STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HIGHLAND LAKES ESTATES )
HOMEOWNERS' ASSOCIATION, )
JOHN W. FROST, II, AND )
TERRY P. FROST, )
)
Petitioners, )
)
vs. ) Case Nos. 09-6750
) 09-6754
REPUBLIC SERVICES OF FLORIDA, ) 09-6759
L.P., AND DEPARTMENT OF ) 09-6762
ENVIRONMENTAL PROTECTION, )
)
Respondents, )
)
and )
)
CITY OF BARTOW, )
)
Intervenor. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Bartow, Florida, from May 10-13 and August 4-5, 2010, and by videoconference in Tallahassee and Lakeland, Florida, on
August 3, 2010.
APPEARANCES
For Petitioner Highland Lakes Estates
Homeowners' Association:
John Stanley Fus, qualified representative 2190 Boardman Road
Bartow, Florida 33830
For Petitioners John W. and Terry P. Frost:
John W. Frost, II Sergui Gherman
Frost Van Den Boom and Smith, P.A. Post Office Box 2188
Bartow, Florida 33831-2188
For Respondent Republic Services of Florida, L.P.: Ronald L. Clark
J. Kemp Brinson
Michael J. Kincart Sandra B. Howard
Clark, Campbell & Mawhinney, P.A.
500 South Florida Avenue, Suite 800 Lakeland, Florida 33801
William D. Preston William D. Preston, P.A.
4832-A Kerry Forest Parkway Tallahassee, Florida 32309
For Respondent Department of Environmental Affairs: Stanley M. Warden
Ronda L. Moore
Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 For Intervenor City of Bartow:
Ralph A. DeMeo Carl Eldred Paula L. Cobb
Hopping Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
Sean R. Parker
W.A. "Drew" Crawford Boswell & Dunlap, LLP
245 North Central Avenue Bartow, Florida 33830
STATEMENT OF THE ISSUE
The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
PRELIMINARY STATEMENT
On June 30, 2009, Republic filed an application with DEP for a single permit to construct and operate a Class III landfill immediately south of an existing Class I landfill that it operates. On November 13, 2009, DEP issued notices of intent to grant a permit to construct the facility and a permit to operate the facility.
Petitioners timely filed petitions for a formal administrative hearing challenging the intended agency actions. By Order entered December 22, 2009, the Administrative Law Judge consolidated the four cases. On December 23, 2009, Intervenor City of Bartow (Intervenor) filed a petition to intervene, which was granted the next day.
On December 28, 2009, the Administrative Law Judge set the hearing for February 15-19, 2010. On January 6, 2010,
Petitioners John W. Frost, II, and Terry P. Frost (Petitioners Frost) filed an Amended Renewed Motion to Continue Final Hearing. On the same day, the Administrative Law Judge granted the motion and reset the hearing for April 12-16, 2010. On January 7, 2010, Republic filed a Motion for Continuance. The next day, the Administrative Law Judge granted the motion and reset the hearing for May 10-14, 2010.
On May 6, 2010, the parties filed a Joint Prehearing Stipulation. Petitioners contend that DEP may not issue the permits because Republic has failed to provide reasonable assurance as to aviation safety, public health, and sinkholes.
On May 4, 2010, Petitioners Frost filed a Motion for Continuance on the ground that their expert witness, Larry Madrid, had suddenly declined to testify on their behalf due to the threat of litigation from a client or former client. The client or former client was O-M Holdings, LLC, which allegedly had a contractual relationship with a corporation of which
Mr. Madrid is a principal. The scope of the work allegedly involved geotechnical services for the "Ellsworth" property, which is adjacent to the existing landfill that Republic now seeks to expand. The motion asserts that O-M Holdings desired to sell its property to Republic for expansion of Republic's landfill operations.
On May 6, 2010, the Administrative Law Judge entered an Order denying Petitioners Frost's Motion for Continuance.
Petitioners Frost filed with the Second District Court of Appeal an Emergency Petition for Certiorari on Friday, May 7, 2010.
Although Petitioners Frost did not serve a copy of the emergency petition on counsel for O-M Holdings, on May 7, O-M Holdings and another entity filed an emergency motion for leave to file an amicus brief in opposition to Petitioners Frost's emergency petition. The motion explains that both entities have a financial interest in the outcome of the present administrative proceeding, although the motion denies that Republic controls the two entities' actions or the two entities control Republic's actions.
