06-002005 David And Lisa Cimini, Miriam Resto, Tim Mccormack, John Mapp, And Jim Taylor vs. Lake Environmental Resources, Llc., And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, November 8, 2006.

Summary: Applicant provided reasonable assurance that its construction and demolition debris disposal facility would not violate applicable air emission standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID AND LISA CIMINI, MIRIAM )

RESTO, TIMOTHY L. MCCORMACK, )

JOHN A. MAPP, JR., and JIM )

TAYLOR, )

)

Petitioners, )

)

vs. ) Case No. 06 - 2005

)

DEPARTMENT O F ENVIRONMENTAL )

PROTECTION and LAKE )

ENVIRONMENTAL RESOURCES, LLC, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on September 18,

2006, in Tavares, Florida.

APPEARANCES

For Petitioners: David Cimini, pro se

(the Cimi nis) 21423 County Road 455

Clermont, Florida 34715 - 6812

For Petitioner: Timothy L. McCormack, pro se

11321 Valley View Road

Howey - in - the - Hills, Florida 34737 - 4702

For Petitioner: John A. Map p, Jr., pro se

21307 County Road 561

Clermont, Florida 34715 - 6850

For Respondent: Jack Chisholm, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Daniel H. Thompson, Esquire

(LER) Berger Singerman, P.A.

315 South Calho un Street, Suite 712

Tallahassee, Florida 32301 - 1872

ISSUE

The issue is whether a permit should be issued to

Respondent, Lake Environmental Resources, LLC (LER), authorizing

the construction and operation of a construction and demoliti on

debris disposal facility in unincorporated Lake County, Florida.

BACKGROUND

This matter began on May 4, 2006, when Respondent,

Department of Environmental Protection (Department), gave notice

of its intent to issue a permit to LER autho rizing it to

construct and operate a facility for construction and demolition

debris disposal and recycling on a 44.33 - acre site in

unincorporated Lake County, Florida. On May 17, 2006,

Petitioners, David and Lisa Cimini, Miriam Resto, Timothy L.

McCorma ck, John A. Mapp, Jr., and Jim Taylor, who each alleged

that they resided or operated businesses near the site of the

proposed activity, filed their Petition with the Department

contesting the proposed issuance of the permit and seeking the

imposition of t wo additional conditions on the applicant.

The matter was forwarded by the Department to the Division

of Administrative Hearings on June 7, 2006, with a request that

an administrative law judge be assigned to conduct a hearing.

By Notice of Hearing dat ed July 19, 2006, the matter was

scheduled for final hearing on September 18 and 19, 2006, in

Tavares, Florida.

On September 15, 2006, Petitioners filed two Requests for

Continuance (Requests), one on the ground they needed additional

time to prepare for hearing, and the second on the ground they

desired to hire counsel. Both Requests were later withdrawn.

At the final hearing, Petitioners jointly presented the

testimony of Timothy L. McCormack, John A. Mapp, Jr., and Jo

Anne Wettstein Griffin, all lay w itnesses. Also, they offered

Petitioners' Exhibits 1, 2, 9A, 22, 30, 34, 35, and 39 - 44. 1 All

have been received except Exhibit 30. Petitioners Resto and

Taylor did not appear at the final hearing or otherwise present

any evidence. The Department presen ted the testimony of James

N. Bradner, a professional engineer and Department solid and

hazardous waste program manager in the Department's Central

District Office and accepted as an expert. Also, it offered

Department Exhibit 1, which was received in evi dence. LER

presented the testimony of James E. Golden, a hydrogeologist and

accepted as an expert. Also, it offered LER Exhibits 1, 2, 3 - 1

through 3 - 12, and 4 through 15, which were accepted in evidence.

The Transcript of the hearing was filed on Octob er 10,

2006. Proposed Findings of Fact and Conclusions of Law were

filed by Respondents and Petitioners on October 20 and 24, 2006,

respectively, and they have been considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

Based on the evi dence presented by the parties, the

following findings of fact are made:

A. The Parties

1. LER, whose mailing address is Post Office Box 2872,

Windermere, Florida, is a limited liability company authorized

to do business in the State. LER's principals a re Linwood

Brannon and Richard Bazinet, both of whom have had at least ten

years' experience in the operation and construction of

demolition debris disposal facilities.

