STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERBERT H. AND ANNA M. )

HUELSMAN, )

)

Petitioners, )

)

vs. ) CASE NO. 88-2531

) WAC OF OKALOOSA COUNTY, INC. ) d/b/a/ WASTE ASSOCIATES COM- ) PANY AND STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

) CITIZENS FOR A CLEAN )

ENVIRONMENT, )

)

Petitioner, )

and )

)

HERBERT H. HUELSMAN, )

)

Intervenor, )

)

vs. ) CASE NO. 88-2533

) WAC OF OKALOOSA COUNTY, INC. ) d/b/a/ WASTE ASSOCIATES COM- ) PANY AND STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

------------------------------)

RECOMMENDED ORDER

This matter came on for hearing in Crestview, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on October 10, 1988. The hearing went through October 14, 1988, in Crestview, convened in Tallahassee on November 1, 1988, and resumed in Crestview on November 16, 1988, where it concluded on November 18, 1988.

The Division of Administrative Hearings has received hearing transcripts, the last filed December 9, 1988. As stipulated by all parties, (T.533-6) time for filing proposed recommended orders was extended until December 29, 1989.

Under Rule 22I-6.031(2), Florida Administrative Code, the parties' agreement constitutes a waiver of the time limits set out in Rule 28-5.402, Florida Administrative Code. The parties' proposed findings of fact and conclusions of

law have been taken into consideration. The attached appendix addresses all separately numbered proposed findings of fact.

Mr. Huelsman appeared on his own behalf. Mrs. Huelsman made no appearance.

Respondents and petitioner Citizens for a Clean Environment appeared through counsel:

Debra Swim

1323 Diamond Street

Tallahassee, Florida 32301 and

Bruce A. McDonald Post Office Box 887

Mary Esther, Florida 32569

For Citizens for a Clean Environment

William L. Hyde

Roberts, Baggett, Laface & Richard Post Office Drawer 1838 Tallahassee, Florida 32302

For WAC of Okaloosa County, Inc.

Chris McGuire

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 3239-2400

For Department of Environmental Regulation

After the Department of Environmental Regulation (DER) proposed to issue a permit to construct a Class I landfill to WAC of Okaloosa County, Inc. (WACOC), numerous objectors filed requests for formal administrative proceedings. On motion of WACOC, the hearing officer entered orders recommending dismissal of all such petitioners as parties, except for Citizens for a Clean Environment, Inc.

On grounds the petition was untimely, the hearing officer recommended dismissal of the petition filed by Herbert H. and Anna M. Huelsman. By order of remand entered in Case No. 88-2531 on October 4, 1988, DER directed the "hearing officer . . . [to] determine whether the circumstances surrounding the Huelsmans' failure to file their petition in a timely manner constitute[d] excusable neglect." As a consequence, the Division of Administrative Hearings eventually reopened (T.301) its file in Case No. 88-2531, which had earlier been consolidated with Case No. 88-2533, the case in which Mr. Huelsman had already been granted leave to participate as an intervenor.

ISSUE

Whether WACOC has given reasonable assurance that the landfill it proposes to build would comply with applicable requirements of Chapter 403, Florida Statutes (1987), and rules promulgated thereunder?

FINDINGS OF FACT

1. A mile east of the intersection of U.S. Highway 90 and State Road 393, south of Dorcas in eastern Okaloosa County, WACOC has assembled some 1,760 acres on U.S. Highway 90 --- only 160 acres shy of three square miles. WACOC proposes to use as much of the land as possible for the disposal of solid waste,

   and "would like to use the proposed landfill as a regional landfill." Prehearing Stipulation, p.8. (T.68) The company does not own all the land outright but, with the conveyance of a parcel on the morning the final hearing began (T.77), WACOC had obtained (an encumbered) fee interest in the 55 acres on which it proposes to put Phase I, "a hole-in-the-ground landfill which can come into contact with the groundwater table," (T.737) and the subject of the pending application. WACOC has a "whole lot of option money out there," (T.86) although none of WACOC's stockholders has previous experience in the landfill business.

   
   

   Private Enterprise

   
   

2. Chris Cadenhead owns stock individually and "is 100 percent owner of SRD, Incorporated" (T.93), itself an owner of WACOC stock. Serving with Chris Cadenhead and Larry Anchors on WACOC's board of directors, at the time of the hearing, was James Ward, formerly a legislator and chairman of the House Natural Resources Committee. (T.48) Like Mr. Anchors, Mr. Ward originally owned 24% of WACOC's stock. The only shareholder who testified at the hearing was Arthur Frederick Schneider. Before he succeeded Mr. Cadenhead as president of WACOC, Mr. Schneider had had a distinguished career as a naval officer, and later tried his hand at farming, but this venture ended in bankruptcy. "SRD has been funding this thing." (T.86) Where SRD, Inc. obtained more than three-quarters of a million dollars is not clear from the record. As far as the evidence showed, Chris Cadenhead's father, Rhett, had no interest in WACOC, although he did appear on behalf of the company at a county commission meeting in June of 1987. Larry Anchors, a WACOC shareholder and formerly an Okaloosa County Commissioner, contributed $35,000 a few days after the Okaloosa County Commission awarded the waste disposal contract. (T.87) Nothing has been paid the company under the agreement WACOC entered into with Okaloosa County on June 18, 1987, Citizens' Exhibit No. 1, which was reduced to writing on or before July 10, 1987. WACOC's Exhibit No. 1, App. 1.

   
   

3. Under the contract, WACOC undertakes to move solid waste from transfer points in the southern part of the county and deposit them in the landfill it proposes for a per ton "tip fee of $17.70 (Present value as of 6/16/87)," WACOC's Exhibit No. 1, App. 1, p. 13 (emphasis in original), which is to be "adjusted automatically upward or downward to reflect the change in Consumer Price Index." Id.

   
   

4. The County guarantees WACOC 275 tons per day and pledges to "exercise its best efforts to insure that all the Solid Waste generated within the County will be delivered to one of the designated transfer stations or the landfill," WACOC's Exhibit No. 1, App. 1, p. 8, for the next thirty years. At present, the County generates "including the municipality . . . about 525-550 tons a day." (T. 61)

   
   

5. The County agrees to cooperate "to obtain financing of the real property and equipment necessary [for WACOC] to perform . . . by a proposed bond issue." WACOC's Exhibit No. 1, App. 1, p. 14. To this end, the county commission adopted a resolution authorizing issuance of industrial revenue bonds in accordance with Chapter 159, Florida Statutes, in an amount not to exceed

   $8,000,000. Alternatively, and perhaps more in keeping with current tax law, "it's going to one of the larger financial institutions like Merrill Lynch Pierce Fenner & Smith or someone like that and actually a bond issue through them, non-industrial," (T.74) or so WACOC intends.

   Phase I

   
   

6. Designed to receive Okaloosa County's solid waste for five years, Phase I is to occupy a site on the eastern slope of a small hill between the east and west branches of Mare Creek, which converge in Fawn Lake, north of the property on which WACOC has options. Water flows out of Fawn Lake into a no longer bifurcated Mare Creek (which was dammed to create the lake), and ultimately into the Shoal River, more than 3,000 feet from the site.

   
   

7. By rule, DER has designated Shoal River outstanding Florida waters. Fawn Lake and Mare Creek are Class III surface waters. The Phase I site is "zoned for agricultural uses, which was determined by the Okaloosa County attorney to be appropriate for a landfill." Prehearing Stipulation, p. 7, No. 5. "The county attorney's determination has not been ratified by the County Commissioners." Id.

   
   

   Site Geology

   
   

8. "Subsurface conditions have obviously a tremendous effect on the design of the landfill." (T.592) "[A] site's geological and hydrological characteristics are relevant to its potential for contamination." Prehearing Stipulation, p.7, No.4. Throughout the 1760-acre site, beneath

   
   

   a thin topsoil and root mat layer, the site soils consist of clean loose sands to an average depth of about 8 feet below ground surface.

   . . . From a depth of about 8 feet to 18 feet, a layer of dense orange clayey medium to fine sand (with some coarse sand and fine gravel) covers most of the proposed landfill

   site. . . . Beneath the clayey sand unit are loose and dense . . . sands . . . .

   WACOC's Exhibit No. 1, Appendix B.

   
   

   The clayey sand unit occurring underneath the loose, Pliocene sands on the surface is part of the Citronelle formation, which "characteristically changes abruptly over very short distances." (TB. 29) The Citronelle consists "principally of quartz sand, with numerous beds, stringers and lenses of clay and gravel." CCE's Exhibit No. 21, p. 33. "The soils on the site standing alo[ne] would not be sufficient for a liner." I.T. 559

   
   

9. WACOC's expert reported an "average vertical hydraulic conductivity for [the upper Citronelle of] . . . 6.2 x 10-7 cm/sec (1.7 x 10-3 feet/day)." Laboratory tests on soil samples, taken more than eight and less than 18 feet below the surface of the site proposed for Phase I, demonstrated the variability of the sands making up the upper portion of the Citronelle formation on site.

   
   

   The percent finer than the U.S. No. 200 mesh sieve (silt and clay size fraction) . . .

   ranges between 17.5% to 41.7% . . . .

   
   

   "Vertical hydraulic conductivities for . . . [deeper] sands [on which waste disposal cell liners are to be laid] range from approximately 2.7 x 10-5 cm/sec to 5.8 x 10-4 cm/sec (0.08 to 1.62 feet/day)." Id. The variability of fines contents among samples reflects variability in hydraulic conductivity in the upper Citronelle, as well.

10. This variability explains why an average permeability or vertical conductivity figure for the clayey sands in the upper Citronelle is of limited use in predicting how quickly rainwater will move through it, if these sands are used to cap the landfill after its completion, as proposed. Samples taken from eleven borings made throughout the entire 1,760-acre site were the basis for the applicant's average vertical hydraulic conductivity number. Only one of the borings was done on the Phase I site itself. If a ten-foot thick, continuous layer of clayey sands with a vertical conductivity of 6.2 x 10-7 centimeters per second occurred eight feet beneath the surface, the overlying Pliocene sands would hold a water table year round, given the high rainfall in the area.

    
    

11. In fact, the applicants' consultants reported a water table on the Phase I site 21 to 30 feet down, beneath or within, but not above, the clayey sands in the upper Citronelle, in February of 1988. (T.595) The higher water tables observed in October of 1988 were also below the loose surficial sands. This demonstrates a vertical hydraulic conductivity for the upper Citronelle beneath the site proposed for Phase I well above the reported average.

    
    

12. A borrow pit, off site but nearby, illustrates the fallacy of relying on average conductivity values to predict the movement of water. At the upper end of the excavation, a seep emerges from the sand to form a stream that flows

    40 or 50 feet across red clayey materials resembling those on site, then sinks, disappearing into the earth. Even the value assigned to a particular split spoon sample may be a misleading average. B.T.126-7.

    
    

    Preliminary Plans Drawn

    
    

13. In Phase I, WACOC proposes to excavate three different areas or cells for solid waste disposal "to approximately 20 feet below natural grade." (T.116) Accepting information they were furnished, the design engineers made the important (T.172) but erroneous assumption that the water table on site fluctuates only within a range "from five to fifteen feet" (T.132) below that. The plan is to fill each cell with solid waste and covering layers of various soils to a height 90 feet above existing grade. Trees growing within the 300- foot green belt planned for the perimeter of the 1,760-acre site would shield the landfill from the view of motorists on U.S. Highway 90.

    
    

14. Separated from each other by berms, cells 1 (520' x 520') and 2 (520' x 650') would abut each other south of cell 3 (480' x 1170'), with another set of berms circumscribing all three cells. The bottom of each cell is to have a gradual V-shape, sloping "approximately one percent in the longitudinal direction and two percent in the traverse direction[s]," (T.116) toward the centerline. The plans call for compaction of the soils, once excavation has been accomplished, and for "root pickers" to remove rocks, roots and any other sharp objects. The plans do not contemplate the use of sieves.

    
    

15. WACOC proposes to line these pits by covering the naturally occurring, compacted soils with a 1.5 millimeter (60 mil) layer of high density polyethylene, a plastic which has been manufactured for use in land fill liners at least since 1982. (T.401) The purpose of lining landfills is to contain contaminated water that would otherwise escape into the environment. Rain percolating through solid waste, together with moisture already in the solid waste at the time it is deposited in the landfill, leaches chemicals from the waste, producing a toxic solution called leachate.