On May 7, 2010, the Second District denied the relief sought by Petitioners Frost. However, the May 6 Order of the Administrative Law Judge assured Petitioners Frost that he would leave the record open to allow them to replace the witness or witnesses whom they were unable to produce at the hearing on May 10-14. Thus, the hearing took place over the two sessions noted above.
On three occasions, Republic and DEP offered modifications to the proposed permit. On May 5, 2010, Republic, DEP, and Intervenor filed a Joint Stipulation to Permit Modification, which, among other things, prohibits the landfill from accepting
garbage. The Joint Stipulation to Permit Modification amends the proposed operating permit, as well as the operation plan and engineering report, which are incorporated into the construction and operating permit.
Twice during the hearing, Republic and DEP offered additional modifications to the proposed permit. In one, they agreed to add a condition to the operating permit that would prohibit the landfill from accepting garbage in commercial, industrial, or agricultural waste. In the other modification, Republic and DEP agreed to add a condition to the operating permit to prohibit Republic from accepting malodorous waste and sludge at times, such as due to bad weather, that it would not be able to cover the waste within one hour of receipt.
All three sets of modifications are discussed in greater detail below.
At the hearing, Petitioners called 13 witnesses, and Respondents called 11 witnesses. The parties offered the following exhibits: Republic--Exhibits 1-6, 8-9, 12-21, 23-24,
26-28, 32, 34-36, and 38-39; Intervenor--Exhibits 202-04 and
206-10; Petitioners--Exhibits 304, 308-10, 312, 315-318, 324-26,
328-36, 339, 341-42, 346-50, 354, 359, and 362-64; and
Administrative Law Judge Exhibits 1-4. All exhibits were admitted except Exhibits 35 (not for truth), 36, 39, 209 (not for truth), 210 (not for truth), 310 (upon the admission of the
Florida Geological Survey map), 330 (not for truth), 348 (not for truth), 349 (not for truth), 350 (not for truth), 359a (not for truth), and 363 (not for truth).
The court reporter filed the Transcript by August 23, 2010.
The parties filed Proposed Recommended Orders by September 3, 2010. Petitioners Frost's motion to strike the proposed recommended order of Respondents and Intervenor as untimely filed is denied.
FINDINGS OF FACT
Background
On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830-
003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit).
Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill.
Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4.
The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill.
Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property.
Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision.
9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes
construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment.
A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres.
The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system.
The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention
for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate.
Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit.
Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet.
Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill.
Petitioners Frost built their home in 1980 or 1981.
During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the
property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes.
Several residents of Highland Lakes Estates testified.
Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill.
One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations.
Application, RRAI, and Permit, Including Modifications
The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit.
In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule.
The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently
going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years.
The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph.
23. Application Appendix V is the Water Monitoring Plan.
Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly.
Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below.
23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile
organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium.
Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years.
Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health."
Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide,
nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants.
Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record.
By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW."
More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application
materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system."
The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment.
The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue.
The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved
potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table.
The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP.
34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's
stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill.
At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of
$61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills.
The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet
from, the Bartow Municipal Airport. Airport safety is addressed in more detail below.
The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures.
The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it.
The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second.
The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane.
According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage
rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained.
The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste.
The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a
surface water discharge point in the stormwater pond located near the leachate storage tanks.
The Engineering Report adds that Republic will continue to comply with the following prohibitions:
No waste will be knowingly burned on site;
Hazardous waste will not knowingly be accepted;
PCB contaminated waste will not knowingly be accepted;
Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;"
No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body;
[Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes;
Neither oily waste nor commingled oily waste will knowingly be accepted; and
Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system.
The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions:
i. Garbage will not be knowingly accepted;
Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted;
Animal carcasses will not be knowingly accepted; and
Aluminum dross will not be knowingly accepted.
Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule
62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials."
Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept:
Commercial waste
Ash residue
Incinerator by-pass waste
Construction and demolition debris, including from a residence
Treated biomedical waste
Agricultural waste
Industrial waste
Yard trash, including from a residence
Sewage sludge
Industrial sludge
Water/air treatment sludges
Waste tires
De minimis amounts of non-hazardous waste from incidental residential sources
Section 5 of the Operation Plan provides, in relevant
part:
[Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.]
Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal.
--Hazardous waste
--Explosive waste
--Radioactive waste
--Drums that have not been opened and Emptied
--Refrigerators, freezers, air Conditioners (white goods)
--Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc.
--Automobiles or parts that contain fuel, lubricants, or coolants
--Untreated Biomedical waste
The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge.
Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control
residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test."
As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal:
--Garbage
--Household Waste, except waste from residential sources generated as Class III waste
--Animal carcasses
--Aluminum dross
At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste.
According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to
identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill.
As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides:
Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather.
Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather.
At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading.
If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste.
Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction.
The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility.
The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area.
The Operation Plan specifies a filling sequence.
Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system.
Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover.
The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover.
The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of
moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors.
59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged.
In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged.
Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions.
The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge.
The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states:
Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated.
Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states:
When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year.
Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010),
Republic must submit a gas remediation plan to DEP within seven days.
The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor.
The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001).
The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other
indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning.
Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition
C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare."
Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8).
The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit,
the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day.
As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states:
This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40
C.F.R. 261.4(b)(1).
Specific Condition A.9.c prohibits open burning.
Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater.
Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] "
Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing
unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area.
Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition
C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval.
Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions.
Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition
E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months.
Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill.
Aviation Safety
Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport.
The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site.
Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill.
When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis.
As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety.
The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies.
Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport.
Public Health
Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health,
the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany.
Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm.
The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants.
For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However,
Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of
Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below.
By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology,
Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the
monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors.
Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems.
93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and
groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely.
Transmission by surface water is also unlikely.
Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events.
Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding.
Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage
will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely.
Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas.
In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of
exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens.
Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight.
The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions.
Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying
the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover.
Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants.
The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate.
However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills.
Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face.
The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown.
Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a
measure of its ability to enter the air, and a compound's persistence.
VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects.
Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind.
Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are
PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill.
Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely.
Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water.
For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering.
Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well.
The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization.
Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties
of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air.
First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements.
Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater.
At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible
liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually.
Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing.
Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes.
Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste.
Sinkholes
The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area.
The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member.
At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick.
Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining.
Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix."
Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden."
Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled
with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata.
Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward.
Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types.
A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located.
A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface
soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions.
Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole.
Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep.
Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the
Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low."
The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent."
But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the
investigation is to provide reasonable assurance of the structural integrity of the proposed landfill.
Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report.
The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to
depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils.
The Hanecki investigation comprised two main steps.
First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils.
Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values.
Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost.
The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings.
Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone.
Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation.
Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form.
Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils.
Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced
looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut.
Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data.
Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill.
Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
CONCLUSIONS OF LAW
Jurisdiction, Applicability of 2001 Rules, and General Requirements of Permitting
The Division of Administrative Hearings has jurisdiction over the subject matter, and all of the parties are substantially affected by the Permit, including its possible modification. §§ 120.569 and 120.57(1), Fla. Stat. (2010).
According to Florida Administrative Code Rule 62-701.220(1) (2001) and (2010), "except as otherwise
specifically provided in [Florida Administrative Code Chapter
62-701], facilities are subject to the law in effect at the time of permitting or when DEP deems their applications to be complete. Florida Administrative Code Rule 62-701.330(1)(b) (2010) specifically requires that any holder of a construction or operation permit, as of January 6, 2010, that does not conform to the 2010 provisions of Chapter 62-701 must apply for a permit modification at the latter of permit renewal or July 5, 2010. This rule adds that a permit issued prior to January 6, 2010, includes any application that DEP has deemed to be complete.
Thus, the Permit is subject to the 2001 rules. The latter of July 5, 2010, and the renewal date of the Permit will be, of course, the renewal date of the Permit, so it is then that the Permit must be modified to comply with the 2010 rules. Except as otherwise indicated, all references to rules in this recommended order are to the 2001 version of the Florida Administrative Code. The relevant statutes have not changed since the Application was deemed complete, so the 2010 statutes are cited.
