14-003674 Department Of Environmental Protection vs. South Palafox Properties, Llc Status: Closed Recommended Order on Monday, March 2, 2015.

Summary: Agency established that Respondent violated conditions of C&D Permit and Consent Order; revocation of permit appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Petitioner ,

vs. Case No. 1 4 - 3674

SOUTH PALAFOX PROPERTIES, INC.,

Respondent.

______________________ _________/

RECOMMENDED ORDER

T his matter was heard before the Division of Administrative

Hearings (DOAH) by its assigned Administrative Law Judge, D . R.

Alexander, on December 9 - 1 1 , 2014, in Pensacola , Florida.

APPEARANCES

For Petitioner : B. Jack Chisolm, Jr., Esquire

Mar garet E. Seward, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent: V. Nicholas Dancaescu, Esquire

Christopher T. Dawson, Esquire

Ashley E. Hoffman, Esquire

GrayRobinson, P.A.

Suite 1400

301 East Pine Street

Orlando , Florida 32 801 - 2741

STATEMENT OF THE ISSUE

The issue is whether Respondent's Construction and

Demolition Debris Disposal Facility Permit No. 003397 - 013 - SO

( the Permit) should be revoked and the facility closed for the

reasons stated in the Department of Environmental Protection's

(Department's) Notice of Revocation (Notice) issued on July 31,

2014.

PRELIMINARY STATEMENT

In a n eight - count Notice , the Departme nt propose s to revoke

Respondent's Permit and close its facility for violati ng Permit

conditions and rules that govern the operation of the facility ,

including a failure to comply with certain time frames and/or

deadlines required by a 2012 Consent Order . Respondent timely

requested a hearing to contest th e proposed agency action, and

the matter was referred to DOAH to conduct a hearing.

At the final hearing, the Department presented the

testimony of five witnesses . Department Exhibits 1 through 8,

14, 18, 20, 22, 23, 30, 36, and 40 were received in evidence.

Respondent presented the testimony of four witnesses .

Respondent 's Exhibits 1 through 5, 27, and 28 were accepted in

evidence. The deposition of one witness was submitted by

Respondent on a proff er basis only. Joint Exhibits 1 and 2 were

also admitted. Finally, official recognition of the following

matters was taken: chapter 120, Florida Statutes (2014);

sections 403.021, 403.031, 403.061, 403.087, 403.121, 403.161,

403.703, 403.704, and 403.70 7; Florida Administrative Code

C hapters 62 - 4, 62 - 302, 62 - 701, and 62 - 780; rules 62 - 210.200 and

62 - 296 . 320; and 40 C.F.R. Part 264, Subpart II, adopted by

reference at rule 62 - 701.630.

A three - volume Transcript of the hearing has been prepared.

Proposed Recommended Orders (PROs) were filed by the parties ,

and they have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

A . The Parties , the Property, and the Dispute

1. The Depar tment administers and enforces t he provisions

of chapter 403 and the rules promulgated thereunder , including

those applicable to construction and demolition debris (C & D)

disposal facilities.

2. Respondent is a Florida limited liability corporation

that owns real property located at 6990 Rolling Hills Road,

Pensacola, Escambia County (County) , Florida . The large, odd -

shaped p arcel (whose exact size is unknown) is south - south west

of the intersection of Interstate 10 and Pensacola Boulevard

(U.S. Highway 29) and has C lass III fresh surface waters run nin g

in a northeast - southwest direction through the middle of the

property . See Resp. Ex. 28. The entire site is surrounded by a

six - foot tall fence or is separated from adjoining properties by

natural barriers. A railroad track borders on the eastern side

of the parcel; the western boundary fronts on Rolling Hills

Road ; and the northern boundary appears to be just south of West

Pinestead Road . Id. The area immediately south of the parcel

appears to be largely undeveloped. See Dept. Ex. 40. The

E merald Coast Utilit ies Authority (ECUA) , a local government

body, has an easement that runs along the eastern side of the

property adjacent to the railroad track on which a 48 - inch sewer

pipe is located.

3. An older residential area, known as Wedgewood, is

loc ated northeast of the facility on the north side of West

Pinestead Road. Id. The closest Wedgewood homes appear to be

around 4 00 or 500 feet from the edge of Respondent's property.

A community and recreational center , the Marie K. Young Center ,

also kno wn as the Wedgewood Center, serves the Wedgewood

community , is north west of the facility , and lies around 500

feet from the edge of the property. Established in 2012 where a

school once stood , it has more than 200 members . Although no n -

parties, it is fai r to say that the Wedgewood community and

County strongly support th e Department 's efforts to revoke

Respondent ' s permit.

4 . Respondent acquired the property in 2007. At that

time, an existing C & D disposal facility (the facility) was

located on the pro perty operating under a p ermit issued by the

Department. The Permit was re newed in February 2013 and will

expire in early 2018. Besides the general and specific

conditions , the renewed Permit incorporate s the terms and

conditions of a Consent Order execu ted in November 2012 , as well

as detailed requirements relat ing to the operation of the

facility, water quality monitoring, an odor remediation plan,

financial assurance and cost estimates, and closure of the

facility. The latter requirements are found in four Appendices

attached to the Permit.

5 . The facility operates u nder the name of Rolling Hills

Construction and Demolition Recycling Center. All material

received by the facility is disposed of in an active disposal

pile known as cell 2, located in the middle of the northern

section of the parcel . Cell 1 , southwest of cell 2 and just

east of Rolling Hills Road , was cl osed a number of years ago by

the prior operator .

