10-002987 Robert E. Mccune And Hernando Ssk, Llc vs. Out Of Bounds Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, December 8, 2011.

Summary: Applicant for C&D landfill permit did not provide reasonable assurance that no liner was needed and that potable wells within 500 feet were protected.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OUT OF BOUNDS, INC. , )

)

Petitioner , )

)

vs. ) Case No. 10 - 2683

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondent . )

)

ROBERT E. MCCUNE AND )

HERNANDO SSK, LLC, )

)

Petitioners, )

)

vs. ) Case No. 10 - 2987

)

OUT OF BOUNDS, INC., AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

On August 23 - 24 , 2011 , a final administrative hearing was

held in this case in Temple Terrace before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings

(DOAH) .

APPEARANCES

For Petitioner Out of Bounds, Inc. :

Timothy W. Weber, Esquire

Robert L. Chapman, Esquire

Battaglia, Ross, Dicus & Wein, P.A.

Post Office Box 41100

St. Petersburg, Florida 33743 - 1100

For Petitioners Robert E. McCune and Hernando SSK, LLC :

John R. Thomas, Esquire

Law Office of John R. Thom as, P.A.

233 Third Street North, Suite 101

St. Petersburg, Florida 33701 - 3818

For Department of Environmental Protection :

Ronda L. Moore, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Envi ronmental Protection (DEP) should issue a permit to Out of

Bounds, Inc. (Out of Bounds , or applicant ) , to construct,

operate , and close a construction and demolition debris disposal

facility (C&D facility) in Hernando County.

PRELIMINARY STATEMENT

Out of Bounds applied for the permit o n September 12, 2008 .

DEP made four requests for additional information. Out of

Bounds responded, and the application was complete on

September 3, 2009. On February 19, 2010, DEP gave notice of its

intent to issue the permit.

DEP granted extensions of time to Robert McCune and Paige

Cool to file a petition for a formal administrative hearing. On

April 20, 2010, DEP withdrew the previous notice of intent and

gave notice of intent to deny the permit because there were two

potable water wells within 500 feet of the proposed disposal

area and because no liner was proposed.

Out of Bounds petitione d for a formal administrative

hearing on the denial, which was referred to DOAH and given Case

No. 10 - 2683. Robert McCune and Paige Cool also filed a petition

to ensure that the denial was not reversed. DEP also referred

the McCune/Cool petition to DOAH, and it was given Case No. 10 -

2987. At DOAH, the cases were consolidated and scheduled for

hearing on August 30, 2010.

On July 27, 2010, DEP filed an unopposed Request for

Official Recognition regarding an amendment to section

403.707(9)(b) , Florida Sta tutes , that was enacted during the

20 10 regular legislative session and became effective on July 1,

2010. Before the amendment, the statute provided that liners

and leachate collection systems were not required for C&D

facilities unless DEP demonstrated t hat they were necessary to

prevent violations of groundwater standards and criteria . As

amended, the statute makes liners and leachate collection

systems mandatory for all C&D facilities, unless the applicant

demonstrate s that the facility will not be expected to result in

violations of groundwater standards and criteria.

On August 16, 2010, the c ases were placed in abeyance until

February 28, 2011, to give Out of Bounds time to decide whether

to modify its proposal to include a liner and for the part ies to

determine whether the matter could be settled. At the end of

the abeyance period, the parties reported that the application

was not being modified and the matter was not being settled .

T he final hearing was re scheduled for August 22 - 24, 2011.

On May 2, 2011, Hernando SSK, LLC (Hernando SSK) , was

substituted for Paige Cool, who had died.

The parties filed a Pre - Hearing Stipulation on August 15,

2011. At the f inal hearing , Joint Exhibits 1 - 18 were admitted

in evidence. Out of Bounds then called: John Morris, P.G., the

DepartmentÓs Southwest District Solid Waste Profession al

Geologist; Susan Pelz, P.E., the DepartmentÓs Southwest District

So lid Waste Program Administrator; Michael Hardy, P.E.;

Jack Hamilton, P.E.; Randy Yoho, owner of the proposed C&D

facility site and president of Out of Bounds; and Eric Eshom,

P.G., recently retired from employment with the Southwest

Florida Water Management District. Out of Bounds had its

E xhibits 10, 22, 30, 33, 39 ( for non - hearsay purposes only), 49,

53, and 54 admitted in evidence .

