09-001546 Nestle Waters North America, Inc. vs. Angelo`s Aggregate Materials, Ltd., D/B/A Angelo`s Recycled Materials And Department Of Environmental Protection Status: Closed Recommended Order on Friday, June 28, 2013.

Summary: The applicant for construction and operation permits for a Class I landfill failed to provide reasonable assurance that the proposed landfill would meet all applicable permitting criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELO'S AGGREGATE MATERIALS,

LTD., d/b/a ANGELO'S RECYCLED

MATERIALS,

Petitioner,

vs. Case No. 09 - 1543

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent,

and

CRYSTAL SPRINGS PRESERVE, INC.;

CITY OF TAMPA; AND CITY OF

ZEPHYRHILLS,

Intervenors.

/

CARL ROTH, JOHN FLOYD, LOUIS

POTENZIANO, AND MARVIN HALL,

Petitioners ,

vs. Case No. 09 - 1544

ANGELO'S AGGREGATE MATERIALS,

LTD., d/b/a ANGELO'S RECYCLED

MATERIALS, AND DEPARTMENT OF

E NVIRONMENTAL PROTECTION,

Respondents.

______________________________/

WRB ENTERPRISES, INC.,

Petitioner,

vs. Case No. 09 - 1545

ANGELO'S AGGREGATE MATERIALS,

LTD., d/b/a ANGELO'S RECYCLED

MATERIALS, AND DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Resp ondents.

______________________________/

NESTL É WATER S NORTH AMERICA,

INC.,

Petitioner,

vs. Case No. 09 - 1546

ANGELO'S AGGREGATE MATERIALS,

LTD, d/b/a ANGELO'S RECYCLED

MATERIALS, AND DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondents.

_______________________ _______/

RECOMMENDED ORDER

The final hearing in this case was held in Temple Terrace,

Florida , on September 24 - 26, Octobe r 1 - 4, 10 - 12, 15 - 18, and

December 3 - 6, 2012, before Bram D. E. Canter, Administrative Law

Judge with the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Angelo ' s Aggregate Materials, LTD:

Jacob D. Varn, Esquire

Linda Loomis Shelley, Esquire

Karen A. Brodeen, Esquire

Fowler , White , Boggs , P.A.

101 North Monroe Street, Suite 1090

Tallahassee, F lorida 32301 - 1547

For City of Tampa: Janice M. McLean, Esquire

City of Tampa

7th Floor

315 East Kennedy Boulevard

Tampa, Florida 33602 - 5211

Doug Manson, Esquire

William Bilenky , Esquire

Manson Bolves, P.A.

1101 W est Swann Avenue

Tampa, Florida 33606 - 2637

For City of Zephyrhills:

Joseph A. Poblick, Esquire

5335 8th Street

Zephyrhills, Florida 33542 - 4312

For Crystal Springs Preserve, Inc.:

Wayne E. Flowers , Esquire

Lewis , Longman & Walker, P.A.

245 Riverside Avenue, Suite 150

Jacksonville, Florida 32256 - 4931

For Department of Environmental Protection:

Stan ley Warden, Esquire

Christopher Dale McGuire, Esquire

Randy J. Miller, II, Esquire

Department of Envi ronmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee , Florida 32399 - 3000

For Carl Roth, John Floyd, Louis Potenziano, and

Marvin Hall:

Carl Roth, Qualified Representative

8031 Island Drive

Port Richey, Florida 34668 - 6220

For Nestlé Waters North America, Inc.:

Doug Manson, Esquire

William Bilenky, Esquire

Brian Bolves, Esquire

Manson Bolves, P.A.

1101 W est Swann Avenue

Tampa, Florida 3 3606 - 2637

For WRB Enterprises, Inc.:

David Smolker, Esquire

Smolker , Bartlett , Schlosser , Loeb

& Hinds, P.A.

500 East Kennedy Boulevard, Suite 200

Tampa, Florida 33602 - 4936

STATEMENT OF THE IS SUE

The issue to be determined in this proceeding is whether

Angelo ' s Aggregate Materials, LTD ("Angelo's") is entitled to

permits from the Department of Environmental Protection

("Department") to construct and operate a Class I landfill in

Pasco County.

PRELIMINARY STATEMENT

In 2006, Angelo ' s applied to the Department for a

construction permit and an operation permit for a Class I

landfill. On February 12, 2009, the Department issued a Notice

of Intent to Deny Permits.

Angelo ' s filed a petition for hear ing to contest the denial

of its applications, which was designated DOAH Case No. 09 - 1543.

Carl Roth, John Floyd, Marvin Hall, and Louis Potenziano filed a

petition for hearing in support of the denial, which was

designated DOAH Case No. 09 - 1544. WRB Ent erprises, Inc.

("WRB") , filed a petition in support of the denial, which was

designated DOAH Case No. 09 - 1545. Nestlé Waters North America,

Inc. ( " Nestlé " ) filed a petition in support of the denial, which

was designated DOAH Case No. 09 - 1546. The cases w ere

consolidated for hearing. Thereafter, Crystal Springs Preserve,

Inc., the City of Tampa, and the City of Zephyrhills were

granted leave to intervene in support of permit denial.

In March 2010, the case was placed in abeyance. Angelo ' s

amended and res ubmitted its permit applications to the

Department. On January 5, 2012, the Department filed a

Statement Reaffirming Intent to Deny Permit and the case was s et

for final hearing. Angelo ' s and Nestlé were subsequently

granted leave to amend their petition s.

At the final hearing, the parties opposed to the issuance

of the permits referred to themselves as the "Aligned Parties."

Although their individual attorneys called different witnesses,

the testimony and exhibits were generally presented on behalf of

a ll the Aligned Parties.

The Department presented the testimony of: Jon Arthur,

Ph.D., P.G., accepted as an expert in the geology of Florida ;

David Carrier, Ph.D, P.E . , accepted as an expert in geotechnical

engineering ; and Susan Pelz, P.E., the Department Ós Waste

Program Administrator for the Southwest District and primary

reviewer of AngeloÓs permit applications. Department Exhibits

1, 4, 5, 8, 18, and 19 were admitted into evidence.

Nestlé presented the testimony of: Phil Davis, accepted as

an expert i n hydrology, hydrogeology, and hydraulic modeling;

Joseph Fluet, P.E., accepted as an expert in engineering with

subspecialty, landfill liner design and landfill design;

Darrell Hanecki, P.E., accepted as an expert in geotechnical

engineering; Cathleen Jon as, P.G., accepted as an expert in

geology and hydrogeology; Dr. Dale Rucker, accepted as an expert

in geophysics, modeling, and geohydrology; Shawn Severn, Ph.D.,

accepted as an expert in toxicology and microbiology and the

subfield of fate and impact of complex chemical mixtures to the

environment; Sam Upchurch, Ph.D., P.G., accepted as an expert in

geology, geochemistry, karst science and statistics; and

Kent Koptiuch, Nestlé's corporate representative and a

geologist.