6. Respondent operates the only C & D facility in the

County. 1/ It currently ser ves around 50 to 60 active customers ,

employs 16 persons, and operates between the hours of 7:00 a.m.

and 5:00 p.m. The former manager , Charl es Davidson, who had

overseen operations since 20 10 , was replaced in June 2014, and

Respondent blames him for igno ring or failing to address most of

the problems encountered during the last three years . Since

June , the managing partner of the LLC, Scott C. Miller, has

overseen the operations.

7 . Unlike Class I or III landfills, a C & D landfill may

accept only cons truction and demolition debris. Co nstruction

and demolition debris is defined as "discarded materials

generally considered to be not water soluble and non - hazardous

in nature." § 403.703(6), Fla. Stat.; Fl a. Admin. Code R. 62 -

701.200(24). D ebris include s not only items such as steel,

glass, brick, concrete, asphalt material, pipe, gypsum

wallboard, and lumber that are typically associated with

construction or demolition projects , but also rocks, soils, tree

remains, trees, and other vegetative matter tha t normally result

from land clearing or land development operations. Id. No

solid waste other than construction and demolition debris may be

disposed of a t the facility. See Fla. Admin. Code R. 62 -

7 0 1.730(4)(d).

8 . To address and resolve certain v iol ations that predated

the renewal of the Permit , the Department and Respondent entered

into a Consent Order on November 14, 2012. See Dep t. Ex. 2 .

These violations occurred in 2011 and included the storage

and/or disposal of non - C & D debris, and a failur e to timely

submit an appropriate Remedial Action Plan (RAP). Id. Among

other things, t he Consent Order required that within a time

certain Respondent submit for Department review and approval a n

RAP ; and after its approval to " continue to follow the tim e

frames and requirements of Ch apter 62 - 780, F.A.C. " Id. Th ose

requirements included the initiation of an active remediation

system and site rehabilitation within a time certain, and the

continued monitoring and related corrective action for any water

qu ality violations or impacts . Id.

9 . To ensure that it ha s the financial ability to

undertake any required c orrective action , the Permit requires

Respondent t o provide proof of financial assurance for the

corrective action program cost estimates. See F la. Admin. Code

R. 62 - 701.730(11)(d); § 2, Spec . Cond. F.1. This can be done

through a number of mechanisms, such as a performance bond,

letter of credit, or cash escrow. The Permit also requires

Re spondent to provide proof of financial assurance to

demo nstrat e that it has the financial ability to close the

facility and otherwise provide for the long - term care cost

estimates of the facility. See Fla. Admin. Code R. 62 - 701.630;

§ 2, Spec. Cond. F.2. Rather than using a cash escrow or letter

of credit , Re spondent has chosen to use a performance bond for

both requirements. These bonds must be updated annually to

include an inflation adjustment.

10 . Given the many requirements imposed by the Permit and

Consent Order, in 2013 and 2014 s e veral follow - up site

inspections of the facility were conducted by the Department ,

and a review of the operations was made to determine if the

various deadlines had been met. Also, in 2014, the Department

received complaints from the County and neighboring property

owners , a lmost exclusively by those residing in the Wedgewood

community , re garding offensive odors emanating from t he

facility.

11 . Based on field observations , the review of operations ,

and odor complaints, on July 31, 2014, t he Department issued a

Notice conta ining eight counts of wrongdoing. The Notice was

issued under section 403.087(7) (b), which authorizes the

Department to revoke a permit when it finds the permit holder

has " [ v ] iolated law, department orders, rules, or regulations,

or permit conditions." To Respondent's consternation, the

Department opted to use that enforcement mechanism rather than

initiating an enforcement action under section 403.121 or

executing a nother consent order , both of which would likely

result in a sanction less severe than pe rmit revocation . 2/

1 2 . The Notice contains the following charges: exceeding

surface water quality standards in r ules 62 - 302.500 and 62 -

302.530 (Count I); fail ing to implement a n R AP as required by

the Consent Order and Permit (Count II); fail ing to provi de

adequate financial assurance s for facility closure costs (Count

III); fail ing to provide financial assurances for the corrective

action required by the RAP (Count IV); fail ing to reduce on - site

and off - site objectionable odors and to implement a routine odor

monitoring program (Count V); dispos ing non - C & D waste on site

(Count VI); fail ing to remove unauthorized waste (Count VII);

and disposing solid waste outside of its permitted (vertical)

dimension of 130 feet N ational Geodetic Vertical Datum (N GVD )

(Count VIII). These allegations are discussed separately below.

13. Although the Notice is based on violations that

occurred on or before July 31, 2014, the undersigned denied the

Department's motion in limine that would preclude Respondent

from presen ting mitigating evidence concerning circumstances

surrounding the violations and efforts to remediate them after

July 31, 2014. Given that ruling, t he Department was allowed to

present evidence to show that Respondent's remediation efforts

have not been s uccessful and that some violations still existed

as of the date of final hearing.

1 4 . Respondent disputes the allegations and contends that

most, if not all, are either untrue, inaccurate, have been

remedied, or are in the process of being remedied. As n oted

above, Respondent considers the revocation of its permit too

harsh a penalty in light of its continued efforts to comply with

Department rules and enforcement guidelines. It contends that

the Department is acting at the behest of the County, which

de sires to close the facility to satisfy the odor complaints of

the Wedgewood residents , and to ultimately use the property for

a new road that it intends to build in the future.