2. The Department is an agency of the State that is

authorized under Chapter 403, Fl orida Statutes (2005) 2 , to

evaluate applications and issue permits for construction and

demolition debris disposal and recycling facilities. The permit

in issue here was processed, reviewed, and approved for issuance

by the Department's Central District O ffice in Orlando, Florida.

3. Petitioners Miriam Resto and Jim Taylor did not appear

at the final hearing or otherwise present any evidence as to

where they resided or how their substantial interests would be

determined by the issuance of a permit.

4 . Petitioner Timothy L. McCormack resides at 11321 Valley

View Road, Howey - in - the - Hills, Florida. Mr. McCormack's home is

"a little over a mile" north - northwest of the proposed facility.

His concern with the proposed facility is generally over

contamina tion from the landfill, and not contamination occurring

at the property.

5. Petitioner John A. Mapp, Jr., resides at 21307 County

Road 561, Clermont, Florida, which is approximately one - half

mile from the proposed facility. Mr. Mapp's home is upgradient

from the facility and consequently he has no "individual

concerns" as to how the proposed facility would affect his home.

He is concerned, however, with potential groundwater

contamination from the facility.

6. Petitioners David and Lisa Cimini did not t estify at

the final hearing or otherwise present any evidence as to where

they resided or how their substantial interests would be

determined by this proceeding. According to the Partial Pre -

Hearing Stipulation filed by Respondents, however, they reside

a t 21423 County Road 455, Clermont, Florida, which is near the

proposed facility.

b. Background

7. On July 26, 2005, LER filed an application with the

Department for a permit authorizing it to construct and operate

a facility for construction and demolition debris disposal and

recycling in an unincorporated area of the County. A lengthy

definition of construction and demolition debris is found in

Florida Administrative Code Rule 62 - 701.200(27), which reads as

follows:

discarded materials generally considered to

be not water soluble and non - hazardous in

nature, including but not limited to steel,

glass, brick, concrete, asphalt material,

pipe gypsum wallboard, and lumber, from the

construction or destruction of a structure

as part of a construction or demolition

project or from the renovation of a

structure, including such debris from

construction of structures at a site remote

from the construction or demolition project

site. The term includes r ocks, soils, tree

remains, trees, and other vegetative matter

which normally results from land clearing or

land development operations for a

construction project; clean cardboard,

paper, plastic, wood, and metal scraps from

a construction project; effectiv e January 1,

1997, except as provided in Section

403.707(12)(j), F.S., unpainted, non - treated

wood scraps from the facilities

manufacturing materials used for

construction of structures or their

components and unpainted, non - treated wood

pallets provided t he wood scraps and pallets

are separated from other solid waste where

generated and the generator of such wood

scraps or pallets implements reasonable

practices of the generating industry to

minimize the commingling of wood scraps or

pallets with other sol id waste; and de

minimus amounts of other non - hazardous

wastes that are generated at construction

and demolition projects, provided such

amounts are consistent with best management

practices of the construction and demolition

industries. Mixing of constru ction and

demolition debris with other types of solid

waste will cause it to be classified as

other than construction and demolition

debris.

8. The facility will be located on a 44.33 - acre site one -

half mile west of State Road 561, of f County Road 455, in an

unincorporated part of Lake County. Based on this description,

it appears that the facility will be located east of Howey - in -

the Hills, west of Tavares, and approximately half - way between

Astatula and where State Road 561 crosses the Florida Turnpike

to the southwest. The site presently has an active sand mine

(borrow pit) that covers an area of approximately twenty - two

acres. The facility intends to recycle metal, concrete,

asphalt, wood chips, and PVC (polyvinyl chloride) and w ill serve

areas in Lake County and nearby communities.

9. In response to LER's initial application, the Central

District Office submitted a Request for Additional Information

dated August 22, 2005, asking for additional well and site

information, operatio ns plan details, and financial assurance

clarification. On October 20, 200, LER submitted its Response

to Request for Additional Information.

10. While the application was being processed, Mr. Cimini

advised the Department that two additional wells su rrounded the

property, including one that had recently been installed on

property owned by Mr. Gary Sprauer that lies within five hundred

feet of the limits of waste disposal of the facility. On

November 18, 2005, the Department submitted an additional

Re quest for Additional Information, in which it brought up the

fact that Mr. Cimini had advised the Department of the existence

of these wells.

