10-004179
Coyote Land Co., Inc. vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Tuesday, April 26, 2011.
Recommended Order on Tuesday, April 26, 2011.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8COYOTE LAND COMPANY, INC. , )
13)
14Petitioner , )
16)
17vs. ) Case No s . 10 - 4179
26) 10 - 9445
30DEPARTMENT OF ENVIRONMENTAL ) 10 - 9448
37PROTECTION, )
39)
40Respondent . )
43______________________________ _ )
46RECOMMENDED ORDER
48P ursuant to notice, this matter was heard before the
58Division of Administrative Hearings by its assigned
65Administrative Law Judge, D . R. Alexander, on March 22 , 201 1 , in
78Pensacola, Florida.
80APPEARANCES
81For Petitioner: W. Todd Schweizer, President
87Coyote Land Company, Inc.
914 Laguna Street, Suite 201
96Fort Walton Beach, Florida 32548 - 3600
103For Respondent: Ronda L. Moore , Esquire
109Department of Environmental Protection
1133900 Commonwealth Boulevard
116Mail Station 35
119Tallahassee, Florida 32399 - 3000
124STATEMENT OF THE ISSUE
128The issue is whether to approve Coyote Land Company, Inc.'s
138(Coyote's) applications for renewal permits to continue
145construction and operation of two construction and demolition
153debris facilities and one solid waste processing facility
161located in Santa Rosa County, Walton County, and Bay County,
171respectively.
172PRELIMINARY STATEMENT
174On December 11, 2009, Respondent, Department of
181Environmental Protection (Department), received Coyote's renewal
187permit application for it to continue to construct, operate, or
197modify a construction and demolition debris facility located in
206Santa Rosa County, known a s the Coyote Navarre C&D Disposal
217Facility (Coyote Navarre). On April 2, 2010, the Department
226issued its notice of denial of permit number 000 5651 - 005 - SO on
241the ground s the application was untimely and incomplete and the
252applicant was an "irresponsible ap plicant . " After receiving an
262extension of time, on June 7, 2010, Coyote timely filed a
273petition challenging the proposed agency action . The petition
282was referred by the Department to the Division of Administrative
292Hearings on June 28, 2010, with a reques t that an administrative
304law judge conduct a formal hearing. The matter was assigned
314Case No. 10 - 4179 and , by agreement of the parties, a final
327hearing was scheduled on December 6 - 8, 2010, in Milton, Florida.
339On August 20, 2010, the Department received Co yote's
348renewal permit applications for it to continue to construct,
357operate, or modify a construction and demolition debris facility
366located in Walton County, known as Coyote West C&D Facility
376(Coyote West), and a solid waste processing facility located in
386Bay County, known as the Coyote Disposal Facility (Coyote
395Disposal) . On September 17, 2010, the Department issued notices
405of denial of permit numbers 0002039 - 005 - SO and 0007948 - 006 - SO
421for Coyote West and Coyote Disposal, respectively , on the
430ground the applicant was an "irresponsible applicant." On
438September 29, 2010, Coyote filed petitions challenging that
446action. The petitions were referred by the Department to the
456Division of Administrative Hearings on October 5, 2010, with a
466request that an adminis trative law judge conduct a formal
476hearing . They were assigned Case Nos. 10 - 9445 and 10 - 9448 , and
491the three cases were consolidated by Order dated October 22,
5012010.
502At the request of the parties, the final hearing was
512rescheduled to January 26 - 28, 2011. A unilateral pre - hearing
524st atement (statement) was filed by the Department on January 21,
5352011. After a joint motion for continuance was filed, the
545matters were rescheduled to March 22 - 24, 2011, in Pensacola,
556Florida.
557At the final hearing, Mr. Schweizer , who represented his
566corporation, made an ore tenus request for a continuance of the
577hearing for two reasons: (1) to have additional time to hire an
589attorney ; and (2) to allow him 90 days in which to liquidate or
602sell the three facilities. The request w as denied because his
613prior counsel was authorized to withdraw as counsel in Case No.
62410 - 4179 in August 2010 , and the final hearing in that case was
638scheduled in December 2010 in order to allow him adequate time
649to hire a new attorney . Also, the Departme nt is concerned with
662a long history of non - compliance by Coyote and does not want any
676further delays. Other than requesting a continuance, Coyote
684presented no evidence. The Department presented no witnesses
692but offered Department Exhibits 1 - 2 2 and A - D , w hich were
707received in evidence. Also, the admitted facts recited in the
717Department's unilateral statement (Exhibit D) were accepted as
725true. The exhibits and statement form the basis for the
735findings of fact set forth below.