Section 403.707(1), Florida Statutes (2010), prohibits the construction or operation of a solid waste management facility without a permit. Florida Administrative Code 62-701.300(1)(a) prohibits any person from storing, processing, or disposing of solid waste, except at a permitted solid waste management facility or exempt facility. Section 403.703(33), Florida Statutes, defines a solid waste management facility to include a landfill.
Addressing permitting in general, Florida Administrative Code Rule 62-4.070(1) provides in part:
A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not
discharge, emit, or cause pollution in contravention of Department standards or rules. . . .
See also Fla. Admin. Code R. 62-701.320(9)(d).
A reasonable assurance is a "substantial likelihood" that a project will be successfully implemented. Metropolitan Dade Co. v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992). As the applicant, Republic bears the burden of providing such reasonable assurance. Id.
Aviation Safety
A proposed project satisfies the objective of aviation safety if it satisfies certain quantifiable criteria. There is no statute or rule requiring reasonable assurance that the operation of landfill will not unreasonably interfere with aviation or pose an unreasonable risk to aviation safety. Instead, DEP has adopted two rules--one of separation and one of notice.
Florida Administrative Code Rule 62-701.320(12)(a) describes the landfills and air facilities to which the rule applies and is not relevant to these cases. Rule
62-701.320(12)(b) and (c) sets forth the two substantive rules. Rule 62-701.320(12)(c) requires notice, in certain cases, of applications for new or expanded landfills to affected airports, the Federal Aviation Administration, and the Florida Department
of Transportation. Petitioners have not disputed that Republic provided the required notice.
Florida Administrative Code 62-701.320(12)(b) provides that a landfill shall not be located within 10,000 feet of any licensed and operating runway used by turbine-powered aircraft or 5000 feet of any such runway used only by piston- engine aircraft. There is no requirement in the rules for a case-by-case showing of aviation safety, unless the landfill fails to satisfy these separation criteria, in which case the applicant may overcome its failure to meet the separation criteria by showing that the design and operation of the landfill will not pose a bird hazard to aircraft.
The proposed landfill satisfies the spacing criteria, so Republic has provided reasonable assurance of compliance with the relevant requirements of Florida Administrative Code Rule
62-701.320(12)(b).
As noted in the findings above, even if broader considerations of aviation safety were at issue in these cases, Republic has provided reasonable assurance that the design, construction, and operation of the proposed landfill will not unreasonably endanger aviation safety.
Sinkholes
The sinkhole issue expresses itself in two respects in Florida Administrative Code Chapter 62-701. First, one rule
requires a geotechnical investigation that considers, among other things, sinkholes. Second, various rules require reasonable assurance that, based in part on the sinkhole data and analysis, the proposed landfill can satisfy criteria pertaining to structural stability.
Florida Administrative Code Rule 62-701.410(2)(a) and
requires a geotechnical investigation of subsurface conditions, including soil stratigraphy, and the presence of previously filled areas and sinkholes. Rule 62-701.410(2)(e) requires that the geotechnical investigation include a foundation analysis "to determine the ability of the foundation to support the loads and stresses imposed by the landfill."
This analysis must include foundation-bearing capacity, subgrade settlements, and subgrade slope stability.
Florida Administrative Code 62-701.300(2)(a) and (b) prohibits the storage of solid waste "[i]n an area where geological formations or other subsurface features will not provide support for the solid waste" or "[i]n an area where the absence of geological formations or subsurface features would allow for the unimpeded discharge of waste or leachate to ground or surface water." Similarly, Florida Administrative Code Rule 62-701.340(4)(a) requires, in locating a landfill, that the "site shall provide structural support for the facility including total wastes to be disposed of and structures to be
built on the site," and Florida Administrative Code Rule
62-701.400(3)(a)2. requires that liners be installed on a "base and in a geologic setting capable of providing structural support to prevent overstressing of the liner due to settlements and applied stresses[.]"
The focus of these rules is on the landfill property or the footprint of the proposed landfill, not the surrounding area, despite the use of the words, "area" and "geologic setting." Consideration of geological features in the surrounding area may shape determinations concerning the scope of the geotechnical investigation and the structural integrity of the proposed improvements. But these are the sole roles reserved to area-wide findings.
Republic has complied with the rules requiring a geotechnical investigation and provided reasonable assurance that the proposed landfill is consistent with all rules requiring structural support.