WRB Enterprises ( " WRB " ) presented the testimony of:

Michael Cotter, P.E., accepted as an expert in general civil

engineering, surface water hydrology, geotechnical engineering,

and the design, engineering, construction, operation, and

management of landfills; and Richard Mortensen, P.E., accepted

as expert in geotechnical engineering and sinkhole assessment

and remediation. WRB Exhibits 8, 11, 12, 13, 16 , 17, 20, 22,

32, 34, 44, 48, 50, 93, and 112 were admitted into evidence.

Crystal Springs Preserve, Inc. ( " Crystal Springs") ,

presented the testimony of Robert Thomas, its CEO and corporate

representative. Crystal Springs Exhibits 1 - 4G were admitted

into evidence.

Carl Roth, John Floyd, Louis Potenziano, and Marvin Hall

called no witnesses. Carl Roth, John Floyd, Louis Potenziano,

and M arvin Hall Exhibits 1 - 11 were admitted into evidence.

Aligned Parties (joint) Exhibits 1, 3, 5, 7, 13 - 24, 27, 32,

33, 42, 43, 46 - 49, 83, 95, 118, 159, 168, 171, 172, 200 - 208, and

212 - 214 were admitted into evidence.

AngeloÓs presented the testimony of: Jo hn Arnold, the

project manager and Angelo's corporate representative;

Dominic Iafrate, Vice - President of Angelo ' s; Les Bromwell,

Sc.D., P.E., accepted as an expert in geotechnical engineering;

Carl Brown, P.G., accepted as an expert in geology and

geophysi cal testing; Carl Christman, accepted as an expert in

geotechnical engineering; Thomas Brown, P.G., accepted as an

expert in geology and hydrogeology; Dennis Davis, P.E., accepted

as an expert in design, construction , and civil engineering

related to landf ills; Don Hullings, P.E., accepted as an expert

in solid waste facility design and engineering, civil

engineering as it relates to site development for landfills, and

geotechnical engineering; Robert Powell, Ph.D., P.E., accepted

as an expert in hydrology and hydrogeology; Anthony Randazzo,

Ph.D., P.E., accepted as an expert in geology and geotechnical

testing; and, Doug Smith, Ph.D., P.G., accepted as an expert in

geology, geophysics, and M ultiple Electrode Resistivity testing

and interpolation. AngeloÓs Exhibits 1 - 6, 8 - 14, 17, 19, 20, 22,

32, 33, 34, 37, 45, 48 - 52, 72, 75, 77, 79, 80 - 82, 99, 116 - 131,

133, 135, 149, 151, 152, 175, 177, 179 Î 186, 189 - 192, and 200

were admitted into evidence.

The 28 - volume Transcript of the final hearing was filed

with DOAH. The Aligned Parties filed a single joint proposed

recommended order and Angelo's filed a proposed recommended

order. The proposed orders were carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

A. The Parties

1. The De partment is the state agency with the power and

duty under chapter 403, Florida Statutes, to review and take

action on applications for permits to construct and operate

solid waste management facilities, including landfills.

2. Angelo's is a Florida limit ed partnership authorized to

conduct business under the name Angelo's Recycled Materials.

Angelo's filed the permit applications which are the subject of

this proceeding. Angelo ' s owns the property on which the

proposed landfill would be constructed and operated.

3. Crystal Springs Preserve is a Florida corporation that

owns approximately 525 acres in Pasco County, Florida on which

is located Crystal Springs, a second magnitude spring that flows

into the Hillsborough River. The property is about 10 mile s

south of Angelo's proposed landfill site.

4. Crystal Springs Preserve's primary business activities

are selling spring water for bottling for human consumption and

operating an environmental education center that focuses on

Crystal Springs and the Hills borough River. Crystal Springs

Preserve hosts approximately 50,000 visitors annually at the

environmental education center.

5. Crystal Springs Preserve holds a water use permit which

authorizes it to withdraw up to 756,893 gallons of water per day

(annua l average) from Crystal Springs for production of bottled

water. The water is transported about three miles to a water

bottling facility operated by Nestlé.

6. Nestlé is a private corporation engaged in the business

of bottling and selling spring water. Nestlé purchases spring

water from Crystal Springs Preserve. Nestlé's "Zephyrhills

Spring Water" brand is composed of approximately 90 percent

Crystal Springs water and 10 percent Madison Blue Spring water.

7. The only water treatment applied by Nestlé is filtering

the water to remove gross contaminants and passing the water

through ultraviolet light or ozone to kill any potential

bacteria before bottling. Nestlé has established " norms " for

its spring water and would not be able to use the water from

Cr ystal Springs if its chemical composition varied significantly

from the norms.

8. WRB is a Florida corporation that owns 1,866 acres in

Pasco County known as Boarshead Ranch. Boarshead Ranch is

adjacent to the east and south of AngeloÓs property and is

a pproximately 3,000 feet from the proposed landfill at its

closest point.

9 . Boarshead Ranch is currently being used for

agricultural, recreational, residential , and conservation

purposes, including wildlife management. Nearly all of

Boarshead Ranch is su bject to a conservation easement held by

the Southwest Florida Water Management District (SWFWMD) . The

conservation easement allows WRB to continue agricultural

operations.

10 . Numerous agricultural water wells are located on

Boarshead Ranch. WRB holds a water use permit which authorizes

the withdrawal of 820,000 gallons per day ( gpd ) (annual average)

for a number of uses, including production of agricultural

products, animal drinking water, and personal use.

1 1 . The City of Zephyrhills is located in Pa sco County and

is a municipal corporation. Zephyrhills ' water service area

encompasses Zephyrhills and portions of Pasco County.

Zephyrhills owns, operates , and maintains a water distribution

and transmission system of pipes, pump stations, and storage

t anks within the City and its service area.

1 2 . Zephyrhills holds a water use permit which authorizes

nine potable water supply wells with a combined withdrawal of

2.9 million gallons per day ( " mgd " ) (annual average).

Zephyrhills has two new production we lls located about two miles

southeast of the proposed landfill.

1 3 . The City of Tampa owns and operates the David L.

Tippin Water Treatment Plant, the Hillsborough River dam, and

the City of Tampa reservoir on the Hillsborough River. Flows

from Crystal S prings make up a substantial amount of the water

in the Hillsborough River, especially during drought conditions

when the spring flow accounts for about 50 percent of the flow.

1 4 . The City of Tampa holds a water use permit which

authorizes the withdrawal 82 mgd (annual average). The City of

Tampa owns, operates, and maintains a water distribution and

transmission system of pipes, pump stations, and storage tanks

within the City and its service area.

1 5 . Carl Roth, Marvin Hall, and Louis Potenziano own

p roperty in Pasco County near the proposed landfill site.

