95-003712 William Nelson Edwards vs. Southwest Land Developers, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Friday, December 29, 1995.

Summary: Operator of construction/demolition debris facility not entitled to renewal of general permit due to odor, lack of Management and Storage of Surface Waters permit and proximity of well.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM NELSON EDWARDS, )

)

Petitioner, )

)

vs. ) CASE NOS. 95-3712

) 95-3713

DEPARTMENT OF ENVIRONMENTAL ) 95-3714

PROTECTION and SOUTHWEST LAND )

DEVELOPERS, INC., )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Port Charlotte, Florida,

on October 30 and 31, 1995, before Robert E. Meale, Hearing Officer of the

Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioners: William Nelson Edwards, pro se

27365 Jones Loop Road

Punta Gorda, Florida 33982

Sharon Winesett, pro se

27650 Jones Loop Road

Punta Gorda, Florida 33982

Richard W. Winesett, pro se

1574 Passaic Avenue

Ft. Myers, Florida 33901

For Southwest David K. Oaks

Land Developers, Oaks and Johnson, P.A.

Inc.: 252 West Marion Avenue

Punta Gorda, Florida 33950

For Department W. Douglas Beason

of Environmental Assistant General Counsel

Protection: Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this case is whether Southwest Land Developers, Inc. is

entitled to a general permit for the operation of a construction and demolition

debris disposal facility at the site of a previously permitted operation in Port

Charlotte.

PRELIMINARY STATEMENT

By Notification of Intent to Use a General Permit for a Construction and

Demolition Debris Disposal Facility dated June 5, 1995, Southwest Land

Developers, Inc. requested that Department of Environmental Protection reissue a

general permit to allow Southwest Land Developers, Inc. to continue to operate a

construction and demolition debris disposal facility off Jones Loop Road in Port

Charlotte.

By letter dated July 18, 1995, Department of Environmental Protection

informed Southwest Land Developers, Inc. that the agency did not object to use

of the general permit.

Each Petitioner timely filed a petition challenging the reissuance of the

general permit. The petitions alleged that the facility emits odors, noise, and

litter that adversely affects nearby property, including property owned by

Petitioners, and Alligator Creek, a natural waterbody near the facility.

The parties stipulated that Sherra Winesett is dropped from DOAH Case No.

95-3714. Thus, she is no longer a party in any of these cases.

Six weeks prior to the final hearing, Southwest Land Developers, Inc. filed

an application with the Southwest Florida Water Management District for an

environmental resource permit (formerly referred to as a permit for the

management and storage of surface water) for the facility. As of the final

hearing in the subject cases, the water management district had not yet acted on

the application.

At the hearing, Petitioners called nine witnesses and offered into evidence

12 exhibits. Southwest Land Developers, Inc. called two witnesses and offered

into evidence 10 exhibits. Department of Environmental Protection called no

witnesses and offered into evidence no exhibits. All exhibits were admitted.

The transcript was filed December 14, 1995. Rulings on timely filed

proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. Southwest Land Developers, Inc. (Applicant) is a Florida corporation

whose shares are divided equally between Bruce Laishley and Rick Treworgy.

Applicant owns and operates a construction and demolition debris disposal (C&D)

facility located at 27595 North Jones Loop Road in Punta Gorda. Applicant's

shareholders quitclaimed the property to Applicant on March 11, 1993.

References to "Applicant" prior to this date are to Applicant's shareholders.

2. Applicant intends to continue operating the facility under a general

permit. Applicant filed a Notification of Intent to Use a General Permit for a

Construction and Demolition Debris Disposal Facility dated June 5, 1995 (NOI)

(Applicant Exhibit Number 1).

3. The NOI describes the facility as a receiving site for construction and

demolition materials for recycling and disposal. The NOI states that the

facility shall be constructed 28 feet high and covered with two feet of clean

soil and grass, thus reaching a total height of 30 feet above existing ground

level.

4. By letter dated July 18, 1995, Department of Environmental Protection

(DEP) informed Applicant that the agency did not object to Applicant's use of

the general permit through July 18, 2000, for the activities described in the

NOI.

5. Applicant opened the C&D facility in 1990 under a general permit.

Applicant filed on May 30, 1990, a Notification of Intent to Use a General

Permit for a Construction and Demolition Debris Solid Waste Facility (1990 NOI)

(Petitioner Exhibit Number 5). The 1990 NOI states that the property consists

of 19.18 acres, including two acres devoted to waste disposal. (A diagram

accompanying the 1990 NOI accurately reports that the actual acreage is 18.18

acres.) The 1990 NOI states that the planned active life of the facility would

be two years.

6. The general description of operations contained in the 1990 NOI

mentions that two acres would be used for waste disposal. The 1990 NOI

describes normal business hours as Monday through Saturday 7:30 am to 5 pm. The

1990 NOI assures that gates would be used to prevent unauthorized dumping, only

clean debris and C&D materials would be accepted, unauthorized materials would

be transported to the County landfill, and all areas would be covered with two

feet of clean soil and sodded or seeded to control erosion. After closure, the

1990 NOI promises that: "All filled areas then will serve as a landscaped berm

to provide a privacy barrier to future home owners."

7. Two diagrams accompany the 1990 NOI. The first is a facility

illustration depicting a rectangular piece of property with two proposed wooded

homesites toward the front (north) facing North Jones Loop Road, an excavation

site/lake taking up at least half of the back of the property, and a thin strip

designated to receive C&D debris behind (and, for a short distance, alongside

the rear of) the excavation site/lake. The first diagram also reveals that a

creek (Alligator Creek) crosses the northwest corner of the property.

8. The second diagram accompanying the 1990 NOI is a diagram of the

proposed landscape berm running along the south property line behind the lake.

The proposed landscape berm is the above-described strip to be formed from C&D

debris. The strip is 80 feet wide running along 600 feet at the back of the

property and extending about 150 feet to the north at either end. and is tapered

with a 2:1 (two feet horizontal to one foot vertical) slope.

9. The second diagram displays all elevations as "ELEV. x," such as the

high water table as "ELEV. 15.0'." The elevation of the ground is "ELEV. 21.0'"

to "ELEV. 17.0'." The elevation of the top of the C&D mound is "ELEV. 33.0',"

which includes two feet of clean fill capping the mound. Thus, the second

diagram represents that the C&D mound would extend from the high water table at

15' NGVD to 33' NGVD for an apparent height, from existing ground, of 12-16

feet.

10. The second diagram shows that the elevation of the proposed 8.18-acre

lake would be 15 feet NGVD. The second diagram also reveals a 10-foot wide

swale running between the strip and the south property line.