The Department called : Susan Pelz ; John Morris ; brothers

Daniel and Robert Knox ( who own property near the proposed C&D

facility ); and Robert McCune. The Department had its E xhibits

1 - 7 and 9 - 10 admitted in evidence .

Robert McCune and Hernando SSK called: David Belcher ( a

principal of Hernando SSK ); and Jerry Kubal, P.G., as an expert

in geology. McCune and Hernando SSK also had their E xhibits G,

M, T, X, MM, and QQ admitted into evidence .

A Transcript of the final hearing was filed on October 14,

201 1. (The Transcript erroneously uses a circuit court case

number instead of the DOAH c ase number.) On November 4, 201 1,

the parties filed proposed recommended orders , which have been

considered .

FINDINGS OF FACT

1. On September 8, 2008, Out of Bounds applied to DEP for

a permit to construct, operate , and close a n unlined C&D

facility on 26 acres located at 29251 Wildlife Lane,

Brooksville, Hernando County, Florida, to be known as the Croom

C&D De bris Landfill and Recycling Facility. There were four

requests by DEP for additional information, which was provided,

and the application was complete on September 3, 2009.

2. In 1994 , a previous owner of the property was issued a

permit to construct, operate , and close a n unlined C&D facility

on the property. That owner did not proceed with construction,

and the permit expired in 1999 . The Out of Bounds application

was for a new permit, not for the renewal of an existing permit.

3. Robert McCune owns property adjacent to the proposed

C&D facility. He and his wife reside on the property, keep

horses in stables on the property, and use the property for

horseback riding business, which includes hosting public

horseback riding events.

4. Herna ndo SSK was formed by David Belcher and one or

more others to continue the business being operated by

Paige Cool when she died during this proceeding . The business

is conducted on ten acres of property Cool owned approximately

one mile west of the propose d C&D facility . Belcher is one of

two co - personal representatives of CoolÓs estate. Belcher and

his wife hold a mortgage on the property. When the estate is

finalized, the Belchers plan to assign their mortgage to

Hernando SSK. It is not clear who will own the property after

the estate is finalized, or how Hernando SSK will be authorized

to continue the business on the property.

5. Western pleasure and trail - riding horses are boarded on

the Cool property, which is known as At Home Acres. The

business al so has access to 20 adjoining acres to the east,

which are used for grazing. Access to the horseback riding

trails in the Withlacoochee State Forest is conveniently located

just across Wildlife Lane from the property, to the north. A

manager resides in a double - wide trailer on the property, and

another trailer and a barn to the east of it are leased out.

There is a potable water well on the property, which is the

source of drinking water for the manager and lessees.

Well Setback

6. In the application process, Out of Bounds disclosed two

p otable water wells within 500 feet of the proposed landfill

disposal area. The application provided that those wells would

be converted to non - potable use.

7. Out of Bounds did not disclose the existenc e of a third

pot able water well, on property owned by Daniel Knox, which is

within 500 feet o f the proposed landfill disposal area.

8. When the Knox well was brought to the attention of DEP,

Out of Bounds admitted that the well was permitted for potable

use but took the po sition that it was not for potable use

because it was not in use , was not connected to a source of

electricity, and appeared to be abandoned.

9. Daniel Knox and his brother, Robert Knox , had the Knox

well dug and permitted in 1979 in anticipation of using i t as

the source of potable water for a residence to be built on the

property for their parents and sister . T he Knoxes have not yet

built a residence on the property, but it still is their

intention to do so and to use the well as the source of potable

wat er. Since its construction, th e well had been maintained and

operated periodically using a gasoline - powered generator so that

it will be ready for use when needed.

