vs. ) CASE NO. 86-0084
Respondent. )
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer in Punta Gorda, Florida on July 23, 1986. The appearances were as follows:
For Petitioner: Matthew G. Minter, Esquire
For Respondent: Douglas L. MacLaughlin, Esquire
This cause arose in October 1985 when the Department issued an operation permit and groundwater monitoring plan to Charlotte County, by which it was authorized to operate the Charlotte County landfill. The groundwater monitoring plan required that two wells, MW-1 and MW-2, be monitored once per year for eight synthetic, organic compounds (SOCs). On December 9, 1985, after allegedly receiving results of a chemical analysis of SOCs from well number 1, the Department allegedly found 6 of the 28 SOCs tested-for present in the well, with the presence of other unidentified SOCs. Because of these test results, on December 18, 1985, the Department notified Charlotte County that a modified groundwater monitoring plan would be required. The plan, as proposed to be modified, would require the county to monitor all four wells at the landfill site on a quarterly rather than annual basis and analyze for all 28 purgable, synthetic, organic compounds. As a result of this notification of intended agency action, Charlotte County petitioned for a hearing to challenge that eventuality, resulting in the instant proceeding.
The cause came on for hearing at which the Department presented the testimony of Blanche Wallace, accepted as an expert witness in the field of geology and impacts on groundwater from pollution sources as well as the
testimony of Phillip Barbaccia. The Petitioner presented the testimony of Fred Hartlage, accepted as an expert witness in the fields of laboratory analysis and analytical chemistry. The Petitioner also presented the testimony of John E. Garlanger, accepted as an expert in geotechnical engineering and groundwater monitoring. The Petitioner presented two exhibits which were admitted into evidence and the Respondent Department had eight exhibits admitted into evidence. At the conclusion of the proceeding, the parties requested a transcript of the proceeding and availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law, which were timely filed after an agreed upon extension. Those Proposed Findings of Fact and Conclusions of Law are treated in this Recommended Order and are dealt with once again in the Appendix attached hereto and incorporated by reference herein.
The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide.
On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter.
On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required
monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County.
Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following:
MW-1
1, 1, 1-Trichloroethane - 1.8 micrograms per
liter
MW-2
1, 1, 1-Trichloroethane - 4.1 micrograms per
liter
1, 2-Dichloroethane - 1.1 micrograms per
liter
The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane.
Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene.
Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables.
Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have
resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane.
On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants.
The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above.
Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located.
Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction
during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer.
The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply.
Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch.
Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Permits for the operation of sanitary landfills are issued pursuant to Rule 17-7.050, Florida Administrative Code. Sanitary landfills are classified based on the amount and type of solid waste received at the landfill. The Charlotte County landfill is a Class I landfill. That rule mandates that solid waste be disposed of only in landfills where groundwater monitoring plans had been completed in accordance with Rule l7-4.245(6), Florida Administrative Code. The groundwater monitoring plan and the landfill was designed and developed in accordance with the standards and criteria set forth in Rule 17-4.245, Florida Administrative Code. That groundwater monitoring plan has been incorporated into the County's operation permit for the landfill.
Both Rule 17-4.245 and 17-4.08, Florida Administrative Code, contain provisions for modification of groundwater monitoring permit conditions. Under Rule 17-4.245(5)(b), Florida Administrative Code, permits related to groundwater monitoring requirements may be modified by the Department at any time where there has been a change in the chemical, physical or microbiological composition
or the volume or location of the discharge, which necessitates a change in the monitoring scheme to assure compliance with groundwater quality standards. In addition, the groundwater monitoring requirements may be modified under the provisions of Rule 17-4.08, Florida Administrative Code. Under that general modification provision, new or additional conditions to existing permits may be required where the Department has shown good cause for the modification. Rule 17-4.245(5)and (6), Florida Administrative Code, as pertinent hereto, provide as follows:
"(5) Permit Renewal and Modification Procedures. Permits for installations discharging into groundwater shall be renewed or modified in the following manner:
* * *
(b) At any time, including the time of permit renewal, the Department may order or a permit holder may petition for modification of the zone of discharge or monitoring requirements far any of the following reasons, in addition to reasons contained in Rule 17-4.08, F.A.C.:
Monitoring data indicates that the discharge plume has resulted or may in the foreseeable future result in a violation of applicable water quality standards beyond
the boundary of the existing zone of discharge; or
Continuation of the existing zone of discharge will impair the designated use of underground sources of drinking water or the surface waters immediately affected by the groundwater; or
Continuation of the existing zone will result in an imminent threat to public health or the environment; or
A zone of discharge smaller than the existing zone will afford necessary protection to the water resources at a cost that is commensurate with the benefits to the public of such additional protection; or
The monitoring data provided by the installation owner are inadequate to allow a determination of compliance with applicable zone of discharge limitations and the owner fails to provide reasonable additional data requested by the Department; or
A change in the chemical, physical or microbiological composition, or the volume or the location of the discharge, necessitates a change in the zone of discharge or the monitoring scheme to assure compliance.
* * *
Monitoring Requirements and Exemptions.
Statement of intent. The purpose of monitoring is to ensure that the permitting of zones of discharge, or exemptions
therefrom, will not cause a violation of groundwater standards. Monitoring is intended to allow a predictive evaluation of the movement and composition of the discharge plume. Efforts shall be made in all cases to minimize the number and cost of monitoring wells consistent with the ability to obtain reliable information.
General requirements. Unless otherwise exempted by the Department any installation discharging into groundwater shall establish a monitoring program as provided below.
However, a monitoring program instituted under some other State, Federal, or local governmental regulation or permit may be substituted for this program if it is in substantial compliance with this subsection."
Charlotte County must provide reasonable assurances that the landfill will not be operated in such a manner as to cause air or water pollution. Section 403.087 and 403.707, Florida Statutes. The Department may require Charlotte County to monitor on a quarterly basis or other such frequency specified in the permit. Rule 17-4.245(6)(k), Florida Administrative Code.
In view of the occurrence and reoccurrence of contaminants in the samples taken from the monitoring wells and compliance well, as delineated in the above Findings of Fact and the evidence of record, coupled with the very high groundwater table, which exchanges with water emanating from the landfill site, it has been established that the groundwater acquifier which is classified as an appropriate drinking water supply is at risk from contaminants in the leachate which is migrating from the landfill.
In view of this, coupled with the showing that a portion of the landfill has been exposed, which enhances the likelihood of waste contamination of the groundwater in, around and flowing from the landfill site, the Department has demonstrated good cause for the proposed change in the groundwater monitoring plan presently incorporated in the Charlotte County landfill operating permit. Due to the presence of the SOCs in the monitoring wells and compliance well and for the above delineated reasons, additional groundwater monitoring is necessary to provide reasonable assurances that the pollutants involved herein will not affect the groundwater in the drinking water acquifer adjacent to and flowing through the landfill site. Thus, the modified groundwater plan proposed by DER should be adopted.
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill.
DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 19th day of November 1986.
APPENDIX - CASE NO. 86-0084
1 - 18. Accepted
1 - 20. Accepted.
Matthew G. Minter, Esquire Assistant County Attorney Charlotte County
Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road
Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Mary F. Smallwood, Esquire General Counsel