11. Prior to authorizing Applicant to proceed under the general permit in

1990, DEP required Applicant to obtain a permit for the management and storage

of surface water (MSSW) from the Southwest Florida Water Management District

(SWFWMD). Instead, Applicant obtained a letter from SWFWMD stating that the

project was exempt from permitting due to the small area of land involved.

12. The SWFWMD exemption letter was erroneously issued, based partly on a

confusion between the disposal area, which was below the MSSW threshold of ten

acres, and the total, contiguous land under common ownership, which exceeded the

10-acre threshold. SWFWMD personnel also believed at the time that Applicant

proposed the "construction of a landscape berm and filling a borrow pit; not a

30 foot high C&D Facility" (Petitioner Exhibit Number 4). In a letter dated

July 25, 1995, SWFWMD noted this misconception and determined that the project

was not exempt from the requirement of an MSSW permit.

13. In any event, after receiving the SWFWMD exemption letter in 1990, DEP

allowed Applicant to construct the C&D facility under the general permit, which

remained effective for five years.

14. The first phase of Applicant's activities on the site involved the

removal of marketable fill from the rear of the property. Most of the original

two-acre fill site was contained in this larger excavation area. During the

first phase of construction, no offsite material was used to fill the

excavation. Later, during the second phase of Applicant's activities, clean

offsite debris, consisting of earth and concrete, was added below the water

table. Once the fill reached the elevation of the water table, Applicant began

allowing the addition of construction and demolition debris. Applicant first

received construction and demolition debris at the end of 1993 or early 1994.

15. Shortly after construction began on the facility, a DEP employee

noticed that the facility had exceeded what Applicant had described in the 1990

NOI. Instead of demanding a new NOI, the DEP employee told Applicant to supply

an engineering update.

16. By letter to DEP dated September 25, 1991, Applicant provided new

drawings, showing, among other things, that all water was to be retained onsite

(1991 Update) (Petitioner Exhibit Number 2a). The 1991 Update contains three

drawings: a diagram of existing conditions with elevations, a diagram of

proposed conditions with elevations, and a cross-section of part of the second

diagram.

17. The first diagram attached to the 1991 Update shows a rectangle of

land with prevailing elevations ranging from 10-12 feet. Perimeter elevations

are 18-22 feet. A large area inside the rectangle contains elevations of 2.3-

5.8 feet. Absent dewatering, this large area would be a lake typically 9-12

feet deep. Compared with information from the 1990 NOI, the first diagram

reveals that Applicant had already removed about eight feet of fill from the

uplands and 15 feet of fill from the lake, which was somewhat smaller than the

ultimate size proposed in the first diagram of the 1990 NOI.

18. The second diagram attached to the 1991 Update confirms substantial

departures from the plans contained in the 1990 NOI. The lake is relocated to

the north, still south of what was depicted as proposed homesites on the first

diagram of the 1990 NOI, and it is reduced from 8.18 acres to 2 acres.

19. The second diagram of the 1991 Update reveals that the area designated

to receive C&D debris has been expanded. Formerly ending about 250 feet from the

southeast corner of the property, the area now extends to about 600 feet from

the southeast corner of the property.

20. The second diagram reveals that the proposed C&D mound as grown by 17

feet since the 1990 NOI. Previously reaching a height of 33' NGVD, the proposed

mound in the 1991 Update would reach a height of 50' NGVD. As before, the mound

would be capped by two feet of clean fill. From existing ground level, the

height of the capped C&D mound has grown from 12 feet high in the 1990 NOI to 29

feet high in the 1991 Update, using the value of 21' NGVD from existing ground

level, as set forth in the 1990 NOI.

21. As depicted in the 1991 Update, the fill area is expanded from an 80-

foot wide strip covering about two acres to a much larger area. The scale on

the diagrams showing existing and proposed conditions is wrong, due to reduction

in photocopying. The actual scale is one inch equals about 83 feet, as is

obvious in the relationship of the eight-inch south property line to the 662.3

feet it is intended to represent. (The 1199.89-foot measurement on the east

property line is inaccurate. It represents the entire east property line,

including the area reserved for homesites. See first diagram in 1990 NOI. The

area actually depicted on the two diagrams omits the northerly 162 feet of the

entire parcel.)

22. The fill area in the second diagram attached to the 1991 Update is

6.67 acres. About 3.5 acres of the fill area would be covered by 33 feet of C&D

fill, with the remainder under progressively less fill due to the tapering off

of the sides of the roughly 30-foot high mound. The first and second diagrams

reveal that the excavation area has consumed 75-100 feet of the area to the

north, which had been reserved for wooded homesites under the first diagram of

the 1990 NOI.

23. The second diagram depicts a swale running along the entire south

perimeter and east and west perimeters north to the beginning of the relocated

lake, where the swale empties into the lake. The interior swale mound (closer

to the C&D fill) is a constant elevation of 20 feet NGVD.

24. The third diagram attached to the 1991 Update shows that, although the

slope of the fill area is reduced to 3:1, the height of C&D debris is increased

from 31 feet NGVD to 48 feet NGVD. For stormwater calculations, the third

diagram projects that 1/2 inch retention over 18.18 acres would raise the lake

level by 4.5 inches, as opposed to merely 1.11 inches for the larger lake shown

in the second diagram of the 1990 NOI.

25. Satisfied with the 1991 Update, despite the substantial changes in the

proposed project, DEP's representative merely added the three new drawings to

the file. The representative did not revisit the general permit under which

Applicant was then operating because DEP does not allow the modification of a

general permit.

26. The NOI contains a narrative and illustrative description of the C&D

facility, as described above, including the 1991 Update. The first diagram of

the NOI is the second diagram of the 1991 Update, except for a correction in the

bottom elevation of the relocated lake. The second diagram of the NOI is the

third diagram of the 1991 Update.

27. The third diagram of the NOI accurately depicts the changes through

the 1991 Update. The third diagram reveals that the northeast corner of the

facility is within 200 feet of a potable water well.

28. The third diagram, which is entitled a Site & Closure Plan, states

that the north line of the permitted area, which does not include the proposed

wooded homesites to the north, depicts the "limits of original footprint."

Actually, the northeast corner of the permitted part of the property is almost

200 feet farther north than depicted in the first diagram of the 1990 NOI. In

the 1990 NOI, the northeast corner of the permitted area was about 450 feet from

the northeast corner of the property. In the 1991 Update, assuming that

Applicant could unilaterally extend the permitted area without a new notice of

intent, the northeast corner of the permitted area cannot be located with any

certainty due to the roughness of the hand- drawn perimeter in the first and

second diagrams and their failure to disclose the northeast property corner. In

the NOI, the northeast corner of the permitted area is less than 400 feet from

the northeast corner of the property.