11. On November 28, 2005, LER submitted its Response to

Request for Additional Information, in which it stated that only

one well, which belonged to a Mr. Sprauer, had been drilled

within five hundred feet of the proposed facility; that there

was no electricity to the well; that the nearest residence was

approximately seven hundred feet away; and that the well was not

approved or being used as a potable water well. Therefore, LER

asserted that the Department should not treat the Sprauer well

as a potable water well subject to the five - hundred - foot setback

from potable water wells for landfills established in Florid a

Administrative Code Rule 62 - 701.300(2)(b). LER's submittal

provided additional information on the geology and operational

aspects of its proposed facility.

12. On December 6, 2005, LER submitted additional

information in response to items discussed at a meeting held

between the Department and LER on December 2, 2005. The

submittal contained further information about potential drinking

water wells around the proposed facility, and LER reasserted

that the Sprauer well should not be treated by the Departm ent as

a potable drinking water well. Based upon its own

investigation, however, the Department concluded that the

Sprauer well "was a bona fide drinking water well for domestic

supply."

13. On January 6, 2006, Mr. Bradner, a Department solid

and hazard ous waste program manager who was assisting in the

processing and review of the application, wrote a memorandum to

the file confirming that the Department considered the

application complete as of December 6, 2005.

14. On February 10, 2006, LER provided additional

hydrologic and operational information in order to try to

convince the Department not to apply the five - hundred - foot

setback to the Sprauer well. This information showed that the

Sprauer well would be upgradient from the proposed facility.

The Department allows waste to be placed within five hundred

feet of an existing potable water well based upon site - specific

conditions as demonstrated by an applicant. See Fla. Admin.

Code R. 62 - 701.300(2)(b).

15. On March 27, 2006, in response to the Depa rtment's

comments on its submittal of this additional information, LER

submitted further hydrologic and modeling information to support

its contention that groundwater flowed away from the well

belonging to Mr. Sprauer. On April 27, 2006, LER provided the

Department with further refinement of its groundwater model to

demonstrate that there would be no impact to the Sprauer well.

16. On May 4, 2006, the Central District Office issued

notice of its intent to approve the application and issue a

permit to L ER. Of significance here is the fact that the

Department did not require LER to install a liner and leachate

collection system. This was consistent with the terms of

Florida Administrative Code Rule 62 - 701.730(4)(a), which does

not require a liner unless the Department demonstrates that the

facility is "reasonably expected to result in violations of

ground water standards and criteria."

17. On May 17, 2006, Petitioners filed their Petition

challenging the issuance of the permit. As grounds, Petitioner s

alleged that there is a substantial risk that the surrounding

groundwater will be contaminated by leachates from the facility,

and that the Department should accordingly require LER to (a)

install a liner and associated leachate recovery system in their

facility and (b) post a surety bond necessary to maintain the

system in good working order and to fund a toxic cleanup should

it become necessary.

c. The Proposed Project

18. Among other things, the application included an

engineering report, an operati ons plan, a geotechnical

evaluation of the stability of the site, a hydrological

investigation, a stormwater management plan, a reclamation and

closure plan, and financial assurance documentation. These

elements are required by Florida Administrative Code Rule 62 -

701.730, which governs this type of application.

19. The proposed facility is to be located on a 44.33 - acre

parcel in a rural area that has been the site of a sand and clay

borrow pit. The pit has been mined for the last thirty years,

has been permitted by Lake County as a mine since 1986, and

before being used as a mine was the site of an orange grove.

20. As explained by Mr. Golden, the proposed facility's

project manager, the site is "high and dry" and "a good site for

a landfill." The w ater table is at least one hundred feet below

the ground surface.

21. There is a confining layer of clays and sandy clays

approximately one hundred fifty feet below the ground surface at

the site of the proposed facility, and the layer has very low

hydr ologic conductivity, that is, 1,000 to 10,000 times less

permeable than the surface sands. The Floridan Aquifer is

approximately two hundred feet below ground surface.