Roth's property is 3.5 miles west of the proposed landfill site;

Hall's property is located approximately one mile southwest of

the site; and Potenziano's property is 1.6 miles to the

south/southeas t of the site. Roth, Hall , and Potenziano have

water wells on their properties.

1 6 . The record does not establish that John Floyd owns

property in the area. Floyd and Associates, Inc. , owns about 55

acres in the area and holds a water use permit authori zing the

withdrawal of water for agricultural uses.

B . The Stipulated Agreement

1 7 . On March 1, 2010, Angelo ' s filed with DOAH a

" Stipulated Agreement " signed by all parties. The Stipulated

Agreement states in relevant part:

Angelo ' s shall provide a fin al design,

revised complete permit application and site

investigation (referred to jointly as

" Revised Submittal " ) to DEP with copies to

all Parties and DEP shall make a completeness

determination prior to this proceeding being

set for a new final hearing date.

* * *

Angelo ' s shall not revise its permit

application or supporting information beyond

the Revised Submittal prior to or during the

final hearing except in response to issues

raised by DEP.

1 8 . It appears that the Aligned Parties did not reme mber

the Stipulated Agreement until the commencement of the final

hearing. They did not object before then to any of the evidence

which Angelo's had prepared or intended to prepare for hearing on

the basis that it violated the terms of the Stipulated Agre ement.

At the commencement of the hearing, Nestlé argued that the

Stipulated Agreement barred Angelo ' s from revising its

application or presenting new support for its project at the

final hearing.

1 9 . The Stipulated Agreement is unusual and the necessity

for Angelo's to make any concessions to the Aligned Parties in

order to obtain their agreement to an abeyance was not explained.

Allowing an applicant time to amend a permit application is

usually good cause for an abeyance.

20 . The Stipulated Agreement allowed Angelo ' s to continue

to respond to issues raised by the Department. Angelo's contends

that all of the evidence it presented at the final hearing

qualifies as a response to issues raised by the Department.

C. The Proposed Landfill

2 1 . Angelo's applied to construct and operate a Class I

landfill with associated buildings and leachate holding tanks.

Application No. 22913 - 001 - SC/01 corresponds to the construction

permit application and Application No. 22913 - 001 - SO/01

corresponds to the operation permit application.

2 2 . A Class I landfill is a landfill authorized to receive

Class I waste, which is solid waste from households and

businesses. Class I waste does not include hazardous waste,

yard waste, or construction and demolition debris. See Fla .

Admin. Code R. 62 - 701.200(13) and (14).

2 3 . The proposed landfill would be approximately 30 acres

in size. It is part of a 1 , 020 - acre parcel owned by Angelo's

that is west of County Road 35 and south of Enterprise Road in

Pasco County. The site is cur rently leased for cattle grazing

and hay and sod production. There are also spray fields, orange

groves, and a pond on the 1,020 - acre parcel.

2 4 . Angelo's would construct the landfill by first

clearing the 30 - acre site. It would then excavate and fill t o

create the design subgrade or floor of the landfill with slopes

required for the liner system. The subgrade would be compacted

with a vibratory roller.

2 5 . After the subgrade compaction, the grouting plan would

be implemented. The grouting plan calls for grouting 39

subsurface locations on the site that have voids, loose soils,

or other unstable characteristics.

2 6 . A liner system would be installed after the grouting

is completed and the subgrade is finished. From the bottom

upward, the liner system would begin with a 12 - inch layer of

clay, over which a reinforcement geotextile would be installed,

followed by another 12 - inch layer of clay. This reinforcement

geotextile is in addition to the double liner system required by

Department rule. Its purpo se is to maintain the integrity of

the liner system in the event that a sinkhole occurs beneath the

landfill.

2 7 . Installed above the reinforcement geotextile and clay

layer would be a 60 - millimeter high - density polyethylene

( " HDPE " ) geomembrane, followed by a HDPE drainage net. These

last two components comprise the secondary leachate collection

system.

2 8 . Above the HDPE drainage net would be the primary

leachate collection system, consisting of another 60 - millimeter

HDPE geomembrane and HDPE drainage net, followed by a

geotextile, then a 12 - inch sand layer for drainage, and an

additional 12 - inch sand layer for protection against puncture of

the HDPE liner.

2 9 . A 48 - inch layer of selected waste, free of items that

could puncture the liner, would be the first waste placed over

the primary leachate collection system.

30 . "Leachate " is " liquid that has passed through or

merged from solid waste and may contain soluble, suspended, or

miscible materials. " See Fla. Admin. Code R. 62 - 701.200(66).

3 1 . Leachat e would be collected through a system of

perforated pipes that empty into a sloping trench with a

leachate collection pipe. The leachate collection pipe would

run down the center of the landfill to the lowest point where a

pump would send the collected le achate through a force main 0.25

miles to storage tanks.

3 2 . Five above - ground storage tanks would be installed on

a concrete pad with capacity to store 90,000 gallons of

leachate. The stored leachate would be periodically transported

to an offsite locat ion, such as a wastewater treatment facility,

for disposal.

D. Sinkholes and Karst

3 3 . The terms "sinkhole" and "sinkhole activity" are not

defined by Department rule, but the statutory definitions in

chapter 627, a chapter dealing with insurance coverag e for homes

and other buildings, are generally consistent with the

scientific meanings of these terms. The term " sinkhole " is

defined in section 627.706(2)(h) as:

a landform created by subsidence of soil,

sediment, or rock as underlying strata are

dissolv ed by groundwater. A sinkhole forms

by collapse into subterranean voids created

by dissolution of limestone or dolostone or

by subsidence as these strata are dissolved.

The term " sinkhole activity " is defined in section 627.706(2)(i)

as:

settlement or sy stematic weakening of the

earth supporting the covered building only

if the settlement or systematic weakening

results from contemporaneous movement or

raveling of soils, sediments, or rock

materials into subterranean voids created by

the effect of water o n a limestone or

similar rock formation.

3 4 . Sinkholes occur throughout Florida. There have been

many reported and confirmed sinkholes in Pasco County. The more

common type of sinkhole that has occurred on the Brooksville

Ridge is a "cover subsidence" sinkhole, which is caused by voids

in the limestone and the downward movement - - "raveling" - - of

overlying soils into the cavity. Eventually, the loss of soils

in the raveling zone will propagate upward until the soils at the

ground surface also move downwar d and a depression is form ed at

the surface. Cover subsidence sinkholes develop slowly and are

usually small, less than ten feet in diameter.

3 5 . Less common are "cover collapse" sinkholes, which can

form in a matter of days or hours as the result of the collapse

of the "roof" of a dissolved cavity in the limestone. These

sinkholes are usually large and deep.

3 6 . The occurrence of a sinkhole does not always mean that

areas near the sinkhole are unstable. However, the occurrence of

a sinkhole is reasona ble cause for concern about the stability of

nearby areas and a reasonable basis for the Department to require

thorough geologic investigations.

3 7 . "Karst" refers to limestone that is undergoing

dissolution and it is common in Florida. A sinkhole forms in

karst.

