08-006042 Lois Mahute, Wallis Mahute, And Nathaniel Williams vs. Suncoast Concrete, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, May 19, 2009.

Summary: Petitioners raised a number of concerns about the proposed construction and demolition debris disposal facility, but Suncoast provided reasonable assurances that the proposed facility would comply with all applicable regulatory criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOIS MAHUTE, WALLIS MAHUTE, and )

NATHANIEL WILLIAMS, )

)

Petitioners, )

)

vs. ) Case No. 08-6042

)

SUNCOAST CONCRETE, INC., and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

)

Respondents. )

)

CORRECTED RECOMMENDED ORDER

The final hearing in this case was held on March 17, 2009,

in Milton, Florida, before Bram D.E. Canter, an Administrative

Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Wallis Mahute, pro se

5500 Cox Road

Milton, Florida 32583

Lois Mahute, pro se

5504 Cox Road

Milton, Florida 32583

Nathaniel Williams, Jr., pro se

8984 Tara Circle

Milton, Florida 32583

For Suncoast Concrete Inc.:

William J. Dunaway

Megan E. Fortson

Clark, Partington, Hart, Larry Bond &

Stackhouse

125 West Romana Street, Suite 800

Pensacola, Florida 32502

For Florida Department of Environmental Protection:

Ronda L. Moore, Esquire

Florida Department of Environmental

Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF ISSUE

The issue in this case is whether Suncoast Concrete, Inc.

(Suncoast), is entitled to Permit No. 194919-003-SO, to

construct and operate a construction and demolition debris

disposal facility (C & D facility) in Santa Rosa County,

Florida.

PRELIMINARY STATEMENT

On October 9, 2008, the Department of Environmental

Protection (Department) issued a Notice of Intent to issue

Permit No. 194919-003-SO to Suncoast, to construct and operate a

C & D facility in Santa Rosa County. On October 30, 2009, the

Department received a petition from 35 persons challenging the

proposed agency action. The matter was then referred to DOAH.

Many of the original Petitioners apparently did not

understand that their names had been submitted as Petitioners

and did not intend to present evidence or to otherwise

participate as Petitioners. Before the final hearing, 25 of the

Petitioners voluntarily dismissed their claims in the case.

Only three Petitioners attended the final hearing: Lois Mahute,

Wallis Mahute, and Nathaniel Williams, Jr. The other remaining

Petitioners were dismissed by order of the Administrative Law

Judge at the final hearing.

The Department’s motion in limine to preclude Petitioners

from offering evidence on zoning issues and impacts to real

property values, was granted.

The Department’s request for official recognition of

Florida Administrative Code Chapter 62-701 and Rules 62-4.070

and 62-296.320, was granted.

At the final hearing, Joint Exhibits 1 through 12 were

admitted into evidence. Suncoast presented the testimony of

Tony Mellini, an expert in C & D facility design and

construction. The Department presented the testimony of

Marshall Seymour, an expert in engineering and solid waste

management design; and Ross Mitchell, a field inspector with the

Department. Petitioners presented the testimony of Kyle Holley,

a local businessman with an interest in local water and land use

issues. Petitioners’ Exhibit 1 was admitted into evidence.

Petitioners attached to their post-hearing submittal a

number of documents which had not been offered as exhibits at

the final hearing or had been offered, but not admitted into

evidence over Respondents’ objections. Respondents’ motion to

strike these documents from Petitioners’ post-hearing submittal

was granted.

A one-volume Transcript of the final hearing was prepared

and filed with DOAH. Petitioners and Respondents filed post-

hearing writings that were carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioners Lois and Wallis Mahute live within two

miles of the proposed C & D facility. Petitioner Nathaniel

Williams, Jr., resides less than one mile from the proposed

facility.

2. Suncoast is a Florida corporation and is the applicant

for Permit No. 194919-003-SO.

3. The site of the proposed C & D facility is already

permitted by the Department as a disposal facility for land-

clearing debris. It is located on U. S. Highway 90, 1.9 miles

east of State Road 87.

4. The disposal area is 7.2 acres on a parcel of land that

is 57.8 acres.

5. Suncoast provided all of the information required by

the Department for applications for C & D facilities, including

geotechnical data, hydrologic data, and financial assurance for

closure.

6. The proposed permit includes numerous conditions,

including the use of an impermeable liner, groundwater

monitoring, stormwater controls, leachate collection and

storage, and access control. The requirement for an impermeable

liner is uncommon for C & D facilities and adds greater

protection for groundwater.

Issues Raised by Petitioners

7. Petitioners expressed concern about groundwater

contamination. The required liner is designed to prevent

rainwater that might become contaminated after contact with the

materials in the landfill from entering the groundwater.

8. The proposed facility would be located over some

existing land-clearing debris. The existing debris is located

on part of one side of the proposed landfill. Before the liner

is installed, the base would be prepared by covering the area

with six inches of compacted soil. After the liner is

installed, two feet of clean soil is placed on top of the liner.