Public Health
Directly or indirectly, public health motivates the regulation of landfills, so all of the landfill statutes and rules bear on this issue. Many of these statutes and rules provide quantifiable or technical criteria that, when met, provide substantial protection of public health. Other statutes
and rules require generally that a new landfill not jeopardize public health.
Resembling the aviation issue, many of quantifiable public health criteria are minimum spacing requirements. Section 403.707(5), Florida Statutes, prohibits the location of a landfill within 3000 feet of Class I surface waters. Florida Administrative Code Rule 62-701.300(2)(c), (g), and (i) prohibits the location of a landfill, respectively, within 500 feet of an existing or approved potable water well, within 200 feet of any natural or artificial water body not totally within the landfill property and hydrologically disconnected from offsite surface waters, or within 1000 feet of an existing or approved potable water well serving a community water system. Florida Administrative Code Rule 62-701.330(4)(b) prohibits the location of a landfill in a 100-year floodplain. Florida Administrative Code Rule 62-701.330(4)(c) prohibits any part of the final cover slope within 100 feet of any property boundary of the landfill.
Most of the public health criteria provide technical design or construction standards or quantifiable operation requirements. For example, Florida Administrative Code Rule
62-701.400(3) specifies the minimum design criteria for landfill liners, and Rule 62-701.400(4) specifies the minimum design criteria for leachate collection and recovery systems.
Of particular relevance to these cases, Florida Administrative Code Rule 62-701.500(5)(d) prohibits spraying leachate during weather conditions that may produce wind-blown spray, Rule 62-701.510(5) requires ongoing monitoring of leachate, Rule 62-701.300(3)-(11) prohibits a landfill from accepting numerous materials, and Rule 62-701.500(1) requires one spotter per working face to ensure that the landfill does not accept prohibited materials.
All but one of the five deficiencies noted immediately below involve an omission, misstatement, or misapplication of an explicit requirement contained in one of the rules cited in the preceding paragraph. Each of these five matters acquires added importance, in terms of public health, due to the circumstances of this proposed landfill, including its location in terms of an active sinkhole area and proximity to a residential area and the landfill's expected operating conditions. The Permit restates numerous other requirements from the rules and, to avoid confusion, needs to restate these four explicit requirements, as well.
Florida Administrative Code Rule 62-701.500(5)(d) provides that leachate may not be recirculated during weather conditions or in quantities that may cause wind-blown spray. Due to the potential role of aerosol transmission by the proposed landfill, the inclusion of this prohibition in the
Permit is especially significant to protect public health and its inclusion is necessary for Republic to comply with the cited rule and provide reasonable assurance that the spraying of untreated leachate will not unreasonably endanger public health.
Florida Administrative Code Rule 62-701.510(6)(b)1 requires the sampling of leachate semi-annually for certain parameters and annually for other parameters. Rule
62-701.510(6)(b)1 references Rule 62-701.510(8)(c) for the parameters to be sampled semi-annually and Rule 62-701.510(8)(d) for the parameters to be sampled annually. The semi-annual parameters are the five field parameters and eight laboratory parameters identified above in Application Appendix V, and the parameters listed in 40 CFR Part 258, Appendix I. As noted in the Findings of Fact, Appendix V promises only annual testing, but of the parameters in 40 CFR Part 258, Appendix II, which is six times longer than Appendix I.
Republic will be spraying vast quantities of untreated leachate from considerable heights as close as 1000 feet from residential areas. Sixty percent as much leachate may escape through the liner system before Republic is required to notify DEP and take action. For Republic to comply with the cited rule governing frequency and scope of leachate monitoring and to provide the required reasonable assurance that the spraying of leachate and its movement into the groundwater
through liner leaks, prior to reporting and action, will not unreasonably endanger public health, the Permit must be modified to require semi-annual testing of the five field and eight laboratory parameters identified in the rule and Application Appendix V, as well as the shorter list of parameters identified in 40 CFR Part 258, Appendix I, and to maintain, as already provided in Application Appendix V, the annual testing of the longer list of parameters identified in 40 CFR Part 258, Appendix II.
