STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
McCORMICK, ESTATE OF BENJAMIN R. ) McCORMICK, STOP, INC. and ST. JOHNS ) COUNTY, )
)
Petitioners, ) Cases Nos. 88-2283
and | ) | 88-2352 | |
) | 88-2462 | ||
LARRY A. WELLS, FLORIDA WILDLIFE | ) | 88-2967 | |
FEDERATION, INC., THE COASTAL | ) | 88-2968 | |
ENVIRONMENTAL SOCIETY, RIVER SYSTEMS | ) | 88-2969 | |
PRESERVATION, INC., SIERRA CLUB, INC. | ) | 88-2970 | |
ST. JOHNS COUNTY AUDUBON SOCIETY, | ) | 88-2971 | |
and ORGANIZED FISHERMEN OF FLORIDA | ) | 88-2972 | |
ST. JOHNS RIVER CHAPTER, | ) | ||
) | |||
Intervenors, | ) | ||
) | |||
vs. | ) | ||
) | |||
CITY of JACKSONVILLE and | ) | ||
DEPARTMENT OF ENVIRONMENTAL REGULATION, | ) | ||
) | |||
Respondents. | ) | ||
) | |||
J.T. McCORMICK, ESTATE OF BENJAMIN R. | ) | ||
McCORMICK, THE COASTAL ENVIRONMENTAL | ) | ||
SOCIETY, RIVER SYSTEMS PRESERVATION, | ) | ||
INC. and SIERRA CLUB, INC., | ) | ||
) | |||
Petitioners, | ) Cases | Nos. | 88-4699 |
) | 88-4950 | ||
vs. | ) | 88-4951 | |
) | 88-4952 | ||
CITY of JACKSONVILLE and | ) | ||
DEPARTMENT OF ENVIRONMENTAL REGULATION, | ) | ||
) | |||
Respondents. | ) | ||
) | |||
RECOMMENDED ORDER
This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 21, 1989, and continued there through February 24, 1989. The second week of hearing took place in St. Augustine, February 27 through March 3, 1989. The hearing finished the following week in Jacksonville on March 6 through March 9, 1989.
The hearing transcript was filed with the Division of Administrative Hearings on April 28, 1989, and the parties filed proposed recommended orders on
June 6, 1989. The attached appendix addresses proposed findings of fact by number.
APPEARANCES
Larry A. Wells appeared on his own behalf, and Larry Gilmore, President, St. Johns River Chapter of the Organized Fishermen of Florida, spoke on behalf of the organization. Otherwise, the parties were represented by counsel:
Carlos Alvarez and Carolyn S. Raepple
Hopping, Boyd, Green and Sams Post Office Box 6525 Tallahassee, Florida 32314-6526
and
Harrison D. Upchurch and Frank D. Upchurch, III
Upchurch, Bailey, and Upchurch, P.A. Post Office Box 170
St. Augustine, Florida 32085-0170
and
Joseph M. Glickstein, Jr. Glickstein and Glickstein
444 Third Street
Neptune Beach, Florida 32233-5111
For Petitioners J.T. McCormick and the Estate of Benjamin R. McCormick
David S. Dee and Allan Wagner
Carlton, Fields, Ward, Emmanuel Smith & Cutler, P.A.
Post Office Drawer 190 Tallahassee, Florida 32302
For Petitioner St. Johns County
C. Rufus Pennington, III Margol and Pennington, P.A.
Suite 1702, American Heritage Tower
76 South Laura Street Jacksonville, Florida 32202
For Petitioner STOP, Inc., a/k/a St. Johns Taxpayers Opposing Pollution, Inc.
Debra Swim
1323 Diamond Street
Tallahassee, Florida 32301
and Sidney F. Ansbacher
Turner, Ford and Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32207
and
Dan Brooks Hendrickson
104 Sixth Avenue
Pass-A-Grille, Florida 32706
and
4620 Arapahoe Avenue
Jacksonville, Florida 32208 For Intervenors The Coastal Environmental Society, Florida Wildlife Federation,
River Systems Preservation, Inc., Sierra Club, Inc., and St. Johns County Audubon Society and, except
Ms. Swim, on behalf of the Petitioners in the Variance Cases Who Also Intervened in the Permit Cases.
Frank X. Friedman, Jr.
T. R. Hainline, Jr.
G. Stephen Manning and Marcia P. Parker Rogers, Towers, Bailey,
Jones & Gay
1300 Gulf Life Drive Jacksonville, Florida 32207
For Respondent City of Jacksonville
William H. Congdon and Chris McGuire
Twin Towers Office Building Room 654
2600 Blairstone Road
Tallahassee, Florida 32399-2400
and Kathryn L. Mennella Post Office Box 1429
Palatka, Florida 32078-1429 For Respondent Department of Environmental Regulation
These consolidated cases, which arise out of the City of Jacksonville's efforts to build a landfill in the southeast corner of Duval County, raise the following
ISSUES.