B. Count I - Water Quality Violations

1 5 . The Notice alleges that two water q uality monitoring

reports filed by Respondent reflect that it exceeded surface

water quality standards at two monitoring locations (MW - 2 and

SW - 6) sampled on August 26, 2013, and at one monitoring location

(MW - 2) sampled on March 4, 2014. The Notice alleg e s that these

exceedances constitute a failure to comply with Class III fresh

surface water quality standards in rules 62 - 302.500 and 62 -

302.530 and therefore violate conditions in the P ermit. These

standards apply in areas beyond the edge of the discharg e area

(or zone of discharge) established by the Permit.

1 6 . To ensure compliance with water quality standards,

w hen the Permit was renewed in 2013, a Water Quality Monitoring

Report (Appendix 3) was attached to the Permit. It required

Respondent to mo nitor surface water for contamination, identif y

the locations at which samples must be collected, and specif y

the testing parameters. All of these conditions were accepted

by Respondent and its consultant(s).

1 7 . The monitoring network , already in place when

Respondent purchased the facility, consists of six ground water

monitoring wells and three surface water monitoring stations.

The surface water stations , which must be sampled to determine

compliance with water quality criteria , are SW - 5, a backgroun d

location, and SW - 6 and MW - 2, both compliance locations located

outside the zone of discharge . A background location is placed

upstream of an activity in order to determine the quality of the

water before any impacts by the activity. A compliance locati on

is placed downstream of an activity to determine any impacts of

the facility on surface water.

1 8 . The Water Quality Monitoring Plan and Permit require

Respondent to submit semi - annual water quality reports. To

conduct the preparation and filing of the reports, Respondent

used an outside consulting firm, Enviro Pro Tech, Inc. (EPT).

On November 5, 2013, EPT submitted a Second Semi - Annual 2013

report. See Dept. Ex. 5. According to Mr. Miller, who now

oversees operations at the facility, EPT did not provide

Respondent a copy of the report , or even discuss its findings,

before filing it with the Department.

1 9 . A Department engineer reviewed the report and noted

that surface water samples exceeded the Class III Fresh Water

Quality Standards for iro n, copper, lead, zinc, nickel, and

mercury at SW - 6 and for iron at MW - 2. See Dept. Ex. 6. A copy

of the Department's report was provided to Respondent and EPT.

Notably, the report indicated that background levels were lower

than the down - gradient result s. Under Department protocol, if

the sample s at the compliance locations exceed both the

regulatory levels and the background, th ere is a violation of

water quality s tandards. This accepted protocol differs from

Respondent's suggested protocol that the b ackground level should

be added to the regulatory standard before a comparison with the

sample results is made. In sum, e xcept for the reported n ickel

value at SW - 6 , a violation which the Department now says it will

not pursue, all exceedances shown on De partment Exhibits 5 and 6

are violations of the standards.

20 . On April 1, 2014, EPT submitted a First Semi - Annual

2014 report. See Dept. Ex. 7. A Department engineer reviewed

the report and noted that the surface water samples at one

monitoring locat ion, MW - 2, did not meet water quality standards

for iron; however, background levels for iron were much higher

than downstream. See Dept. Ex. 8. No other exceedances were

shown. Although the Department engineer considered the higher

background level for iron to be an "inconsistency" since it

varied from the prior reports, the reported iron value was

treated as a violation when the Notice was drafted. In its PRO,

however, the Department concedes that it did not establish a

violation of standards for iron , as alleged in paragraph 7 of

the Notice.

2 1 . While having no concerns with sampling taken at MW - 2,

Respondent's expert contends that the reported values for SW - 6

are unreliable because the samples taken from that location were

turbid and filled with lar ge amounts of suspended solid matter.

He noted that the well is located in a wetland area that is

" clogged with vegetation ." The expert estimated the turbidity

at the site to be in the range of 480 to 500 Nephelometric

Turbidity Units (NTUs) and believes the sample was taken in a

"high turbid sediment laden area , " thus rendering it unreliable.

However, at the time of the sample collection, turbidity was

measured at 164 NTUs , or much less than the amount estimated by

the expert . See Dept. Ex. 5, p. 147.

2 2 . There is no rule or procedure that disallows the use

of turbid samples. In fact, they can be representative of

actual water quality. Also, r ule 62 - 302.500(2)(d) provides that

if an applicant for a C & D permit believes that turbid samples

are not representative of water quality, it may use filtered

samples by establishing a "translator" during the permitting

process. Respondent did not request a translator during the

permitting process, nor is any such translator provision found

in the Permit.

2 3 . The expert also criticized EPT for holding the 2013

sample for iron for 22 days after collection before reanalyzing

it without providing any explanation for this delay . A

reasonable inference to draw from the data, however, is that

iron was present i n the original sample at levels that required

dilution and reanalysis.

2 4 . Respondent 's expert testified that even though off -

site stormwater is discharged onto the property, no offsite

monitoring locations exist, and therefore any offsite

exceedances w ould not be reported. He also criticized the

sampling locations that were selected by EPT. In fairness to

Respondent, a repositioning of the monitoring network and

retesting of the samples might have produced more favorable

results . But these are measur es that should have been addressed

long before this proceeding was initiated. Finally,

Respondent 's expert testified that the implementation of its

RAP, now partially completed, will cure all of the reported

exceedances. A ssuming this unrefuted testimony is true, it

should be taken into account in determining an appropriate

penalty.

C. Count II - Failure to Implement a n RAP

2 5 . In this Count, the Department alleges that after the

issuance of a n RAP Approval Order on July 3, 2013, Respondent

was required to implement the RAP within 120 days. The Notice

allege s that as of July 31, 2014, the RAP had not been

implemented.