16. Products of industry make their way into household garbage and the municipal waste stream. About two percent of waste that reaches municipal sanitary landfills consists of materials which, if generated industrially in quantity could not lawfully be disposed of, except as hazardous waste. Scientists have "found municipal waste landfill leachates that were as toxic as those from Love Canal." (IT.696)

    
    

    Gundle Liner

    
    

17. WACOC has decided to obtain a liner which meets minimum requirements of the National Sanitation Foundation Standard Number 54, Flexible Membrane Liners, November, 1983, from Gundle Lining Systems, Inc. (Gundle). "All Gundle materials are available in 22 1/2' widths with no factory seams "

    WACOC's Exhibit No. 7. Gundle's own employees would unroll the plastic, position it using "tack welding" to form a continuous sheet, join the strips with extrusion welds, inspect the seams visually, perform destructive "shear and peel tests . . . by random selection no less than the [to be] agreed [but unspecified at hearing] frequency . . . . [and conduct v]acuum testing [which] follows no specific standard." WACOC's Exhibit No. 7, Enclosure 6. (T.403, 411-

    2) As a condition of the permit (No. 26), DER would require that an independent third party, a registered professional engineer, participate in quality assurance.

    
    

18. High density polyethylene's "chemical resistance and durability. . . .

    enable[ Gundle] . . . to offer a 20-year warranty . . . for both the product and installation." (T.404) Gundle's liability under the warranty depends on how many years remain under warranty and "shall in no event exceed the amount of the sale price." (IT.434) The warranty excludes "any liability for consequential damages arising from the loss of . . . product owing to the failure of the material or installation," id.; CCE's Exhibit No. 3, and any liability whatsoever in the event of acts of God, including floods, and "excessive pressure or stress from any source." CCE's Exhibit No. 3; (IT.432).

    
    

19. While the material may well outlast the warranty, perhaps by decades, in "geological time," it will inevitably fail. In the short term, too, the integrity of liners like that proposed is highly problematic. Past problems have included "mechanical damage . . . of one form or another such as with the bulldozer, or if somebody drops something." (IT.429) Here, before the first lift of solid waste (which would not include construction or demolition debris) is placed, four feet of sand (stockpiled during excavation) would be piled on top of the disposal cell liner.

    
    

20. A bulldozer's gash might not go unnoticed, but small holes along seams can be missed, despite rigorous quality control measures. At the Ocean County landfill in New Jersey, "there was more liquid . . . than would have been true from the calculated moisture vapor transmission data," (IT.427) but Gundle's chemist testified this might have been "condensation on the soils on the back side of the liner." Id.

    
    

    Leachate Collection

    
    

21. Embedded within the sand layer, in the crotch of the V, six-inch, perforated, schedule 80 PVC pipe, wrapped in filter cloth, is designed to collect leachate. The top of the pipe is to be eight inches above the liner, according to the leachate underdrain detail on sheet 15 of WACOC's Exhibit No.

1. One pipe running the length of cell 3 and another running through cells 1

   and 2 would move leachate to the leachate trunk line, another (intact) PVC pipe which would, in turn, empty into a paved flume in the leachate collection pond.

   
   

   1. The pond has been sized to contain the amount of leachate WACOC's consultants originally predicted a 25 year return 24-hour storm would generate, together with the rainfall such an event would deposit in the leachate collection pond, and still leave a foot of freeboard. "You have room below that major storm elevation that holds 60 to 70,000 cubic feet of leachate." I.T. 127. Except for the flume, the leachate pond is to be lined, like the disposal cells, with high density polyethylene. In the leachate collection pond, only 18 inches of sand would overlie the synthetic liner.

      
      

   2. From time to time, leachate would be pumped from the pond into tank trucks for removal to the Garnier wastewater treatment plant, which has a capacity of 6,500,000 gallons per day. Garnier is specifically permitted to receive only domestic wastewater, but the permit does not forbid industrial wastewater, and the plant now accepts leachate from the Wright landfill. DER has not classified landfill leachate either as domestic or as industrial wastewater.

      
      

   3. Before accepting it for treatment, the plant might require pretreatment of the leachate, whether on account of its anticipated acidity or for other reasons. If leachate causes sludge from Garnier to exceed standards for heavy metals, the sludge can be deposited in a Class 1 landfill like the one proposed here. WACOC has not yet entered into a contract with Garnier's operator for treatment of leachate.

      
      

   4. Not until leachate is removed from the leachate collection pond are pumps to be employed. Leachate would have to accumulate on the waste disposal cell liners and enter a pipe, in order to leave the cells. The design specifies perforations along the whole length of leachate collection pipe, around the bottom of the pipe. If the pipes clogged west of the cell walls, leachate could flow through sand and reenter the pipe further downslope. Outside the waste disposal cells, manholes have been planned, to afford access for cleaning the pipes out. The applicant did not demonstrate with calculations that gravity would induce flow through the pipes at a rate sufficient to remove leachate deeper than 12 inches.

      
      

   5. In the leachate collection pond, which is to be roughly 200 by 500 feet, leachate might attain a depth of several feet, before being pumped into a tank truck. The pond sides are to be lined with high density polyethylene to a height nine feet above the pond bottom. As far as the evidence showed, the depth of leachate in the pond would never fall below 18 inches anywhere on the pond bottom, once leachate began filling the leachate collection pond. Only if leachate were extracted from the sand covering the liner could the leachate head in the pond fall below one foot. The plan is for tank truck operators to place their hoses on "a concrete flume on top of that sand." I.T. 127.

      
      

      Stormwater Management

      
      

   6. Berms encircling the solid waste disposal cells, together with a series of ditches and culverts, are intended to direct stormwater away from the solid waste to a retention pond for temporary storage and treatment, before discharge offsite. To the extent stormwater which would otherwise flow into solid waste disposal cells can be diverted elsewhere, the volume of leachate can be diminished. The berms also serve to prevent rain falling on solid waste from reaching the stormwater retention pond, or polluting stormwater that does.

   7. Lined with relatively impermeable soils, the stormwater retention pond, "a football field wide and two and a half football fields long," (T.201) is designed to be big enough to hold the runoff from a 100 year return storm, leaving two feet of freeboard. In practice, some stormwater would percolate into the ground through unlined ditch bottoms, never reaching the pond.

      
      

   8. Stormwater that did reach the pond would either evaporate or drain through sidedrains, which are to consist of perforated six-inch PVC pipe, encased in gravel and covered with permeable sand excavated on site. Lining most of the pond's perimeter, this sand would filter water seeping through it from the pond into the side drains. After collecting in an outfall pipe, water draining from the pond would travel 300 or 400 feet, before discharging above grade, near the east branch of Mare Creek. If, as would be likely, sea gull droppings regularly end up in the stormwater retention pond, phosphorous and nitrogen levels in the east branch of Mare Creek and downstream would increase in time.

      
      

      Other Measures

      
      

   9. Decomposing solid waste produces methane gas. When cell I is completed, vents are to be installed to direct methane gas into the atmosphere above the center of the cell. I.T.140; WACOC's Exhibit No. 1, p.23 and No.9,

p.15. "[T]he wind will disperse any gas within the site." I.T.191,221. If sufficient quantities were generated, a gas collection system would be installed. I.T.140.

31 Spotters will try to divert hazardous or infectious waste, and should succeed in the event a hauler tries to dispose of an accurately labelled 55- gallon drum of a hazardous liquid or red-bagged waste from a hospital, but small quantities of gasoline, paint, paint thinners, cleaning fluids and other hazardous materials cannot practically be diverted. At the end of every working day, solid waste is to be covered with a six inch layer of soils from the site. Fences are planned downwind from the working face to collect windblown debris.

Closure

1. A landfill is a long-term proposition. Pollutants still leak from Roman landfills dating to 400 A.D. Contemporary landfills and their regulators recognize the importance of capping landfills to minimize infiltration by rainwater (and so production of leachate.) Even though the plans may be revised later, DER requires applicants for landfill construction permits to make plans for closure, before a construction permit is issued. Landfill operators must also make annual contributions to a trust fund to be used to close the landfill and to bear post-closure expenses, which include trucking leachate and monitoring groundwater.

   
   

2. WACOC has already established the trust fund and deposited $100. As a condition of operating the landfill over the five years it proposes, WACOC must deposit one fifth of estimated closure and post-closure costs in the trust fund

   60 days before beginning to fill, and another fifth annually (30 days after the anniversary date of the initial payment). The cost estimates are subject to revision annually. (I.T. 384, 843-4) Before closing a landfill, the operator must obtain a closure permit.

   
   

3. The trust fund is not expected to absorb the costs of cleaning up polluted groundwater, if that should prove necessary. Local governments, which

   operate many landfills themselves, sometimes step in when problems with privately run landfills develop.

   
   

   ...A leak develops or something that would cost millions of dollars to address it and you don't have the insurance, you're out of business instantly.

   ...[WACOC's ability] to address a catastrophic situation that could develop with this is limited to how much capital they have.

   * * *

   ...[I]f you don't have some insurance, even if its $500,000 deductible,...if the problem occurs, you're gone. And if you don't have the capital to handle it, it will fall back in the taxpayer's

   lap which is typically what happens... . (II.T. 70-71)

   
   

   As WACOC's proposed finding of fact No. 12 concedes, WACOC's "liabilities are considerably in excess of its assets." Landfill operators are under no obligation to contract for environmental liability insurance, which is not readily available, in any event.

   
   

4. WACOC proposes to cap Phase I with clayey sands excavated on site. The clay required to cap Phase I amounts to "ten acres of the surface by four feet deep, or one acre 41 feet deep." (II.T. 36) WACOC proposes to spread this quantity over all three cells, covering them with an 18-inch clayey sand blanket. On top of that, WACOC would place 18 inches of surficial sand and, finally, six inches of topsoil. The sands are readily available on site, but there is no topsoil to speak of. The clayey sand WACOC proposes to use as a foundation for the cap is too permeable to constitute an effective barrier. (B.T. 149,158), but WACOC could mix it with clay from off site or some other agent to render it less conductive of rainwater. The present plans do not call for mixing, however.

   
   

   High Density Polyethylene

   
   

5. WACOC is proposing the synthetic liner underneath waste disposal cells and the leachate collection pond not as one component of a composite liner, (T.158) but as "the state of the art," (T.153) in and of itself. But "flaws in liners are a common occurrence." (IT. 698) After a liner has been laid down and covered with sand, "inadvertent cuts and nicks of unexplained origin" (IT.699) can and do occur. However conscientious, laborers hired as "root pickers" may miss an occasional rock. The plans only call for removal of objects larger than a quarter inch. High density polyethylene is a plastic. If laid over stone or other protuberances, "the plastic will flow away from that pressure point and eventually you will have a hole in the plastic." Id.

   
   

6. An investigator examining 60 mil high density polyethylene used as landfill liner "found six pin-holes per acre, mostly associated with the seams, [an] average of 9.4 cuts [per acre] of unexplained origin, [and] 110 [perforations attributable to] rock protu[bera]nces per acre." (IT.705) In an EPA sponsored study, a liner manufacturer installed and third parties "did a careful job of inspecting," id., twelve "rather small" (IT.706) waste disposal cells. Eight of the twelve leaked.

   
   

7. Even if holes did not let leachate escape, several carcinogenic, teratogenic, and mutagenic organic constituents of municipal waste leachate

   dissolve in liners like the one WACOC proposes, "diffuse through and are released on the other side." (IT.699) High density polyethylene is practically impervious to water: water vapor can move through it only at a rate of 1 x 10-

   13 centimeters per second. But certain hydrophobic substances, including chlorinated hydrocarbons such as trichloroethylene and vinyl chloride, move readily through high density polyethylene, itself a "very hydrophobic material." (T.807)

   
   

8. William T. Cooper, a chemistry professor who participated in developing DER's drinking water standards, appearing in this case as a witness for the objectors, testified:

   
   

   [O]ne of the major problems in doing this work [concerning organic pollutants in groundwater] is establishing . . . standards. In other words, we had to pollute water in a well defined way so that our machines would tell us there

   was a certain amount of pollution in the water. . . .