10. During the application process, Out of Bounds also did

not disclose the existence of a f ourth potable water well within

500 feet of the proposed landfill disposal area on property once

owned by Larry Fannin and now owned by his daughter and son - in -

law, Robert McCune. The McCune well was permitted and installed

in mid - 2005 while the sale of t he land from Fannin to the

McCunes was pending. The intended purpose of the well was to

provide potable water for the use of the McCunes when they

started to reside on the property. Despite this intent, and

u nbeknownst to the McCunes, Fannin had the well per mitted as an

irrigation well.

11. In mid - 2008, the McCunes began to reside on their

property. At first, they resided in a mobile home. They ran

pipes from the well to the mobile home to provide drinking

water. Eventually, later in 2008, they began co nstruction of a

residence on the property and ran pipes from the well to the

house to provide drinking water to the house. The well was

being used for drinking water before the Out of Bounds

application was complete. (They also use water from the well

from time to time for irrigation purposes -- i.e., when they host

horseback - riding events on weekends, they truck water from the

well to their horseback - riding arena to apply to the ground to

control dust.)

12. Groundwater flow s from the disposal a rea of the

proposed landfill to the west and southwest. The Knox and

McCune wells are down - gradient of the groundwater flow from the

proposed disposal area.

13. Out of Bounds represented at the hearing that it would

accept a permi t condition that no C&D debris , but only clean

debris, would be disposed within 500 feet of the Knox and McCune

wells. See Fla. Admin. Code R. 62 - 701.200(15) - (16) and (24).

However, there was no evidence of new designs, plans, or

operation s that would be used to meet such a permit condition.

Liner and Leachate Collection

14. Existing unlined C&D facilities in the Southwest

District report various parameters that exceed groundwater

quality standards and criteria. These include arsenic, ben zene,

iron, aluminum, nitrate, ammonia, vinyl chloride, methylene

chloride, 3 - and 4 - methyl phenols, sulfate, and total dissolved

solids (TDS). Arsenic and benzene are primary (health - based)

groundwater quality standards. The others are secondary

standar ds that relate to taste, odor, and aesthetics.

15. The likely source of the reported arsenic violations

in the Southwest District is wood treated with chromate copper

arsenate (CCA) . See Fla. Admin. Code R. 62 - 701.200(11). Out of

Bounds proposes to not accept CCA - treated wood and to use a

trained ÐspotterÑ to exclude CCA - treated wood from the landfill.

This is an appropriate measure to prevent arsenic violations ,

and is now required for C&D f acilities . See Fla. Admin. Code R.

62 - 701.730(7)(d), (8), and (20). It was not clear from the

evidence whether the C&D facilities in the Southwest District

with arsenic violat ions accepted CCA - treated wood . Even if they

did, the operational plan proposed by Out of Bounds to exclude

CCA - treated wood and to use a tr ained spotte r is not a guarantee

that no CCA - treated wood will enter the landfill.

16. A C&D f acility would not be expected to dispose of

material that would result in benzene contamination. The

reported benzene violations suggest that unauthorized material

contaminated with benzene nonetheless makes its way into C&D

facilities in the Southwest Di strict . The evidence was not

clear whether a trained spotter was used at those facilities.

Whether or not a spotter was used at those facilities , having a

trained spotter would not guarantee that no benzene - contaminated

material will enter the landfill p roposed by Out of Bounds.

17. Out of Bounds suggested that ammonia violations result

from C&D facilities accepting yard trash. However, there was no

evidence of a connection between acceptance of yard trash and

ammonia violations.

18. The operational plan proposed by Out of Bounds to

Ðcover as you goÑ is the accepted best practice to control

hydrogen sulfide odor , which comes from wet drywall . Out of

Bounds suggested that its cover plan would prevent any sulfate

violations, but there was no evidence to pro ve it.

19. There was no evidence as to whether t he C&D facility

proposed by Out of Bounds would be substantially different from

the other existing C&D facilities in DEPÓs Southwest District.

Absent such evidence, Out of Bounds did not provide reasonable

assurances that its proposed facility would not cause

groundwater quality violations .

20. T he site for the C&D facility proposed by Out of

Bounds is internally drained. T here are no surface waters

on site or within a mile of the site. There was no evidence of a

surficial aquifer above the Florida n aquifer. Rainfall entering

the Out of Bounds property migra tes downward into the Floridan

a quifer. Once in the aquifer, there is a horizontal comp onent

of groundwater water flow in a generally southwest directio n ,

towards the Knox and McCune wells. Contaminated leachate from

the proposed C&D facility would migrate with the groundwater.