2 6 . A n RAP was first filed by Respondent on November 15,

2010. See Dept. Ex. 3. When the Department determined that

changes to the R AP were necessary , the Consent Order imposed a

requirement that a n RAP addendum be filed within 150 days. The

date on which the addendum was filed is n ot known. However, a n

RAP Approval Order was issued on July 3, 2013. See Dept. Ex. 4.

The terms and c onditions in the RAP were incorporated into the

renewed Permit. The work required by the RAP consist s of two

phases, with all work to be completed within 365 days , or by

early July 2014 .

2 7 . Phase I related to the initiation of an active

remediation sy stem within 120 days, or by October 31, 2013.

This phase require s Respondent to install a pump and treat

system at the facility, which will withdraw contaminated

groundwater through recovery wells, pump the water to aeration

basins to treat the water, and then re - infiltrate the treated

water back into the ground. As noted below, the system was not

operational until the second week in December 2014.

2 8 . Respondent's failure to implement the approved RAP by

the established deadline constitutes a violation of rules 62 -

780.700(11) and 62 - 780.790 and Permit conditions, as charged in

the Notice.

2 9 . While Respondent concedes that it did not comply

with the deadline for implementing the RAP , it points out that

work on Phase I was begun in a timely manner. Ho wever, on

October 16, 2013, or just before the 120 days had run, a Notice

of Violation was issued by the County. See Resp. Ex. 2. The

effect of the Notice of Violation was to halt m uch of the work

on Phase I until Respondent obtained a County stormwater permit .

Respondent asserts that this was responsible for all, or most,

of the delay.

30. T he record shows that the EPT consultant did not a pply

for the County permit until September 10, 2014 , or almost one

year after the Notice of Violation was issued . Additional

information was required by the County, which was supplied on

October 23, 2014, but final sealed documents were not filed by

the consultant until a round Thanksgiving. The permit was issued

by the County " a week or so " before the final hearin g .

3 1 . Respondent attributes the delay in applying for a

County permit to its former manager and his failure to

coordinate with the EPT engineers assigned to the project. It

also claims that the County failed to process the application in

an expeditiou s fashion . However , the facts suggest otherwise .

Once the permit was issued, Phase I was completed on December 8,

2014 , and it was operational at the time of the final hearing.

3 2 . Respondent 's expert , hired in August 2014, has

proposed a modification to the RAP t hat would avoid impacting

the existing stormwater pond. However, the modification must be

reviewed and approved by the Department, and as of the date of

the hearing, it had not been formally submitted. The Department

asserts that the only re ason the modification is being sought is

to reduce the cost of a performance bond. In any event, i n its

P RO, Respondent does not argue that the proposed modification

excuses its 13 - month delay in completing the requirements of

Phase I, or the second pha se of the project , which should have

been completed by early July 2014.

D. Count III - Failure to Provide Financial Assurance

3 3 . This Count alleges that Respondent failed to provide

the required annual 2014 financial assurance mechanism that

demonstrate s proof of financial assurance for closure and long -

term cost estimates of the facility.

3 4 . At the beginning of 2014, Respondent had an

$836,000.00 financial performance bond in place for closure and

long - term costs . T he Permit requires that on or befor e March 1

of each year Respondent revise the closure cost estimates to

account for inflation in accordance with rule 62 - 701.630(4).

See § 2, Spec. Cond. F.2. Once the estimates are approved, the

performance bond must be updated within 60 days. In this c ase,

an increase of around $18,000.00 was required.

3 5 . The annual inflation adjustment estimate was not

submitted until April 15, 2014. The Department approved the

cost estimates the following day and established a due date of

June 16, 2014, for submitt ing a revised financial assurance .

Respondent did not have a revised performance bond in place

until a "week or two" before the hearing. Other than

Respondent's manager indicating that he had a new bonding agent,

no evidence was presented to mitigate thi s violation.

3 6 . The failure to timely update its financial assurance

for closure and long - term costs constitutes a violation of rule

62 - 701.630, as charged in the Notice.

E. Count IV - Financial Assurances for Corrective Action

3 7 . In the same vein as Count III, the Notice alleges that

Respondent failed to maintain a financial assurance mechanism to

demonstrate proof that it can undertake the corrective action

program required under the RAP.

3 8 . Respondent was required to submit proof of financial

assurance for corrective actions within 120 days after the

corrective action remedy was selected. On July 3, 2013, t he RAP

Approval Order selected the appropriate remedy . On August 8,

2013, the Department approved Respondent's corrective action

program cost estimates of $566,325.85 and established a deadline

of October 31, 2013, for Respondent to submit this proof. When

the Notice was issued, a corrective action bond had not been

secured , and none was in place at the time of the final hearing .

Th is con stitutes a violation of rule 62 - 701.730(11)(d) and

applicable Permit conditions.

3 9 . Respondent's manager , Mr. Miller, concedes that this

requirement has not been met. He testified that he was not

aware a new bond was required until he took over manageme nt of

the facility and met with Department staff on June 17 , 2014.

Due to the Notice, Mr. Miller says he has had significant

difficulty in securing a bond . He explained that the bonding

company is extremely reluctant to issue a bond to an entity

faced wi th possible revocation of its permit , especially if such

revocation might occur within a matter of months. Mr. Miller

says the bonding company wants 100 percent collateralization to

put a bond in place . Nonetheless, he is confident that a bond

can be sec ured if only because its cost will dramatically drop

when the RAP project is completed. However, even at hearing, he

gave no timeline on when this requirement will be fulfilled.