29. Other relevant features of the NOI are assurances in the operational

plan that no odor problems "are expected" due to the inert nature of the fill.

In the event of objectionable odors, Applicant promises to control them by

"covering any decaying materials periodically as required."

30. The NOI summarizes the results of a geotechnical investigation, which

was a requirement added since the 1991 Update. The Summary states that the

report results lead Applicant to "anticipate the ground will have no problem

supporting the facility to a height of 30' above existing ground." The

geotechnical report indicates that the purpose of the investigation was to

determine the suitability of subsurface soils (to an excavation depth of 15-20

feet) for use as fill. The geotechnical report concludes that the "proposed

Quarry Development" is feasible, but recommends excavation no deeper than 15

feet, which would leave a three-foot undisturbed layer between the bottom of the

excavation and the top of the confining layer. In a subsequent addendum, the

report was amended to recommend excavating no deeper than 18 feet.

31. Since beginning operation in 1990, the C&D facility has received

discarded construction materials, as intended. Applicant recycles some of the

materials that it receives, such as copper, aluminum, and steel. Two years ago,

DEP prohibited C&D facilities from accepting containers, so Applicant placed a

dumpster in the front to collect containers for later removal to approved sites.

32. In the typical transaction, a spotter employed by Applicant meets the

truck in the staging area for unloading. The spotter determines that the load

is in compliance before permitting the truck driver to dump. If the load is

completely unacceptable, the spotter orders the truck driver to leave the site

without dumping.

33. Otherwise, the spotter tells the driver to discard all containers in

the dumpster in the front of the facility. Then, after the remaining load is

dumped, the spotter removes recyclables and places them in a temporary storage

area before they are taken by contractors or transported to approved locations

elsewhere. The spotter also removes unauthorized items, such as appliances,

hazardous materials, tires, furniture, batteries, and oil-based paint, and sets

these materials aside in a designated area for transporting to approved

locations elsewhere.

34. Next, Applicant's equipment operator crushes the load. If he sees

anything unauthorized in the pile, he orders the spotter to remove it.

35. In the five years that the C&D facility has operated, there have been

two cited violations. Neither is indicative of a intentional or reckless

disregard of the law. It is questionable whether the violations even suggest

negligence on the part of the operator of the facility.

36. The first violation involved a 55-gallon drum of lacquer thinner,

which the spotter had detected and placed to one side while the manager decided

how to dispose of it properly. Due to its surveillance of the customer who left

the drum, DEP inspected the facility immediately after Applicant's facility

received the drum and issued a warning letter to Applicant dated December 22,

1992. Applicant complied with DEP's orders and disposed of the drum correctly.

37. The other violation involved the acceptance of containers. Due to a

misunderstanding of a change in the law, Applicant allowed containers to be

dumped, as it had previously done lawfully. DEP inspected the facility in mid-

1993 and informed Applicant that it could not accept containers anymore.

Applicant removed all of the accessible containers, and DEP reinspected and

determined that the facility was in compliance.

38. Applicant's employees remove litter from Jones Loop Road, 1.5 miles in

one direction and one mile in the other, three days a week. Applicant operates

the facility from 7 am to 5 pm Monday to Friday and 7 am to 2 pm on Saturday,

which represents one-half hour less weekly than permitted (three hours less on

Saturday, but one-half hour more each weekday, as the facility was to open at

7:30 am, not 7 am).

39. During the two summers since Applicant began accepting C&D debris--

1994 and 1995--strong, noxious odors have emanated from the site. Smelling like

sewage or sludge, the odors irritate the throats and trigger headaches of nearby

persons. One of the Petitioners noted that the odor permeated the air

conditioning ducts of a nearby home if the garage door were left open.

40. The source of the odor is unknown, but is suspected to be some form of

sulphur, perhaps leaching from the gypsum in the drywall debris. There were no

odor problems before Applicant began accepting C&D debris and dramatically

deepened the retention pond. Applicant has spent up to $15,000 trying to

eliminate the odor, but has not yet succeeded.

41. There are other complaints concerning offsite runoff and groundwater

contamination involving Alligator Creek and nearby property not owned by

Applicant. The evidence in the record concerning these matters is anecdotal and

best reserved for more systematic consideration in the MSSW permit (now known as

environmental resource permit) for which Applicant from SWFWMD.

42. By letter dated September 22, 1995, SWFWMD acknowledged that it is

reviewing Applicant's application for an MSSW permit and requested Applicant to

"[c]urtail all landfill activity to the greatest extent possible until the

permit application has been approved by the District."

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has jurisdiction over the

subject matter. Sections 120.57(1) and 403.814(3), Florida Statutes. (All

references to Sections are to Florida Statutes. All references to Rules are to

the Florida Administrative Code.)

44. In the absence of DEP rules, Section 403.707 requires no permit for

C&D facilities, as long as the activity does not create a "public nuisance or

any condition adversely affecting the environment or public health" and the

activity does not violate other state or local laws. The presence of the strong

odor at Applicant's facility means that a permit would be required, even if DEP

had promulgated no rules.

45. Section 403.707(9) authorizes DEP to deny a permit to an

"irresponsible" owner or operator. An irresponsible owner or operator includes

any entity, such as a corporation or its shareholders holding more than 50

percent of the stock, that has "repeatedly violated pertinent statutes, rules,

or orders or permit terms or conditions relating to any solid waste management

facility . . .."

46. Section 403.707 effectively prohibits the operation of a C&D facility,

if the facility generates the kinds of odors that Applicant's facility has

generated. There are repeated instances of the generation of such odors over

two periods of time separated by nearly a year. Despite Applicant's otherwise

responsible operation of the facility, the repeated odors emanated from the

facility, which have not been corrected by Applicant, render Applicant an

"irresponsible" owner or operator. Thus, Applicant is not entitled to a permit

under Section 403.707.

47. In fact, DEP has promulgated rules governing C&D facilities. Rule 62-

710.200(19) defines construction and demolition debris as

materials generally considered to be not water

soluble and non-hazardous in nature, including

but not limited to steel, glass, brick,

concrete, asphalt material, pipe, gypsum wall-

board, and lumber, from the construction or

destruction of a structure as part of a con-

struction or demolition project or from the

renovation of a structure. The term includes

rocks, soils, tree remains, trees, and other

vegetative matter which normally results from

land clearing or land development operations

for a construction project including such

debris from construction structures at a site

remote from the construction or demolition

project site. Mixing of construction and

demolition debris with other types of solid

waste, including material which is not from

the actual construction or destruction of a

structure, will cause it to be classified as

other than construction and demolition debris.

