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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK STROUT, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3760

)

STATE OF FLORIDA DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

1995, in Arcadia, Florida.

APPEARANCES

For Petitioner: Frank Strout, Pro se

11163 Agnes Street, Southwest

Arcadia, Florida 33821

For Respondent: W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

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

construction and operation of a construction and demolition debris disposal

facility be denied?

PRELIMINARY STATEMENT

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

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

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

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

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

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

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

demolition debris disposal facility, identified as Frank Strout Construction &

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

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

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

permits for the construction and operation of a construction and demolition

debris disposal facility in the State of Florida.

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

for the construction and operation of a Construction and Demolition Debris

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

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

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

request for operation of a construction and demolition debris disposal facility

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

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

Department on May 2, 1995.

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

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

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

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

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

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

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

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

facility.

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

with supporting information demonstrating compliance with the construction

demolition debris disposal requirements of Chapter 62-701, Florida

Administrative Code, as follows:

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

Florida Administrative Code, have not been

addressed. Documentation indicating that the

site does not violate these prohibitions was

not provided.

(b) The airport requirement of Rule 62-

701(12), Florida Administrative Code, was not

addressed. Information indicating the

location of airports within a 5 mile radius

of the site was not provided.

(c) A site plan which meets the requirements

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

Administrative Code, was not submitted.

(d) A geotechnical investigation which meets

the requirements of Rule 62-701.420, Florida

Administrative Code, was not submitted as

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

Administrative Code.

(e) A description of facility operations

(operations plan) was not submitted as

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

Administrative Code.

(f) A boundary survey was not submitted as

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

Administrative Code.

(g) Closure plans and cross section details

of the final cover which meets the

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

Florida Administrative Code, were not

submitted as required by Rule 62-

701.803(1)(f), Florida Administrative Code.

(h) The Department has received a copy of a

letter from Southwest Florida Water

Management District (District) to the

applicant, dated May 23, 1995, which

indicates that the District is concerned

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

site wetlands. The letter from District,

dated March 13, 1990, provided an exemption

from surface water permitting requirements

based on the District's understanding that

the proposed operation would not change

surface water drainage patterns, stormwater

runoff quantities or quality. However, site

inspections by the Department and District

staff have indicated that surface water

drainage patterns have been changed by the

operation at the site. Therefore, a copy of

a permit for stormwater control issued by the

Department or the District shall be required

pursuant to Rule 62-701.803(4), Florida

Administrative Code.

(i) Information indicating the availability

of equipment for the temporary storage of

unacceptable wastes at the site, and

segregation methods were not submitted as

required by Rule 62-701.803(5), Florida

Administrative Code.

(j) Compaction procedures and equipment were

not described as required by Rule 62-

701.803(6), Florida Administrative Code.

(k) A description of access control methods

and devices was not submitted as required by

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

Code.

(l) A description of waste inspection

procedures was not submitted as required by

Rule 62-701.803(8), Florida Administrative

Code.

(m) The facility's operating hours were not

provided to ensure compliance with Rule 62-

701.803(9), Florida Administrative Code.

(n) The closure plan submitted as required by

Rule 62-701.803(10), Florida Administrative

Code, is insufficient.

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

Administrative Code, the Department shall

take into consideration a permit applicant's

violation of any Department rules at any

installation when determining whether the

applicant has provided reasonable assurances

that Department standards will be met.

Reasonable assurance that Department

standards will be met has not been provided.

Pursuant to Rule 62-701.803(10), Florida

Administrative Code, final cover and

vegetation shall be established on each

disposal unit within 180 days of final

receipt of wastes for that unit. Since waste

has not been disposed at the site since

approximately March, 1993, and the area has

not been closed, the requirements of Rule 62-

701.803(10), Florida Administrative Code, has

not been met.

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

north of both the existing and proposed disposal areas.

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

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

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

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

occasion when the pond discharged to surface waters.