The liner would be installed in a manner to prevent the liner

from being punctured or torn.

9. Groundwater monitoring is required so that any

contamination that occurs will be detected and remediated.

10. There are no potable water wells within 500 feet of

the proposed facility. The nearest public water supply well is

approximately 4,000 feet away.

11. Petitioners presented the testimony of Kyle Holley,

who expressed his views on hydrogeologic conditions in the area.

Mr. Holley is not a geologist or hydrologist and was not

competent to testify regarding the hydrogeologic conditions in

the area.

12. Petitioners expressed concern about odors, but

presented no competent evidence that foul or unhealthy odors

would be generated by the facility. The permit conditions that

require a small working face and weekly cover with soil would

minimize odors.

13. Petitioners expressed concern about fires, partly

because fires have occurred at other C & D facilities. The

evidence shows that the requirements of the proposed permit,

including the prohibition against burning and requirements to

maintain a small working face and to cover with soil on a weekly

basis, would minimize the possibility of fires at the facility.

The facility must maintain access for fire trucks to the

disposal area so that, if a fire occurs, it can be suppressed.

14. Petitioners expressed concerns that the facility would

not be safely closed in the event that Suncoast became bankrupt

or otherwise ceased operations at the facility. The evidence

shows that the financial assurance requirements of the proposed

permit provide a means to close the facility in the event that

Suncoast was unwilling or unable to close the facility.

15. Petitioners expressed concerns about the “pattern of

abuse” by landfill owners. However, Petitioners presented no

evidence that Suncoast has shown a pattern of noncompliance, or

that the landfills where these alleged abuses have occurred are

similar to Suncoast’s proposed C & D landfill with respect to

physical conditions and permit requirements.

16. Suncoast provided reasonable assurance by a

preponderance of the evidence that the facility, with the

conditions in the permit, will comply with all applicable rule

requirements regarding the protection of groundwater, odor and

fire control, and proper closure of the facilities.

17. In summary, Suncoast proved by a preponderance of the

evidence that it has provided reasonable assurance that the

proposed facility meets all regulatory criteria for entitlement

to Permit No. 194919-003-SO.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

this proceeding pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

19. Petitioners’ standing to initiate this proceeding was

not placed at issue. Petitioners' residences are close enough

to the facility site that odors and fires at the facility, if

not prevented or controlled, could adversely affect their

health, safety, and welfare. Petitioners have standing to

initiate this proceeding.

20. The burden of proof in a permit case is on the

applicant for the permit. Fla. Dep't of Transp. V. J.W.C., Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). The standard of proof

is preponderance of the evidence. Id.

21. After the applicant demonstrates that all applicable

regulatory criteria have been met, the burden shifts to the

challenger to present contrary evidence of equal quality to

support its claim that the applicant is not entitled to the

permit. Id. Speculation or expressions of concern by a

challenger are not sufficient to rebut the applicant’s prima

facie showing of entitlement.

22. A permit applicant must provide reasonable assurances,

which means that there is a substantial likelihood of compliance

with standards, or “a substantial likelihood that the project

will be successfully implemented.” Metropolitan Dade County v.

Coscan Florida, Inc. , 644 So. 2d 648 (Fla. 3d DCA 1992). It

does not mean absolute assurances. Save Our Suwanee v. Fla.

Dep't of Envtl. Prot. , 18 F.A.L.R. 1467, 1472 (DEP 1996).

23. Competent substantial evidence based upon detailed

site plans and engineering studies, coupled with credible expert

testimony is a sufficient basis for a finding of reasonable

assurances. Hamilton County Bd. of County Comm'ns. v. Fla.

Dep't of Envtl. Prot. , 587 So. 2d 1378 (Fla. 1st DCA 1991).

24. Suncoast provided competent substantial evidence based

upon detailed site plans and engineering studies, coupled with

credible expert testimony, that there is a substantial

likelihood of compliance with all applicable standards. The

evidence offered by Petitioners in support of their concerns was

insufficient to rebut Suncoast’s prima facie case.

25. Suncoast proved by a preponderance of the evidence

that it is entitled to the proposed permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order

granting Permit No. 194919-003-SO, subject to all the conditions

set forth in the Department’s Notice of Intent to Issue, for the

construction and operation of a construction and demolition

debris disposal facility in Santa Rosa County, Florida.

DONE AND ENTERED this 20th day of May, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2009.

COPIES FURNISHED :

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandell, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

William J. Dunaway, Esquire

Clark, Partington, Hart, Larry

Bond & Stackhouse

125 West Romana, Suite 800

Pensacola, Florida 37502

Ronda L. Moore, Esquire

Department of Environmental Protection

Douglas Building, Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Nathaniel Williams, Jr.

8984 Tara Circle

Milton, Florida 32583

Wallis Mahute

5500 Cox Road

Milton, Florida 32583

Lois Mahute

5504 Cox Road

Milton, Florida 32583

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.