48. Rule 62-701.200(1) defines "clean debris" to include any solid waste

that is "virtually inert," not a pollution threat to groundwater or surface

water, not a fire hazard, and likely to retain its physical and chemical

structure under expected conditions of disposal or use, including brick, glass,

ceramics, and uncontaminated concrete, including embedded steel or pipe.

49. Rule 62-701.803(1) requires an owner or operator of a C&D facility to

notify DEP in writing of the intent to use a general permit. The notification

must be signed and sealed by a professional engineer and must include a site

plan, geotechnical investigation meeting the criteria of Rule 62-701.420,

statement of the planned active life and height of the facility, and a plan for

the operation and closure of the facility.

50. Rule 62-701.320(9) states that DEP shall issue a permit to an existing

facility "which is being operated in accordance with this chapter at the time

for permit renewal" or deny the permit if the owner or operator does not provide

"reasonable assurances" that the requirements of Chapters 62-4 and 62-701 will

be satisfied.

51. DEP may deny the permit even if the applicant is not an

"irresponsible" owner or operator. Rule 62-701.320(3) provides that, in

determining if an applicant has provided reasonable assurances that DEP

standards will be met, DEP shall determine if the owner or operator is an

"irresponsible person" by considering there exist "repeated violations of

applicable statutes, rules, orders, or permit conditions caused by a permit

applicant after October, 1988, relating to the operation of any solid waste

management facility in this state ...." The owner or operator includes

shareholders of a corporate owner or operator if the shareholders own more than

half of the stock of the corporation. The clear implication is that the issue of

repeated violations is merely one factor for DEP to consider in determining

whether to issue a general permit.

52. Applicant must provide reasonable assurances as to compliance with

Rule 62-701.300, as well as Chapters 62-4 and 62- 701. Rule 62-701.803(3) adds

that Rules 62-701.330 through 62- 701.630 do not apply to C&D facilities, except

that there may be no violations of the prohibitions set forth in Rule 62-701.300

or the water quality standards set forth in Chapters 62-3 and 62- 302.

53. Unless a facility is authorized by a DEP permit or site certification

in effect on January 6, 1993, Rule 62-701.300(2)(c) prohibits the storage or

disposal of solid waste within 500 feet of an existing or approved potable water

well unless the facility was originally permitted before the well was drilled.

However, this prohibition does not apply to the renewal of an existing permit if

the renewal does not involve "lateral expansion" or "vertical expansion." In

this case, Applicant has expanded the facility laterally and vertically since

the 1990 NOI, which Applicant now seeks to renew. Although not strictly

relevant, Applicant has possibly expanded the facility laterally since the 1991

Update. The facility is about 200 feet from a potable water well, so it

violates this prohibition as well.

54. Unless a facility is authorized by a DEP permit or site certification

in effect on January 6, 1993, Rule 62-701.300(2)(e) and (f) bar the storage or

disposal of solid waste in an area subject to frequent and periodic flooding

unless flood-control measures are in place and in any natural or artificial body

of water including groundwater. There is some evidence of flooding of the site,

but insufficient evidence of the frequency of such flooding to find a violation

of this rule. The evidence is unclear as to flooding. However, factual issues

concerning flooding may be addressed in the SWFWMD permitting review, which, as

noted below, must precede the issuance of this general permit.

55. Rule 62-701.803(4) requires that stormwater be controlled in

accordance with Chapters 62-25 and 62-330. The owner or operator must supply

DEP with a copy of any stormwater permit to DEP or documentation that no permit

is required "before the facility receives waste for disposal." Applicant lacks

the required MSSW or environmental resource permit. DEP proposes issuing the

general permit, but prohibiting work in reliance upon the new general permit

until Applicant acquires the MSSW or environmental resource permit. The rule

may permit such an approach in appropriate cases, but the piecemeal review that

this C&D facility has received requires DEP to demand that Applicant obtain the

required permit from the SWFWMD before issuing the general permit in this case.

This project has proceeded under piecemeal review, especially of its substantial

modifications in the 1991 Update and the erroneous SWFWMD determination that the

project was exempt from the requirement of an MSSW permit. The project has

produced noxious fumes the only two summers of its current operation. These

facts demand that DEP give the proposed project more systematic review, which is

facilitated by allowing SWFWMD first to perform its review of the project's

stormwater management elements.

56. Applicant has the burden of proof of entitlement to the general

permit. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778

(Fla. 1st DCA 1981). For the grounds set forth above, Applicant has failed to

provide the reasonable assurances necessary that it is entitled to the general

permit due to the repeated noxious odors emanating from the facility,

Applicant's resulting status as an "irresponsible" owner or operator, the

location of the facility relative to the potable water well, and the absence of

an MSSW or environmental resource permit from SWFWMD for the project.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection enter a final

order denying the subject general permit.

ENTERED on December 29, 1995, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this December 29, 1995.

APPENDIX TO THE RECOMMENDED ORDER IN

CASE NO. 95-3712, 95-3713 and 95-3714

Rulings on Petitioners' Proposed Findings

1-4: adopted or adopted in substance, except that discrepancies between

the proposal and actual work is rejected as irrelevant. Such matters are

appropriate to enforcement proceedings, not permitting proceedings.

5 (first sentence): adopted or adopted in substance.

5 (second sentence): rejected as irrelevant. The original individual

applicants remained liable on the original general permit until they notified

DEP and obtained DEP's consent to the transfer. Rule 62-4.120(5). This

violation of Chapter 62-4 is thus technical and not a suitable basis on which to

deny a new permit.

5: rejected as unnecessary.

6: adopted or adopted in substance.

7-8: rejected as irrelevant. See ruling on 1-4 above.

9: adopted or adopted in substance.

10: rejected as unsupported by the appropriate weight of the evidence, as

to proposed implication that this incident constitutes evidence of Applicant's

"irresponsibility." The sole evidence of "irresponsibility" is based on the

repeated noxious odors.

11: rejected as unsupported by the appropriate weight of the evidence.

12: rejected as irrelevant. See ruling on 5 (second sentence) above.

Rulings on Applicant's Proposed Findings

1a: adopted or adopted in substance, except as to acreage.

1b-1f: adopted or adopted in substance.

1g: rejected as unsupported by the appropriate weight of the evidence, as

to characterization of minor violations noted in the recommended order.

1h: rejected as unsupported by the appropriate weight of the evidence.