22. The horizontal velocity of the groundwater at the site

is approximately two fee t per year, and the vertical velocity

about 1.3 inches per year. As a result, the groundwater

monitoring system at the proposed facility would detect any

contamination that might be emitted. In addition, approximately

twenty feet of dry soils underlying the landfill would absorb

whatever comes out of the landfill to begin with, just like a

septic tank.

23. The confining layer would be approximately one hundred

to one hundred twenty feet below the landfill base and would be

anywhere from twenty to forty feet deep. As a result, it is

highly unlikely that any potential contaminants that

hypothetically might be emitted from the facility would ever

reach the Floridan Aquifer.

d. The Proposed Permit

24. On May 4, 2006, the Central District Office issued its

intent to issue the permit. Attached to that intent to issue

was a Draft Permit. The Draft Permit restricts disposal of

solid waste exclusively to construction and demolition debris

(as defined in the rule cited above) and requires LER to comply

with an Operations Plan developed by LER. Among other things,

the Operations Plan provides for operators trained in spotting

and turning away unacceptable waste and other screening

procedures to ensure nondisposal of unacceptable waste. The

Operations Plan exceeds minimum Department rule requirements.

25. The Operations Plan prohibits disposal of CCA

(chromated copper arsenate) pressure treated wood and has a

special screening procedure to ensure that these wood products

do not come into the facility.

2 6. The Draft Permit requires LER to install a system of

groundwater monitoring wells that surround the property at both

shallow and deep depths to detect any potential contaminants

coming off of the site. Thus, LER will be required to monitor

the surfici al aquifer, the Floridan Aquifer, and adjacent wells

to ensure protection of area groundwater. The wells will act as

a form of early warning indicator so that corrective action can

be undertaken in the event the wells show a potential threat to

drinking w ater beyond the property boundary of the proposed

facility.

27. The Draft Permit requires two wells to be installed

immediately to the north of the Sprauer well, even though it is

upgradient from the site. To be conservative and prudent, the

Department is requiring that the number of wells that LER must

install be substantially greater than the minimum required under

Department rules.

28. Based upon the hydrologic evaluation and the proposed

permit conditions, Mr. Golden concluded that LER has provide d

reasonable assurance that the proposed facility will not

discharge pollutants in contravention of Department standards or

rules. Mr. Bradner agreed with this conclusion and likewise

concluded that LER had provided reasonable assurance that the

proposed facility will comply with all of the required statutes

and rules. The weight of the evidence supports these

conclusions.

29. The weight of the evidence also supports Mr. Golden' s

conclusion that based upon the hydrologic evaluation and the

proposed permit conditions, the proposed facility will not be a

source of contamination for wells within or greater than five

hundred feet of the proposed facility. In the same vein,

Mr. B radner determined that the Sprauer well was the only

existing potable drinking water well within five hundred feet.

Both experts concluded that the Sprauer well would not be

adversely impacted based upon the Department's review of the

groundwater modeling data provided to it by LER.

30. Finally, the weight of the evidence supports

Mr. Golden's conclusion that, based upon the hydrologic

evaluation and the proposed permit conditions, the Department

should not require LER to install a landfill liner a t the

proposed facility. Mr. Bradner agreed with that conclusion.

e. Petitioners' Objections

31. In their Petition, Petitioners have raised the

following objections to the issuance of a permit:

a. That because the proposed facility would

have no li ner, the local environment and

drinking water supplies would not be

adequately protected from contamination;

b. That the application significantly

underestimates the amount of recharge to

local aquifers;

c. That the application ignores or

underestimate s the ecological fragility of

the area; and

d. That the location of the Sprauer well

should require a reconfiguration of the

footprint of the proposed facility.

As relief, the Petition asks that the Department require a liner

and associated leachate r ecovery system and adequate financial

assurance to ensure proper operation and cleanup if necessary.

32. During opening argument, Petitioners raised one more

issue not previously raised in their Petition — - the potential

cumulative impacts of the propose d facility in conjunction with

two other landfills in the area. This allegation was not timely

raised, however, and has been disregarded.

33. The positions taken by Petitioners (other than

cumulative impacts) appear to be interrelated, that is, the

Dep artment should require a liner because the area is

ecologically fragile and recharge is greater than calculated by

LER.