F. Count V - Objectionable Odors

40 . One of the driving force s behind the i ssuance of the

Notice is the complaint about off - site objectionable odors. A

considerable amount of testimony was devoted to this issue by

witnesses representing the Department, County, Wedgewood

community , and Respondent . The Notice alleges that during

routine inspections in April, May, and July 2014, mainly in

response to citizen complaints, Department inspectors detected

objectionable odors both at the facility and off - site. The

Notice further alleges that Respondent failed to immediately

take steps t o reduce the odors, submit an odor remediation plan,

and implement that plan in violation of rules 62 - 296.320(2) and

62 - 701.730(7)(e) and section 2, Specific Condition E of the

Permit . Notably, the Department has never revoked a landfill

permit due solely to objectionable odors.

4 1 . Several Department rules apply to this Count . First,

objectionable odors are defined in rule 62 - 210.200(200).

Second, a C & D facility must control objectionable odors in

accordance with rule 62 - 296.320(2). Finally, i f odor s are

detected off - site, the facility must comply with the

requirements of rule 62 - 701.530(3)(b). That rule provides that

once off - site odors have been confirmed, as they were here, the

facility must "immediately take steps to reduce the

objectionable odo rs," "submit to the Department for approval an

odor remediation plan," and "implement a routine odor monitoring

program to determine the timing and extent of any off - site

odors, and to evaluate the effectiveness of the odor remediation

plan." These same regulatory requirements are embodied in the

Permit conditions. See § 2, Spec. Cond. E.

4 2 . A t least occasionally, every landfill has

objectionable odors emanating from the facility. As one expert

noted, "The trick is, how can you treat it." The technic al

witnesses who addressed this issue agree that the breakdown of

drywall, wall board, and gypsum board , all commonly recycled at

C & D facilit ies , will produce hydrogen sulfide, which has a

very strong " rotten egg " type smell. The most effective

techniqu es for reducing or eliminating these odors are to spray

reactant on the affected areas, place more cover, such as dirt

or hydrated lime, on the pile, and have employees routinely

patrol the perimeters of the property and the active cell to

report any odors that they smell.

4 3 . Although the facility has been accepting waste

products for a number of years, the last seven by Respondent,

the re is no evidence that the Department was aware of any odor

complaints before April 2014. While not an active participa nt

in the operations until recently, Mr. Miller also testified that

he was unaware of any citizen complaints being reported to the

facility prior to that date. However, i n response to citizen

complaints that more than likely were directed initially to the

County , on April 14, 21, and 24, 2014, the Department conducted

routine inspection s of the facility. During at least one of the

visit s , objectionable odors were detected both on - site,

emanating from cell 2, and off - site on West Pinestead Road, just

north of the facility. See Dept. Ex. 14. Because the inspector

created a single report for all three visits, he was unsure

whether odors were detected on more than one visit. After the

inspection report was generated, Department practice was to send

a copy b y email to the facility's former manager, Mr. Davidson.

4 4 . A Department engineer who accompanied the inspector on

at least one visit in April 2014 testified that she has visited

the site on several occasions, and on two of those visits, the

odor was stro ng enough to make her physically ill.

4 5 . On a follow - up inspection by the Department o n May 22,

2014, the inspector did not detect any objectionable odors. See

Dept. Ex. 17. In June 2014, however, a County inspector visited

the Wedgewood Center area in response to a complaint that dust

was coming from the facility . He testified that he detected a

rotten egg type smell on the Wedgewood Center property.

4 6 . At a meeting attended by Mr. Miller and County and

Department representatives on June 17, 2014 , the Department

advised Respondent of its findings and provided Mr. Miller with

copies of the inspection reports.

4 7 . On July 1, 2014, the Department conducted a follow - up

inspection of the facility. The inspector noted a hydrogen

sulfide odor on the no rth, south, and west sides of the disposal

area of the facility, and on the top of the disposal pile at the

facility. See Dept. Ex. 18. Another inspection conducted on

July 9, 2014, did not find any objectionable odors. See Dept.

Ex. 19.

4 8 . On July 18 , 2014, the Department conducted a follow - up

inspection of the facility. The inspector again noted

objectionable odors at the facility but none off - site . Id.

49. On July 24, 2014, Department inspectors noted

objectionable odors on top of the pile, the toe of the north

slopes, and off - site on West Pinestead Road. See Dept. Ex. 20.

An inspection performed the following day noted objectionable

odors on top of the pile and the toe of the north slopes , but

none off - site . Id. The Notice, which was alread y being drafted

in mid - July, was issued a week later.

50 . In response to the meeting on June 17, 2014,

Respondent prepared a draft odor remediation plan, made certain

changes suggested by the Department, and then submitted a

revised odor remediation plan prior to July 31, 2014. A

Department engineer agrees that "in the strict sense it meets

the requirements of the rule" and "could work," but there are

"two or three things that still needed . . . to be submitted in

order for it to be completely approvable. " For example, she was

uncertain as to how and when dirt cover would be applied, and

how erosion would be controlled. Although the plan was filed,

it was never formally approved or rejected , and the "two or

three things" that the witness says still neede d to be done were

n ever disclosed to Respondent. Under these circumstances, it is

reasonable to accept Respondent's assertion that it assumed the

plan was satisfactory and complied with the rule .