741The Transcript of the hearing was filed on April 6, 2011.
752Proposed findings of fact and conclusions of law were filed by
763the Department on April 18, 2011, and they have been considered
774by the undersigned in the preparation of this Recommended Order.
784None w as filed by Coyote.
790FINDI NGS OF FACT
794A . The Parties
7981. Coyote is a for - profit corporation registered to
808conduct business in the State of Florida. W. Todd Schweizer is
819the president of the corporation. Coyote owns and operates
828Coyote Navarre, Coyote West, and Coyote Disposal, w hich are
838seeking permit renewals. It also owns and operates a solid
848waste management facility known as Coyote East in Freeport,
857Walton County , which is now , along with two other Coyote
867facilities, the subject of an enforcement action in circuit
876court . Se e Department Ex. 20. However, Coyote East is not a
889party to this proceeding. ( That facility's permit expires on
899March 4, 2013.)
9022. The Department is an administrative agency of the State
912which administers and enforces chapters 376 and 403, Florida
921Statu tes (2010), and Florida Administrative Code t itle 62.
931B. Coyote Navarre
9343. The evidence indicates that the Coyote Navarre facility
943has a long history of no t complying with Department regulations
954and orders. In September 2001, Coyote filed an application to
964transfer an existing permit for a construction and demolition
973debris disposal facility located at 3201 Five Forks Road ,
982approximately 3.3 miles north of the U.S. Highway 98 and State
993Road 87 intersection, in Navarre , Santa Rosa County to an entity
1004k now n as Coyote Navarre . The application was approved, with a
1017permit expiration date of May 4, 2003.
10244. To address ground contamination at the facility, in
1033November 2001, Coyote submitted to the Department a
1041Contamination Assessment Plan. In May 2003, Coy ote submitted a
1051renewal permit application, which was approved o n December 17,
10612004. See Department Ex. 1. The new permit had a renewal date
1073of December 17, 2009. Id.
10785 . In September 2006, Coyote submitted a Site Assessment
1088Report (SAR) to the Depar tment t hat assessed benzene, arsenic,
1099aluminum, iron, sulfate, and total dissolved solids (TDS) found
1108in groundwater compliance monitoring wells at Coyote Navarrre in
1117concentrations above allowable groundwater standards.
11226 . The Department reviewed the SAR and advised Coyote by
1133letter dated October 31, 2006, that the SAR was incomplete.
11437 . In January 2007, Coyote notified adjacent property
1152owners that groundwater contamination had reached beyond the
1160property boundaries of its facility.
11658 . During the yea rs 2008 and 2009, Coyote did not submit
1178groundwater monitoring results for the facility to the
1186Department.
11879 . The Department sent Coyote a renewal permit reminder
1197letter on July 9, 2009. The letter reminded Coyote that the
1208application must be submitted on or before October 18, 2009, to
1219be considered timely and sufficient. Coyote eventually
1226submitted an application on December 11, 2009. See Department
1235Ex. 8.
123710 . The application was deemed incomplete and a request
1247for additional information was sent to Coyote. See Department
1256Ex. 9. Coyote did not provide a response to the Department
1267before the permit expired on December 17, 2009.
12751 1 . On April 2, 2010, the Department issued its notice of
1288intent to deny Coyote's permit renewal application. See
1296Dep artment Ex. 10. Besides the application being incomplete and
1306untimely, the Department determined that based upon prior
1314conduct by the applicant, Coyote is an "irresponsible applicant"
1323within the meaning of rule 62 - 701.320(3). Id. Paragraph (3)(a)
1334of the rule provides that a n applicant is "irresponsible" if it
"1346was subject to a state or federal notice of violation, judicial
1357action, or criminal prosecution for activities that constitute
1365violations of Chapter 403, F.S., or the rules promulgated
1374thereunder, and could have prevented the violation through
1382reasonable compliance with Department rules." I f an applicant
1391is deemed to be irresponsible, the rule provides that i n
1402determining whether an applicant has given reasonable assurances
1410that Department standard s will be met, the Department may also
1421consider "repeated violations of applicable statutes, rules,
1428orders, or permit conditions caused by a permit applicant after
1438October 1988 relating to the operation of any solid waste
1448management facility in this state. " Fla. Admin. Code R. 62 -
1459701.320(3).