34. In support of their position, Petitioners first

presented the testimony of Mr. McCormack, who is engaged in the

commercial nursery and landscaping business. Mr. McCormack

identified the presence of CCA treated wood as his main concern

from a contamination standpoint. His concern is that a possible

spread of leachate will result from mingling the wood with

rainwater or groundwater a nd that the surrounding groundwater

(which ultimately flows into Double Run Springs, the Harris

Chain of Lakes, and the Floridan Aquifer) would be adversely

impacted. Mr. McCormack estimated that the edge of the Double

Run Springs system was approximately 2,500 feet, or around one -

half mile, from the site. He expressed the opinion that it was

physically impossible to remove such wood prior to its being

landfilled. Mr. McCormack conceded, however, that he was not an

expert on landfill management or hydrol ogy and had no personal

experience with the operation of a landfill.

35. There is specific language in LER's Operations Plan

prohibiting the disposal of CCA treated wood and requiring best

management practices to enforce the prohibition against the

disp osal of CCA treated wood. This requirement is mandatory,

and not voluntary, and provides reasonable assurance that CCA

treated wood would not be a potential source of contamination.

The testimony of expert witnesses Bradner and Golden, who

expressed this view, is accepted as being more credible on this

issue.

36. Petitioners also presented the testimony of Mr. Mapp,

who critiqued the hydrological investigation performed by LER by

asserting that the recharge to the Floridan Aquifer is four or

five times t he amount stated in the application. He also opined

that LER's evapotranspiration rates were understated. 3 Mr. Mapp

is a systems analyst for Lockheed Martin Missiles and has a

master's degree in business and an undergraduate degree in

physics. While hig hly educated, Mr. Mapp has no prior

experience in any kind of hydrologic, geologic, chemical, or

similar types of analyses, or any analyses of the rate of

transport of chemicals in the environment. The knowledge and

opinions rendered in this case by Mr. M app were obtained through

personal research after the permit application was filed.

37. Mr. Mapp opined that LER's recharge calculations

constitute a "significant discrepancy." He acknowledged,

however, that his estimate of the true speed of downward fl ow of

water at the site of the proposed facility was "just off the

cuff" and did not factor in the effects of applying cover to,

and the filling and capping of, the landfill. He did not know

how fast particular contaminants may migrate through the

groundw ater or what volume of waste might be necessary to cause

a violation of groundwater quality standards. He also could not

give a specific calculation of where a contaminant might be

located after a set period of years. Unlike the other experts

in this cas e, the witness had not calculated Floridan Aquifer

recharge rates or otherwise used Darcy's Law. 4

38. Even if the permit application underestimated the

recharge rate, the thickness of the confining layer below the

base of the proposed facility, which was conservatively

estimated, would cause groundwater to flow horizontally, not

vertically, once the confining layer is reached. As explained

by Mr. Golden, LER did not rely exclusively on the recharge

calculations that Mr. Mapp relied upon in determining re charge

rates. Separate information regarding the permeability of the

confining layer provides additional support for the recharge

calculations.

39. Mr. Mapp also opined that LER's evapotranspiration

rate calculations were underestimated, based upon his review of

a study of a deforested site elsewhere in the Lake Wales Ridge.

He assumed the evapotranspiration rate in that study (for a site

located fifteen miles away) would be applicable to the site of

the proposed facility, and he then assumed that the

evapotranspiration rate identified in the permit application for

the proposed facility would be applicable only to the properties

adjacent to the proposed facility. There is, however, no

scientific basis for drawing an analogy between the borrow pit

that is the location of the proposed facility and the deforested

site with different geological characteristics about which

Mr. Mapp read in the study he relied upon for his conclusions.

Furthermore, LER undertook site - specific analyses of the

permeability of the soils underlying the site of the proposed

facility, whereas Mr. Mapp's calculations were based upon

assumptions drawn from a study of a site fifteen miles away.

The testimony of Mr. Golden is found to be credible and

persuasive on this issue.

4 0. Finally, there was no evidence concerning Petitioners'

contention that LER should post a surety bond necessary to

maintain the system in good working order and to fund a toxic

cleanup should it become necessary. Therefore, no modification

to the permi t in this respect is required.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

42 . The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Balino v. Department of Health & Rehabilitative Servs. , 348 So.