1i: rejected as irrelevant, unsupported by the appropriate weight of the

evidence, and recitation of evidence.

1j: rejected as irrelevant.

COPIES FURNISHED:

Kenneth Plante, General Counsel

Department of Environmental Protection

3900 Commonwealth Blvd.

Tallahassee, FL 32399-3000

Virginia B. Wetherell, Secretary

Department of Environmental Protection

3900 Commonwealth Blvd.

Tallahassee, FL 32399-3000

W. Douglas Beason

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Blvd.

Tallahassee, FL 32399-3000

Southwest Land Developers, Inc.

c/o Bruce Laishley

28062-A Mitchell Ave.

Punta Gorda, FL 33982

William Nelson Edwards

27365 Jones Loop Rd.

Punta Gorda, FL 33982

Sharon B. Winesett

27650 Jones Loop Rd.

Punta Gorda, FL 33982

Richard W. and Sherra Winesett

1574 Passaic Ave.

Ft. Myers, FL 33901

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You Should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

WILLIAM NELSON EDWARDS, )

)

Petitioner, )

) OGC Case No. 95-1599

vs. ) DOAH Case Nos. 95-3712

) 95-3713

DEPARTMENT OF ENVIRONMENTAL ) 95-3714

PROTECTION and SOUTHWEST )

LAND DEVELOPERS, INC., )

)

Respondent, )

_______________________________)

FINAL ORDER

On December 29, 1995, a Hearing Officer with the Division of Administrative

Hearings (hereafter DOAH), submitted his Recommended Order to the Respondent,

Department of Environmental Protection (hereafter Department). Copies of the

Recommended Order were simultaneously served on the Petitioners William Nelson

Edwards, Sharon Winesett, and Richard W. Winesett, and on, the Co-Respondent,

Southwest Land Developers, Inc. (hereafter Southwest). A copy of the

Recommended Order is attached hereto as Exhibit A.

On January 12, Petitioner Richard W. Winesett (hereafter Petitioner) filed

with the Department his Exceptions to the Recommended Order. On January 16, the

Department and Southwest filed Exceptions to the Recommended Order. All

Exceptions were timely filed. The Department filed a Response to Petitioner's

Exceptions on September 25, 1995. The matter is `now before the Secretary of

the Department for final agency action.

BACKGROUND

Southwest filed a Notification of Intent to Use a General Permit for a

construction and demolition debris disposal facility on June 5, 1995. This

facility is currently operating off Jones Loop Road in Port Charlotte, Florida,

and has been operating under a general permit from the Department since 1990.

On July 18, the Department informed Southwest by letter that it had no objection

to the use of the general permit. The Department also published notice in a

local newspaper of receipt of Southwest's Notification, thus creating a point of

entry for substantially affected persons in accordance with Section 403.814,

Florida Statutes (F.S.)

Petitioners timely filed challenges in accordance with sections 403.814 and

120.57, F.S. The petitions were consolidated for purposes of hearing. A formal

administrative hearing was held in these consolidated cases before DOAH Hearing

Officer Robert E. Meale on October 30-31, 1995, in Port Charlotte, Florida.

Proposed recommended orders were timely filed by Petitioner and Southwest after

the completion of the formal hearing.

The Hearing Officer found that Southwest had not provided reasonable

assurance of entitlement to a general permit. The reasons for these findings

were summaried by the Hearing Officer as the repeated noxious odors emanating

from the facility, Applicant's resulting status as an irresponsible owner or

operator, the location of the facility relative to the potable water well, and

the absence of an MSSW or environmental resource permit frog SWFWMD for the

project. The Hearing Officer thus recommended, that the Department enter a

Final Order denying the general permit.

Preface to Rulings on Exceptions

The parties filed several exceptions taking issue with certain findings of

fact and conclusions of law in the Recommended Order. As a preface to the

rulings on these exceptions it is appropriate to comment on the standard of

review imposed by law on an agency in reviewing recommended orders submitted by

DOAH hearing officers.

Under Section 120.57(1)(b)10, F.S., a reviewing agency may reject or modify

the conclusions of law and interpretations of administrative rules contained in

the recommended order of an administrative hearing officer. However, these

statutory provisions mandate that an agency may not reject or modify findings of

fact made by a hearing officer, unless a review of the complete record

demonstrates that such findings were not based on competent substantial evidence

or that the proceedings on which the findings were based do not comply with the

essential requirements of law. See Freeze v. Dept. of Business Relation, 556

So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley,

510 So.2d 1122 (Fla. 1st DCA 1987).

The agency reviewing, a recommended order may not reweigh the evidence,

resolve conflicts therein or judge the credibility of witnesses, as those are

evidentiary matters within the province of the hearing officer as the trier of

the facts. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st

DCA 1985). Consequently, if the record of the DOAH proceedings discloses any

competent, substantial evidence to support a finding of fact made by the hearing

officer, the reviewing agency, is bound by such finding. Bradley, supra, 1123.

The transcript in these proceedings wad rendered in two volumes, each

numbered separately. References to the transcript of October 30 are labeled t-1

while references to the transcript of October 31 are labeled t-2.

Rulings on Southwest's Exceptions

Exceptions 1, 2, 5, 7, 11, 13, 14, 16, 17, and 21

These exceptions contend that the Hearing Officer made minor errors in his

Findings of Fact, are simply statements of opinion,, or raise constitutional

issues. While there may be some merit to some of these contentions, they are

all irrelevant to the ultimate outcome and are thus rejected.

Exceptions 3, 4, and 20

Southwest objects to the Hearing Officer's Findings of Fact No. 11 and 12,

and Conclusion of Law No. 55, all of which relate to the ultimate conclusion

that the piecemeal review that this C&D facility has received requires DEP to

demand that Applicant obtain the required (MSSW) permit from the SWFWMD before

issuing the general permit in this case.

When Southwest first notified the Department of its intent to use a general

permit for this facility in 1990, it obtained a letter from the Southwest

Florida Water Management District (SWFWMD) stating that the project was exempt

from Management and Storage of Surface Waters (MSSW) permitting due to its small

size. This letter satisfied the Department's rules at this time, and Southwest

was allowed to operate the facility under a general permit. In 1995, the SWFWMD

determined that the letter had been issued in error, and that a MSSW permit

would be required.

Rule 62-701.803(4), F.A.C., which is currently part of the Department's

general permit requirements, states: A copy of any permit for stormwater

control, or documentation that no permit, is required, shall be submitted to the

Department before the facility receives waste for disposal. Case law in Florida

makes it clear that, absent some delegation or agreement between agencies, the

Department may not enforce the rules of another governing body, nor may it deny

a permit for failure to comply with such rules. Council of the Lower Keys v.