14601 2 . On December 9, 2010, the Department sent Coyote a
1472letter informing it to cease and desist operations at Coyote
1482Navarre because the facility's permit had expired. See
1490Department Ex. 11.
14931 3 . Because Coyote has c ontinued to operate the facility
1505without a permit , the Department has filed a complaint in
1515circuit court. The outcome of that action is unknown.
15241 4 . Besides the foregoing civil action, the Department
1534filed a complaint against Coyote in circuit court on A pril 8,
15462008, alleging that the facility had violated chapter 403 and
1556rule chapters 62 - 210, 62 - 296, and 62 - 701 by causing pollution
1571and failing to control objectionable odors at the facility. See
1581Department Ex. 2. This case was later settled through a
1591St ipulated Order approved by the Court on August 25, 2009, which
1603required Coyote to install an air monitoring device at Coyote
1613Navarre and provide the Department with air monitoring results.
1622See Department Ex. 4. The results were submitted to the
1632Departmen t for the months of October, November, and December
16422010.
16431 5 . Another circuit court action w as filed against Coyote
1655in June 2009 alleging that the facility was causing groundwater
1665contamination, that it failed to submit groundwater monitoring
1673results, and that it failed to assess groundwater contamination
1682or complete a SAR. See Department Ex. 5. A Consent Final
1693Judgment was executed by the parties and approved by the Court
1704on March 30, 2010. See Department Ex. 6. However, as of the
1716date of the hearing, Coyote had failed to submit a SAR Addendum
1728within 270 days of the entry of the judgment, as required by the
1741Consent Final Judgment.
17441 6 . Although given an opportunity to do so, Coyote
1755presented no evidence at hearing in support of its application
1765or to r espond to the Department's reason s for denying the
1777application.
1778C. Coyote West
17811 7 . Like Coyote Nararre, the documentary evidence
1790indicates that the Coyote West construction and demolition
1798debris disposal facility on Hatcher Cemetery Road, south of
1807State Road 20, near Freeport, Walton County, has a history of
1818no t complying with Department regulations and orders . In 2002,
1829Coyote filed an application for the transfer of an existing
1839permit to an entity to be known as Coyote West . The Department
1852approved th e transfer of the permit, with an expiration date of
1864February 19, 2004. Coyote West did not submit a permit renewal
1875application and the permit expired in 2004.
18821 8 . In April 2005, Coyote West submitted a new permit
1894application, which was approved in Oct ober 2005. See Department
1904Ex. 12. That permit had an expiration date of October 21, 2010.
19161 9 . In November 2005, routine groundwater sampling at the
1927facility indicated the presence of aluminum, iron, and sulfate
1936in concentrations above groundwater stan dards. Coyote submitted
1944a SAR to the Department in December 2006 and a SAR Addendum in
1957April 2007.
195920 . Although the Department advised Coyote in October 2007
1969that the SAR Addendum was incomplete, as of October 2010, Coyote
1980ha d still not provided the requ ested information. See
1990Department Ex. 21.
19932 1 . Also, during 2008 and 2009, Coyote did not file
2005groundwater monitoring results for the Coyote West facility .
20142 2 . On April 28, 2010, the Department sent Coyote a
2026renewal permit reminder letter, which reminded Coyote that its
2035permit renewal application must be filed on or before August 22,
20462010, in order to be considered timely. See Department Ex. 14.
2057An application was filed by Coyote on August 20, 2010. See
2068Department Ex. 16.
20712 3 . On September 17, 2010, th e Department issued its
2083notice of intent to deny the application on the ground Coyote's
2094prior conduct rendered it an irresponsible applicant as d efined
2104in rule 62 - 701.320(3). See Department Ex. 18.
21132 4 . Although given an opportunity to do so, Coyote
2124s ub mitted no evidence at hearing in support of the application
2136for renewal of the permit or to respond to the Department's
2147reason for denying the application.
2152D. Coyote Disposal
21552 5 . In February 2002, Coyote filed an application with the
2167Department seekin g to transfer an existing permit for a solid
2178waste processing facility located at 2101 East 9th Street,
2187Panama City , to an entity to be known as Coyote Disposal. The
2199application for a transfer of the permit was approved, with the
2210permit having an expirat ion date of September 1, 2003.
22202 6 . In August 2003, Coyote submitted a renewal permit
2231application to the Department, which approved the application
2239with a new permit expiration date of October 21, 2010. See
2250Department Ex. 13.