2d 349, 350 (Fla. 1st DCA 1977). Therefore, the Department and

LER have the bu rden of proving by a preponderance of the

evidence that a permit should be issued to LER.

43. Petitioners Resto and Taylor did not appear at the

final hearing; consequently, their requests for a hearing are

deemed to have been withdrawn. As to the Cimi nis, and unlike

Mr. McCormack and Mr. Mapp, except for the addresses noted in

the Partial Pre - Hearing Stipulation, there is no evidence as to

where they live or how they will be substantially affected by

the operation of the facility. Therefore, they lack standing to

participate in this proceeding. Notwithstanding this

evidentiary deficiency, Mr. Cimini has fully participated

throughout this process. Even assuming that all of the

Petitioners were able to demonstrate standing, the weight of the

evidence o n the merits establishes that they would not be

entitled to the relief requested, which is to require that the

proposed facility include a liner and leachate control system as

part of is design.

44. Section 403.707(6), Florida Statutes, provides in part

that the Department "may issue a construction permit pursuant to

this part only to a solid waste management facility that

provides the conditions necessary to control the safe movement

of wastes or waste constituents into surface or ground waters

. . . that will be operated, maintained, and closed by qualified

and properly trained personnel."

45. An applicant seeking a construction and demolition

debris disposal and recycling facility permit must provide

reasonable assurances that its proposed facilit y will not

violate applicable statutory and rule standards of the

Department. Florida Administrative Code Rules 62 - 4.030 and 62 -

4.070 contain the general standards for determining how the

"reasonable assurance" permitting requirement should be applied

by the Department.

46. In the context of issuing an environmental permit,

"reasonable assurance" means a demonstration that there is a

substantial likelihood of compliance with standards, or "a

substantial likelihood that the project will be successfully

imp lemented." Metropolitan Dade County v. Coscan Florida, Inc. ,

609 So. 2d 644, 648 (Fla. 3d DCA 1992). See also City of

Newberry v. Watson Construction Company, Inc. et al. , DOAH Case

Nos. 95 - 0752 and 95 - 0753 (DOAH Aug. 9, 1996, DER Dec. 19, 1996)

1996 Fla . ENV LEXIS 172. However, the reasonable assurance

standard does not require an "absolute guarantee" of compliance

with environmental standards. See Save our Suwannee, Inc. v.

Piechocki et al. , DOAH Case Nos. 95 - 3899 and 95 - 3900 (DOAH Dec.

22, 1995, DEP Feb. 5, 1996) 1996 Fla. ENV LEXIS 37 at *17 - 18.

47. The applicant bears the ultimate burden of providing

reasonable assurances that it will meet the required standards.

Fla. Dep't of Trans. v. J.W.C. Co., Inc. et al. , 396 So. 2d 778,

786 - 789 (Fla. 1st D CA 1981). If the applicant presents the

necessary prima facie evidence, the burden shifts to the party

objecting to the issuance of a permit, and the objecting party

must prove "contrary evidence of equivalent quality." Id. at

789. This burden cannot be satisfied with speculative concerns

about potential or possible adverse environmental effects. See ,

e.g. , Rowe v. Oleander Power Project, L.P. et al. , DOAH Case No.

99 - 2581 (DOAH Sept. 27, 1999, DEP Nov. 10, 1999) 1999 Fla. ENV

LEXIS 296 at *31; Chipola Basin Protective Group, Inc. v. Dep't

of Envir. Reg. et al. , DOAH Case No. 88 - 3355 (DOAH Nov. 14,

1988, DER Dec. 20, 1988) 1988 Fla. ENV LEXIS 112; J.T. McCormick

et al. v. City of Jacksonville et al. , DOAH Case Nos. 88 - 2283 et

al. (DOAH Oct. 16, 1989, DER Jan. 22, 1990) 1989 (sic) Fla. ENV

LEXIS 3 at *24.

48. On the issue of whether or not a construction and

demolition recycling or disposal facility requires a liner and

leachate control system, however, there is a statu tory

presumption that neither is required. § 403.707(12)(b), Fla.