3 8 . "Epikarst" is limestone that was weathered while

exposed above sea level millions of years ago before being

submerged again. It is generally softer and more permeable than

unweathered limestone.

3 9 . " Paleokarst " refers to karst that is ver y old in

geologic time. P aleosinks are old sinkhole features in the

paleokarst. A paleosink may no longer be unstable because it has

been filled in for thousands or millions of years.

40 . A " lineament, " or a " photolineament, " is a relatively

straight li ne seen in the topography or aerial photographs of

the ground surface in an area. It might be defined by soil

color, sloughs, ponds, wetlands, or other land features that

follow a linear path. Lineaments are sometimes, but not always,

associated with sub surface fractures in the bedrock where one

would expect to also find active karst, sinkholes, and

relatively rapid groundwater flow.

4 1 . Even where there is no lineament, there can be

fractures in limestone that, when extensive enough, will allow

for "fra ctured," "preferential," or "conduit flow" of

groundwater. Fractured flow can occur in a small area or may go

on for miles. Springs in Florida are usually associated with

fractured flow or conduit flow that allows groundwater to move

through the aquifer a long distance relatively rapidly, in weeks

rather than decades.

E . Geotechnical Investigation

4 2 . The Department's rules require subsurface conditions to

be explored and described, including soil stratigraphy, soft

ground, lineaments, and unstable area s, but the rules do not

require the application of any particular geologic testing

technique. An applicant's testing program is primarily a

function of the professional judgment of the applicantÓs

geologist in cooperation with Department staff.

4 3 . The a mount of geological testing done by Angelo ' s

during its initial testing was similar to what was done for

recent landfill applications. Angelo's conducted additional

testing to respond to Department concerns and to prepare for the

final hearing in this cas e, making the total amount of testing at

Angelo ' s proposed site more extensive than is usual for a

proposed landfill.

4 4 . The geologic investigation conducted by Angelo's

experts to determine subsurface features, including any

sinkholes, employed several technologies. Split Spoon

Penetrometer Test (SPT) or SPT borings were drilled with a drill

rig that advances a split spoon sampler into the ground with a

140 pound hammer. The hammer is dropped 30 inches and the number

of blows required to drive the samp ler each successive 12 inches

is referred to as the " N " value and indicates soil strength and

density. The higher the N value, the denser the soil. When the

material is so dense the drill rod cannot (essentially) be

hammered deeper, the N value is shown as " R, " which stands for

" refusal. "

4 5 . SPT Bore logs also note any observed "weight of

hammer," "weight of rod," or "loss of circulation." These terms

describe areas where the drilling encounters very soft material

or voids. Weight of rod, for example , means the weight of the

drilling rod, by itself, with no hammer blow, was enough to cause

the rod to fall deeper through the soil or rock.

4 6 . Cone Penetrometer Test ( " CPT " ) borings were also

conducted. CPT borings are relatively shallow, performed wit h a

hand - held rod and special tip that the operator pushes into the

ground. The CPT equipment continuously measures and records tip

resistance and sleeve resistance as the rod moves downward

through soils. It is helpful in some applications, but is less

precise in determining soil type, strength, and compressibility

than SPT borings and cannot be used to explore deep zones.

4 7 . Ground penetrating radar ( " GPR " ) studies w ere used.

GPR equipment transmits pulses of radio frequency waves into the

ground. T he manner in which the radio waves are reflected

indicates the types of soil and rock encountered. It can also

detect cavities and other features that would suggest karst

activity. When the GPR identifies geologic features of interest,

they can be furthe r investigated with SPT borings.

4 8 . Another investigative tool used by Angelo's was

Multiple Electrode Resistivity (" MER ") . MER uses a grid of wires

and electrodes and the equipment interprets the resistivity of

electrical signals transmitted through th e subsurface. MER data

can be displayed in a two dimensional or three dimensional

format, depending on the software program that is used to process

the data. Like GPR, MER is useful for indentifying geologic

features of interest that can be further explo red with SPT

borings. However, GPR generally has good resolution only near

the ground surface, while MER has good resolution to a depth of

100 feet.

F. The Regional Geology

4 9 . The proposed site is in a geologic transition zone on

the eastern flank of a regional, geological feature known as the

Brooksville Ridge. It is a transition zone for both the

Suwannee Limestone and Hawthorn Group.

50 . The Brooksville Ridge was formed when it was part of

the coastline. In its geologic past, the Brooksville Rid ge

experienced sea level changes, weathering, erosion of sediments,

and beach reworking.

5 1 . The general layering of geologic features on the

Brooksville Ridge, from the top down, begins with topsoil and a

layer of sand. Under the sand layer is the Hawth orn Group, an

older geologic layer consisting of a heterogeneous mix of

limestone, clays, and sands which generally range in depth from

slightly under 60 feet to 80 feet or more. It was formed by

river and wind erosion, flushing, and re - deposition in a be ach

dune environment.

5 2 . Below the Hawthorn Group is the Suwannee Limestone

Formation, which is present throughout eastern Pasco County.

The upper surface of the Suwannee Limestone Formation is

undulating, due to a gradual chemical weathering of its upp er

surface, representing a "paleokarst environment."

5 3 . Underlying the Suwannee Limestone Formation is the

Ocala Limestone Formation. It extends throughout most of

Florida. It is composed of nearly pure limestone and is

considered the Floridan Aquifer. It extends across the siteÓs

subsurface.

5 4 . Angelo's used the Florida Geologic Survey's data base

to determine there are six sinkholes within five miles of the

proposed landfill.

5 5 . A seventh sinkhole, not in the data base, is the 15 -

foot sinkhole at the Angelo's Enterprise Road Facility landfill,

a Class III landfill (yard waste and construction and demolition

debris) about a mile northwest of the proposed site. Angelo's

contends that the sinkhole at its Class III landfill was

"induced" during const ruction of the facility by the diversion

of stormwater runoff to an area where overburden had been

removed.

5 6 . The average diameter of the seven sinkholes is 11.9

feet.

G. The Geology of the Proposed Site

5 7 . Rule 62 - 701.410(2)(c) requires a geotechnic al site

investigation and report, which shall:

(a) Explore and describe subsurface

conditions including soil stratigraphy and

ground water table conditions;

(b) Explore and address the presence of

muck, previously filled areas, soft ground,

lineaments, a nd sinkholes;

(c) Evaluate and address fault areas,

seismic impact zones, and unstable areas as

described in 40 C.F.R. 258.13, 258.14 and

258.15;

(d) Include estimates of the average and

maximum high ground water table across the

site; and

(e) Include a foundation analysis to

determine the ability of the foundation to

support the loads and stresses imposed by the

landfill. It may include geotechnical

measures necessary to modify the foundation

to accommodate the imposed loads and

stresses. The foundation shall be analyzed

for short - term, end of construction, and

long - term stability and settlement

conditions. Considering the existing or

proposed subgrade conditions and the landfill

geometry, analysis shall include:

1. Foundation bearing capacity;

2. Subg rade settlements, both total and

differential; and

3. Subgrade slope stability.

5 8 . Angelo's conducted a geotechnical site investigation,

but it was not adequate, as discussed below and in sections I.

and J .