5 1 . After the Notice was issued, Respondent set up a

hot line for community members to call and report odors. A sign

on the property gives a telephone number to call in the event of

odors. At an undisclosed point in time, Respondent began

requiring employees to walk the perimeter of the facility each

day to mo nitor for odors; spreading and mixing hydrated lime to

reduce the odors around the facility; and increasing the amount

of cover applied to the working face of the facility. The

parties agree that the se measures are the best available

practices to monitor and eliminate objectionable odors at a

C & D facility. Despite these good faith measures, Mr. Miller

acknowledged that he visited the facility during the evening a

few days before the final hearing in December 2014 and smelled

hydrogen sulfide around the ECUA sewer pipe and "a very mild

level" by the debris pile.

5 2 . Respondent does not deny that odors were emanating

from the facility during the months leading up to the issuance

of the Notice. But i n April 2014, the County experienced a 500 -

year stor m event which caused significant flooding and damaged a

number of homes. Because Respondent operates the only C & D

facility in the County and charges less than the County

landfill , it received a n abnormal amount of soaked and damaged

C & D debris , which it contends could have generated some, if

not all , of the odors that month . Given the magnitude of the

storm, this is a reasonable explanation for the source of the

odors at that time .

53. Respondent also presented evidence that an underground

ECUA se wer pipe that runs on the eastern side of the property

was damaged during the storm, causing it to rupture and be

exposed. Although ECUA eventually repaired the damaged pipe at

a later date , the pipe is still exposed above ground. Until the

pipe was repa ired, Respondent's assumption that it likely

contributed to some of the odors detected by the Department

appears to be valid . Finally, Respondent's expert attributes

some of the odors to biological degradation from other sources

both on - site and off - site , including a large wetland area

running through the middle of the property . To a small degree,

County testing later that fall confirms this assertion.

5 4 . The County has also been a n active participant in the

odor complaint issue. In response to complai nts re ceived from

residents of Wedgewood , in July 2014 it began collecting

hydrogen sulfide data using a device known as the Jerome 631X

Hydrogen Sulfur D etector . This equipment is used to monitor for

the presence of hydrogen sulfur.

5 5 . On July 21 and 22, 2014, samples were taken

documenting that hydrogen sulfide was coming from the facility.

In early September the County set up a fixed station at the

Wedgewood Center, around 500 feet from the edge of Respondent's

property, to continuously and automat ically collect the data.

During September and October 2014 the detector reported the

presence of hydrogen sulfide at that location 64 percent of the

days in those months, and this continued into the month of

November. Seventy - five percent of the exceedan ces occurred when

wind was blowing from the south, or when winds were calm. The

data also reflect ed that when the wind was blowing from the

meter to the facility , or to the south, hydrogen sulfide was

still detected on some occasions .

5 6 . A resident of the Wedgewood community testified that

on multiple occasions she has smelled objectionable odors in her

home and yard and at the Wedgewood Center , and that the se odors

have been emanating from the facility for a number of years.

Because of the odors, she says fewer citizens are participating

i n programs hosted by the Wedgewood Center. 3 /

5 7 . The evidence establishes that b efore the Notice was

issued, Respondent filed an odor remediation plan that was never

rejected; therefore, the allegation that a plan was not

submitted has not been proven . However, ob jectionable odors

were detected off - site in June and July 2014 , or after the April

inspection reports were provided to the facility, and they

continued throughout much of the fall . Therefore, the

Departme nt has established that the plan was not properly

implemented. These same findings sustain the allegation that

s teps were not immediately taken to reduce the objectionable

odors.

G. Count s VI and V II - Disposal and Failure to Remove

Unauthorized Waste

5 8 . Count s V I and V II allege that on April 14, 2014, the

Department documented the disposal of prohibited or unauthorized

waste, including waste tires ; and that on July 18, 2014, the

Department conducted a follow - up inspection that documented the

disposal of unauthorized waste, including waste tires, clothing,

shoes, and Class I waste, including one electronic item and a

grill, in violation of rule 62 - 701.730(4)(d).

5 9 . The Permit specifies that the facility can only accept

for disposal C & D debris. Se e § 2, Spec. Cond. C.2. Another

condition provides that if unauthorized debris is spotted after

a load is received, the unpermitted waste should be removed and

placed in temporary storage in a bin at the sorting area. See

§ 2, Spec. Cond. C.3. The Oper ations Plan spells out th ese

procedures in great detail.

60 . Photographs received in evidence show that during the

inspection on April 14, 2014, the following unauthorized items

were observed at the facility : tires, a basketball goal,

Quiklube material, chromated copper arsenate treated wood, a

toy, and a crushed electronic item. See Dept. Ex. 22.

6 1 . Photographs received in evidence show that during an

inspection on July 18, 2014, the following unauthorized items

were observed at the facility : blan ket or clothing, a shoe, a

bag of Class I garbage, several bags of household garbage,

furniture, an electronic item and garbage, drilling mud, a

suitcase, and tires. See Dept. Ex. 23.

6 2 . Respondent's expert , who has trained numerous

spotters, includi ng a current Department inspector , established

that a de minimis amount of unpermitted waste, which is easily

hidden in the debris, is not unusual and would not constitute a

violation of the rule. For example, when a building is torn

down, numerous thermo stats containing mercury vile will be in a

C & D container but very difficult to see. Also, workers at

construction sites may throw small amounts of leftover food in

the pile of debris that goes to the facility. However, he

agrees that most , if not all, of the items observed during the

two inspection s would not be considered de minim i s.

6 3 . Respondent does not deny that the unauthorized waste

was present on two occasions. However, it contends that one

would expect to find some of the items in a C & D dumpster. It

also argues that the amount of unauthorized waste was minimal

and not so serious as to warrant revocation of its Permit.