21. Out of Bounds suggests that a thick clay layer under

the site of its proposed facility would prevent the downward

migration o f groundwater into the Floridan aquifer. There are

several reasons why the clay layer does not provide the

reasonable assurance of a liner that contamination from the

proposed landfill would not reach the Floridan aquifer.

22. C lay is much more permeable than a geo membrane meeting

DEP Ós specifications for use as a liner . The clay on the

proposed site is on the order of at least a thousand times more

permeable. (Out of Bounds appeared to confuse the permeability

of such a geomem brane with the allowable permeability of the

geosynthetic clay layer or compacted clay layer underlying the

geomembrane. Cf. Fla. Admin. Code R. 62 - 701.730(4)(f). )

23. In the application process, Out of Bounds relied on

t he clay layer for purposes of sinkh ole prevention and

mitigation, not for reasonable assurance that no liner was

needed. T he limestone formation underlying the site is highly

variable, with numerous pinnacles; for that reason, the

thickness of the clay layer also is highly variable, making it

difficult to excavate the proposed landfill with complete

assurance that the clay layer would not be penetrated. To

provide reasonable assurance for purposes of sinkhole prevention

and mitigation, Out of Bounds proposed to leave or create a clay

layer at least six feet thick underlying the bottom of the

proposed landfill.

24. Bec ause the site is in an area of high recharge to the

Floridan aquifer and drains entirely internally, the clay layer

alone does not provide reasonable assurance that there will b e

no downward migration of contaminated groundwater to the

Floridan aquifer. Reasonable assurance requires a liner and

leachate collection system.

CONCLUSIONS OF LAW

Standing

25. In addition to the administrative agency making the

decision (in this case, DEP), and under section 120.52(13)(a),

Florida Statutes, a "specifically named" person whose

substantial interests are being determined by the agency in the

proceeding (in this cas e, the applicant, Out of Bounds ), section

120.52(13)(b) provides that the term "party" includes "[a]ny

other person . . . whose substantial interests will be affected

by proposed agency action . . . . "

26. In order for a third party to have standing as a

peti tioner to challenge agency action in an administrative

proceeding, the evidence must prove that the petitioner has

substantial rights or interests that reasonably could be

affected by the agency's action. See St. Johns Riverkeeper,

Inc. v. St. Johns River Water Mgmt. Dist. , 54 So. 3d 1051, 1055

(Fla. 5th DCA 2011); Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't

of Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009); Peace

River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co. ,

18 So. 3d 1079, 1082 ( Fla. 2d DCA 2009); Reily Enters., LLC v.

Fla. Dep't of Envtl. Prot. , 990 So. 2d 1248, 1251 (Fla. 4th DCA

2008). See also § 403.412(5), Fla. Stat. ("A citizen's

substantial interests will be considered to be determined or

affected if the party demonstrate s it may suffer an injury in

fact which is of sufficient immediacy and is of the type and

nature intended to be protected by this chapter. No

demonstration of special injury different in kind from the

general public at large is required. A sufficient dem onstration

of a substantial interest may be made by a petitioner who

establishes that the proposed activity, conduct, or product to

be licensed or permitted affects the petitioner's use or

enjoyment of air, water, or natural resource s protected by this

cha pter.")

27. Robert McCune has substantial rights or interests that

reasonably could be affected by DEPÓs action on the application

filed by Out of Bounds . It is not clear from the evidence that

Hernando SSK has any substantial rights or interests that

reasonably could be affected by the agency's action in this

case. McCune proved standing; Hernando SSK did not.

Burden of Proof

28. A permit applicant has the burden to prove, by a

preponderance of the evidence, that it is entitled to the

requested permit. See Fla. DepÓt of Transp. v . J.W.C. Co.,

Inc. , 396 So. 2d 778, 788 (Fla. 1 st DCA 1981). See also Fla.