5 9 . The proposed landfill site is geologicall y complex,

having features that are discontinuous horizontally and

vertically. The site has karst features or areas where the

limestone has dissolved. There is a clay layer in some areas,

but it is not continuous and its depth and thickness vary.

There are deposits of hard and soft sands at various depths.

There are pinnacles of limestone surrounded by softer materials.

60 . Photographs from a quarry called the Vulcan Mine,

located on the western flank of the Brooksville Ridge , show

exposed features in the top 20 to 30 feet of the Suwannee

Limestone in the region. The features at the Vulcan Mine are

roughly similar to features at the Angelo's site.

6 1 . There are a number of shallow depressions on the

surface of the ground on the Angelo's site. The ori gin and

significance of these depressions was a matter of dispute. The

Aligned Parties believe they represent sinkhole activity, but

the evidence presented did not rise to the level of proof.

However, Angelo's did not prove they were unassociated with

ge otechnical issues that could affect the proposed landfill.

6 2 . Angelo's offered no reasonable explanation for the

depressions. Determining the exact cause of the depressions may

not be possible even with more extensive investigation, but it

was Angelo's responsibility as the permit applicant, pursuant to

rule 62 - 701.410(2)(c), to make a greater effort to account for

them.

6 3 . Angelo's initial permit application identified two

intersecting lineaments on Angelo's property, based on aligned

lowlands, enclos ed valleys, and ponds. Angelo's contends the

lineaments do not reflect an unstable subsurface or fractured

limestone. The Aligned Parties contend that the lineament s are

regional feature s and reflect fractures in the bedrock. They

also contend that the onsite pond , which is located along the

lineament, is an old sinkhole.

6 4 . The Aligned Parties did not prove the proposed

landfill site is above an area of fractured bedrock, but the

evidence presented by Angelo's was incomplete and insufficient

to show t here are no fractures. The limestone on the site was

not adequately investigated for voids and fractures. Angelo's

did not refute the possibility that the lineaments reflect a

significant subsurface feature that could affect both site

stability and groun dwater movement.

H. The Regional and Local Hydrogeology

6 5 . Rule 62 - 701.410(1) requires a hydrogeological

investigation and site report, which shall:

(a) Define the landfill site geology and

hydrology and its relationship to the local

and regional hydro geologic patterns

including:

1. Direction and rate of ground water and

surface water flow, including seasonal

variations;

2. Background quality of ground water and

surface water;

3. Any on site hydraulic connections between

aquifers;

4. For all confini ng layers, semi - confining

layers, and all aquifers below the landfill

site that may be affected by the landfill,

the porosity or effective porosity,

horizontal and vertical permeabilities, and

the depth to and lithology of the layers and

aquifers; and

5. Topography, soil types and

characteristics, and surface water drainage

systems of the site and surrounding the site.

(b) Include an inventory of all the public

and private water wells within a one - mile

radius of the proposed landfill site. The

inventory s hall include, where available:

1. The approximate elevation of the top of

the well casing and the depth of each well;

2. The name of the owner, the age and usage

of each well, and the estimated daily

pumpage; and

3. The stratigraphic unit screened, wel l

construction technique, and static water

levels of each well.

(c) Identify and locate any existing

contaminated areas on the landfill site.

(d) Include a map showing the locations of

all potable wells within 500 feet of the

waste storage and disposal areas to

demonstrate compliance with paragraph 62 -

701.300(2)(b), F.A.C.

6 6 . Angelo's conducted a hydrogeological investigation,

but it was not adequate, as discussed below.

6 7 . Angelo's and the Aligned Parties disputed the

hydrogeological characteristic s of the proposed landfill site

and region. The principal disputes related to the direction and

velocity of groundwater flow.

6 8 . Angelo's contends that groundwater flows from the

landfill site to the west, making the proposed landfill site

part of the W ithlacoochee River groundwater basin. The Aligned

Parties contend that groundwater flows south toward Crystal

Springs and, therefore, the site is within the "springshed" of

Crystal Springs.

6 9 . A United States Geological Survey map of the Crystal

Springs springshed shows Angelo's proposed landfill site within

the springshed. A springshed study done for S W FWMD also

indicates the site is within the Crystal Springs springshed, but

the District has not always been consistent in its statements

about the groun dwater basin boundaries in this area.

70 . A water chemistry analysis of the groundwater in the

area of Angelo's proposed landfill indicates that the site is an

area of higher recharge and within the Crystal Springs

springshed.

7 1 . T he springshed boundary can shift , depending on

rainfall.

7 2 . Angelo's hydrogeological evidence was not sufficient

to refute the reasonable possibility that the proposed landfill

site is within the Crystal Springs springshed. Therefore, the

Department's determination whether A ngelo's has provided

reasonable assurances must account for the threat of

contamination to Crystal Springs and the other public and

private water supply sources to the south.

7 3 . There are no creeks or streams and only a few lakes in

the area between Crys tal Springs and the Angelo ' s site. The

absence of surface runoff features indicates it is an area of

high recharge to the groundwater. Crystal Springs is in an area

of conduit flow.

7 4 . The hydrologic investigation conducted by Angelo ' s was

not thorough enough to characterize surficial aquifer flow and

flow between aquifers.

7 5 . The preponderance of the evidence shows more

groundwater recharge to the Floridan Aquifer in the area than

estimated by Angelo's. Angelo's hydrogeological investigation

was ina dequate to refute the possibility of fractured flow or

rapid groundwater movement at the proposed landfill site.

7 6 . Angelo's contends there is a continuous clay confining

layer that would prevent contamination from moving into deep

zones, but the prepond erance of the evidence shows discontinuity

in the clay and large variations in thickness and depth.

7 7 . The landfill ' s impermeable liner will impede water

movement downward from the landfill, but groundwater will still

recharge from outside the landfill t o carry any contaminants

deeper.

7 8 . If fractured flow or conduit flow extends south from

the proposed landfill site, any leachate released into the

groundwater beneath the landfill could travel rapidly toward the

water supply sources of the City of Zephy rhills, Crystal Springs,

Nestlé, and the City of Tampa.

I. Whether the Proposed Landfill is in an Unstable Area

7 9 . Rule 62 - 701.200(2)(a) prohibits the storage or

disposal of solid waste "[i]n an area where geological

formations or other subsurface fea tures will not provide support

for the solid waste." However, the Department has adopted by

reference a federal regulation, 40 C.F.R. 258.15, which allows a

landfill to be constructed in a geologically unstable area if

the permit applicant can demonstrate that engineering measures

are incorporated into the design to ensure that the integrity of

the landfillÓs structural components " will not be disrupted. "

80 . The parties presented evidence on many disputed issues

of fact at the final hearing, but most of the case involved two

ultimate questions: whether the proposed landfill site is

unstable and, if so, whether Angelo's has proposed measures that

would eliminate the unstable conditions and make the site

suitable for a landfill.