   . . . [W]e started using [p]olyethylene tubes into which we would put several different organic molecules for the very reason that these molecules diffuse so readily through

   the [p]olyethylene tubes that we could control the rate in which we were contaminating water for laboratory purposes.

   
   

   (IT.806) In order to calibrate their instruments, the scientists who developed drinking water standards for Florida relied on polyethylene containers' ability to transmit organic pollutants in solution inside a container to the water outside at a steady, predictable rate.

   
   

9. Chemists think of polyethylene "as a condensed liquid . . . .

   [because] it has the ability to absorb molecules." (T.807) Water and polyethylene do not mix, however, just as oil and water do not; they are said to be immiscible and to form separate phases. When a third substance is dissolved in either of two immiscibles occurring together, the additive's molecules move between the two phases until equilibrium is reached. The concentration in one phase will differ from the concentration in the other, and both concentrations will depend on the amount of the additive introduced (until saturation), but the ratio of the two concentrations (the "distribution ratio" or "partition coefficient") will always be the same, at equilibrium.

   
   

10. A chemist in Gundle's employ testified that any "organic solvents in the leachate . . . would tend to float on the aqueous phase." (T.406) But some hydrophobic organics, including trichloroethylene, are denser than water and would not float. (IT.831) Mr. Cadwallader, Gundle's chemist, conceded that organic materials are soluble in water "to a point of saturation, which typically is not very high . . . ." (T.425) The leachate's nonaqueous phase would occur to some extent, perhaps entirely, within the polyethylene liner. In this connection, the objectors' chemists' opinion, which Dr. Brown also shared, has been credited. For the same reasons Mr. Cadwallader "agree[d] that a liner would gain weight when it is immersed in a pure organic solution," (T423) the liner would swell, as a variety of organic pollutants diffused into it from the leachate. Such swelling has been reported in low density polyethylene. WACOC's Exhibit No. 18.

11. With groundwater in contact with the outside of the liner, the organic pollutants with which the liner was swollen would diffuse into the groundwater, until groundwater touching the liner acquired organic pollutants in the same concentrations in which they occurred in the aqueous phase of the leachate standing on the liner. It is even possible that concentrations of certain hydrophobic organics would be higher outside the liner than inside. (IT.818) If indeed a nonaqueous phase floated on top of the leachate, it would serve to replenish the aqueous phase, as hydrophobic organics diffused into the liner to replace those diffusing out of the liner into the groundwater or soils on the other side. (IT.831)

    
    

    Site Hydrogeology

    
    

12. Groundwater flow "mirrors the topography of the site." WACOC's Exhibit No. 1, Appendix B, p.6. On the Phase I site, it flows to the north and the northeast, toward the east branch of Mare Creek. At monitoring well 1, the flow is "about a 45-degree angle down and to the east northeast." B.T.119. Lining the disposal cells and the leachate collection pond with high density polyethylene would curtail recharge (and evapotranspiration) under the cells and the pond. The plan is to line the stormwater retention pond with the same clayey sands that fail to hold a water table. B.T.175 Percolation from stormwater ditches or, despite its lining, even from the retention pond might cause slight mounding of the groundwater under those structures.

    
    

13. But construction of Phase I would not appreciably alter the general direction of the groundwater flow. To the extent mounding occurs beneath the stormwater retention pond, groundwater table elevations under proposed cell 3 would be higher than they otherwise would have been. Elsewhere, the cell liners should have the effect of lowering groundwater elevations below what they would otherwise have been, ignoring infiltration from stormwater ditches. Any changes may be very slight, since groundwater from recharge areas upslope apparently flows under the site.

    
    

14. In February of 1988, piezometers were used to measure water table elevations on the Phase I site. Distance between elevations proposed for liners and the February 1988 water table varied, but were no less than nine feet at any point measured. Based on the February 1988 measurements, the design engineers assumed an unsaturated zone 25 to 30 feet thick. But, on October 11, 1988, the second day of hearing, the same piezometers (B.T. 19) disclosed much higher water table elevations. Near the creek, the water table had risen only

    4.92 feet higher than it had been in February, but in the wells closest to cell 1, the October water table exceeded the February elevations by 11.33 and 11.41 feet. (B.T. 40) On October 11, 1988, the water table was "above the bottom of the liner of the proposed landfill in cell two, portions of cell two, a lot of it, portions of cell one and a corner of cell three," (B.T. 44) with "about two feet of water above the proposed liner in the corner of cell two." Id. The levels may have been considerably higher in September.

    
    

15. Since periodic measurements have not been taken over the requisite year or two, the seasonal high water table on the Phase I site has not been determined. The height of the groundwater table depends on how quickly rainwater percolates down to the water table to replace groundwater lost to evapotranspirtation or subterranean flow offsite. Groundwater under the Phase I site discharges into the east branch of Mare Creek. The timing as well as the amount of rainfall figure in, because once the soils are saturated, rain runs off instead of infiltrating. Still monthly rainfall is a good indicator of how much water has percolated down to recharge an aquifer. No records of rainfall

    on the site itself exist, but statistics from sites not far away show that extraordinarily high rainfall in September of 1988 contributed to the groundwater elevations measured on October 11, 1988. At one or more wells on site, the water table dropped another foot between October 18 and October 26, 1988. CCE's Exhibit No. 36. Rainfall data suggest that in most years, "the actual peak high for a water table probably would be towards the end of August." (B.T. 95)

    
    

16. At present, the surficial aquifer beneath the proposed landfill site contains potable water. People living in the area draw water from the surficial aquifer for drinking water purposes, in one case from a well only some 30 feet deep. The nearest well to Phase I is 3,000 feet away, on the other side of the east branch of Mare Creek. The surficial aquifer goes all the way down to the Alum Bluff group, 75 feet below ground.

    
    

17. Saltwater intrusion threatens in southern Okaloosa County. By 1995, if its growth continues at the present rate, the City of Destin will require another, supplementary water supply. Plans to tap the Floridan in northern Okaloosa County include well fields in the Eglin Air Force Base area and north of Freeport. But the Floridan "won't supply all the future projected needs." (II.T. 16) Desalinization is expensive. Eventually Okaloosa County is "going to have to look further toward the use of surficial water," (II.T. 13) as a public water supply.

    
    

    Leachate Characteristics

    
    

18. Leachate from municipal landfills has high biological oxygen demand, high salt content, and significant concentrations of metals and organics. (I.T. 699) Cleaning solvents, oil-based paint, furniture polish, spot removers, xylene, toluene and benzene are among common constituents of municipal waste.

    
    

19. Lisa Stewart, who picks up garbage in northern Okaloosa County four days a week, has noticed "containers containing a substance" (II.T.137) bearing such labels as naphtha, methylene chloride, toluol, burnt motor oil, insecticides, fungicides, trichloroethane, oxalic acid, xylol, petroleum distillates, polyglycol ether, plasticizers, sulfuric acid, methanol, ethanol and sodium hydroxide.

    
    

20. Scientists have found every chemical DER lists on its "primary or secondary water quality standard numeric list" (I.T. 697) in municipal leachate, as well as "about 20 chemicals that are known to [b]e carcinogenic, mutagenic or teratogenic which are not on that list." Id. At least some of this latter group can be anticipated at the proposed landfill, if it is built. The organic materials degrade only slowly; they have half-lives ranging from 20 to 50 years. (I.T. 698) Biochemical oxygen demand accounts for most of the stench to be expected from leachate standing in the leachate collection pond. The "combination . . . of hazardous waste from small quantity generators and from households we would expect to be somewhere in the range of five to 10,000 tons per year." (T.T.148)

    
    

21. In order to predict the amount of leachate to expect, experts on both sides resorted to a mathematical model, known acronymically as HELP, for "Hydrological Evaluation Landfill Program." (T.689) These experts made assumptions about annual rainfall, the permeability of the cap materials which, after their initial excavation and stockpiling are destined to do double duty as a final cover for the landfill, and other factors, in order to calculate the amount of leachate likely to accumulate above the liner. WACOC's consultants

    calculated a head of 2.4 inches, assuming annual rainfall of 68 inches, and an unrealistically low permeability for the clayey sands under the Phase I site which are to be used for capping the Phase I cells as they attain their design heights of 90 feet above grade.

    
    

22. Using WACOC's average vertical conductivity figure for the clayey sands of 6.2 X 10-7, without changing any other assumptions WACOC made in running the HELP model, yields a leachate head of 8.5 inches. Even if it were appropriate to use an average, this figure is low, because the permeability of materials recompacted in a laboratory is ordinarily ten times less than when the same material is compacted in the field. Here compaction "in the field" would occur on top of a mound of garbage. "[T]he system will be spongy." (I.T. 752)

    
    

23. The HELP model makes no allowance for cracks in the cap, which are bound to occur, if WACOC closes the landfill as it proposes. As garbage degrades, it settles and sinks. This would cause shear planes or faults in the clayey sand cap, which cannot readily be detected, buried beneath sand, topsoil and vegetation. Estimating conservatively, "we could be dealing with twice as much water as we're calculating from the HELP model due simply to cracks in the facility." (I.T. 692) During those periods when the groundwater table is above the bottom of the disposal cell liners, groundwater infiltration through such imperfections as exist in submerged portions of the liners will increase leachate volume. Ignoring groundwater intrusion, cell 1 alone should produce 5,000 gallons a day of leachate the first year after closure. (I.T. 510-1). The applicant's own revised HELP model calculations put the leachate head at more than eight inches in a year in which rainfall on the site exceeded the annual average at Crestview by only eight percent (68 inches vs. 63 inches). A foot or more of head annually can be expected, taking into account cracks in the clay cap.

    
    

    Water Quality Monitoring

    
    

24. WACOC's groundwater monitoring plan calls for a single well south and upgradient of the Phase I site to monitor "background" groundwater conditions, and a series of monitoring wells east and north of the site designed to detect any groundwater contamination the landfill may cause. WACOC's Exhibit No. 9, Sheet 11. Four of these downgradient wells would be placed by the eastern perimeter of the zone of discharge to measure compliance with DER's numeric water quality standards at that edge of the zone. Four other wells are planned within the zone of discharge. In addition, surface waters are to be monitored at seven points, five on the east branch of Mare Creek and two on the west branch, but none further south than the berm separating cell three from cells one and two.

    
    

25. WACOC's own employees would take samples, arrange for their analysis and report the results to DER. Among the specified parameters are iron and chloride. As far as the record reveals, testing for sodium in addition would not make for earlier or more reliable leak detection. CCE's Exhibit No. 20. The suggestion that groundwater be tested for calcium assumed montmorillonite in the clayey sands, which the evidence did not show to be present. I.T. 988.

    According to a DER chemist, however, groundwater samples near landfills should be tested for volatile organic compounds (VOCs) by EPA method 601/602.

    
    

    Since VOCs always appear to be present in landfill leachate and they can be detected in the subparts per billion (ppb) range, the test is a particularly sensitive indicator

    for the presence of organics in landfill leachate. (CCE's Exhibit No. 20, p.2.)

    
    

    Also among the specified parameters is fecal coliform, which makes any other routine testing for bacteria superfluous. Given the economic consequences for WACOC if a leak is discovered, it might be well to require WACOC to contract with an independent third party to monitor, in the event the landfill is built.

    
    

26. Since groundwater flow on site has a vertical as well as a horizontal component, monitoring requires appropriate placement not only of wells, but also of screens. One approach is to cluster wells so that a succession of screens covers the entire thickness of the aquifer. Monitoring well screens should not exceed 15 feet in length, in order to avoid dilution that might render contaminants indetectable. CCE's Exhibit No. 2. But a hydrogeologist with sufficient information could place screens within transmissive zones through which groundwater flowing underneath the disposal cells or the leachate pond is likely to move. B.T. 136

    
    

27. With respect at least to leachate constituents that do not diffuse through liners, monitoring groundwater to detect pollution is more difficult if a landfill is lined than if it is not, because contaminant plumes are larger if they emanate from larger sources. CCE's Exhibit No. 19. Unless monitoring wells were sunk at ten-foot intervals east and north of where leachate is to collect, it would be easy to miss the plume from a small leak, which might be destined to become a large leak. But even the objectors' experts do not "consider that very practical financially." (B.T. 135)

    
    

    Groundwater Pollution

    
    

28. Both through imperfections in the synthetic liner and, as regards hydrophobic organic pollutants with low molecular weights, by diffusion directly through even flawless portions of the liner, pollutants in the leachate will escape into the environment, if WACOC builds the landfill it has proposed for Phase I. As far as can be told from the evidence, the groundwater table would never reach the bottom of the leachate collection pond, so that adsorption and diffusion in soils underneath the pond would attenuate the effect of any leakage there, before it could enter the groundwater. But the soils on site have very low adsorption capacity and very low biological activity. I.T.719 Leachate leaving unlined, northwest Florida landfills five feet above the water table have caused serious pollution problems.