22532 7 . Coyote's January 2006 Se mi - Annual Water Quality Report
2266reflected aluminum, arsenic, iron, sulfate, and TDS in
2274compliance monitoring wells at levels well above the allowable
2283groundwater standards. After the Department confirmed these
2290findings in September 2006, Coyote submitted a SAR in
2299March 2008.
23012 8 . The Department sent Coyote letters on May 20, 2008,
2313and October 17, 2008, informing Coyote that the March 2008 SAR
2324was incomplete. See Department Ex. 22. Coyote has never
2333responded to these letters.
23372 9 . On April 28, 2010, the De partment sent Coyote a
2350renewal permit reminder letter advising that an application must
2359be submitted by August 22, 2010, in order to be considered
2370timely. See Department Ex. 15.
237530 . On August 20, 2010, Coyote filed its permit renewal
2386application for Co yote Disposal. See Department Ex. 17.
23953 1 . On September 17, 2010, the Department issued its
2406intent to deny the application on the ground that Coyote's prior
2417conduct rendered it an irresponsible applicant within the
2425meaning of rule 62 - 701.320(3). See Depa rtment Ex. 1 9 .
24383 2 . Although given an opportunity to do so, Coyote
2449presented n o evidence at hearing in support of the application
2460for renewal of the permit or to respond to the Department's
2471reason for denying the application.
2476CONCLUSION S OF LAW
24803 3 . As t he applicant for the permit renewals, Coyote bears
2493the burden of proving by a preponderance of the evidence that it
2505has given reasonable assurances that all permitting criteria
2513will be satisfied. See Fla. Dep't of Transp. v. J.W.C. Co.,
2524Inc. , 396 So. 2d 7 78, 788 (Fla. 1st DCA 1981) . See also Fla.
2539Admin. Code R . 62 - 4.070(1)("[a] permit shall be issued to the
2553applicant upon such conditions as the Department may direct,
2562only if the applicant affirmatively provides the Department with
2571reasonable assurance . . . that the construction, expansion,
2580modifications, operation, or activity of the installation will
2588not discharge, emit, or cause pollution in contravention of
2597Department standards or rules") .
260334. Coyote has failed to pr ovide reasonable assurances
2612that all permitting criteria will be met. See Fla. Admin. Code
2623R. 62 - 4.070(1). Also, i t failed to submit evidence to re fute
2637the Department's assertion s that the Coyote Navarre application
2646was untimely and incomplete and that , as to all three
2656applications, Coy ote is an irresponsible applicant.
2663Accordingly, it is concluded that the applications should be
2672denied.
2673RECOMMENDATION
2674Based on the foregoing Findings of Fact and Conclusions of
2684Law, it is
2687RECOMMENDED that the Department of Environmental Protection
2694enter a final order denying the application s of Coyote Land
2705Company, Inc. , for renewal of permits 0005651 - 005 - SO (Coyote
2717Navarre) , 0 002039 - 005 - SO (Coyote West) , and 0007948 - 006 - SO
2732(Coyote Disposal).
2734DONE AND ENTERED this 26th day of April , 201 1 , in
2745Tallah assee, Leon County, Florida.
2750S
2751D. R. ALEXANDER
2754Administrative Law Judge
2757Division of Administrative Hearings
2761The DeSoto Building
27641230 Apalachee Parkway
2767Tallahassee, Florida 32399 - 3060
2772(850) 488 - 9675
2776Fax Filing (850) 921 - 6 847
2783www.doah.state.fl.us
2784Filed with the Clerk of the
2790Division of Administrative Hearings
2794t his 26th day of April, 201 1 .
2803COPIES FURNISHED:
2805Lea Crandall, Clerk
2808Department of Environmental Protection
28123900 Commonwealth Boulevard
2815Mail Station 35
2818Tallahassee, Florida 32399 - 3000
2823Herschel T. Vinyard, Jr., Secretary
2828Department of Environmental Protection
28323900 Commonwealth Boulevard
2835Mail Station 35
2838Tallahassee, Florida 32399 - 3000
2843Thomas M. Beason, General Counsel
2848Department of Environmental Protection
28523900 Com monwealth Boulevard
2856Mail Station 35
2859Tallahassee, Florida 32399 - 3000
2864W. Todd Schweizer, President
2868Coyote Land Company, Inc.
28724 Lagu na Drive, Suite 201
2878Fort Walton Beach, Florida 32548 - 3600
2885Rhonda L. Moore, Esquire
2889Department of Environmental Protection
28933900 Commonwealth Boulevard
2896Mail Station 35
2899Tallahassee, Florida 32399 - 3000
2904NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2910All parties have the right to submit written exceptions within 15
2921days of the date of this Recommended Order. Any exceptions to
2932this Recom mended Order should be filed with the agency that will
2944render a final order in this matter.