8 1 . An "unstable area" is defined in 40 C.F.R. § 258.15

as:

A location that is susceptible to natural or

human - induced events or forces capable of

impairing the integrity of some or all of the

landfill structural components responsible

for preventing releases from a landfill.

Un stable areas can include poor foundation

conditions, areas susceptible to mass

movements, and Karst terrains.

8 2 . There is overwhelming evidence that the proposed

landfill site is an unstable area. A considerable amount of

evidence presented by Angelo's supports this finding. For

example, Angelo's experts agreed there are loose soils, evidence

of raveling, and sinkhole activity. These conditions make the

site susceptible to natural or human - induced events or forces

capable of impairing the integrity of some or all of the

landfill structural components responsible for preventing

releases from the proposed landfill.

8 3 . The Department's landfill permitting staff requested a

sinkhole risk assessment from the Florida Geologic Survey

("FGS"). The State Geol ogist and Director of the FGS,

Dr. Jonathan Arthur, believes the potential for sinkhole

formation at the proposed site is moderately high to high. That

potential is consistent with the characterization of the area as

unstable.

J. Whether the Proposed Eng ineering Measures Are Adequate

8 4 . Because the site is unstable, AngeloÓs must

demonstrate that engineering measures have been incorporated into

the landfill's design to ensure that the integrity of its

structural components will not be disrupted. See 40 C.F.R.

§ 258.15(a). The engineering measures proposed by Angelo's are

discussed below. Because it was found that Angelo's

hydrogeological and geotechnical investigations were not

sufficient to characterize all potentially unstable features of

the subsur face, it was not demonstrated that the proposed

engineering measures would overcome the instability and make the

site suitable for a landfill.

Roller Compaction

8 5 . Angelo's would use roller compaction on the graded

floor of the landfill to compact the soils to a depth of about

five feet and eliminate any voids within that depth. The

Aligned Parties did not contradict Angelo's evidence that its

proposed roller compaction will be done in a manner exceeding

what the Department usually requires as far as r oller force and

the number of roller "passes." However, roller compaction will

not affect deep voids.

Liner System

8 6 . In order to ensure that the landfillÓs liner system

components will not be disrupted in the event of a sinkhole,

AngeloÓs proposes to include the reinforcement geotextile

discussed above. The Department previously approved the use of

geotextile reinforcement, combined with grouting, to demonstrate

site stability for the Hernando County Northwest Landfill, which

had a comparable risk of sinkhole formation according to the

Department.

8 7 . The reinforcement geotextile can span a 15 - foot

diameter sinkhole without failure. As found above, the average

diameter of the seven sinkholes within five miles of the

proposed landfill is 11.9 feet.

8 8 . Angelo's proved that the proposed liner system meets

all applicable criteria , except the requirement of rule 62 -

701.400(3)(a) that the liner be installed upon a geologically

stable base.

Grouting Plan

8 9 . Angelo's grouting plan would be implemented to fill

voids and stabilize areas of loose or weak material. The

grouting plan was first designed to grout all locations where

there was a Weight of Hammer, Weight of Rod, Loss of

Circulation, or loose sands, as indicated by a low blow count.

Angelo's re vised the grout plan to include several more areas of

concern identified later, for a total of 39 locations.

90 . Each grout location would have seven grout points, one

in the center and six others equally - spaced on a ten - foot radius

from the center. If m ore than ten cubic yards of grout is

needed, additional grout points further outward would be

injected until the void or loose soils are filled or stabilized.

9 1 . Although Angelo's proposes to grout every boring of

concern, that still ties the integrity o f the grouting plan to

the thoroughness of the borings. The geologic evidence

indicates that there are unstable areas which the grouting plan

does not address. The Aligned Parties' MER analysis was

persuasive in identifying potential areas of instability that

were omitted from Angelo's investigation and from its grouting

plan.

9 2 . There are other unstable areas exist ing on the site

that should be grouted or otherwise engineered to provide

support for the landfill.

9 3 . The grouting plan does not provide reasonable

assurance that the integrity of the structural components of the

landfill will not be disturbed.

K. Other Issues Raised by the Aligned Parties

9 4 . The Aligned Parties raise a number of other issues,

some of which begin with the assumption th at the site is

unstable and a large sinkhole would form at the landfill. This

sometimes mixes issues inappropriately. It has been found that

Angelo's did not provide reasonable assurance that the site will

support the proposed landfill, but other project elements must

be reviewed on their own merits where possible, assuming the

site was engineered for stability.

Leachate Collection System

9 5 . There is a single leachate collection trench in the

center of the two landfill cells, which makes the landfill

operate much like a single cell. The two halves of the cell

slope toward the center, so that leachate will drain to the

leachate collection trench, and the entire landfill slopes to

the west, so that the trench will drain to a sump from which the

leachate is pumped to storage tanks. At full capacity, the

landfill will generate about 40,000 gallons of leachate per day.

9 6 . Careful cutting and grading of the earth is necessary

to create the slopes that are essential to the proper

functioning of the project Ós leachate collection system.

Settlement analyses are necessary to assure that the slopes are

maintained.

9 7 . Rule 62 - 701.410(2)(e) requires a foundation analysis

which must include a study of "subgrade settlements, both total

and differential." " Total settlement" refers to the overall

settlement of a landfill after construction and the loading of

solid waste. " Differential settlement " compares settlement at

two different points.

9 8 . Angelo's did not meet its burden to provide reasonable

assurance on this point. The settlement analysis conducted by

Angelo's was amended two or three times during the course of the

final hearing to account for computational errors and other

issues raised by the Aligned Parties. The analysis never came

completely into fo cus. The final analysis was not signed and

sealed by a professional engineer.

9 9 . The settlement analysis is dependent on the geologic

analysis, which is inadequate.

100 . Without adequate settlement and geologic analyses, it

cannot be determined that le achate collection would meet

applicable criteria.

Storage Tanks

10 1 . The Aligned Parties contend that the leachate storage

tanks cannot be supported by the site. Because it was found

that Angelo's geologic investigation was not adequate to

identify all unstable areas, it is also found that Angelo's

failed to provide reasonable assurance that the site would

support the leachate storage tanks. In all other respects, the

Aligned Parties failed to refute Angelo's demonstration that the

storage tanks would m eet applicable criteria.

Groundwater Monitoring Plan

10 2 . The Aligned Parties contend that there is an

insufficient number of monitor wells proposed by Angelo's to

detect a leak from the landfill and the wells are too shallow.

Because it was found tha t Angelo's did not adequately

characterize the geology and hydrology of the proposed landfill

site, the monitoring plan does not provide reasonable assurance

of compliance with applicable criteria.