    
    

29. The evidence showed that the groundwater table would rise above portions of the lined bottoms of all three waste disposal cells, on which leachate will also be standing. This may occur infrequently, would not necessarily happen every year, and would last for only a few weeks and days at a time, but it was the condition that obtained at the time of the hearing, two months later than seasonal high groundwater should normally occur. When it does happen, "it's entirely possible the leachate will be the same concentration as the groundwater in contact with the bottom of the liner." I.T. 701. In any case, carcinogenic, mutagenic or teratogenic agents (I.T. 697), including up to

    20 for which DER has not established numeric limits, would occur in the leachate, and some would enter the groundwater, violating the DER "free from" requirement. I.T. 777. Precise concentrations have not been forecast but, at least at times, over the course of the landfill's existence, the leachate would contain certain mutagenic substances for which no safe lower limit has been established.

30. Nor did the evidence give reasonable assurance that violations of DER's numeric standards pertaining to the trichloroethylenes, the tetrachloroethylenes and vinyl chloride would be unlikely outside the zone of discharge. I.T. 771,781-2. It depends in part on the volume or rate at which leachate or these constituents leak. B.T. 94. The evidence showed they will leak at some rate, even where there are no flaws in the liner. In a test involving higher concentrations of trichlorethylene and other organics than are anticipated here, experimenters observed a "flow rate . . . on the order of

    125 gallons per acre per day from concentrated organics." I.T. 702.

    
    

31. In 27 acres of plastic, flaws are to be expected. Good intentions notwithstanding, the evidence showed holes in the synthetic liner should be anticipated, and taken into account in designing a landfill. The rate at which leachate will leak through these imperfections depends on their number, shape and size; and, as to each, the depth of the leachate above it and the permeability of the medium below it. A circular hole with a diameter of one- sixteenth of an inch will discharge liquid, standing on top of it a foot deep, at the rate of 70 gallons a day, into air, gravel or porous sand. The rate for a similar hole with a diameter of one-eighth of an inch is 192 gallons per day. In the event of a leak above or near an area like the one into which the seep sank in the borrow pit, the soil would not slow the rate of leakage. (I.T. 718) Otherwise, for a given leachate head, the conductivity of the soil (if unsaturated) would determine the leakage rate.

    
    

32. "[T]here will be less depth higher up the liner." I.T.760. But where the liner is lowest and the leachate deepest, the liner will lie over the loose sands that occur beneath the clayey sands. Rating tests demonstrated considerable variability in the hydraulic conductivity of all of the sands tested. Piezometer readings on October 18 and 26, 1988, showed how they transmit water as a unit. In eight days the water table (which is only at atmospheric pressure) fell a foot. The clayey sands would not prevent leachate's leaving the waste disposal cells and entering the groundwater, although in some places (where the leachate has less depth), they would slow the rate of leakage. "We could get tens of thousands of gallons [annually] leaking out of a 27-acre site which this is through holes." (I.T. 707)

    
    

33. With groundwater in contact with portions of the liners, the leakage rate there would depend on the relative elevations of the groundwater table and the leachate standing on the liners. If the groundwater table were higher, upward pressure might push groundwater into the disposal cells, disminishing or even preventing leachate leakage until the water table fell below the height of the surface of the leachate. But, when that happened, direct discharge of undiluted leachate can be expected, directly to the groundwater, as long as groundwater abutted a flaw in the liner.

    
    

34. DER's rules do not apply the numeric standards underneath or within

    100 feet of waste disposal cells, which the rules denominate a "zone of discharge." Whether numeric standards are violated at the edge of the zone of discharge depends not only on the leakage rate, but also on where the leak occurs, on the velocity of the groundwater, and on pollutant concentrations in the leachate. Calculations taking all these factors into account have not been done for WACOC's Phase I. But credible expert testimony predicted such violations would eventually occur outside the zone of discharge. I.T.771.

    
    

35. Synthetic liners like the one WACOC proposes are usually placed on top of three feet of highly impermeable, mineralogically suitable clay. "A clay liner...will retain organics to a greater extent than a synthetic liner." I.T.

823. Using it as proposed here, where it would come into direct contact with groundwater, does not give reasonable assurance that groundwater pollution will not occur.

CONCLUSIONS OF LAW

1. The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour,Inc., v. State Division of Beverage,

   347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

2. In the present case, WACOC must give reasonable assurance that its proposal will not cause pollution in violation of (or otherwise violate) the rules of the Department of Environmental Regulation, in order to demonstrate entitlement to a permit authorizing construction of the landfill it proposes. Departmental rules address landfills in detail:

   
   

   17-7.040 Prohibitions.

   1. No solid waste shall be disposed of except by sanitary landfill, incineration, recycling process, or other method approved by the Department and consistent with this chapter and applicable approved local agency programs or regulations.

   2. No solid waste shall be disposed of by being placed:

      1. in an open sink hole or in an area where geological formations or subterranean features would not provide support for a landfill.

         * * *

         1. in an area immediately adjacent to or within 500 feet of an existing or approved shallow water supply well unless disposal takes

            place in a sanitary landfill which was originally permitted before the shallow waster supply well was in existence.

         2. in a dewatered pit unless permanent leachate containment and special design techniques are used to ensure the integrity of the landfill liner.

         3. in an area subject to frequent and periodic flooding unless drainage provisions approved by the Department are installed.

         4. in any natural or artificial body of water including ground water.

         5. within 200 feet of any natural or artificial body of water, except bodies of water contained completely within the sanitary landfill site which do not discharge from the site. A person may dispose of solid waste within the 200 foot setback area upon demonstration to the Department that permanent leachate control methods will result in compliance with water quality standards

            under chapter 17-3, F.A.C. Stormwater control methods shall meet stormwater requirements of Chapter 17-25, F.A.C. However, nothing contained herein shall prohibit the Department from imposing conditions necessary to assure that solid waste disposed of within the 200 foot set back area

            will not cause pollution from the site in contravention of Department rules.

         6. in any area open to public view from any major thoroughfare without proper screening where it can practically be provided.

         * * *

         (4) Hazardous Waste: Any hazardous waste which is intended to be disposed of by land disposal or incineration and which can be reasonably expected to create a condition harmful to human health or air or water quality shall be at the owner's expense, be rendered non-hazardous prior to delivery to the disposal facility. Should

         a hazardous waste be of such composition that

         it cannot be rendered non-hazardous, the producer of such wastes must confer with the Department

         to determine a safe disposal or storage method and shall dispose of or store the waste by a method which is approved by the department.

         The approved method shall be determined on a case by case basis and shall be governed by the nature of the hazardous waste and its potential impact on air and water resources and public health, safety and welfare.

         * * *

         (7) The Department shall not issue a construction permit for a new sanitary landfill within 3,000 ft. of Class I surface waters.

         Rule 17-7.040, Florida Administrative Code (emphasis supplied).

         
         

         In keeping with the rule, the disposal method proposed here is "by sanitary landfill," in which solid waste is to be deposited more than 500 feet from the nearest shallow water supply well, more than 200 feet from the nearest surface water body, and more than 3,000 feet from Class I surface waters.

         
         

3. There is no sinkhole in the vicinity nor any geological formation incompatible with a landfill. As far as the evidence showed, the surface of the Phase I site is not subject to periodic or frequent flooding, although photographs of a Shoal River flood demonstrated that surface waters in the vicinity may attain elevations dramatically higher than have recently obtained. The proposed pits would require dewatering, if dug at times of high groundwater elevation, but it was not clear that groundwater would rise above the proposed four-foot blanket of sand into the waste itself. While reasonable steps have been proposed to keep recognizable "hazardous wastes" (as legally defined) out of the proposed landfill, 5,000 to 10,000 pounds of hazardous material a year could be expected to make its way in small quantities into the proposed landfill.

4. The proposed landfill would be a Class I facility, subject to the following more detailed location requirements, as well as specific design and performance standards:

   
   

   17-7.050 Sanitary Landfill Criteria. Applicability. The criteria contained in Florida Administrative Code Rules 17-7.050 and 17-7.060 are applicable to all new landfill construction permits issued by the Department after the effective date of this rule.

   * * *

   1. Classification of Sanitary Landfill. Sanitary landfills are classified into three

      (3) different classes based on the amount and type of wastes received at the landfill.

      (a) Class I landfills are those which receive an average of 20 tons or more of solid waste per day as weighed by scale if available, or 50 cubic yards or more of solid waste per day as measured in place after covering. Such sites shall receive an initial cover at the end of each working

      day in accordance with Florida Administrative Code Rule 17-7.050(5)(m).

      * * *

      1. Location Requirements.

         1. Solid waste shall be disposed of only in landfills where a ground water monitoring

            plan, including a hydrogeological survey, has been completed in accordance with Florida

            Administrative Code Rules 17-28.700(6) and 17-7.050.

         2. The land disposal site location shall provide support for the landfill including total wastes to be disposed of, cover material, and structures to be built on the site.

            Site structural acceptability will be subject to Department approval. A hydrogeological survey is required and it shall comply with Florida Administrative Code Rule

            17-28.700(6)(d)1. and include a foundation analysis, prior to construction, to determine the structural integrity of the subgrade to support the loads and stresses imposed by

            the landfill; or, if feasible, acceptable geotechnical measures necessary to modify the structural integrity to accommodate the imposed lands and stresses. These loads shall not cause failure of the liner or other containment system. The strength of the subgrade shall be determined using appropriate ASTM methods, or equivalent

            methods, and the foundation shall be analyzed for all appropriate short-term, end of construction, and long-term conditions.

         3. Site Requirements.

            The land disposal site location shall:

            1. be easily accessible by collection vehicles, automobiles and where applicable, transfer vehicles;

            2. safeguard against water pollution originating from the disposal of solid waste;

            3. have an adequate quantity of acceptable earth cover available. The cover material shall be easily workable and compactable.

            4. conform with the proper zoning.

      2. Landfill Design. Class I and Class II landfills shall have a liner. Landfills may be designed for sectioned, or phased, construction and closure at scheduled intervals throughout the life of the landfill. Landfill closure design shall address applicable requirements of Florida Administrative Code Rules 17-7.071 through

         17-7.076. Landfill design plans shall include:

         * * *

         1. A report on the:

            1. Current and projected population and area to be served by the proposed site.

            2. Anticipated type, annual quantity and source of solid waste, expressed in tons or cubic yards of compacted materials.

            3. Anticipated life of the site.

            4. Source and characteristics of cover material.

         2. Ground water monitoring plan.

      3. Landfill performance and design standards. Performance standards established by the following criteria are the standards which

         the landfill is to achieve. Design standards are also presented herein which may be

         used to achieve the performance standards. Alternative designs which achieve performance standards may be used upon approval by the Department.

         1. Liner construction or installation. Construction or installation of liners shall be in accordance with the methods and procedures given in Lining of Waste Impoundment and Disposal Facilities, EPA publication SW-870, March 1983, which is hereby incorporated into this rule by reference. Copies of this document may be inspected at the Department's district offices.

         2. Liner performance standards. The liner must be:

            1. Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they

               are exposed, climactic conditions, the stress of installation, and the stress of daily operation;

            2. Installed upon a base, or in a hydrogeological setting capable of providing support to the liner and resistance to pressure gradients above and below the

               liner to prevent failure of the liner due to settlement, compression, or uplift; and

            3. Installed to cover all surrounding earth likely to be in contact with the waste or leachate.

         3. Liner Quality Control Plans.

            1. Soil liners shall have a . . .

            2. Synthetic liners shall be in accordance with a Department approved quality control plan which incorporates the manufacturer's specifications and recommendations.