- Date
- Proceedings
- PDF:
- Date: 04/26/2011
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 04/18/2011
- Proceedings: Department of Environmental Protection's Proposed Recommended Order filed.
- Date: 04/06/2011
- Proceedings: Transcript (not available for viewing) filed.
- PDF:
- Date: 03/30/2011
- Proceedings: Order (Petitioner to file written proof confirming order and payment of transcript no later than April 4, 2011).
- PDF:
- Date: 03/29/2011
- Proceedings: Departmental of Environmental Protection's Motion on Ordering Hearing Transcript (filed in Case No. 10-009445).
- Date: 03/22/2011
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 03/21/2011
- Proceedings: Amended Notice of Hearing (hearing set for March 22 and 23, 2011; 9:00 a.m., Central Time; Pensacola, FL; amended as to location of the hearing).
- PDF:
- Date: 03/18/2011
- Proceedings: Letter to Clerk of the Division from Ronda Moore regarding exhibits to be offered at hearing (exhibits not available for viewing) filed.
- PDF:
- Date: 01/25/2011
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for March 22 through 24, 2011; 9:00 a.m., Central Time; Pensacola and Tallahassee, FL; amended as to hearing dates).
- PDF:
- Date: 01/21/2011
- Proceedings: Department of Environmental Protection's Pre-hearing Stipulation filed.
- PDF:
- Date: 11/30/2010
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 26 through 28, 2011; 9:00 a.m., Central Time; Pensacola and Tallahassee, FL; amended as to hearing dates and setting hearing via video teleconference).
- PDF:
- Date: 10/29/2010
- Proceedings: Department of Environmental Protection's Certificate of Service of First Set of Interrogatories to Coyote Land Co., Inc. (filed in Case No. 10-009448).
- PDF:
- Date: 10/29/2010
- Proceedings: Department of Environmental Protection's First Request for Production to Coyote Land Co., Inc. (filed in Case No. 10-009448).
- PDF:
- Date: 10/29/2010
- Proceedings: Department of Environemntal Protection's First Request for Admissions to Coyote Land Co., Inc. (filed in Case No. 10-009448).
- PDF:
- Date: 10/29/2010
- Proceedings: Department of Environmental Protection's Certificate of Service of First Set of Interrogatories to Coyote Land Co., Inc. (filed in Case No. 10-009445).
- PDF:
- Date: 10/29/2010
- Proceedings: Department of Environmental Protection's First Request for Admissions to Coyote Land Co., Inc. (filed in Case No. 10-009445).
- PDF:
- Date: 10/29/2010
- Proceedings: Department of Environmental Protection's First Request for Production to Coyote Land Co., Inc. (filed in Case No. 10-009445).
- PDF:
- Date: 10/22/2010
- Proceedings: Order of Consolidation (DOAH Case Nos. 10-4179, 10-9445, 10-9448).
- PDF:
- Date: 10/12/2010
- Proceedings: Department of Environmental Protection's First Request for Admissions to Coyote Land Co., Inc filed.
- PDF:
- Date: 10/12/2010
- Proceedings: Department of Environmental Protection's First Request for Production of Documents to Coyote Land Co., Inc filed.
- PDF:
- Date: 10/12/2010
- Proceedings: Department of Environmental Protection's Certificate of Service of First Set of Interrogatories to Coyote Land Co., Inc filed.
- PDF:
- Date: 08/27/2010
- Proceedings: Department of Environmental Protection's Response to Petitioner's Request for Production of Documents filed.
- PDF:
- Date: 08/27/2010
- Proceedings: Department of Environmental Protection's Certificate of Service of Answers and Objections to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 08/17/2010
- Proceedings: Motion of Berger Singerman to Withdraw as Counsel for Defendant Coyote Land Company, Inc. filed.
- PDF:
- Date: 07/23/2010
- Proceedings: Notice of Hearing (hearing set for December 6 through 8, 2010; 10:00 a.m., Central Time; Milton, FL).
- PDF:
- Date: 07/09/2010
- Proceedings: Joint Motion for Further Extension of Time to File Response to Initial Order filed.
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 06/28/2010
- Date Assignment:
- 03/21/2011
- Last Docket Entry:
- 07/25/2011
- Location:
- Pensacola, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Ronda L. Moore, Esquire
Address of Record -
W. Todd Schweizer
Address of Record