Admin. Code R. 62 - 4.070(1) (Ð[a] permit shall be issued to the

applicant upon such conditions as the Department may direct,

only if the applicant affir matively provides the Department with

reasonable assurance . . . that the construction, expansion,

modification, operation or activity of the installation will not

discharge, emit, or cause pollution in contravention of

D epartment standards or rules.Ñ) .

Pertinent Criteria

29. Florida Administrative Code Rule 62 - 701.300 provides

in pertinent part:

(2) Siting. Unless authorized by a

Department permit or site certification in

effect on May 27, 2001, or unless

specifically authorized by another

Department rule or a Department license or

site certification based upon site - specific

geological, design, or operational features,

no person shall store or dispose of solid

waste:

* * *

(b) Within 500 feet of an existing or

approved potable water well unless storage

or disposal takes place at a facility for

which a complete permit application was

filed or which was originally permitted

before the potable water well was in

existence. This prohibition shall not apply

to any renewal of an existing permit that

do es not involve lateral expansion, nor to

any vertical expansion at a permitted

facility; . . . .

The prohibition applies in this case.

30. Rule 62 - 701.200(86) defines Ðpotable water wellÑ as

Ðany excavation that is drilled or bored, or converted from non -

potable water use, when the intended use of such excavation is

for the location and acquisition of ground water that supplies

water for human consumption.Ñ The McCune and Knox wells are

potable under this definition and are within 500 feet and down -

gradi ent of the proposed disposal area.

31. Section 403.707(9)(b), which became law on July 1,

2010, provides:

The department shall require liners and

leachate collection systems at individual

disposal units and lateral expansions of

existing disposal units that have not

received a department permit authorizing

construction or operation prior to July 1,

2010, unless the owner or operator

demonstrates, based upon the types of waste

received, the methods for controlling ty pes

of waste disposed of, the proximity of the

groundwater and surface water, and the

results of the hydrogeological and

geotechnical investigations, that the

facility is not expected to result in

violations of the groundwater standards and

criteria if bui lt without a liner.

Out of Bounds failed to make the required demonstration and did

not provide reasonable assurance that its proposed facility

would not result in groundwater quality violations.

32. The prior version of the statute prohibited DEP from

requiring a liner unless it demonstrated that the facility is

expected to result in violations of the groundwater standards

and criteria if built without a liner. Out of Bounds argues

that the former v ersion of the statute should govern and that

DEP should be required to prove that a liner is needed . That

argument is rejected. See Lavernia v. DepÓt of P rof. Reg., Bd.

o f Med. , 616 So. 2d 53, 54 (Fla. 1st DCA 1993) ( the law in effect

at the time of the a gencyÓs final decision governs unless the

agency unreasonably delay s acting on the application until after

the effective date of the new law).

33. The applicantÓs reliance on Cimini , et al. v.

Department of Environmental Protection and Lake Environmental

Resources , LLC , Case No. 06 - 2005 (DEP Dec. 13, 2006; DOAH

Nov. 8, 2006), is misplaced. In that case, decided under the

prior version of the statute , DEP issue d a permit for a n unlined

C&D facility within 500 feet of a potable water well; however,

t here wa s a consistent , thick clay layer under the landfill , and

the well was upgradient , which provided reasonable assurance

that the Floridan aquifer would not be contaminated by the

proposed landfill , as well as site - specific geological, design,

and operational features that protected the well from

contamination . See Fla. Admin. Code R. 62 - 701.300(2).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP deny the application for a C&D

facili ty made by Out of Bounds.

DONE AND ENTERED this 8th day of December , 2011 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 8th day of December , 2011 .

COPIES FURNISHED :

Ronda L. Mo ore, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399 - 3000

John R. Thomas, Esquire

Law Office of John R. Thomas, P.A.

233 Third Street North, Suite 101

St. Petersburg, Florida 33701 - 3818

Timothy W. Weber, Esquire

Battaglia, Ross, Dicus & Wein, P.A.

Post Office Box 41100

St. Petersburg, Florida 33743 - 1100

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399 - 3000

Thomas Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Bou levard, Mail Stop 35

Tallahassee, Florida 32399 - 3000

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.