Cell Design

10 3 . The Aligned Parties contend that the "mega - cell"

design proposed by Angelo's provides less flexibility to respond

to and isolate landfill problems than other landfill designs

with smaller cells, and the mega - cell design could generate more

leakage. No evidence was presented to show whether A ngelo's

design was one that had been approved or rejected in the past by

the Department. Although it is not the best landfill design,

the Aligned Parties did not show that the proposed design

violates any permitting criteria.

Operation and Closure

10 4 . The evidence presented by the Aligned Parties in

support of their issues regarding the operation of the proposed

landfill, such as noise, odor, and traffic, was not sufficient

to refute Angelo's evidence of compliance with applicable

criteria, with one e xception: Angelo's has not provided an

adequate contingency plan to show how it would respond to a

sinkhole or other incident that required the landfill to be shut

down and repaired.

10 5 . Assuming the site was engineered to support the

landfill, there is nothing about the Closure Plan that the

Aligned Parties showed does not meet applicable criteria.

CONCLUSIONS OF LAW

A. Standing

10 6 . In order to have standing to participate as a party,

a person must have substantial rights or interests that

reasonabl y could be affected by the agencyÓs action. See St.

Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54

So. 3d 1051, 1055 (Fla. 5th DCA 2011).

10 7 . John Floyd did not testify at the final hearing.

There is no evidence in the record showing that Floyd owns

property with a water well near the proposed landfill site. He

may be involved with Floyd and Associates, Inc., which the

record does show is the owner of property and a water well near

the site, but Floyd and Associates , Inc., is not a pa rty and

cannot simply be substituted for John Floyd. Therefore, Floyd's

standing to participate was not established.

10 8 . All of the other Aligned Parties have standing

because their uses of water are substantial interests and

evidence was offered that t heir uses of water could be impaired

by the construction and operation of the proposed landfill.

10 9 . Angelo's argues that the challengers cannot show an

injury because groundwater does not flow from the landfill

toward their water wells and any discharge d leachate will be

detected and pumped out before it enters the groundwater.

However, standing in a section 120.57 proceeding does not depend

upon a party prevailing on factual disputes that determine

whether the party would be injured; it depends on offe ring

evidence to prove the party could be injured. St. Johns

Riverkeeper , supra ; Peace River/Manasota Reg'l Water Supply

Auth. v . IMC Phosphates Co. , 18 So. 3d 1079, 1084 (Fla. 2d DCA

2009).

1 10 . The Aligned Parties offered evidence that the

groundwater beneath the landfill could become contaminated.

Angelo's presented evidence that groundwater flows west from the

proposed site. The Aligned Parties presented evidence that the

groundwater flows south. All of the challengers (except John

Floyd) own proper ty and use water wells located west or south of

the proposed landfill. This evidence is sufficient under St.

Johns Riverkeeper to establish their standing.

11 1 . Some evidence related to odors, "vectors," and other

aspects of a landfill operation was offe red by WRB, but the

evidence does not tend to prove that WRB could be injured as a

result. The evidence did not show how Angelo's would fail to

meet the criteria applicable to these potential impacts. WRB

did not establish a basis for standing in additio n to the

potential impairment of its water use.

11 2 . Angelo's claims that Nestlé's alleged injury would be

purely economic, because Nestlé bottles and sells water. That

claim misconstrues the law of standing. Nestlé has a

substantial interest in its use of water and this proceeding is

designed to prevent water contamination. The fact that Nestlé

receives income from its water use is not a basis for denying it

standing. Impairment of Nestlé's water use is the injury that

gives it standing, not the resul ting loss of income.

B. The Stipulated Agreement

11 3 . This is a de novo proceeding for the purpose of

determining final agency action. See Cap e letti Bros. v. DepÓt

of Gen. Servs. , 432 So. 2d 1359, 1363 - 64 (Fla. 1st DCA 1983).

The effect the Aligned P arties wish to give to the Stipulated

Agreement interferes with that fundamental purpose.

11 4 . Because it is determined that Angelo's did not

demonstrate entitlement to the permits, taking into account all

of the evidence presented by Angelo's, the motion by the Aligned

Parties to exclude some of the evidence is hereby denied.

C. Burden and Standard of Proof

11 5 . Angelo's, as the applicant for the permits, has the

burden to prove that it is entitled to the permits because it

meets all applicable permit ting criteria. See Fla. Dep't of

Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

11 6 . Rule 62 - 701.320(9) directs the Department to deny a

landfill permit if reasonable assurance is not provided that the

requirements of chapters 62 - 4 and 62 - 701 will be satisfied.

11 7 . " Reasonable assurance " means " a substantial

likelihood that the project will be successfully implemented. "

Metro . Dade Cnty . v. Coscan Fl a. , Inc. , 609 So. 2d 644, 648

(Fla. 3d DCA 1992); Save Anna Maria, Inc. v. Dep ' t. of T ransp . ,

700 So. 2d 113, 117 (Fla. 2d DCA 1997).

11 8 . Findings of fact must be based on a preponderance of

the evidence. See § 120.57(1)(j), Fla. Stat.

D. The Department's Joinder in Issues

11 9 . Angelo's argues that the Department should not be

allowe d to join in the issues raised by the other Aligned

Parties which are different from the reasons for denying the

permits identified in the Department's Notice of Intent. The

Department's joinder in the issues raised by the other Aligned

Parties was manife sted for the first time in the parties' pre -

hearing stipulation.

1 20 . Angelo's agrees that the Department is not always

bound by the issues identified in a Notice of Intent, but

asserts that the Department should be bound in this instance

because its late notice of joinder in the other issues did not

afford Angelo's a reasonable opportunity to prepare to refute

the issues. Angelo's acknowledges that no Department witness

testified that Angelo's failed to meet any criterion other than

the criteria listed i n the Department's Notice of Intent, but

Angelo's contends that, if it had known the Department was going

to join in other issues, it would have conducted discovery on

the Department's interpretation of the rules implicated by the

claims of the other Align ed Parties. However, because these

issues had been raised by other parties, Angelo's was already

alerted to the possible benefit of conducting discovery on the

Department's interpretation of the rules involved.

12 1 . Furthermore, Angelo's did not take rea sonable action

available to it to cure any prejudice. Near the beginning of

the multi - week final hearing, the hearing was suspended to allow

for additional discovery, but Angelo's did not request to

conduct the discovery it now says it needed.

E. Appli cable Rules

12 2 . The criteria for the permitting of solid waste

facilities are set forth in rule chapter 62 - 701. That chapter

has been amended more than once since Angelo's original

application was filed with the Department. Angelo's cites rule

62 - 701. 220(1) in support of its argument that the rules that

were in effect when Angelo's application was deemed complete by

the Department on August 15, 2008, are the rules that should be

applied in this proceeding; no later rule amendments.