         4. Liner Design Standards.

            1. Soil liners:

               1. Shall be a minimum of 3 feet of soil e.g., clay, with an in-place saturated hydraulic conductivity not greater than 1X10-7 cm/sec. Saturated hydraulic conductivity shall not be increased above 1X10-7 cm/sec as a result of contact with the leachate generated by the landfill. Testing of the saturated hydraulic conductivity and the effect of leachate on soil permeability shall be performed in accordance with test methods given in EPA publication SW-870, ASTM test procedures or other tests which may be approved by the Department;

               2. Shall not have any lenses, cracks, channels, root holes, pipes or other structural inconsistencies that can increase the saturated hydraulic conductivity of

                  the liner above 1X10-7 cm/sec. . . .

                  Where recompacted emplaced soil liners are used, they shall be placed in layers not exceeding 12 inches before compaction to maximize the effectiveness of compaction;

               3. May consist of in-situ soils provided they meet the specifications for soil liners. Testing of in-situ soil shall be performed in accordance with the soil liner quality control plan.

            2. Synthetic liners:

            1. Shall consist of a 60 mil unreinforced membrane that meets minimum requirements of the National Sanitation Foundation Standard Number 54, Flexible Membrane Liners, November, 1983, which standard is hereby incorporated into this rule by reference, copies of this document may

               be inspected at the Department's district

               offices;

            2. Shall be protected from physical damage from above and below the membrane, by bedding soil material underlying the liner and a minimum 24-inch thick protective soil layer on top of the membrane; both the bedding and protective layer shall be free of rocks, roots, debris, sharps or particles larger than 1/4 inch. The lower 12 inches of material in contact with the top of the liner, if sufficiently permeable, may be used as a drainage layer; and

            3. Shall have factory and field seams that equal or exceed the strength requirements defined by National Sanitation Foundation Standard 54 for that lining material. All field seams must be visually inspected and pressure or vacuum tested for seam continuity using suitable non-destructive techniques.

            * * *

         5. Leachate control performance standards. Landfills will have a leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate from the landfill. The leachate depth on top of the liner shall

            not exceed one foot depth of leachate.

            The leachate collection and removal system shall:

            1. Be constructed of materials that are chemically resistant to the waste disposed of in the landfill and the leachate expected to be generated;

            2. Be of sufficient strength and thickness to prevent collapse under pressures exerted by overlying wastes, cover materials and by any equipment used at the landfill;

            3. Be designed and operated to function without clogging through the active life and closure period of the landfill; and

            4. Be designed and constructed to provide for removal of the leachate within the drainage system to a central collection point for treatment and disposal.

         6. Leachate Control System Design Standards. Leachate collection and removal systems shall have:

            1. At least a 12 inch drainage layer above the liner with a hydraulic conductivity permeability of not less than 1X10-3 cm/sec at a slope to promote drainage;

            2. A drainage tile or pipe collection system of appropriate size and spacing, sumps, and pumps or other means to efficiently remove leachate. The design

               shall demonstrate through calculations in the permit application that a maximum

               one-foot depth of leachate on the liner will be achieved; and

            3. Granular material or synthetic fabric filter overlying or surrounding the leachate collection and removal system to prevent clogging of the collection system by infiltration of fines from the waste or drainage layer; and have a method to test that the system is not clogged and a method

            for cleaning the system if it becomes clogged.

         7. Surface water management system performance standards. Landfills shall have surface water management systems designed, constructed, operated, and maintained to prevent surface water flow onto waste filled areas, and a storm water run off control system designed, constructed, operated, and maintained to collect and control stormwater to meet requirements of Florida Administrative Code Rule 17-25 and requirements of the respective water management district.

         8. Surface Water Management System Design Standards.

      1. Storm water controls should be specifically designed and sized according

         to local drainage patterns, soil permeability, annual precipitation, area land use, and

         other characteristics of the contributing watershed;

      2. Retention and detention ponds and drainage ways shall be designed, constructed, and maintained to meet the requirements of Florida Administrative Code Rule 17-25,

         or requirements of the water management district where the Department has delegated storm water permitting to a water management district;

      3. Stormwater management systems shall be designed to minimize to the maximum extent possible the mixing of stormwater with leachate. Stormwater or other surface water which comes into contact with the solid waste or mixes with leachate shall be considered leachate and shall be treated to meet applicable standards of Florida Administrative Code Rules 17-3 and 17-4

      at the point of discharge.

      * * *

      1. Ground Water Monitoring.

         1. Monitor well location, construction, and collection of samples shall be as specified in Florida Administrative Code Rules 17-3.401, 17-28.700, and 17-4.246. Guidance for construction of monitor wells

            and collection of samples is contained in the Procedures Manual for Ground Water Monitoring at Solid Waste Disposal Facilities (EPA/530/SW-611).

         2. Sampling and testing of ground water at landfills shall be in accordance with Florida Administrative Code Rule Sections 17-3.401, 17-28.700, 17-4.246, and 17-22, Part III and IV.

         * * *

      2. Operation Plan. An operation plan shall be submitted with all landfill construction permit applications. The operation plan shall provide written instructions for the daily operation of the landfill. The plan shall be revised when operational procedures change. The plan shall include detailed procedures such as:

         1. Designation of persons responsible for operation and maintenance of the facility;

         2. Contingency operations, alternate waste handling and disposal methods in case of emergency such as a natural disaster or equipment failure;

         3. Controlling the type of waste received at the site. The plan shall specify inspection procedures, number and location of spotters and procedures to be followed if prohibited wastes are discovered;

         4. Weighing or measuring incoming waste;

         5. Vehicle traffic control and unloading;

         6. Method and sequence of filling waste;

         7. Waste compaction and application of cover;

         8. Operations of gas, leachate, and storm water controls;

         9. Ground water monitoring.

      3. Operational design features. The disposal site shall be provided with operation features and appurtenances necessary to maintain a clean and orderly operation. These minimum features are:

         1. An effective barrier designed to prevent unauthorized entry and dumping into the landfill site.

         2. An all-weather access road to the site. A special area with a stabilized roadway shall be provided within the site for wet weather operations.

         3. Signs indicating name of operating authority, traffic flow hours of operation, and charges for disposal (if any).

         4. Scales for weighing solid waste received at the landfill, or in lieu thereof, estimates the number of cubic yards received at all Class I and Class II sites. Quantitative records shall be forwarded to the Department

            upon request.

         5. Dust control methods such as approved chemicals, oils, or water sprays.

         6. Litter control devices, portable fences, or other suitable means.

         7. Fire protection and fire-fighting facilities adequate to insure the safety of employees and provisions to deal with accidental burning of solid waste within the sanitary landfill.

      4. Personnel and Facilities. In order to insure proper staffing and suitable facilities the following shall be required:

         1. During hours of operation, an attendant at Class I sites.

         2. Communication facilities for use in emergencies at Class I sites.

      5. Equipment. To insure adequate operation the following is required:

         1. Equipment sufficient for excavating, spreading, compacting, covering operations,

            and other transportation and earthmoving needs.

         2. Sufficient reserve equipment, or arrangements to provide alternate equipment within 24 hours following equipment breakdown.

         3. Safety devices on equipment to shield and protect the operators from potential hazards during operation.

      6. The Department recommends but does not require:

         1. A potable water supply.

         2. A suitable employee shelter.

         3. Handwashing and toilet facilities.

         4. Equipment wash-out facilities.

         5. Electric service for operations and repairs.

         6. Equipment shelter for maintenance and storage of parts, equipment and tools.

         * * *

      7. Sanitary landfills shall be operated to provide for the collection, control and treatment of surface runoff from the site

         as necessary to meet the applicable standards of Florida Administrative Code Rules 17-3, 17-4, and 17-25;

      8. Any leachate emanating from a landfill shall be collected and treated as necessary to meet the applicable standards of Florida Administrative Code Rules 17-3, 17-4, and 17-25;

      * * *

      1. Pesticides used to control rodents, flies and other insects shall be as specified by the Florida Department of Agriculture and Consumer Services.

      2. Uncontrolled and unauthorized scavenging shall not be permitted at any sanitary landfill site. Controlled salvaging may

      be permitted by the local authority responsible for the facility.

      
      

      These provisions reiterate, and do not supplant, the general prohibition against water pollution by a stationary installation. The applicant is not relieved of the burden to give reasonable assurance that discharges to groundwater will not violate prohibitions, including the following:

      
      

      (1) All ground water shall at all places and at all times be free from domestic,

      industrial, agricultural, or other man-induced non-thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges . . .

      (b) Are carcinogenic, mutagenic, teratogenic, or toxic to human beings , unless specific criteria are established for such components in Rule 17-3.04; . . .

      Rule 17-3.402, Florida Administrative Code.

      
      

5. Nor may any numeric standards be violated outside of the zone of discharge the rules establish for landfills. The applicant has not given reasonable assurance that pollution in violation of DER rules will not occur either within or outside of the zone of discharge.

   
   

6. The rules require that landfills be designed so that no more than one foot of leachate stand on the liner. Keeping down the leachate head limits leak rates through flaws in liners, whether comprised of three feet of clay or, as proposed here, of 1.5 millimeters of plastic. The design the applicant proposes in the present case virtually assures a constant 18-inch leachate head over a large area of the plastic liner, some 100.000 square feet in the leachate collection pond. Only if so much leachate leaked through the liner that none ever traveled through the trunk line to the collection pond, would the proposed design offer reasonable assurance that leachate standing on the collection pond liner would not exceed a foot in depth.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That DER deny WACOC's application for a permit to construct a class I landfill in Okaloosa County.

DONE AND ENTERED this 14th day of April, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1989.

APPENDIX

DER's proposed findings of fact Nos. 1, 7, 11, 12, 14, 15, 17, 18, 21, 22 except for the last sentence, which is rejected, 23, 24, 25, 32 except for the last sentence, which is rejected, 38, 45, 46, 48, 49 except for the last sentence, which is rejected, 50, 52, 54, 56 except for the last sentence, which is rejected, 57, 58, 59, 60, 62 except for the sentence "DER has no rule prohibiting contact of the liner with ground water," 63, 65, 66 except for the second clause which is rejected, 67, 69, 72, 73, 78, 79, 80, 81, 83 and 85 have been adopted, in substance, insofar as material.

With respect to DER's proposed finding of fact No. 2, the intent to issue is dated April 1, 1988.

With respect to DER's proposed finding of fact No. 3, financial feasibility was not demonstrated but is not material under the rules.

With respect to DER's proposed findings of fact Nos. 4, 5 and 6, closure cost estimates assume the suitability of the clayey sands on site as a cap, which the weight of the evidence did not establish to be the case.

With respect to DER's proposed finding of fact No. 8, the use of a high density polyethylene membrane, without more, to keep hydrophobic organic materials out of abutting groundwater is not proven technology, as far as the evidence showed.

With respect to DER's proposed finding of fact No. 9, the rules do not require environmental liability insurance.

DER's proposed findings of fact Nos. 10, 19, 20, 26, 35, 37, 44, 55, 61, 71, 74,

75, 77, 82, 86 and 87 are rejected as unsupported by the weight of the evidence, without comment.

With respect to DER's proposed finding of fact No. 13, the fact that a synthetic liner separates solid waste from the groundwater does not make it permissible to deposit solid waste in groundwater. While the October readings did not prove that groundwater would rise above the sand in which the leachate will collect to touch the solid waste itself, September's rainfall, the rate at which the water table dropped between October 18 and 26, 1988, and the probability of defects in the liner showed that this was a realistic possibility.

With respect to DER's proposed finding of fact No. 16, two percent of the materials disposed of in municipal sanitary landfills are hazardous in a chemical, if not legal, sense.

With respect to DER's proposed finding of fact No. 27, the "state of the art" use of high density polyethylene liners is as one component of a composite liner, or even as part of a double liner system, at a hydrogeologically suitable location. This material works well for some purposes and not at all for others.

With respect to DER's proposed finding of fact No. 28, there was no showing that any other Florida landfill has been placed so as to come into contact with the groundwater table, or that a synthetic liner has ever been used for a landfill without clay; synthetically lined landfills have only recently been installed in Florida, and detection of leaks from lined landfills is difficult.

With respect to DER's proposed finding of fact No. 29, since uncontaminated water is not a pollutant, it is not a permeant of concern.

With respect to DER's proposed finding of fact No. 30, the evidence showed that under ideal, test conditions, 8 of 12 liners leaked. Under actual field conditions leaks exceeded 100 per acre. The weight of the evidence makes it unreasonable to conclude that 27 acres of plastic can be laid down in Okaloosa County without any flaws.