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

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

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

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

documentation that a storm water permit was not necessary

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

property upon which the proposed construction and debris disposal facility will

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

area.

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

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

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

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

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

the proposed disposal area.

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

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

12. Petitioner has not furnished the Department with the existing

elevations within the proposed disposal area. Without these elevations the

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

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

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

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

13. Petitioner has not provided the Department with a geotechnical

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

subsurface features would adequately support the proposed disposal area.

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

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

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

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

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

addressed by Petitioner.

15. Petitioner has failed to provide the Department with reasonable

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

with applicable laws or rules.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

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

120.57(1), Florida Statutes.

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

(2) If, after review of the application and

all information, the Department determines

that the applicant has not provided

reasonable assurance that the construction,

modification, expansion, or operation of the

installation will be in accord with

applicable laws or rules, including rules of

approved local programs, the Department shall

deny the permit.

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

provide in pertinent part as follows:

(2) Disposal. Unless authorized by a

Department permit or site certification in

effect on January 6, 1993, no solid waste

shall be stored or disposed of by being

placed:

(a) In an area where geological formations or

subsurface features would not provide support

for the solid waste;

(c) Within 500 feet of an existing or

approved potable water well unless disposal

takes place at a facility for which a

complete permit application was filed or

which originally permitted before the potable

water well was in existence. This prohibition

shall not apply to any renewal of an existing

permit that does not involve lateral

expansion, nor to any vertical expansion at a

permitted facility;

(g) Within 200 feet of any natural or

artificial body of water, including wetlands

within the jurisdiction of the Department,

except bodies of water contained completely

within the property boundaries of the

disposal site, which do not discharge from

the site to surface waters. .

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

Florida Administrative Code, provide in pertinent part as follows:

(1) Notification. The owner or operator of

the construction and demolition debris

disposal facility shall notify the Department

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

intent to use this general permit. . . The

notification shall be signed and sealed by a

professional engineer and shall include:

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

200 feet to the inch, which shows the project

location and identifies the proposed disposal

areas, total acreage of the site and the

proposed disposal area, and any other

relevant features such as water bodies,

wetlands, or potable water wells on or within

500 feet of the site;

(b) A geotechnical investigation which meets

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

* * *

(e) The planned active life of the facility,

and designed height of the facility;

(f) Closure plans and cross section details

of the final cover;

* * *

(4) Stormwater. Stormwater shall be

controlled in accordance with Chapters 62-25

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

stormwater control issued by the Department,

or documentation that no such permit is

required, shall be submitted to the

Department before the facility receives waste

for disposal. Applicants should be aware that

other government agencies may also regulate

stormwater management and may require

separate permits.

* * *

(6) Compaction. Construction and demolition

debris shall be compacted and sloped as

necessary to assure that the requirements of

subsection (9) of this section can be met.

* * *

(9) Inspections, Operation of a facility

under a general permit constitutes consent

for the Department personnel to inspect the

site during normal business hours for

compliance with Department rules.

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

grade disposal areas shall be no greater than

three feet horizontal to one foot vertical

rise. (Emphasis suppled).

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

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

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

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

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

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

to provide the Department with reasonable assurance that the construction,

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

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

furnished the Department with certain information that may resolve the

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

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

assurance" burden cast upon the Petitioner.

RECOMMENDATION

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

recommended that the Department of Environmental Protection enter a final order

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

of a demolition and debris disposal facility.

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

___________________________________

WILLIAM R. CAVE, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3760

The following constitutes my specific rulings, pursuant to Section

120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

by the Petitioner and the Department in this case.

Petitioner's Proposed Findings of Fact.

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

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

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

record.

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

Department's Proposed Findings of Fact.

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

modified in Findings of Fact 1 through 15.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante, Esquire

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Frank Strout, Pro se

11163 Agnes Street, Southwest

Arcadia, Florida 33821

W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

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

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

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

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

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

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