6 4 . The evidence supports a finding that on two occasions

Respondent violated two condition s in its Permit by accepting

non - C & D waste and failing to remove it . Therefore, the

charges in Counts VI and VII have been proven.

H. Count VIII - Facility Outside of Permitted Dimensions

6 5 . This Count alleges that on May 22, 2014, the

Department conducted a n inspection of the f acility in response

to a complaint that Respondent had disposed of solid waste

outside its permitted (vertical) limit of 130 NGVD ; that on

July 25, 2014, the Department had a survey performed at the

facility that confirmed this violation ; and that this ac tivity

violated s ection 2.3 of the facility's Operation Plan and

Specific Condition C.10 in the Permit.

6 6 . Section 2.3 provides that "the proposed upper

elevation of waste at the [facility] will range up to 130 - feet,

NGVD, which is slightly above origi nal grade[,]" while Specific

Condition C.10 provides that "[t]he final (maximum) elevation of

the disposal facility shall not exceed 130 feet NGVD as shown on

Attachment 3 - Cell 2 Closure Grading Plan."

6 7 . Respondent admits that on July 25, 2014, the maximum

height of the disposal pile exceeded 130 feet NGVD. However, it

argues that, pursuant to Specific Condition C.10, which in turn

refers to the Permit 's Cell 2 Closure Grading Plan, the 1 30 - foot

height limitation comes into play only when c ell 2 is being

closed and is no longer active. This interpretation of the

condition s is rejected for at least two reasons. First, a

disposal pile in excess of the established height would trigger

concerns about the integrity of the foundation of the facility.

Wh en the 130 - foot ceiling was established by the Department at

the permitting stage, it was based on calculations that the

ground could support the weight of the waste. Second, the

facility's financial assurance calculations are based on a set

dimension of the site; these calculations would likely be

impacted if there were no height restrictions. The Department's

interpretation is more reasonable and limits the height of the

pile to no more than 130 feet NVGD at any time when the cell is

active .

6 8 . The De partment has established that Respondent

violated Permit condition s by disposing of waste outside its

maximum permitted height of 130 feet NVGD.

69 . To Respondent's credit, its new consultant, Charles

Miller, completed preparation of a height reduction pl an on

September 3, 2014 . See Resp. Ex. 4. Although Mr. Miller says

the plan was being implemented at the time of final hearing, it

has never been formally submitted to the Department for

approval. Under the plan, Respondent proposes to extract all of

th e existing waste from the pile in the next two years. To

reduce the volume of new waste being accepted, Respondent

recently purchased a Caterpillar bulldozer , low - speed grinder ,

and Trommel screener . New waste will be shred d ed , screened to

separate sand and dirt from the material, and then ground and

compacted. Mr. Miller anticipates that the facility can achieve

u p to an eight to one (or at a minimum a five to one) reduction

in the size of the waste . This will dramatically reduce the

height of the pile and bring it well below 130 feet at closure.

But w hether c ell 2 is now below 130 feet NGVD is unknown. In

any event, t hese proposed remediation steps should be taken into

account in assessing an appropriate penalty.

CONCLUSION S OF LAW

7 0 . Section 403 .087(7) (b) authorizes the Department to

revoke any permit issued if it finds that the permit holder has

"[v]iolated law, department orders, rules, or conditions that

directly relate to the permit." See also Fla. Admin. Code R.

62 - 4.100(3)(b) ; § 403.704(10 ) , Fla. Stat.

7 1 . The Department a rgues that it must prove the

allegations in the Notice by a preponderance of the evidence .

Respondent asserts that the charges should be proven by clear

and convincing evidence. Neither party has cited an

administrativ e decision or appellate case that directly

addresses th is issue , probably because section 403.087 (7) is an

enforcement tool that is rarely used. Notably, most of the

charges in the Notice were admitted by Respondent, and m uch of

its evidence was to mitiga te those violations.

7 2 . Section 120.57(1)(j) provides that "[f]indings of fact

shall be based on a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute." Un like an enforcement action

under section 403.121(2) (d) , the Legislature did not provide a

burden of proof to be applied in revocation proceedings under

section 403.087 (7) . By definition, h owever, the term "license"

includes a permit and "licensing" includes the agency proces s of

revocation . See § 120.52(10) and (11), Fla. Stat. Also, permit

revocation proceedings are penal in nature. Thus, the

proceeding can be fairly characterized as a "penal or licensure

disciplinary proceeding" because Respondent has contested the

Depar tment's decision to revoke its permit.

7 3 . Case law makes a distinction between proceedings in

which sanctions involving a professional license are being

sought and other licensure disciplinary proceedings. In a

professional license setting, sanctions against the licensee

must be proven by clear and convincing evidence. See, e.g. ,

Dep't of Banking & Fin . v. Osborne , 670 So. 2d 932 (Fla. 1996).

In contrast, a C & D permit is not a professional license and

does not implicate the loss of livelihood . And , section 403.087

specifically provides that a permit issued under that provision

"shall not become a vested interest in the permittee . " Where

these circumstances are present, at least one court has held

that the proper standard of proof is preponderance of the

evidence. See Haines v. Dep't of Children and Famil i es , 983 So.

2d 602 (Fla. 5th DCA 2008) (where statute provide s that a foster

care license d oes not create a property right in the rec i pient,

a preponderance of the evidence is the appropriate stand ard to

use in a license revocation proceeding) . 4 / But no matter which

standard is used, the Department has proven the charges set

forth below by clear and convincing evidence .

