Variance from maximum contaminant level would be available because of financial inability to comply if it were not for unreasonable risk to the public.

The City withdrew its initial application for a permit to construct the proposed southeast landfill, filed April 24, 1987, on December 11, 1987, the same day it filed the application which, with subsequent amendments, is now pending. After DER gave notice of its intent to issue the permit on April 15, 1988, petitioners filed timely requests for formal administrative hearing. DER also received timely hearing requests in response to its notice of intent to issue a dredge and fill permit for the construction of an access road to the site, filed May 20, 1988, in response to its notice of intent to issue a permit for the stormwater management system for the site, filed May 25, 1989, and in response to its notice of intent to grant a variance, filed August 31, 1988. In accordance with Section 120.57(1)(b)3., Florida Statutes (1987), DER elected to transmit these hearing requests to the Division of Administrative Hearings, where they were docketed as thirteen separate cases. By order entered December 20, 1988, proceedings on all hearing requests were consolidated. As recited in the City's proposed recommended order: The City and DER presented the testimony of Victoria Tschinkel, an expert in environmental regulation and environmental biology; David K. Nickerson, an expert in wetlands permitting, mitigation, and wetlands ecology; Samuel E. Wiley, an expert in wildlife biology; Janet J. Llewellyn, an expert in wetlands ecology, the assessment of impacts of dredge and fill projects, the evaluation of mitigation plans, and the application of DER's regulations to dredge and fill projects; Heather L. Nixon, an expert in wetland ecology; Glenn E. Lowe, Jr., an expert in zoology and wetland ecology; James A. Nissen, an expert design engineer for the design and operation of sanitary landfills; David E. Deans, an expert in landfill design and the design of liners and leachate collection systems; Hilary Theisen, an expert in landfill operations, odor control, and gas control; Mary C. Nogas; Stewart L. Stover, Jr., an expert in geology and hydrogeology; G. Warren Leve, an expert in geology and hydrogeology; Robert W. Bass, an expert in environmental engineering and leachate characterization; Frank A. Jones, an expert in environmental toxicology; Vincent P. Amy, an expert in geology, hydrogeology and groundwater quality; Firmin W. Southwell; Linda M. Danco, an expert in stormwater engineering; Caroline J. Mitchell, an expert in stormwater engineering; John E. Timberlake, an expert in stormwater engineering; David Miracle, an expert in environmental engineering, with a special expertise in stormwater and surface water management; James A. Horton, an expert in geotechnical engineering; Patrick T. Karney, an expert in wastewater treatment; Janice Nepshinsky, an expert in environmental engineering, with a special expertise in water chemistry and water quality; Mark Santarelli, an expert in well drilling and construction; Richard Wilkins, an expert in the regulation of pollution sources in Florida; Philip M. Coram, an expert in environmental engineering, the application of DER rules to solid, hazardous, domestic, and industrial waste facilities, the review and evaluation of groundwater monitoring plans, and the application of DER rules to stormwater sources. The McCormicks presented the testimony of J. T. McCormick, J. Haydon McCormick, and Theodore F. Petit. STOP, Inc. presented the testimony of Mr. Gordon Gruhn.Landfill applicant must show entitlement de novo to variance despite DER's intent to grant. No mixing zone allowed for carcinogens leaking from lining.

By agreement of the parties, this case came to be considered on October 30, 1986 via telephone conference call upon Motions for Summary Final Order filed by both parties, who were represented as follows: Petitioner: Mark N. Miller, Esquire Timothy J. McCausland, Esquire City Hall Lakeland, Florida 33802Petitioner fails to show that Rule 17-50.015 or 17-50.16 are clearly erroneous or unauthorized. The Rules are reasonably related to their enabling legislation

Petitioner had filed Notice Of Violation And Orders For Corrective Action and Supplemental Notice Of Violation And Orders For Corrective Action related to the placement of fill material on property owned by the Respondents in Duval County, Florida. This action by the agency was in accordance with the provisions of Chapter 403, Florida Statutes, based upon the belief that this fill material was placed within the landward extent of waters of the state. Through this case, the Petitioner attempts to cause the removal of the fill and the restoration of the area in question to a natural state and requests the award of $350.00 in expenses for investigation of this matter. Respondents requested hearing on these allegations, asserting their right to place the fill. Respondents' posture is one of opposing the jurisdiction of the Petitioner to take action, in that the Respondents believe that the fill was not placed on property over which the Petitioner has any regulatory authority.Petitioner should pay investigative costs to Department of Environmental Resources (DER), remove dredge and fill material, restore land, and provide for compliance oversight by DER.