Florida Administrative Code Rule 62-701.510(9)(a) requires a landfill operator to notify DEP at least 14 days in advance of taking a sample of any water, so that DEP may take split samples. There is no rule requiring an operator to give other interested persons a right to take split samples. Due to the special considerations involving leachate, two of which are mentioned immediately above, reasonable assurance of the protection of public health requires that, if DEP declines or otherwise fails to take a split sample, this right is extended to Petitioners and Intervenor. The Permit must provide that, if DEP declines to take a split sample, these parties may take a split sample at the time that Republic takes its sample, but if, failing to provide advance notice of its intent not to take a split sample, DEP nonetheless fails to take a split sample, Republic and DEP shall notify Petitioners and Intervenor that
they have the right to take a leachate sample anytime within 30 days following receipt of notice.
Citing the need to protect public health, DEP may impose conditions on the Construction Permit or Operation Permit that do not reflect explicit requirements of a statute or rule. Section 403.707(6), Florida Statutes, provides:
The department may issue a construction permit pursuant to this part only to a solid waste management facility that provides the conditions necessary to control the safe movement of wastes or waste constituents into surface or ground waters or the atmosphere and that will be operated, maintained, and closed by qualified and properly trained personnel. Such facility must if necessary:
* * *
Provide for the most economically feasible, cost-effective, and environmentally safe control of leachate, gas, stormwater, and disease vectors and prevent the endangerment of public health and the environment.
Concerning design and construction criteria, Florida Administrative Code Rule 62-701.400(1) provides:
The requirements of this rule are the minimum standards for constructing a landfill. Nothing in this rule shall be construed to prevent [DEP] from imposing more stringent standards as necessary to protect the environment and the public health and safety due to site specific conditions and types of wastes to be disposed of in the landfill An
applicant whose landfill design meets the design standards of this rule will be
presumed to provide reasonable assurance that the performance standards of Rule 62- 701.340(1), F.A.C., will be met.
Concerning water monitoring criteria, Florida Administrative Code Rule 62-701.510(1)(c) states that the monitoring criteria in the rule are the:
minimum standards for monitoring water quality and leachate. Nothing in this rule shall be construed to prevent [DEP] from imposing more stringent standards as necessary to protect the environment and the public health and safety due to site specific conditions and types of wastes to be disposed of in landfills . . ..
As to landfills, Florida Administrative Code Rule 62-701.300 prohibits anyone from disposing of PCBs, if in a
concentration of at least 50 PPM, (Rule 62-701.300(5)); placing most nonhousehold liquid wastes (Rule 62-701.300(10)); "knowingly deposit[ing]" biomedical waste (Rule 62-701.300(6)); or knowingly or negligently disposing of lead-acid batteries (Rule 62-701.300(8)(a)), most used oil (Rule 62-701.300(8)(b)), yard trash (Rule 62-701.300(8)(c)), white goods (Rule
62-701.300(8)(d)), and most whole waste tires (Rule 62-701.300(8)(e)). The prohibitions against PCBs and
nonhousehold liquid wastes apply without regard to the knowledge of the landfill owner or operator. The prohibition against biomedical waste applies if the landfill owner or operator knew it was receiving biomedical waste. And the remaining
prohibitions apply if the landfill owner or operator knew or should have known that it was receiving these wastes.
The DEP Operating Permit incorporates the Operation Plan, so, although it does not mention Section 5 of the Operation Plan, it incorporates its provisions, at least to the extent that the Permit contains no contrary provisions. Operation Plan Section 5 does an especially poor job of describing prohibited wastes because it adds a knowledge standard that is, for many wastes, unauthorized by statute or rule. Obviously, this misstatement of the rule would impair enforcement of the provisions prohibiting certain wastes.
In addition to appending this qualification to its receipt of hazardous waste, explosive waste, and even radioactive waste--so as to spare Republic from successful enforcement unless it could be shown that it knowingly received such wastes--Republic adds this qualification to white goods and untreated biomedical waste, toxic or hazardous materials (e.g., batteries, solvents, and oil), drums that have not been opened and emptied, and liquid waste. The DEP Operating Permit must be modified to incorporate the restrictions imposed by the rules to eliminate any confusion that Republic has created by misidentifying in its Application and Operation Plan the required state of knowledge for the acceptance of certain items to be prohibited. This modification is also required for
Republic to provide reasonable assurance that the proposed landfill will not unreasonably endanger public health.