Whether the Department of Environmental Regulation (DER) should grant the application the City of Jacksonville (City) has filed for a permit to construct Class I and Class III landfill facilities?
Whether, if applicable rules would preclude such construction, DER should grant the city a variance from Rule 17-701.040(2)(c), Florida Administrative Code?
Whether DER should grant the City a dredge and fill permit authorizing placement of fill in connection with constructing an access road to the proposed landfill?
Whether DER should grant the City's application for a permit to construct a stormwater management and storage system, in connection with the proposed landfill?
PRELIMINARY STATEMENT
The City withdrew its initial application for a permit to construct the proposed southeast landfill, filed April 24, 1987, on December 11, 1987, the same day it filed the application which, with subsequent amendments, is now pending. After DER gave notice of its intent to issue the permit on April 15, 1988, petitioners filed timely requests for formal administrative hearing.
DER also received timely hearing requests in response to its notice of intent to issue a dredge and fill permit for the construction of an access road to the site, filed May 20, 1988, in response to its notice of intent to issue a permit for the stormwater management system for the site, filed May 25, 1989, and in response to its notice of intent to grant a variance, filed August 31, 1988.
In accordance with Section 120.57(1)(b)3., Florida Statutes (1987), DER elected to transmit these hearing requests to the Division of Administrative Hearings, where they were docketed as thirteen separate cases. By order entered December 20, 1988, proceedings on all hearing requests were consolidated. As recited in the City's proposed recommended order:
The City and DER presented the testimony of Victoria Tschinkel, an expert in environmental regulation and environmental biology; David K. Nickerson, an expert in wetlands permitting, mitigation, and wetlands ecology; Samuel E. Wiley, an expert in wildlife biology; Janet J. Llewellyn, an expert in wetlands ecology, the assessment of impacts of dredge and fill projects, the evaluation of mitigation plans, and the application of DER's regulations to dredge and fill projects; Heather L. Nixon, an expert in wetland ecology; Glenn E. Lowe, Jr., an expert in zoology and wetland ecology; James A. Nissen, an expert design engineer for the design and operation of sanitary landfills; David E. Deans, an expert in landfill design and the design of liners and leachate collection systems; Hilary Theisen, an expert in landfill operations, odor control, and gas control; Mary C. Nogas; Stewart L. Stover, Jr., an expert in geology and hydrogeology; G. Warren Leve, an expert in geology and hydrogeology; Robert W. Bass, an expert in environmental engineering and leachate characterization; Frank A. Jones, an expert in environmental toxicology; Vincent P. Amy, an expert in geology, hydrogeology and groundwater quality; Firmin W. Southwell; Linda M. Danco, an expert in stormwater engineering; Caroline J. Mitchell, an expert in stormwater engineering; John E. Timberlake, an expert in stormwater engineering; David Miracle, an expert in environmental engineering, with a special expertise in stormwater and surface water management; James A. Horton, an expert in geotechnical engineering; Patrick T. Karney, an expert in wastewater treatment; Janice Nepshinsky, an expert in environmental engineering, with a special expertise in water chemistry and water quality; Mark Santarelli, an expert in well drilling and construction; Richard Wilkins, an expert in the regulation of pollution sources in Florida; Philip M. Coram, an expert in environmental engineering, the application of DER rules to solid, hazardous, domestic, and industrial waste facilities, the review and evaluation of groundwater monitoring plans, and the application of DER rules to stormwater sources.
The McCormicks presented the testimony of J. T. McCormick, J. Haydon McCormick, and Theodore F. Petit.
STOP, Inc. presented the testimony of Mr. Gordon Gruhn.
Petitioner St. Johns County presented the testimony of Thomas H. Patton, an expert in geology, soils, and geologic photo interpretation; Robin Hart, an expert in wetlands ecology; Jim Newman, an expert in wildlife biology; Joseph E. Fluet, Jr., an expert in civil engineering and the design of landfills, geosynthetic lining systems and quality assurance and control programs for geosynthetic lining systems; O. Charles Swallows, Jr., an expert in water resources engineering and groundwater modeling; and Sarah W. Bailey.