With respect to DER's proposed finding of fact No. 31, the rate of 192 gallons per day assumed gravel or porous sand which offers essentially the same resistance as air; there is no sandy clay anywhere on site, as far as the evidence showed; more than 18 feet below the surface, where most of the liner is to be laid, there are not even clayey sands, according to WACOC's own expert; the sands that do occur there include loose sands with a permeability greater than 4.9 X 10-4; and include numerous gravel beds; the .00022 gallons per day calculation assumes a hole a quarter as large (half the radius of Dr. Brown's) and ignores horizontal hydraulic conductivity. The fact that the water table dropped a foot in about a week demonstrates that the soils cannot be counted on to contain the leachate underneath flaws in the liner.

With respect to DER's proposed findings of fact Nos. 33 and 34, Haxo's results were consistent with their conclusions but explicitly not the only basis for them. Gundle's chemist conceded that hydrophobic organic materials diffuse through high density polyethylene. His opinion that an accumulation in the soils on the other side would equalize concentrations and stop further diffusion did not take into account groundwater abutting the liner, and flushing the soils. The liner absorbs materials; but adsorption does not take place there.

Transportation and dispersion need not be known as to "free froms." On page

I.T. 777, Dr. Brown testified that diffusion would cause violations of DER's regulations, and this testimony has been credited.

With respect to DER's proposed finding of fact No. 36, the swelling of the liner with organic materials is evidence of the diffusion which would result in organic materials' entering the groundwater.

With respect to DER's proposed findings of fact Nos. 39 and 41, one inch of leachate in all three cells amounts to 2.25 acre feet, which is more than a "little." Calculations have not been done.

With respect to DER's proposed findings of fact Nos. 40 and 42, no allowance was made for cracks in the cap material (which cannot be seen under the vegetation, topsoil and drainage sand layer.)

With respect to DER's proposed finding of fact No. 43, a much greater leachate head than within the waste disposal cells may occur depending on where the marker is placed, but hydrophobic organics diffusing through the liner and absorbing in the soils would not be flushed out by groundwater. Except for the last sentence, this proposed finding of fact reflects the weight of the evidence.

With respect to DER's proposed finding of fact No. 47, some water will evaporate.

With respect to DER's proposed finding of fact No. 51, monitoring wells 8 and 9 are both more than 100 feet from waste disposal areas. The evidence did not show that the monitoring wells "can be expected to detect any contamination."

With respect to DER's proposed finding of fact No. 53, DER's experience also suggested testing for volatile organic chemicals.

With respect to DER's proposed finding of fact No. 64, the rate of decline also suggests that the water table was as higher elevations than those measured. An applicant must give reasonable assurance that pollution in violation of DER rules will not occur under foreseeable, recurring conditions, including during those times the liner is submerged.

With respect to DER's proposed finding of fact No. 65, the proposed finding is adopted, as regards physical tears.

With respect to DER's proposed finding of fact No. 68, the proposed finding is adopted, except for leakage through the liner, sometimes directly to groundwater.

With respect to DER's proposed finding of fact No. 76, clayey sands were not reported below 18 feet. The difficulty with the groundwater monitoring plan is not the soil characterization, but the number of wells. Because synthetic liners leak, clay mineralogy is important to know. No clay is proposed here, however.

With respect to DER's proposed finding of fact No. 84, effective odor control would also entail emptying the leachate pond regularly.

WACOC's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14,

15, 17, 19, 23, 24, 25, 26, 27, 31, 32, 33, 34, 35, 36, 37, 38, 42, 43, 45 50,

58, 61, 64, 66, 70, 71, 72, 75, the first sentence of No. 76, Nos. 78, 79, 80,

81, 82, 83, 85, 86, 87, 88, 90, 92, 93, 94, 96, 97, 99, 100, 101, 102, 103, 104,

105, and the first sentence of 113 have been adopted in substance, insofar as material.

With respect to WACOC's proposed finding of fact No. 11, the current tonnage figures appear in the application but their accuracy has not been established by competent evidence.

With respect to WACOC's proposed finding of fact No. 12, projected profits depend on various problematic assumptions.

With respect to WACOC's proposed finding of fact No. 16, the initial payment was

$100.

With respect to WACOC's proposed finding of fact No. 18, the cost estimate's reasonableness depends largely on what it would cost to obtain suitable material for a cap, which is not clear.

With respect to WACOC's proposed finding of fact No. 20, Scott had independent knowledge of the availability and cost of clay.

With respect to WACOC's proposed finding of fact No. 21, the proposed finding accurately reflects the evidence, with the qualification that the layer of dense orange clayey medium to fine sand also contains some coarse sand and fine gravel.

With respect to WACOC's proposed finding of fact No. 22, the water table will be below the liner most, but not all, of the time.

With respect to WACOC's proposed finding of fact No. 28, see the discussion of DER's proposed finding of fact No. 13. WACOC's proposed findings of fact Nos. 29, 59, 63 and 78 are rejected as contrary to the weight of the evidence, without comment.

With respect to WACOC's proposed finding of fact No. 30, hazardous materials will end up in the landfill.

With respect to WACOC's proposed finding of fact No. 39, the liner's permeability depends on the permeant. Although it is almost impervious to water, hydrophobic organics move readily through. Clay is a much better liner for those materials.

With respect to WACOC's proposed finding of fact No. 40, the Gundle liner by itself is not the state of the art in Florida or anywhere else for municipal sanitary landfills. Proposed conclusions of law are addressed elsewhere.

With respect to WACOC's proposed finding of fact No. 41, in the puncture test, the liner withstood a probe exerting 270 ponds of pressure.

With respect to WACOC's proposed finding of fact No. 44, there are no clayey sands at the depth proposed for the deeper portions of the waste disposal cell liners, as WACOC's proposed findings of fact Nos. 21 and 27, taken together reflect.

With respect to WACOC's proposed finding of fact No. 46, as the manufacturer's representative said, "these liners are a part of the quote unquote state of the art requirement for lined hazardous waste facilities." I.T. 404 (emphasis supplied). The other part is three feet of clay, not sand, underneath.

With respect to WACOC's proposed finding of fact No. 47, it depends on the hazardous waste facility. A DER chemist, Mr. Watts, recommended monitoring groundwater near a municipal landfill for volatile organic chemicals. While most municipal garbage is not toxic, leachate from municipal waste is toxic.

With respect to WACOC's proposed finding of fact No. 48, the testimony was that the groundwater pollution at Wright landfill was "most likely" from unlined cells. No lined landfill in DER's Northwest District has been built below the groundwater table as far as the evidence showed.

With respect to WACOC's proposed finding of fact No. 49, While municipal leachate constituents should not corrode the liner, many can diffuse through it.

With respect to WACOC's proposed finding of fact No. 50, some two percent of the waste stream will still be hazardous materials.

With respect to WACOC's proposed finding of fact No. 51, some organic materials will sink, rather than float. The sand within which the leachate will accumulate will not extract or absorb organic constituents of the leachate, as far as the evidence showed.

With respect to WACOC's proposed finding of fact No. 52, removal is first to the leachate collection pond, also lined with high density polytheylene.

With respect to WACOC's proposed finding of fact No. 53, it is wholly improbable that 27 acres of plastic will be installed "without physical flaws." Leakage could exceed 10,000 gallons a year.

With respect to WACOC's proposed finding of fact No. 54, not all organic materials diffuse though high density polyethylene. Dr. Haxo's views on WACOC's proposal are not a matter of record. The 448-page EPA Study discusses containment techniques.

With respect to WACOC's proposed finding of fact No. 55, the Haxo studies are pertinent although they do not purport to replicate a landfill precisely. In some studies he used concentrations of a single organic that were comparable to the concentrations of organics as a whole in municipal leachate.

With respect to WACOC's proposed finding of fact No. 56, direct discharge of leachate into the groundwater, even in small quantities could violate the "free from" standards as could diffusion into the groundwater of carcinogenic, teratogenic or mutagenic, hydrophobic organic materials.

With respect to WACOC's proposed finding of fact No. 57, CCE's experts' views about synthetic liners coincided in important respects with those of Gundle's chemist. There is no clayey layer where much of the waste disposal cells' liners are supposed to go. Given the certainty of leakage directly to the groundwater, it is the applicant's burden to do quantative analysis.

With respect to WACOC's proposed finding of fact No. 60, there are no data for the site itself. The available data are incomplete.

With respect to WACOC's proposed finding of fact No. 62, the February water level is likely to be more common than the October water level. The weight of the evidence did not establish that "under normal conditions the water level should fluctuate no more than five feet."

With respect to WACOC's proposed finding of fact No. 64, the proposed finding reflects the evidence except for the final sentence. ***

With respect to WACOC's proposed findings of fact Nos. 67, 68 and 69, it is inappropriate to schedule pumpout times at this stage. But it is appropriate to consider above average annual rainfall. Annual leachate production differs from the amount of head at any one time.

With respect to WACOC's proposed finding of fact No. 73, the design engineer suggested Roto-Rooter.

With respect to WACOC's proposed finding of fact No. 74, intersection should not occur.

With respect to WACOC's proposed finding of fact No. 77, municipal landfills are not viewed as hazardous waste generators under federal law.

With respect to WACOC's proposed finding of fact No. 82, the second sentence was not proven.

With respect to WACOC's proposed finding of fact No. 84, there may be some infiltration.

With respect to WACOC's proposed finding of fact No. 89, it would be very expensive to place enough monitoring wells to assure detection of any leaks. Placement of screens should be less of a problem than sinking enough wells.

With respect to WACOC's proposed finding of fact No. 91, the Watts memo's suggestion of testing for volatile organic chemicals should give additional assurance.

With respect to WACOC's proposed finding of fact No. 95, two percent of the waste stream can be anticipated to consist of hazardous materials.

With respect to WACOC's proposed findings of fact Nos. 106, 107, 108 and 109, the proposed clayey sand materials used in the thickness proposed would not create the barrier claimed. Modifications not proposed in the application are possible.

With respect to WACOC's proposed findings of fact Nos. 110, 111 and 112, WACOC has not given reasonable assurance that pollution of the groundwater in violation of DER water quality standards would not occur; or that no more than a foot of leachate would stand on the liner.

COPIES FURNISHED:

Herbert H. Huelsman Anna M. Huelsman 608 Ironwood Drive

Fort Walton, FL 32548

Debra Swim, Esquire 1323 Diamond Street

Tallahassee, Florida 32301

Bruce A. McDonald, Esquire Post Office Box 887

Mary Esther, Florida 32569

William L. Hyde, Esquire

Roberts, Baggett, Laface & Richard Post Office Drawer 1838 Tallahassee, Florida 32302

Chris McGuire, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

HERBERT H. AND ANNA M. HUELSMAN,

Petitioners,

v. DOAH CASE NO. 88-2531

OGC FILE NO. 88-0402

WAC OF OKALOOSA COUNTY, INC., d/b/a WASTE ASSOCIATES COMPANY AND STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/ CITIZENS FOR A CLEAN ENVIRONMENT, INC.,

Petitioner,

and

HERBERT H. HUELSMAN,

Intervenor,

v. DOAH CASE NO. 88-2533

OGC FILE NO. 88-0404

WAC OF OKALOOSA COUNTY, INC., d/b/a WASTE ASSOCIATES COMPANY AND STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/

FINAL ORDER

On April 14, 1989, a hearing officer from the Division of Administrative Hearings ("DOAH") submitted to me and all parties his Recommended Order, a copy of which is attached as Exhibit A. On May 1, 1989, Respondent Department of Environmental Regulation ('Department") timely filed exceptions to the Recommended Order, attached as Exhibit B. Timely exceptions were also filed by Respondent WAC of Okaloosa County, Inc., ("WACOC")(Exhibit C) by Petitioner Citizens for a Clean Environment, Inc., ("Citizens") (Exhibit D) and by Petitioner Herbert Huelsman (Exhibit E). On May 11, timely responses to exceptions were filed by all parties except Petitioner Huelsman. Mr. Huelsman's exceptions were originally filed at DOAH but were transmitted by the hearing

officer to the Department and received before the deadline for exceptions specified in Rule 17-103.200(1), F.A.C. The matter thereafter came before me as Secretary of the Department for final agency action.