Charley Toppino & Sons, 429 So.2d 67 (3rd DCA 1983); Taylor v. Cedar Key Special

Water & Sewerage District, 590 So.2d 482 (1st DCA 1991,). For this reason, the

cited rule was carefully worded to avoid this kind of problem, since it clearly

makes compliance with stormwater rules a condition for operation, not a

condition precedent to the issuance of the permit. Whether or not the review of

this facility can accurately be called piecemeal is irrelevant; the Department

has no authority to deny the general permit simply because the applicant, has

not yet received all other required authorizations. For this reason, I reject

the Hearing Officer's recommendation that the permit be denied because of the

lack of a MSSW permit, and accept Southwest's Exceptions.

Exceptions 6, 8, 9, 10, and 19

In these exceptions, southwest takes issue with the Hearing Officer's

findings regarding the manner in which the department permitted the facility,

whether the facility has expanded outside of its permitted footprint, and

whether any such expansion is relevant to the current permitting process.

Specifically, Southwest disagrees with the Hearing Officer's finding that the

facility has expanded laterally since 1990, and his conclusion that such

expansion within 500 feet of a potable water well is grounds for denying the

permit.

While there is some disagreement over the specific size of the property and

the disposal area, the history of the facility can be approximately described as

follows. In the 1990 Notice of Intent to Use a General permit (NOI), Southwest

indicated that the property consisted of 18 or 19 acres, and that the fill site

would be about two acres in 1991, Southwest submitted revised drawings

indicating that the fill size was actually between seven and ten acres. The

Department did not require a new NOI, but instead filed the new drawings and

allowed Southwest to continue operation under the general permit. There is no

finding or conclusion that the Department's actions were in error, and any such

finding would be irrelevant anyway. The 1995 NOI, which is at issue in this

case, apparently does not contemplate any lateral expansion of the disposal

area.

The Hearing Officer found that Southwest has expanded the facility

laterally and vertically since the 1990 NOI, which Applicant now sees to renew.

The Hearing Officer then concluded that such expansion violated Rule 62-

701.300(2)(c), F.A.C., which states:

(2) Disposal. Unless authorized by a Department

permit or site certification in effect on

January 6, 1993, no solid waste shall be stored

or disposed of by being placed:

(c) Within 500 feet of an existing or approved

potable water well unless 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 does not involve lateral

expansion, nor to any vertical expansion at a

permitted facility;

Rule 62-701.200(43), F.A.C., defines a lateral expansion as any horizontal

increase in the dimensions of the waste boundary of an existing solid waste

disposal unit. The question at issue, then, is not whether the facility

expanded laterally since 1990, but whether Southwest proposes to expand outside

the footprint of its currently permitted area. It does not appear from the

Recommended Order or the record that this is the case. Expansion outside of its

originally permitted area, but within the' area authorized as a result of the

1991 NOI, would not violate this prohibition, and would not be grounds for

denial of the general permit.

The Hearing Officer also found that Southwest has possibly expanded the

facility laterally since the 1991 Update. If true, Southwest may have violated

its permit conditions, and possibly violated the prohibition on disposal within

500 feet of a potable water well. The Hearing Officer's finding, however, is

not definitive enough to reach such a conclusion, and even if it were, it would

not necessarily result in denial of the general permit. As noted by the Hearing

Officer in his response to petitioner's proposed Findings No. 1-4, violations

are more properly dealt with in enforcement actions by the Department, and the

general permit might have authorized continued operations only within the

originally permitted area (as of 1991) or in other areas more than 500 feet from

the potable water well. Since the Hearing Officer did not make a definitive

finding on this matter, however, such speculation is irrelevant.

For these reasons, I reject the Hearing Officer's recommendation that the

general permit be denied because of a violation of Rule 62-701.300(2)(c),

F.A.C., and accept Southwest's Exceptions to that extent.

Exceptions 12, 15 and 18

Southwest takes exception to the Hearing Officer's findings and conclusions

that the general permit should be denied because of odor problems at the site,

as well as his characterization of Southwest as an irresponsible operator.

It is undisputed that strong, noxious odors have emanated from the facility

in the summers of 1994 and 1995. The source of these odors is unknown, but may

be related to either the disposal of drywall debris or the retention pond.

Southwest has spent considerable time and money trying to eliminate these odors

but with no success. The Department has not initiated enforcement actions

relative to this odor problem.

Southwest was issued two warning letters from the Department for possible

violations over the past five years. Neither was related to the odor problem,

and both were adequately resolved. The Hearing Officer found that neither

alleged violation was indicative of intentional or reckless disregard of the

law, and may not even have suggested negligence on the part of Southwest.

Neither alleged violation resulted in an official enforcement action by the

Department.

The Hearing Officer concludes that Southwest's failure to eliminate the

odor problem renders it an irresponsible owner or operator and thus not entitled

to a general permit. Whether or not Southwest may be considered irresponsible

in the dictionary sense of the word, it cannot be so considered under the legal

definition applicable here.

Section 403.707(9), F.S., provides that the Department may refuse to issue

a permit to an applicant who by past conduct in this state has repeatedly

violated pertinent statutes, rules, or orders or permit terms or conditions

relating to any solid waste management facility and who is deemed to be

irresponsible as defined by department rule. Rule 62-701.320(3)(b), F.A.C.,

provides that definition:

(b) Irresponsible means that an applicant

owned or operated a solid waste management

facility in this state, including

transportation equipment or mobile processing

equipment used by or on behalf of the applicant,

which was subject to a state or federal notice

of violation, judicial action, or criminal

prosecution for activities that constitute

violations of Chapter 403, F.S., or the rules

promulgated thereunder, and could have prevented

the violation through reasonable compliance

with Department rules.

There is no finding or evidence in the record that the owners or operators

of this facility were ever subject to any notice of violation, judicial action,

or criminal prosecution. The two warning letters mentioned above, by their very

language, do not constitute notices of violation, and were apparently not the

basis of the Hearing Officer's finding in any case. Southwest cannot be

considered irresponsible for purposes of Section 403.707(9), F.S., and I reject

the Hearing Officer's conclusion otherwise.

Even so, the applicant must still provide reasonable assurance that it

"will abide by relevant Department rules and standards before it may be

permitted to operate. Rule 62- 4.530(2), F.A.C., which is applicable to all

general permits, provides:

(2) A proposed project which may be reasonably

expected to violate air quality standards, water

quality standards, or drinking water standards or

which will not meet the public interest

requirements set forth in Chapter 403, F.S.,

shall not be entitled to use of a general permit.