12 3 . Angelo's modif ied its application during the course

of the proceeding. Angelo's is not relying on the application

as it existed on August 15, 2008. It is relying on the

application it completed during the course of the final hearing.

12 4 . In addition, Angelo's does n ot explain how the

application of any particular rule amendment that took effect

after August 15, 2008 , would be prejudicial. The recommendation

made in this Recommended Order would not be different if the

version of chapter 62 - 701 in effect on August 15, 2008, had been

applied instead of the version in effect at the time of the

final hearing.

F. Compliance with Permitting Criteria

12 5 . AngeloÓs hydrogeological and geotechnical

investigations did not adequately define the landfill site

geology and hydr ology and its relationship to the local and

regional hydrogeologic patterns as required by rule 62 -

701.410(1)(a).

12 6 . Without an adequate geotechnical investigation,

Angelo's failed to insure the integrity of the structural

components of the landfill wil l not be disrupted , as required by

40 C.F.R § 258.15.

12 7 . Angelo's did not provide reasonable assurance that

the proposed landfill liner system would be installed upon a

base and in a geologic setting capable of providing structural

support as required by rule 62 - 701.400(3)(a).

12 8 . Because the hydrogeol og ical investigation is

inadequate, the proposed monitoring plan cannot be determined to

be adequate. It cannot be determined, for example, that the

monitoring system has a sufficient number of groundw ater wells

installed at appropriate locations and depths as required by

rule 62 - 701.510.

12 9 . Rule 62 - 701.340(1) requires a landfill to be

designed, constructed, operated, maintained, closed, and

monitored to control the movement of waste into the environ ment

so that water quality standards will not be violated. Angelo's

contends that its proposed project meets the minimum design

standards in rule 62 - 701.400 and, therefore, Angelo's is

entitled to the presumption that it has provided reasonable

assurances that water quality standards will not be violated.

1 30 . Angelo's did not prove that its design meets all of

the minimum standards in the rule. Angelo's did not prove that

it meets the standard in rule 62 - 701.400(3)(a)2. that the liner

will be "[i]nstall ed upon a base and in a geologic setting

capable of providing structural support to prevent overstressing

of the liner due to settlements and applied stresses."

13 1 . Furthermore, the Department rebutted the presumption

in the rule by presenting evidence a t the final hearing that the

site specific conditions warrant more stringent standards. The

Department imposed on Angelo's some additional design standards

above the minimum standards in rule 62 - 701.400, but remained

unconvinced that Angelo's project coul d be successfully

implemented.

13 2 . The presumption in rule 62 - 701.400(1) does not

eliminate an applicant's need to prove compliance with the

requirement found elsewhere in rule chapter 62 - 701 to conduct

adequate hydrogeological and geotechnical investiga tions and the

prohibition against constructing a landfill in an area that is

unstable unless adequate engineering measures have been proposed

so that the site will support the proposed landfill.

G. Inconsistent Agency Action

13 3 . Angelo's contends that the Department acted

inconsistently in denying Angelo's permits because the

Department has permitted other landfills in areas with sinkhole

activity. The Department counters that "every site is

different." That is an unfortunate short - hand description o f

the permitting process because it suggests a lack of

predictability.

13 4 . The record evidence does not establish how Angelo's

proposed site compares to other landfill sites permitted by the

Department. Angelo's was given an opportunity to present a

com parison, but did not do so in a manner that avoided relevance

objections from opposing parties. Angelo's did not offer

evidence to show that the Department has accepted similar

assurances as sufficient for a landfill in an unstable area with

the potential for contaminating several public and private

drinking water sources.

13 5 . It is logical that the quantum of assurance that is

deemed reasonable by the Department should be higher when there

is a potential for a higher level of harm. Here, the potential

harm -- contamination of several public and private drinking water

sources -- is a high level of harm. Therefore, the assurance

required that the harm will not occur must be commensurately

high.

13 6 . Angelo's emphasizes that sinkholes have formed at

other la ndfills permitted by the Department . However, under the

permitting criteria in rule chapter 62 - 701, the occurrence of

sinkholes at permitted landfills represents a failure of the

permitting process that the Department must take into account

and strive to prevent.

H. Irresponsible Applicant

13 7 . The Aligned Parties contend that, in determining

whether Angelo's provided reasonable assurance, Angelo's past

irresponsible conduct should be considered. The Department may

deny the application for a solid was te facility permit if an

applicant has " repeatedly violated pertinent statutes, rules,

and orders or permit terms relating to any sol i d waste facility

and who is deemed to be irresponsible as defined by department

rule. " See § 403.707(8), Fla. Stat.

138 . An applicant is " irresponsible " if he owned or

operated a solid waste management facility in Florida that was

the subject of a state or federal notice of violation, judicial

action , or criminal prosecution for violations of chapter 403 or

rules adopted under that chapter. See Fla. Admin. Code R. 62 -

701.320(3)(b). The Aligned parties failed to prove that

Angelo's operated a solid waste facility that was the subject of

any of these enforcement proceedings.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

deny Angelo's Permit Application Nos. 22913 - 001 - SC/01 and 22913 -

002 - SO/01.

DONE AND ENTERED this 28th day of June , 2013 , in

Tallahassee, Leon County, Florida .

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of June , 2013 .

COPIES FURNISHED :

Carl Roth , Qualified Representative

8031 Island Drive

Port Richey, Florida 34668 - 6220

Christopher M. Kise, Esquire

Foley and Lardner, LLP

1 06 East College Avenue, Suite 900

Tallahassee, Florida 32301 - 7732

Wayne E. Flowers, Esquire

Lewis, Longman and Walker, P.A.

Suite 150

245 Riverside Avenue

Jacksonville, Florida 32202 - 4931

Janice M. McLean, Esquire

City of Tampa

7th Floor

315 East Kenn edy Boulevard

Tampa, Florida 33602 - 5211

Joseph A. Poblick, Esquire

City of Zephyrhills

5335 8th Street

Zephyrhills, Florida 33542 - 4312

Doug Manson, Esquire

William Bilenky, Esquire

Brian A. Bolves, Esquire

Manson Bolves, P.A.

1101 West Swann Avenue

Tam pa, Florida 33606 - 2637

J acob D. Varn, Esquire

Linda Loomis Shelley, Esquire

Karen A. Brodeen, Esquire

Fowler, White, Boggs, P.A.

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32302 - 1547

David Smolker, Esquire

Smolker, Bartlett, Schlosser,

Loeb and Hinds, P.A.

Suite 200

500 East Kennedy Boulevard

Tampa, Florida 33602 - 4936

Stanley Warden, Esquire

Christopher Dale McGuire, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3 000

William D. Preston, Esquire

William D. Preston, P.A.

4832 - A Kerry Forest Parkway

Tallahassee, Florida 32309 - 2272

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, F lorida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3 900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days from the date of this Recommended Order. Any exceptions

to this Recommended Order sh ould be filed with the agency that

will issue the Final Order in this case.