Stat. See also Fla. Admin. Code R. 62 - 701.730(4)(a). Rather,

the burden is on the Department to makes an affirmative

determination that such additional protection is necessary

because " ba sed upon the types of waste received, the methods for

controlling types of waste disposed of, the proximity of

groundwater and surface water, and the results of the

hydrogeological and geotechnical investigations, . . . the

facility is reasonably expected to result in violations of

groundwater standards and criteria otherwise." Id.

49. Finally, the reasonable assurance standard only

requires the applicant to address "reasonably foreseeable

contingencies" in establishing entitlement. See , e.g. , Fla.

Aud ubon Society v. South Fla. Water Management District et al. ,

DOAH Case No. 90 - 2402 (DOAH Aug. 3, 1992, SFWMD Sept. 18, 1992)

1992 Fla. ENV LEXIS 165 at *14; Rudloe et al. v. Dickerson

Bayshore, Inc. et al. , DOAH Case No. 87 - 3175 (DOAH April 25,

1988, DER J une 8, 1988) 1988 Fla. ENV LEXIS 14 at *24 - 25. Thus,

as a general proposition, the applicant is not required to

disprove all the "worst case scenarios" or "theoretical impacts"

raised by the permit challengers in this permit proceeding. See

Lake Brooklyn Civic Association, Inc. v. Fla. Rock Industries,

Inc. et al. , DOAH Case No. 92 - 5017 (DOAH June 4, 1993, SJRWMD

July 14, 1993) 1993 Fla. ENV LEXIS 93 at *7 - 9; Hoffert et al. v.

St. Joe Paper Company et al. , DOAH Case Nos. 89 - 5053 and 89 - 6381

(DOAH Oct. 26, 1990, DER Dec. 6, 1990) 1990 Fla. ENV LEXIS 194

at *43.

50. Here, by a preponderance of the evidence, LER has

shown its entitlement to issuance of the proposed permit by

providing reasonable assurance that the proposed facility will

not discharge pollu tants in contravention of Department

standards or rules, and that the proposed facility will

otherwise comply with all of the required statutes and rules.

51. LER has also provided reasonable assurance that the

proposed facility will not be a source of contamination for

wells within or greater than five hundred feet of the proposed

facility. Therefore, LER is entitled to an exception to the

five - hundred - foot setback requirement for its landfill, as

authorized by Florida Administrative Code Rule 62 - 701 .300(2).

52. LER has also provided reasonable assurance that the

Department should not require LER to install a landfill liner at

the proposed facility. Even though the burden is on the

Department to demonstrate otherwise, the site - specific

hydrological and geotechnical information provided by LER, when

considered in the context of the Operations Plan and other

components of the proposed permit, is sufficient to establish

that a liner is unnecessary.

53. Finally, there is no evidence to support the

conte ntion that additional financial assurance on the part of

LER is required.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order granting the app lication of Lake

Environmental Resources, LLC, for a permit authorizing the

construction and operation of a construction and demolition

debris disposal and recycling facility in unincorporated lake

County.

DONE AND ENTERED this 8th day of November, 2006, i n

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of November, 2006.

ENDNOTES

1/ Witness Griffin also offered a notebook containing numerous

doc uments, the majority of which are unrelated to the issues in

this case. That document is marked for identification purposes

as Griffin Exhibit 1, and to the very limited extent the papers

are relevant, they have been considered.

2/ All references are to the 2005 version of the Florida

Statutes.

3/ Evapotranspiration generally means the process by which

water is discharged to the atmosphere as a result of evaporation

from the soil and transpiration by plants.

4/ Darcy's Law is a law used by hydrogeolo gists to describe the

rate of flow of water through a porous medium.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

David and Lisa Cimini

21423 County Road 455

Clermont, Florida 34715 - 6812

Miriam Resto

13131 New York Avenue

Astatula, Florida 34705 - 9561

Timothy L. McCormack

11321 Valley View Road

Howey - in - the - Hills, Florida 34737 - 4702

John A Mapp, Jr.

21307 County Road 561

Clermont, Flo rida 34715 - 6850

Jim Taylor

21417 County Road 455

Clermont, Florida 34715 - 6812

Jack Chisholm, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3007

Daniel H. Thompson, Esquire

Berger Singerman, P.A.

315 South Calhoun Street, Suite 712

Tallahassee, Florida 32301 - 1872

Gregory M. Munson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will render a final order in this matter .