BACKGROUND

On April 1, 1988, the Department's Northwest District issued an Intent to Issue Permit No. SC 46-143090, by which the Department proposed to authorize Respondent WACOC to construct Phase I (55 acres) of a 1700 acres Class I sanitary landfill, to be located near Dorcas in east central Okaloosa County. On April 25, 1988, Petitioner Citizens for a Clean Environment, Inc., disputed the Department's proposed agency action by filing a petition for administrative

hearing, claiming standing under Section 403.412(5), Florida Statutes. On April 29, 1988, Petitioners Herbert and Anna Huelsman also filed a petition challenging the proposed permit. Both petitions were referred to the Division of Administrative Hearings (DOAH) on May 23, 1988.

On September 1, 1988, the assigned DOAH hearing officer entered an order recommending that the Huelsmans' petition, as amended, be dismissed because the Huelsmans were unable to plead facts showing that their original petition was timely filed. On October 5, 1988, I remanded the Huelsmans' petition to the hearing officer so that the Huelsmans would have an opportunity to demonstrate that the untimeliness of their petition was caused by excusable neglect, or to request that their petition be considered one in intervention. By hearing officer's order dated October 3, 1988, Huelsman was permitted to intervene in the Citizens' petition.

Following nine days of evidentiary hearing in October and November 1988, the hearing officer issued his Recommended Order on April 14, 1989. The Recommended Order found that the synthetic liner proposed for the landfill would be likely to leak; that the sands proposed for cap material would not constitute an effective barrier to rainwater; that the proposed leachate control system had not been shown to meet Department standards; and that WACOC had failed to give reasonable assurances that the project would neither cause ground water pollution nor violate Rule 17-3.402, F.A.C. The hearing officer therefore recommended that the proposed permit be denied.

RULINGS ON EXCEPTIONS

WACOC and the Department take exception to the Recommended Order in detail.

The Department offers exceptions aimed at 44 individual findings contained in the Recommended Order, while WACOC submits exceptions to 40 specific factual findings. WACOC excepts generally to the failure of the hearing officer to recommend modifications which would make its landfill project conform with Department rules and further excepts to the hearing officer's crediting of certain expert testimony sponsored by Citizens. The Department's 10 exceptions to the hearing officer's recommended conclusions of law question the hearing officer's interpretation of provisions of Chapter 17-701 1/ and suggest that he implicitly invalidated these rules by concluding that compliance with Chapter 17-701 does not assure against the proposed landfill's causing water pollution in violation of Rule 17-3.402, F.A.C. Citizens does not except to findings of fact actually included in the Recommended Order, but rather excepts to the hearing officer's failure to incorporate 10 additional findings proposed by Citizens.

I have considered the exceptions filed by Citizens and Mr. Huelsman and find them to be without merit. Mr. Huelsman's exceptions are in the nature of

argument regarding certain findings of the Recommended Order, but are not supported by any showing from the record that the findings to which comments were directed lack substantial evidentiary support. As to Citizens' exceptions, which propose additional facts not found by the hearing officer, Citizens has likewise failed to support its exceptions by reference to the record. See Booker Creek Preservation, Inc., v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982). Under any circumstances, none of the exceptions of Citizens or Mr. Huelsman is dispositive to the outcome of this matter.

In contrast, the exceptions of WACOC and the Department call into question all of the significant factual findings of the Recommended Order and many other findings of a less crucial nature. It is important to bear in mind, however, that my authority to reject factual findings which are supported by competent substantial record evidence is closely circumscribed by established law.

Section 120.57(1)(b)10., Florida Statutes (Supp. 1988). Houle v. Department of Environmental Regulation, 10 FALR 3671 (Final Order issued June 13, 1988), affirmed, 538 So.2d 1257 (Fla. 1st DCA 1989); ERM South v. Department of Environmental Regulation, 10 FALR 3151, 3154 (Final Order issued May 24, 1988). For example, to the extent that the hearing officer elected to credit the testimony of one particular expert witness in preference to a competing line of testimony given by another expert, a finding based on such testimony is conclusive against exception. It is well settled that findings by hearing officers which rest on testimonial indicia such as witness demeanor or credibility resolution are accorded great weight and are not lightly disturbed on review. Wash & Dry Vending Co. v. State, Department of Business Regulation, 429 So.2d 790 (Fla. 3rd DCA 1983).

In a general exception, WACOC suggests that certain findings of the Recommended Order which expressly credit testimony by expert witnesses testifying on behalf of Citizens can be rejected because the witnesses in question - all of whom were declared qualified to render expert testimony by the hearing officer - gave opinions based upon hearsay data without testifying themselves that they relied on evidence "of a type reasonably relied on by experts in the subject to support the opinion(s) expressed." See Section 90.704, Florida Statutes. This exception, however, in reality is no more than a request that I substitute my judgment on witness credibility for that of the hearing officer, who presided at over a week's worth of hearing in this matter. I do not possess this power under Florida law.

It is settled that expert witnesses may give opinion testimony based upon matters which need not be independently admissible in evidence. Section 90.704, Florida Statutes. Moreover, review of the testimony of witnesses Kirk Brown, William Cooper, and Millard Hall - all of whom are university professors holding Ph.D. degrees - fails to substantiate that the basis for the testimony of these witnesses is patently incredible or otherwise unworthy of acceptance by the trier of fact. What evidentiary significance to attach to particular expert testimony is a decisional authority inherently reserved to the hearing officer who resolves a disputed scientific or technical issue in the context of a Section 120.57(1) proceeding. I cannot lawfully displace the hearing officer's judgment on the challenged testimony for the reason urged, and WACOC's exception is therefore rejected.

Resolution of the numerous remaining factual exceptions of WACOC and the Department must necessarily occur against the backdrop of the Recommended Order's factual findings, and will necessarily implicate the points of decisional rationale contained in the hearing officer's recommendation that the

proposed permit be denied. Because the parties question the chief factual bases of that rationale, my resolution of the primary exceptions regarding site geology, liner integrity, and leachate collection system design will also serve to explain why I have elected to accept the recommendation of the hearing officer that the permit be denied. In light of this, I shall not specifically discuss each single exception urged by WACOC and the Department, many of which can properly be characterized as pure argument. 2/ To the extent that any single exception is not individually discussed in this order, it should be deemed to have been considered and rejected as immaterial to the final resolution of this case.

Four determinative factual findings (and associated subordinate findings) are the cardinal points on which the rationale of the Recommended Order hinges. First is that the design engineers for the landfill project assigned an unreasonably low average vertical hydraulic conductivity coefficient to clayey sands located in a geological stratum known as the upper Citronelle formation, which is found on the proposed project site. The Recommended Order rejects the suitability of these upper Citronelle clayey sands to cap Phase I of the landfill as projected by WACOC because these sands are "too permeable to constitute an effective barrier." Exhibit A, at page 18. The Recommended Order also rejects that the clayey sands of the upper Citronelle could constitute, by themselves, a suitable natural liner beneath the Phase I site. Exhibit A, at page 7. These two related factual conclusions are central to the Recommended Order's rationale for denial of the proposed permit, as will be more fully discussed below.

The second determinative factual finding is that the 60 mil high density polyethylene (HDPE) liner proposed by WACOC in facial compliance with Rule 17- 701.050(4)(d)2.a., F.A.C., is likely to leak leachate:

Both through imperfections in the synthetic liner and, as regards hydrophobic organic pollutants with low molecular weights, by diffusion directly through even flawless portions of the liner, pollutants in the leachate will escape into the environment, if WACOC builds the landfill it has proposed for Phase I.

Exhibit A, page 29. The hearing officer went on to find:

In 27 acres of plastic, flaws are to be expected. Good intentions notwithstanding, the evidence showed holes in the synthetic liner should be anticipated, and taken into account in designing a landfill.

Exhibit A, page 30.

Furthermore, he specifically found that "[e]ven if holes did not let leachate escape, several carcinogenic, teratogenic, and mutagenic organic constituents of municipal waste leachate dissolve in liners like the one WACOC proposes, `diffuse through and are released on the other side.' (IT - 699)" Exhibit A, page 19.

Third, the hearing officer found that WACOC's permit application failed to "demonstrate with calculations that gravity would induce flow through [leachate

collection] pipes at a rate sufficient to remove leachate deeper than 12 inches" from landfill cell liners. Exhibit A, page 14. He found also that once leachate began filling the leachate collection pond, "the depth of leachate in the pond would never fall below 18 inches anywhere on the pond bottom." Exhibit A, page 14.

Finally, the Recommended Order finds that the seasonal high water table on Phase I site has not yet been determined, but that on October 11, 1988:

[T]he water table was "above the bottom of the liner of the proposed landfill in cell two, portions of cell two, a lot of it, portions of cell one, and a corner of cell three," (B.T.

44) with "about two feet of water above the proposed liner in the corner of cell two."

Exhibit A, page 23.

Exception has been taken to all of these findings on the grounds that no competent substantial evidence supports them. See Exhibit B, exceptions 3, 8, 11, 12, 15, 16, 19, 20, 21, 24; Exhibit C, pages 13-16, 18-21, 23-31, 34-36.

Review of the entire record, however, discloses that all of these critical findings are supported by competent substantial record evidence. The test is not whether sufficient record evidence supports a party's alternative to a hearing officer's finding, but only whether a record foundation exists for the challenged finding. F.U.S.A., FTP-NEA v. Hillsborough Community College, 440 So.2d 593 (Fla. 1st DCA 1983). Accordingly, the above-listed exceptions of the Department and WACOC are rejected.

Multiple exceptions have also been aimed at the ultimate finding of the Recommended Order: that the installation of a synthetic liner as proposed by WACOC will not give reasonable assurances against groundwater pollution caused by leachate exfiltration. The Department and WACOC except as well to related subordinate findings, such as the hearing officer's crediting of the testimony of Kirk Brown, Ph.D., that violations of Department groundwater standards would eventually be caused by the proposed project. See Exhibit A, page 49. For example, almost all of the findings contained under the heading "Groundwater Pollution" (Exhibit A, pages 29-32) draw their evidentiary support from testimony of Dr. Brown.

WACOC brands the testimony of Brown and other experts sponsored by Citizens as "suspect, conditional, and speculative," (Exhibit C, page 35) while the Department for its part assents that Brown's expert opinion testimony does not constitute competent substantial evidence. (Exhibit B, Exception 30, pages 19-

20) As discussed earlier, however, I lack the authority to reject credited expert opinion testimony simply because I may not agree with its premises. Therefore, I have no option but to reject all exceptions to the ultimate findings of the Recommended Order, including Department Exceptions 27, 28, 29, 30, and 31 (Exhibit B, pages 15-21); and pertinent WACOC exceptions, (Exhibit C, pages 33-39) because I find the ultimate findings to be supported by competent substantial evidence, albeit in the form of expert opinion testimony.

I have not overlooked any exception which contests the evidentiary support for any finding contained in the Recommended Order; I have found each such exception to lack merit. While I am compelled to sustain the hearing officer's findings, and while I accept his recommendation to deny the permit, I cannot sustain his rationale, which is not clearly articulated in the Recommended

Order, and which appears to be predicated on questionable interpretations of Department rules. Furthermore, I must offer comment so that several too- sweeping generalizations contained in the Recommended Order do not receive tacit approval. Finally, I must offer some practical guidance to WACOC, which has clearly indicated its desire to proceed with the establishment of a landfill on the proposed site on terms acceptable to the Department, even if those terms are different from those specified in the Department's original intent to issue.

WACOC asserts that, even if the hearing officer's findings were to be sustained, I am required by the decision in Hopwood v. State of Florida Department of Environmental Regulation, 402 So.2d 1292 (Fla. 1st DCA 1981), to issue WACOC a permit hedged by conditions sufficient to obviate the project shortcomings identified by the hearing officer. I do not agree. At issue in Hopwood was the Department's failure to exercise its discretion in a manner reasonable under the unique facts presented, where modifications fully identified in the record rendered the project clearly permittable. In the current case, however, several evidentiary problems foreclose the "modified permit" approach urged by WACOC.

Chief of these problems is the fact that the seasonal high water table level for the Phase I site has not been ascertained, as the hearing officer correctly found. WACOC offers to raise the bottom elevation of its landfill cells expressly to avoid any potential for contact with the seasonal high water table. Exhibit C, pages 2-8; 29-30. Even if I were inclined to order a permit so conditioned, I could not, based on this inadequate record, prescribe a proper bottom elevation except as an arbitrary, rule-of-thumb exercise. Needless to say, I decline to do so.

