit constitutes consent

2233for the Department personnel to inspect the

2240site during normal business hours for

2246compliance with Department rules.

2250(10) Closure. The side slopes of all above-

2258grade disposal areas shall be no greater than

2266three feet horizontal to one foot vertical

2273rise. (Emphasis suppled).

227620. As the applicant for the permit, Petitioner has the burden to

2288establish facts to demonstrate his entitlement to the permit by a preponderance

2300of the evidence. Florida Department of Transportation v. J. W. C. Company,

2312Inc., 396 So.2d 778, 787 (1st DCA Fla. 1989). Initially, the Department denied

2325Petitioner's application for a permit because Petitioner had failed to comply

2336those matters set out in Finding of Fact 4 (a) through (o), and thereby, failed

2351to provide the Department with reasonable assurance that the construction,

2361modification, expansion, or operation of the facility would be in accord with

2373applicable laws and rules. Subsequent to the initial denial, Petitioner has

2384furnished the Department with certain information that may resolve the

2394Department's concerns in regard to some of those matters set out in Finding of

2408Fact 4. However, Petitioner's efforts fall short of carrying the "reasonable

2419assurance" burden cast upon the Petitioner.


2426Based upon the foregoing Findings of Fact and Conclusions of Law, it is

2439recommended that the Department of Environmental Protection enter a final order

2450denying Petitioner's application for a permit for the construction and operation

2461of a demolition and debris disposal facility.

2468DONE and ENTERED this 19th day of January, 1996, at Tallahassee, Florida.


2481WILLIAM R. CAVE, Hearing Officer

2486Division of Administrative Hearings

2490The DeSoto Building

24931230 Apalachee Parkway

2496Tallahassee, Florida 32399-1550

2499(904) 488-9675

2501Filed with the Clerk of the

2507Division of Administrative Hearings

2511this 19th day of January, 1996.


2524The following constitutes my specific rulings, pursuant to Section

2533120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

2545by the Petitioner and the Department in this case.

2554Petitioner's Proposed Findings of Fact.

2559Petitioner's proposed findings of fact are set out in three unnumbered

2570paragraphs which shall be considered as proposed findings of fact 1 through 3.

25831. Proposed findings of fact 1-2 are not supported by evidence in the


25972. Adopted in substance as modified in Finding of Fact 14.

2608Department's Proposed Findings of Fact.

26131. Proposed findings of fact 1 through 12 are adopted in substance as

2626modified in Findings of Fact 1 through 15.


2636Virginia B. Wetherell, Secretary

2640Department of Environmental Protection

2644Douglas Building

26463900 Commonwealth Boulevard

2649Tallahassee, Florida 32399-3000

2652Kenneth Plante, Esquire

2655Department of Environmental Protection

2659Douglas Building

26613900 Commonwealth Boulevard

2664Tallahassee, Florida 32399-3000

2667Frank Strout, Pro se

267111163 Agnes Street, Southwest

2675Arcadia, Florida 33821

2678W. Douglas Beason, Esquire

2682Department of Environmental Protection

26863900 Commonwealth Boulevard

2689Tallahassee, Florida 32399-3000


2698All parties have the right to submit written exceptions to this Recommended

2710Order. All agencies allow each party at least 10 days in which to submit

2724written exceptions. Some agencies allow a larger period within which to submit

2736written exceptions. You Should contact the agency that will issue the final

2748order in this case concerning agency rules on the deadline for filing exceptions

2761to this Recommended Order. Any exceptions to this Recommended Order should be

2773filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
Date: 02/22/1996
Proceedings: Final Order filed.
Date: 02/20/1996
Proceedings: Agency Final Order
Date: 02/20/1996
Proceedings: Recommended Order
Date: 01/19/1996
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 12-13-95.
Date: 12/22/1995
Proceedings: Department of Environmental Protection's Proposed Recommended Order filed.
Date: 12/19/1995
Proceedings: (Petitioner) Proposed Findings filed.
Date: 12/13/1995
Proceedings: CASE STATUS: Hearing Held.
Date: 08/29/1995
Proceedings: Notice of Hearing sent out. (hearing set for 12/13/95; 9:00am; Arcadia)
Date: 08/28/1995
Proceedings: Department of Environmental Protection's Response to Initial Order filed.
Date: 08/02/1995
Proceedings: Initial Order issued.
Date: 07/28/1995
Proceedings: Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Intent to Issue; Petition for Hearing In Accordance With Section 120.57 Florida Statutes And/Or Request For Extension Of Time To File A Petition; Notice Of Denial To Us

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Arcadia, Florida

Related DOAH Cases(s) (1):

Related Florida Statute(s) (1):

Related Florida Rule(s) (6):