7 4 . In a ruling at hearing, the undersigned denied the

Department's motion in limine that would preclude Respondent

from presenting evidence in mitigation of the charges. In its

PRO, the Department again argues that this proceeding is limited

to nothing more than proving (or disproving) that the permit

holder committed the alleg ed violation s . It points out that ,

unlike section 403.121 (10) , section 403.087 does not require it

to consider mitigating factors before revoking a permit.

75. T he Department has allowed mitigating evidence in at

least two permit revocation proceeding s . See Dep't of Envtl.

Prot. v. Mahon , Case No. 11 - 2276 (Fla. DOAH Dec. 30, 2011; Fla.

DEP Mar. 20, 2012) ; Dep't of Envtl. Reg. v. Vail , Case No. 87 -

4242 (Fla. DOAH Mar. 11, 1988; Fla. DER May 11, 1988) . While

the Department cites four revocation cases in which it contends

mi ti gating evidence was not allowed , all are distinguishable.

In three cases, the permit holder did not request a hearing.

The fourth case was decided primarily on a stipulation of facts

submitted by the parties . The Recommended and F inal Orders do

not say one way or the other whether evidence of mitigation was

presented. See Dep 't of Envtl. Reg. v. City of North Miami ,

Case No. 80 - 1168, 1981 Fla. ENV LEXIS 24 (Fla. DOAH Feb. 24,

1981; DER Mar. 18, 1981). The undersigned is persuaded that the

concept of due process accords a permit holder the right to

present evidence of mitigation. The ruling on the motion in

limine is reaffirmed.

7 6 . By clear and convincing evidence, the Department has

proven that Respondent exceeded surface water quality standards

for all analytes except nickel , as alleged in paragraph 6 of

Count I; that it failed to timely implement an RAP, as alleged

in Count II; that it failed to timely provide adequate financial

assurance for the facility, as alleged in Count III; that it

failed to provide financial assurance for corrective action, as

alleged in Count IV; that it failed to timely take steps to

reduce objectionable odors, and it failed to timely implement a

routine odor monitoring program, as alleged in Count V; that it

disposed of unauthorized waste, as alleged in Count VI; that it

failed to remove unauthorized waste, as alleged in Count VII;

and that it disposed of solid waste outside of its permitted

dimension of 130 feet NGVD, as alleged in Count VIII. The

r emaining charges should be dismissed.

7 7 . Section 403.087( 7 ) provides that the Department "may"

revoke any permit if it finds that the permit holder has

"violated law, department orders, rules, or regulations, or

permit conditions." The Department has st eadfastly contended

that the Permit should be revoked . On the other hand ,

Respondent recommends that it be given a date certain on which

to obtain a bond, placed on probation for a specified period of

time, required to reduce the height of cell 2 below 13 0 feet

NGVD by a date certain, and required to continue to follow

Permit conditions related to monitoring , screening of waste , and

implementation of the RAP. In short, Respondent is seeking a

new set of deadlines to replace those first established in

Nove mber 2012 and February 2013 by the Consent Order and Permit,

respectively.

78. The troubling aspect of this case is Respondent's

across - the - board failure to adhere to a number of deadlines and

Permit conditions established several years ago , and to make a ny

serious effort to comply with those requirements until it was

faced with possible revocation of its Permit. P erhaps this was

due to negligence and/or inattention by the former manager , who

was replaced in June 2014 , but this does not excuse its conduct .

At the same time, t he undersigned recognizes that once the

Notice was issued, with a new manager at the helm, Respondent

has inve sted a large amount of capital to purchase new equipment

and retain new consultants in an effort to bring the facility

into compliance. Even so , the date on which full compliance can

be achieved cannot be predicted.

79. While revocation of the Permit seems especially harsh,

and the undersigned would impose a less draconian measure than

revocation given the evidence of mitig ation, the Department has

established the facts necessary to take that action.

Accordingly, Respondent's Permit should be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Envi ronmental Protection

enter a final order revoking Respondent's C & D Permit.

DONE AND ENTERED this 2nd day of March , 201 5 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Admi nistrative 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 2nd day of March , 201 5 .

EN DNOTE S

1/ The County operates a large landfill that also accepts C & D

waste products. However, it is located west of Pensacola on the

Alabama state line , and the charges for using that service are

higher than Respondent's charges .

2/ The Departmen t has a wide range of options in implementing its

enforcement process, ranging from a noncompliance letter to a

criminal referral. Thus, it has the discretion to use a notice

of revocation under section 403.087(7).

3/ A Wedgewood resident testified that she believes the facility

has been contaminating her water supply. However, the water

supply in the Wedgewood community is served by the City of

Pensacola . There are no wells .

4/ In contrast, where the imposition of an administrative fine is

sought i n an enforcement action under section 161.054, the

Department m ust prove those charges by clear and convincing

evidence. See, e.g. , Withers v. Dep't of Envtl. Prot. , Case No.

02 - 0621 (Fla. DOAH Jan. 9, 2003; Fla. DEP Feb. 21, 2003).

COPIES FURNISHED:

Le a Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

B. Jack Chisolm, Jr., Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth B oulevard

Tallahassee , Florida 32 399 - 3000

(eServed)

V. Nicholas Dancaescu, Esquire

GrayRobinson, P.A.

Post Office Box 3068

Orlando , Florida 32 802 - 3068

(eServed)

Craig D. Varn, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Jonathan P. Steverson, Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCE PTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.