Intervenor/Petitioners Florida Wildlife Federation, Inc., Coastal Environmental Society, River Systems Preservation, Inc., Sierra Club, Inc., and St. Johns County Audubon Society presented the testimony of Caroline DeMort, an expert in aquatic biology; A. Quinton White, Jr., an expert in biology, with a special emphasis in aquatic biology; Thomas Beal; William D. Farris; Jeannie Seals; Janice Whatley; Doud Milne; John J. Kappas, Jr., an expert in wildlife ecology; and Lawrence D. Harris, an expert in wildlife ecology.
Intervenor Larry A. Wells testified on his own behalf.
Intervenor Organized Fishermen of Florida, St. Johns River Chapter presented the testimony of Larry Gilmore.
FINDINGS OF FACT
On a site that would abut St. Johns County on two sides, the City proposes to develop as a landfill about 400 of the 880 acres it owns in the southeast corner of Duval County. The proposed southeast landfill is designed to serve the approximately 300,000 people living in Duval County south and east of the St. Johns River, by receiving 1,700 tons of solid waste a day for ten years, 400 or 500 tons a day more than people in that part of the city now generate.
Sandhill and Swamp
Scattered over the portion of the property proposed for solid waste deposition are cypress marshes and blackgum sloughs isolated from a swamp and from each other by upland pine plantation and sandhills. Except for some 40 acres cut off from the remainder by a fill road, the hardwood swamp covering approximately 265 acres of the City's property is part of the pristine "Durbin Swamp system which is a major wildlife area, including habitat for threatened and endangered species." T. 2820. Durbin Swamp south of J. Turner Butler Boulevard and east of U.S. Highway 1 is "the most valuable wildlife habitat in the area, maybe in the southeastern United States." T.2921, 3058.
The City's consultants characterized 64 of the 123 gopher tortoise burrows they found on some 105 acres in the southern part of the site as active. Sherman's fox squirrels feed and nest on the property. Although "very little of the sand hill habitat [remains] in its natural condition on the property," (T.
185) turkey oak, long leaf pine and sand pine communities do survive.
Isolated wetlands scattered through the eastern portion of the site have also been timbered, and ditches intersect many of them. St. Regis Paper Company, who owned the land until earlier this decade, "dug a series of canals
. . . to drain . . . part of the land ["it was called upper wetlands"] . . . so that the ground could be high enough to raise good grade pine trees." T.
1417. "The isolated wetlands . . . provide habitat diversity for wildlife, a seasonal source of drinking water, possible refuge during forest fires, as well
as breeding and forage locations," (T. 1255) according to the City's draft application.
"Wildlife noted on the site includes Florida black bear, white-tailed deer, raccoon, armadillo, cottonmouth, river otter, common night-hawk, alligator, yellow bellied sapsucker, turkey, frog, quail, dove and red- shouldered hawk," (T. 1255) also according to the City's draft application. Bobcats are common. According to the St. Johns River Water Management District's chief environmental specialist, "animals that you would find utilizing the uplands . . . would be a range of small rodents [including] mice, rabbits . . . insects, [mostly tree] frogs, toads, snakes [including] black snakes, rat snakes . . . [o]possums . . . pastorine birds, cardinals, bluejays, blackbirds . . . [and] probably some hogs." T.537-8.
Wood storks wade and feed in the isolated wetlands on site. Wood stork rookeries have been found five miles to the southeast and seven miles north of the City's property. Bald eagles nest nearby but off site. Eagles used the now abandoned eagle nest on Eagle Nest Island "three-quarters of a mile from this proposed landfill site," (T. 1419) at least as recently as 1983. One or more eagles still perch on a dead cypress limb on the property (T. 2422), if not elsewhere on site. Ospreys, southeastern American kestrels (T.2918) and six or seven species of woodpeckers, including the rare hairy woodpecker (T2914) have also been seen on site.
"There are dirt logging roads just as there are in any property in Florida, but not a great number." T. 2751. "Almost all of the pine flatwoods habitat on the site has been replaced with planted pine." T. 184. The property is comparable to the Wacasassa tract in Gilchrist County which is on the Conservation and Recreational Lands list and under consideration for state acquisition because of its "comparatively unaltered nature." T. 2721. In the past, conservation efforts have brought animals to the property for refuge. T. 1420.
Listed Species
The Florida Game and Freshwater Fish Commission (Game and Fish) lists the gopher tortoise and the Shermans's fox squirrel, said by one witness to be "imminently threatened," (T. 2899) as species of special concern. T. 2875. A species of special concern "is beginning to show a decline and needs to be . .
. considered as a target of conservation and if present conditions continue it's going to be listed as threatened." T.2874. Game and Fish lists the Florida black bear, the southeastern American kestrel and the bald eagle as threatened, the same category in which the United States Fish and Wildlife Service (Fish and Wildlife) lists the American alligator.