In addition, Rule 62-4.540(4), F.A.C., states that a general permit does

not allow the permittee to cause pollution in contravention of Florida Statutes

and department rules. Pollution is defined in Section 403.031(7), F.S., to

include contaminants in the air which unreasonably interfere with the enjoyment

of life or property, including outdoor recreation. Finally, Rule 62-296.320(2),

F.A.C., prohibits a permittee from creating an objectionable odor, and is

considered an air quality standard by the Department.

In this case, Southwest has admitted that the facility has produced

objectionable odors over the past two summers, that the source is not known for

certain, and that efforts to control the odors have been unsuccessful.

Southwest believes that elimination of the retention pond as proposed in its

MSSW application will solve this problem; however, the Hearing Officer

apparently did not share this belief, or at least did not make a finding as to

how the odor might be controlled.

If a regular Department permit were at issue in this case, it might be

possible to insert special conditions in the permit requiring southwest to

control the odor, or perhaps to refrain from operating until the odor problem

was solved. However, it is not possible to put special conditions in a general

permit to deal with site-specific concerns. Section 403.814, F.S., and Chapter

62-4, F.A.C., make it clear that a person is entitled to the use of a general

permit only upon demonstration of compliance with the conditions set forth in

the applicable rules, and that failure to make such a demonstration will result

in denial of the general permit. Section 403.814(1), F.S., states: Such rules

shall specify design or performance criteria which, if applied, would result in

compliance with appropriate standards. Thus the conditions of a general permit

are set forth by rule rather than on a case-by-case basis, on the assumption

that a person complying with these conditions can be expected to have a minimal

adverse environmental effect.

It is true that the Hearing Officer did not specifically conclude that the

objectionable odors produced by this facility violated Rules 62-4.530(2), 62-

4.540(4), or 62-296.320(2), F.A.C. However, he did find that the facility had

produced such odors, and concluded that this finding was sufficient to recommend

denial of the general permit. Section 120.57(1)10., F.A.C., authorizes the

Department to modify `the Hearing Officer's conclusions of law, which I

interpret to include citing specific rule references to support the conclusion.

Because this proposed project is reasonably expected to result ink

violations of Department air quality standards, I accept the Hearing Officer's

recommendation that the general permit be denied, and accordingly reject

Southwest's exceptions to this conclusion. I would note, however, that this

denial would not prevent Southwest from filing a new NOI for operation of a

construction and demolition debris disposal facility once it can demonstrate

that the odor problem has been resolved and that the facility would not be

expected to result in violations of any Department standards.

Rulings on Department's Exception

Exception 1

The Department takes exception to the Hearing Officer's categorization of

Southwest as irresponsible. For the reasons cited above, this exception is

accepted.

Rulings on Petitioner's Exceptions

Exception 1

Petitioner takes exception to the Hearing Officer's Finding of Fact No. 14,

in which he found that clean debris had been used to fill areas below the water

table. This finding is supported by competent substantial evidence in the

record, and while Petitioner may cite contradictory testimony, the Department

has no authority to reweigh the evidence or judge the credibility of witnesses.

For this reason, the exception is rejected.

Exception 2

Petitioner takes exception to the Hearing Officer's Finding of Fact No. 39,

in which he states that Southwest accepted construction and demolition debris

only after 1994. This exception is similar to several of Southwest's

exceptions, and is rejected only as irrelevant to the ultimate outcome.

Petitioner also argues that the source of the odor problem at the facility was

the retention pond on-site. However, the Hearing Officer found that the source

of the odor was unknown, and this finding is supported by competent substantial

evidence. To the extent that this exception can be implied to take issue with

Finding of Fact No. 40, it is also rejected.

Exception 3

Petitioner takes exception to the Hearing Officer's rejection of

Petitioner's Proposed Findings No. 5 and No. 12. Petitioner argues that the NOI

which is the subject of this case should not be considered a renewal of the

original general permit.

The first basis for Petitioner's exception is that the original applicants

did not timely file a Notice of Transfer of the general permit when the current

applicant acquired the site. It appears from the record that the original

applicants were two individuals who subsequently incorporated and transferred

ownership of the facility to the corporation. The Hearing Officer concluded,

and I agree, that even if a technical violation of Chapter 62-4, F.A.C.,

occurred, it would not be a suitable basis for denial of the general permit.

The other basis for Petitioner's exception is unclear, but appears to relate to

the date the NOI was submitted in 1995. Presumably this is meant to imply that

southwest did not comply with Rule 62-4.540(13), F.A.C., which states that the

permittee shall give notice of continued use of a general permit thirty days

before it expires. Section 120.60(6), F.S., provides that when a permittee has

made timely and sufficient application for renewal of a permit, the existing

permit shall not expire until the application has been acted on by the agency.

While technically a Notice of Intent to Use a General Permit is not an

application, and technically the Department does not take final action if it has

no objection to the use of the general permit, the obvious intent of this

statute was to prevent agencies from effectively shutting down facilities while

it deliberated whether or not to renew the permit. Chapter 120, F.S., applies

generically to all agencies and all licensing procedures, while section 403.814,

F.S., creates a category of general permits specifically for the Department.

The Department has discretion to interpret these laws together in a manner which

implements the Legislative intent and allows for the orderly processing of

general permit renewals. Public Employees Relations Commission v. Dade County

Police Benevalent Association, 467 So.2d 987 (Fla. 1985). It is thus the

Department's interpretation that Section 120.60, F.S., provides that a general

permit authorized under Section 403.814, F.S., shall remain in effect until the

Department either denies the application or declines to object to the

application.

Rule 6-4.540(13), F.A.C., defines a timely application for renewal of a

general permit to mean that the notification of continued use of the general

permit must be submitted at least 30 days before expiration of the existing

general permit. While not specifically stated in the rule, it seems obvious

that this notification must also be sufficient to enable the Department to

determine whether or not the applicant complies with the requirements for a

general permit.

In this case, the applicant first submitted a complete NOI on July 3, 1990,

and the Department issued a no objection letter on July 20, 1990. (Pet. Ex. 1)

Section 403.814, F.S., provides that an applicant may use a general permit 30

days after providing the required notification to the Department, and that the

general permit is valid for five Years. The Department interprets this to mean

that the general permit is valid for five years from the date the applicant was

first allowed to use it. In this case, notwithstanding the Department's July 20

letter, the applicant was first allowed to use the general permit on August 2,

1990, which thus expired August 2, 1995. The renewal notification was due 30

days before this, on July 3, 1995.