Florida Administrative Code Rule 62-701.500(1) requires that each Class I landfill "have at least one spotter at each working face at all times when the landfill receives waste to detect unauthorized wastes." Rule 62-701.500(2)(c) requires the Operation Plan to specify the "number and location of spotters for each working face." Rule 62-701.500(6)(d) requires that "[i]nspectors, equipment operators, weigh station attendants, and spotters" be trained to identify unauthorized wastes.
The thrust of these spotter rules is to require spotters, as distinguished from equipment operators or equipment operators/spotters, to identify and remove prohibited wastes. Rule 62-701.500(1) requires one spotter per working face. DEP has accepted Republic's proposal to satisfy this requirement by assigning spotting duties to an equipment operator. However, while operating dangerous heavy equipment, this so-called "spotter" is not spotting. Cross-training is not an innovation of Republic; it is a requirement of Rule 62-701.500(6)(d). This rule already imposes upon equipment operators the secondary responsibility of identifying prohibited wastes. If the rules recognized cross-training as an alternative to designating a spotter, they would have explicitly so provided.
Republic implicitly has asked for a variance from the spotter rules, without adhering to the proper procedure, and DEP has implicitly granted a variance, until DEP discovers that Republic is accepting prohibited wastes. The result, though, is a material deviation from the rules concerning spotters and even public health.
The above-described circumstances of this landfill, including the spraying of untreated leachate, the generous action leakage rate, and the close proximity of a residential area, mean that, even if the spotter rules permitted cross- designation, allowing cross-designation at the proposed landfill would jeopardize a finding of reasonable assurance of the protection of public health. The failure to require one spotter per working face undermines effective enforcement of the prohibited-wastes rules that predicate liability on the fact that the operator knew or should have known that it was accepting a particular prohibited waste. With cross- designation, it will be that much harder for DEP to prove that an equipment operator/spotter knew or should have known that the waste that she was contouring contained, for instance, used oil or whole waste tires.
For three reasons unique to Republic, allowing it to cross-designate equipment operators/spotters precludes a finding of reasonable assurance of protection of public health. First,
Republic has already tried to attenuate its liability for accepting prohibited wastes at this landfill by extending the knowledge requirement to wastes for which knowledge is not a, or the sole, condition of the prohibition. This attempt does not inspire confidence in Republic's commitment to rejecting these prohibited wastes. Second, despite DEP's urging, Republic has declined to impose upon itself the requirement that the container for prohibited wastes will be placed in a specified proximity to the working face. This renders more unlikely that an equipment operator will stop her equipment, climb down to grab lead-acid batteries or nonhousehold liquid waste, and walk the wastes perhaps several hundred yards to the disposal container. The special prohibition against receiving garbage imposes even greater burdens on equipment operators/spotters who, given the nature of this waste, may be even less inclined to stop their machinery to hand carry a clump of wet, smelly garbage several hundred yards to the nearest disposal container. Third, Republic has been the subject of at least two prior enforcement actions for accepting prohibited wastes.
On these facts, the Permit must be modified to require Republic to assign at least one spotter to every working face while the landfill is receiving waste to comply with the spotter rules and to provide the required reasonable assurance
that the landfill operation will not unreasonably endanger public health.
It is
RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187.
DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida.
S
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010.
COPIES FURNISHED:
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Mimi A. Drew, Secretary
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Ronald L. Clark, Esquire
Clark, Campbell & Mawhinney, P.A.
500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271
William D. Preston, Esquire William D. Preston, P.A.
4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272
Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A.
500 South Florida Avenue, Suite 800 Lakeland, Florida 33801
Sean R. Parker, Esquire Boswell & Dunlap, LLP
245 North Central Avenue Bartow, Florida 33830-4620
Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A.
119 South Monroe Street, Suite 300 Tallahassee, Florida 32301
Stanley M. Warden, Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
John W. Frost, Esquire
Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188
Bartow, Florida 33831
John Stanley Fus
Highland Lakes Estates HOA 2190 Boardman Road
Bartow, Florida 33830
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 30, 2010 | Agency Final Order | |
| Oct. 08, 2010 | Recommended Order | Permit approved for Class I landfill if DEP adds conditions regarding the level of knowledge required in accepting certain prohibited wastes, requiring more frequent leachate monitoring, allowing other parties to obtain split samples, & requiring spotter. |