Secondly, notwithstanding WACOC's willingness to redesign its project, allowance of the substantial modifications necessary to render the project in conformance with the Recommended Order's findings would constitute new agency action under the terms of Rule 17-4.054(6), F.A.C., subject to third party challenge under Rule 17-103.155, F.A.C. Florida Keys Coalition v. 1800 Atlantic Developers, 8 FALR 5564 (Department of Environmental Regulation 1986), appeal pending. Due process notions also dictate that I cannot lawfully deprive Citizens or other potential third party challengers of the point of entry ordinarily available by Department rule to contest new agency action.

Therefore, I reject WACOC's exception which claims an entitlement to a permit conditioned to defuse objections directed at the original project. (Exhibit C, pages 2-8)

Both WACOC and the Department suggest, as a second alternative to outright denial of the application, that the record be remanded to the hearing officer for the taking of further evidence on suitable modifications. While this approach would eliminate some potential due process objections which could be expected in the absence of any additional hearing, a remand here would approach the "never-ending round of rebuttal and surrebuttal" which the court held unauthorized by Chapter 120 in Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Accordingly, no remand is in order here.

Turning next to my reasons for accepting the hearing officer's recommendation that WACOC's application be denied, it must first be stated that the outcome here does not constitute in any way a successful "end run" challenge to provisions of Chapter 17-701, F.A.C. To the contrary, the hearing officer made clear throughout the proceedings that this case involved only whether WACOC's proposed project complied with Department rules, not whether those rules

were optimal for their stated purposes. I too view this case as involving only the question of compliance with Chapter 17-701. I agree that, on the record before me, WACOC's application has failed to provide the requisite reasonable assurances as to certain aspects of its proposed project, but my reasons for so concluding differ from those stated in the Recommended Order.

In exceptions, WACOC and the Department suggest that because WACOC's proposed synthetic liner and other landfill design features meet the design criteria of Chapter 17-701, the project should be presumed to meet Department performance standards as well and given a permit. This suggestion overlooks a significant fact: the hearing officer expressly found that the proposed WACOC landfill design would not fulfill performance standards as to leachate control and removal, and would not provide adequate groundwater protection. In other words, the hearing officer concluded that the proposed project did not meet the performance standards of Chapter 17-701. Even if a presumption in favor of the design did attach because of the proposed facial compliance with 17-701.050 criteria, the presumption was rebutted by evidence sponsored by Citizens. It must be underscored that the presumption of reasonable assurances which is associated with a landfill design meeting Department design standards is only rebuttable. Given the controlling significance of site geology to any proposed landfill's permittability, the submission of evidence that a single synthetic liner may not provide adequate assurances because of site-specific conditions does not constitute an attack on the Department's rule requiring liners for Class I landfills. To the contrary, it is a justification for the establishment of the liner requirement as a minimum standard.

It is to be expected that, on most landfill sites, a single HDPE liner will provide ample assurances against groundwater pollution resulting from leachate. If "credible and credited" evidence is adduced which shows that a single liner may not be adequate based on site-specific geotechnical considerations, alternative design configurations -- such as double synthetic or composite synthetic/clay liners -- may well be necessary. On this record, as WACOC recognizes, such an alternative configuration may be required to ensure protection to the groundwater resource. It is up to WACOC, however, and not to a DOAH hearing officer, to devise a suitable alternative design.

The hearing officer found inadequate WACOC's proof that its leachate collection system would comply with the design standard required by rule. Rule 17-701.050(4)(f)2. specifies that permit applications are to incorporate calculations that the maximum one-foot leachate depth on the liner will be achieved. Despite testimony that WACOC performed calculations regarding leachate depth control, none were supplied as part of the application, as the hearing officer correctly found. This lack must be remedied in any subsequent reapplication for an appropriately modified and substantiated landfill design.

In this context, I note that substantial confusion appears to have been generated as to leachate control issues because of WACOC's proposal to use on- site clayey sands for the barrier layer when capping the Phase I site. I concur with WACOC's view that the issue of how best to cap a landfill cell which is ready for closure can easily be revisited when approval for closure is requested through the required closure permit. However, it is still necessary, at the landfill construction permit stage, to assess the amount of leachate to be expected after closure so that the leachate collection system can be sized properly to handle both average and peak flows after closure. The record shows that WACOC failed to settle on a consistent post-closure leachate production projection, especially given the apparent unsuitability of the site's clayey sands to bar large volumes of infiltrating rainwater.

On the topic of leachate control, the hearing officer erred in faulting the permit application because a minimum of 18" of leachate might be found standing in the leachate collection pond. This does not contravene Rule 17- 701.050(4)(e)'s leachate control performance standards. To stress the obvious, the liner within a landfill cell, beyond the reach of periodic maintenance, is the object to be protected by limiting the continuous leachate depth there to the one foot standard of the rule. Moreover, in order to maintain an appropriate depth on the liner, it is entirely forseeable and expected that the leachate depth in a lined leachate impoundment may from time to time exceed one foot prior to pumpout and treatment. Regular removal of leachate from the impoundment is the key to satisfaction of Rule 17-701.050(4)(e), F.A.C. rather than a blanket height limitation of one foot at all times in the impoundment.

Accordingly, while I agree that WACOC has failed to prove that its proposed leachate control system passes general muster, the expected 18" leachate depth in the leachate collection pond is not a significant application defect for which the permit must be denied.

Turning next to the question of expected leakage due to liner imperfections and mass diffusion across the liner of hydrophobic organics of low molecular weight, I must observe that nothing in Chapter 17-701, F.A.C., demands that each lined Class I landfill be certified to be leak-free. It is unrealistic to expect that, the best QA/QC plans notwithstanding, every synthetic liner can be installed with zero defects. Moreover, as to mass diffusion through polyethylene, the record here shows that the phenomenon exists, even if no actual expected concentrations of diffused organics outside the liner can be "forecast," in the words of the Recommended Order. See Exhibit A, page 30. The mere possibility of a leak or some diffusion is not sufficient to compel denial of a properly engineered Class I landfill which otherwise complies with Chapter 17-701 standards. If, however, as here, "credible and credited" evidence is adduced by the permit challenger that landfill cell leakage or diffusion may adversely affect the groundwater resource, it is incumbent upon the applicant to rebut the challenger's evidence with an appropriate showing that any expected exfiltration will pose no threat to groundwater. While an applicant may elect, as WACOC did here (Exhibit C, page 12), to rest on an assertion that no leakage or diffusion will occur, such an applicant risks the result which befell WACOC: a finding that its permit application fails to provide reasonable assurances against groundwater pollution and a recommendation for dismissal of the application.

In this context, I must observe that I reject the Recommended Order's conclusion of law that an expected presence of unspecified quantities of unidentified diffused organic chemicals within the zone of discharge of the proposed facility constitutes a violation of Rule 17-3.402(1)(b), F.A.C., the so-called "free-from" rule. This rule, which establishes the Department's minimum criteria for ground water quality, states in pertinent part:

All ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man-induced non-thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges (whether thermal or non-thermal):

* * *

(b) Are carcinogenic, mutagenic, teratogenic, or toxic to human beings, unless specific

criteria are established for such components in 17-520.420.

The minimum criteria specified in this rule apply within the zone of discharge allowed a permitted facility under Rule 17-4.245, F.A.C. Rule 17-3.404(3), F.A.C.

In construing Rule 17-3.402(1)(b) to prohibit the discharge from a landfill of even the minuscule quantities of deleterious substances, the hearing officer overlooked the fact that the rule plainly specifies that "man-induced non- thermal components of discharges" must be "in concentrations" sufficient to cause the one or more of the environmental harms enumerated in Rule 17- 3.402(1)(a-f). He also overlooked the procedure in Rule 17-3.402(3) by which the Secretary of the Department "is authorized to make determinations in individual permitting or enforcement proceedings, that a particular level for a substance is a prohibited concentration in violation of a minimum criteria pursuant to subsection (1)(b)."

It is not possible to determine from this record either what substances or what concentrations of substances might be expected to be found below the proposed liner as a result of liner leakage or mass diffusion of hydrophobic organics. There is no record basis for me to determine, as part of final agency action in this case, that any particular substance would be introduced via leachate into ground water on the site in such concentrations as to cause a "free from" violation within or without the zone of discharge in contravention of Rule 17-3.402(1)(b), F.A.C. If the only defect shown in WACOC's project were the expected leakage or diffusion of undetermined but minute quantities of unknown organic chemicals, I would not consider it a sufficient reason to deny a permit for the project. The "free from" rule is not to be construed as an insurmountable barrier preventing the permitting of synthetically-lined landfills. It was never the intent of the Department in developing its ground water rules to prohibit any contact whatsoever by pollutants with ground water. Such a prohibition, sometimes referred to as a "nondegradation" standard, was debated and rejected by the Environmental Regulation Commission when the current rule was adopted in 1982. See Green and Preston, Florida's New Ground Water Regulations, 57 Fla. B.J. 345 (1983).

Both WACOC and the Department have correctly excepted to the hearing officer's mistaken view of the "free-from" rule. See Exhibit B, Exception 40, page 25; Exhibit C, page 34. While these exceptions are meritorious, granting them does not alter the fact that WACOC has failed to carry its burden to prove its entitlement to a permit for its landfill project.

As mentioned above, it is up to WACOC to devise a landfill design which complies with Chapter 17-701 standards and eliminates the potential for adverse ground water impact found to exist in its original design. In the event that WACOC can demonstrate a modified design which provides the requisite assurances, the Department may then find the project permittable, since under the Florida Supreme Court's ruling in Thomson v. Department of Environmental Regulation, 511 So.2d 989, (Fla. 1987), the doctrine of administrative res judicata will not operate as a bar to the approval of a subsequent application for the site based upon such a modified design.

In summary, I sustain and adopt the factual findings contained in the Recommended Order; they are all supported by competent substantial evidence of record in this proceeding. While I accept with the hearing officer's recommendation that WACOC's permit application be denied, I reject the precise

rationale for denial offered by the Recommended Order and substitute my own rationale and conclusions of law as set forth in this Order. I make the following:

CONCLUSIONS OF LAW

1. WAC of Okaloosa County, Inc., has not provided reasonable assurances that its proposed landfill project will satisfy the design and performance standards contained in Rules 17-701.050(4)(e)4. and (4)(f)2., F.A.C.

   
   

2. WAC of Okaloosa County, Inc. has not provided reasonable assurances that its proposed project will not cause water pollution in contravention of Rule 17-701.050(2)(c)2., F.A.C. Accordingly, based upon the foregoing analysis and conclusions, it is ORDERED:

1. The findings of fact and conclusions contained in Exhibit A are adopted, except as modified herein.

   
   

2. Permit Application No. SC 46-143090 is 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, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; 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 29th day of May 1989, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DALE TWACHTMANN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904)488-4805

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to S. 120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

5/29/89

Clerk Date

ENDNOTES

1/ During the pendency of this proceeding, Part I of Chapter 17-7, F.A.C., was redesignated as Chapter 17-701, F.A.C., without substantive change to any rule provision or subsection numbering, which are identical to those of the former 17-7. Although the Recommended Order refers to provisions of Chapter 17-7, all such references apply equally to Chapter 17-701.

2/ For example, see Department exceptions 22, 23, 24. (Exhibit B, pages 13-16).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this FINAL ORDER has been furnished by U.S. Mail to the following, on this 30th day of May 1989.

William L. Hyde, Esq. Debra Swim, Esq.

P.O. Drawer 1838 1323 Diamond Street

Tallahassee, FL 32302 Tallahassee, FL 32301

Herbert Huelsman Chris D. McGuire

608 Ironwood Drive Department of Environmental

Ft. Walton Beach, FL 32598 Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Robert T. Benton, II STATE OF FLORIDA DEPARTMENT

Division of Administrative OF ENVIRONMENTAL REGULATION Hearings

The DeSoto Building

1230 Apalachee Parkway Tallahassee, FL 32399-1550 Richard T. Donelan, Jr.

Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Telephone: (904) 488-9730

Docket for Case No: 88-002531

Orders for Case No: 88-002531