A threatened species is one destined to become endangered "if present trends continue." T.2874. Both Game and Fish and Fish and Wildlife list the wood stork as endangered, and Fish and wildlife lists the bald eagle as endangered. "An endangered animal is one that under present conditions is in danger of becoming extinct in the near future." T.2874. Listed in the Convention on International Trade of Endangered Species are the bobcat and the river otter.
By definition, rare animals are not often seen in the wild. The parties stipulated that the staff of CZR, Inc., a consultant engaged by the City, spent an aggregate of 1400 man-hours on the landfill site, of which 429 man-hours were spent on site for the purpose of performing a wildlife survey. T.
2803. Despite their effort and putative expertise, the City's consultants did not see even a single listed animal.
This failure contrasts with sightings by hunters and other experts who spent less time on site, and may be attributable to the time of year (two weeks in the fall) the survey was performed (T. 2425-27, 2893, 2899) or to the way in which it was done, (T. 2429, 3067, 3068) which a wildlife ecologist testified rendered it of "trivial value." T. 3079. The study was expedited in anticipation of a hearing date. T. 2426-27. In any case, the survey does not give reasonable assurance that species whose range includes the City's property are not present in suitable habitat on site. T. 2896-97, 3079-80.
This is, indeed, the conclusion the City's own experts reached as regards the gopher tortoise itself, because of the clear sign these creatures' burrows give of their use of the property. Similarly, with respect to the Sherman's fox squirrel, although only a single individual was spotted, distinctive nests and piles of pine bracts on site established their presence. Bear tracks corroborate infrequent sightings on the property, as well as south and east of the site. On a large tract of land to the north, bears are fed daily; three or four feed each day. T. 2421. Alligator sign bore witness to the alligator's use of the property, although the only sighting clearly proven at hearing occurred just across the boundary line.
Of course, wildlife does not respect legal boundaries. There is no reason not to believe that the red-cockaded woodpeckers, with six active nests within three miles or the Bachman's sparrows heard singing nearby do not frequent the City's property, which offers suitable habitat for both.
It is even possible that the Florida panther, common in the area as recently as 30 years ago, may have roamed the site in more recent years in pursuit of deer or feral hogs. Two witnesses swore they had seen Florida panthers within two miles of the site, one only a few months before the hearing, (T. 1362, 1371, 1419), and a third testified he thought a "cat" he had seen two and a half or three years before the hearing just north of the site was a Florida panther. T.2429-32. The Florida Everglades mink, a threatened species according to Game and Fish, has been spotted at least twice in a cypress bog across the street from the City's property, and probably occurs on the property, as well.
Not spotted either on the City's property or on adjacent land, the Florida mouse, the eastern indigo snake and the gopher frog are known to make their homes in gopher tortoise burrows. Of these listed commensal species, the indigo snake is particularly likely to inhabit the site. "The blue indigo snake was turned loose on that property in . . . '81 or '82, since it was an endangered species." T. 1420. The site also affords suitable habitat for the long tailed weasel, under review for listing.
Game and Fish has listed the Florida mouse and the gopher as species of special concern. Bachman's sparrow is under review for listing. Fish and wildlife views both the red cockaded woodpecker and the Florida panther as endangered, while Game and Fish views the latter as endangered but the former as threatened only.
Aquatic or Wetland Dependent
An "aquatic and wetland dependent" species is a species that "requires wetlands or aquatic systems to satisfy some critical biological need in its
natural life cycle," (T. 524) apart from simply drinking water. "[W]ithout wetlands or aquatic systems, these species would probably be extirpated from the state." Id. The Sherman's fox squirrel, the gopher tortoise, the Florida mouse, the Florida long-tailed weasel, the southeastern kestrel, and Bachman's sparrow are not aquatic or wetland dependent. Because they use watery environments for feeding, reproduction and other purposes, the alligator, the wood stork (the only stork in North America) and the gopher frog are aquatic and wetland dependent.
Because "the whole black bear population in our state seems to shift .
. . primarily in the fall and winter months, to the wetlands and . . . eat .
. . fruit produced in wetland trees," (T. 527) the black bear is deemed wetland dependent. The indigo snake is also so classified because it "seemed to be heavily dependent upon eating frogs." (T. 526). Even though not wetland dependent "historically and naturally," (T. 527) the "less than probably 100 Florida panthers left in the state" are now so viewed because "they have more or less been restricted to the major swamp systems," id., without which they probably would not survive.