Southwest first filed its renewal notification on June 19, 1995. (t-1.

237) Apparently this notification was not sufficient, because Southwest filed

another notification on July 18, 1995. Since this second notification was not

accompanied by an additional fee, it was apparently considered a modification of

the original notification. The Department also issued a no objection letter on

July 18, 1995. Nothing in Department rules prohibits an applicant from

modifying its renewal notification, which was apparently done in this case. The

Department interprets Rule 62-4.540(13), F.A.C., to mean that an applicant must

file a renewal notification at least 30 days prior to expiration, and this

notification must either be sufficient when received, or be modified to be

sufficient prior to expiration of the general permit.

For these reasons, the Department considers that Southwest filed a timely

and sufficient application for renewal of its general permit, and that general

permit will not expire until the Department takes final agency action on the

notification. The exception is therefore rejected.

Exception 4

Petitioner takes exception generally to the Hearing Officer's rejection of

unspecified proposed findings relating to discrepancies at the facility.

Petitioner argues that these proposed findings tend to show that southwest is

irresponsible and that it somehow intended to obtain piecemeal review of its

various required permits.

The issue of whether Southwest can be considered irresponsible has been

dealt with above. Southwest's intent as regards how the Department and the

SWFWMD reviewed the various permit applications is clearly irrelevant in this

matter, and has also been addressed above. For these reasons, this exception is

rejected.

Exception 5

Petitioner takes exception to the Hearing Officer's rejection of its

Proposed Finding No. 5 (the second No. 5), in which Petitioner argued that solid

waste was disposed of at the facility within 200 feet of a water body in

violation of Rule 62-701.300(2)(g), F.A.C. The Hearing Officer rejected the

proposed finding as unnecessary.

Rule 62-701.300(2)(g), F.A.C., prohibits the disposal of solid waste

[w]ithin 200 feet of any natural or artificial body of water, including wetlands

within the jurisdiction of the Department, except bodies of water contained

completely within the property boundaries of the disposal site, which do not

discharge from the site to surface waters. It is undisputed that there is a

pond to the east of the site which is within 200 feet of the disposal area and

which is not within the boundaries of the disposal site. The question raised at

hearing was whether or not this pond is a water body within the meaning of the

rule.

A Department witness testified at hearing that a pond would not qualify as

a water body if it typically held water only during the rainy season. This

testimony was not disputed, and I accept it as a reasonable interpretation of

the rule. Obviously the prohibition would apply to seasonal ponds if they

qualified as a wetland within the jurisdiction of the Department.

Southwest presented the testimony of one of the owners that he believed the

pond was a retention pond in the summer months and did not hold water year-

round, and that one of the neighbors had asked him to dig it out deeper so that

it would hold water year-round. (t-1. 107) It introduced into evidence a quad

map which did not show the pond, although the probative value of this map was

questioned by the Hearing Officer. (t-1. 156) It also introduced into evidence

several photographs, but it is not clear whether they show water in the pond or

not, nor was there any testimony as to, their content. (App. ex. 9 a-d) The

Department presented the testimony of the permit processor that he was told by

southwest that the pond did not hold water year-round, and may have seen

pictures which tended to corroborate that. (t-2. 75) Petitioner presented

testimony from a neighbor that the pond was about 25 to 30 years old, and that

she thought it never went dry until the Southwest facility began excavation,

after which it went dry for about two years in a row during the dry season.

(t-2. 32) She also testified that she had asked one of the owners of the

facility to dig out the pond. (t-2.33) Petitioner also introduced into

evidence several photographs which showed water in the pond during the summer

months. (Pet. ex. 11 a-c)

The Hearing Officer did not rule directly on whether the pond was

considered a seasonal pond. However, his rejection of Petitioner's Proposed

Finding No. 5 as unnecessary implies that he did not believe that the

prohibition on disposal of solid waste within 200 feet of a water body was

applicable, and thus that the pond was not a water body within the meaning of

the rule. Although the evidence is far from certain, I cannot say that this

implied finding was not supported by competent substantial evidence. For this

reason, the exception is rejected.

Exception 6

Petitioner takes exception to the Hearing Officer's rejection of its

Proposed Finding No. 11, in which Petitioner argued that Southwest did not

include a geotechnical investigation in the NOI, or at least not one that met

the requirements of Rule 62-701.420, F.A.C. This exception expands upon the

Proposed Finding by arguing that the geotechnical investigation was inadequate.

The Hearing Officer found that a geotechnical investigation had been

submitted. While not specifically noting whether it was adequate or not, the

Hearing Officer did not conclude that any inadequacies were sufficient to

recommend denial of the general permit. I can only read this to imply that he

found it to be sufficient, a finding which would be supported by competent

substantial evidence in the record. I am not at liberty to reweigh the evidence

or overturn such a finding, implied or otherwise. For this reason, the

exception is rejected.

CONCLUSION

It is therefore ORDERED:

A. The Recommended Order of the Hearing Officer is adopted and incorporated

by reference herein, except where specifically noted.

B. General Permit Number SOO8-273049 is hereby DENIED.

Any party to this Order has the right to seek judicial review of the Order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

clerk of the Department in the Office of General Counsel, 3900 Commonwealth

Boulevard, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice

of Appeal accompanied by the applicable filing fees with the appropriate

District Court of Appeal. The Notice of Appeal must be filed within 30 days

from the date this Order is filed with the clerk of the Department

DONE AND ORDERED this 12th day of February, 1996, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

_________________________________

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT:

FILED, on this date, pursuant to

Section 120.52, Florida Statutes,

with the designated Department

Clerk, receipt of which is

hereby acknowledged.

CERTIFICATE OF SERVICE

I CERTIFY that a true copy of the foregoing was mailed to:

Southwest Land Developers, Inc. William Nelson Edwards

c/o Bruce Laishley 27365 Jones Loop Road

28062-A Mitchell Ave. Punta Gorda, Florida 33982

Punta Gorda, Florida 33982

Sharon B. Winesett Richard W. and Sherra Winesett

27650 Jones Loop Road 1574 Passaic Ave.

Punta Gorda, Florida 33982 Ft. Myers, Florida 33901

David K. Oaks Robert E. Meale

252 West Marion Avenue Div. of Administrative Hearings

Punta Gorda, Florida 33950 DeSoto Building

1230 Apalachee parkway

Tallahassee, Florida 32399

on this 13th day of February, 1996.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

Assistant General Counsel

_________________________________

CHRIS MCGUIRE

Assistant General Counsel

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Mail station 35

Tallahassee, Florida 32399

Telephone: [phone]