The contiguous wetlands on site comprise the headwaters of Durbin Creek, which empties into Julington Creek shortly before Julington Creek reaches the St. Johns River. Large scale residential development of lands lying within the watershed of Durbin and Julington Creeks has been proposed. Durbin Creek and the swamp that gives rise to it serve as a "juvenile fish nursery" (T. 2468) for white shrimp, blue crabs, croaker, anchovies, bream, bass, shellfish, bluegill, and sheepshead. Lower dissolved oxygen levels or other stressors in Durbin Creek would decrease populations in fisheries already at carrying capacity, and already threatened by the prospect of overdevelopment.
Dredging and Filling
The City intends to build a road running east and west between the landfill site and U.S. Highway 1 following, for the most part, an existing dirt logging road, and crossing Old Kings Road, built in 1765 to connect the capital of colonial Georgia with St. Augustine. Turbidity screens and staked hay bales would be used during road construction to protect adjacent waters. After construction, seeding and mulching would stabilize the sloping shoulders of the fill road.
In connection with construction of the access road, plans call for filling wetlands contiguous to Durbin Swamp, 2.8 acres within DER's jurisdiction and 3.5 acres within St. Johns River Water Management District's jurisdiction. Fetterbush, gallberry, scrub palmetto, cinnamon fern, bamboo vine and sphagnum moss grow in these contiguous wetlands, under a canopy of slash pine, loblolly bay, cypress and swamp tupelo.
The proposed Class III disposal area would lie two hundred feet north of the south property boundary and 600 feet west of the east boundary. Over significant portions of this 88-acre site, fill dirt is to be used to raise the grade, because the land is so low. Enough fill is to be placed in the marshes and sloughs to avoid depositing solid waste in the water.
Trucks would haul fill dirt to the eastern part of the site ("the area starting at the northeast corner of the Class III landfill and extending about
300 feet to the west, starting from a point about midway along the eastern margin of the landfill, and extending about 450 or 60 feet to the west, and along the southern portion of the Class III landfill, about . . . 600
feet" T. 1562) and elsewhere on site, smothering isolated wetlands, where more or less healthy vegetation, generally of the kind found in the contiguous wetlands, now grows.
The 132-acre Class I disposal area, which would abut the Class III area on the north, would also cover isolated wetlands now on the site. Together with excavation of associated stormwater retention basins, the disposal areas would disturb a total of 46.3 acres of isolated wetlands within the St. Johns River Water Management District's jurisdiction. The St. Johns River Water Management District originally asserted jurisdiction over 48.5 acres of isolated wetlands, City's Exhibit No. 80, but the objectors offered no evidence that staff's subsequent decision that vegetation on one 2.3-acre parcel did not qualify was erroneous.
This total does not include isolated wetlands less than half an acre in extent or isolated wetlands lying both within and without the disposal areas which will cease to function as such when truncated by dredging or filling. In this latter category are some ten acres that will not themselves be dredged or filled. T. 2777-8. St. Johns River Water Management District identified 5.3 acres of high quality isolated wetlands with connections off-site that are to be impacted, City's Exhibit No 80, along with another 11.2 acres of "low quality" isolated wetlands. Id.
No stormwater retention basin would intrude into DER's jurisdictional wetlands, but approximately nine tenths of an acre falling within the St. Johns River Water Management District's contiguous wetlands boundary would be devoted to stormwater retention basins.
Replacement Wetlands
To mitigate the planned filling of contiguous wetlands for construction of the access road, the City proposes "to excavate 3.5 acres of nonjurisdictional pine plantation and create a contiguous swamp wetland." City's Exhibit No. 56. Mature dahoon holly, loblolly bay, cypress and gum trees "will be transplanted from on-site [isolated] wetlands proposed for construction impact." Id. A tree spade is to be used to transplant trees with trunks as much as 12 inches in diameter at "breast height" and up to 50 feet tall, along with existing soils, microbial communities and adjacent understory vegetation. The "physical structure of the trees themselves . . . provide a good deal of the habitat." T. 436. Removing mature trees from isolated wetlands and replanting them in created wetlands would, to some extent, mitigate the loss of perches for bald eagles and other birds.
Mature trees in the created wetland would be replanted at a density "approximately half that of existing on-site wetlands to be impacted." Id. Only
80 percent of the replantings are to be replaced, if they die; and then only if it is clear within three years that replacement is needed. A six-inch layer of organic soil, to be spread after the trees have been transplanted, would "provide for growth of herbaceous vegetation." Id.
The City would monitor the created wetland (part of mitigation area "A") for three years and transplant additional trees, if needed to assure survival of not less than 80 percent of the number of trees originally planted. Of these 3.5 acres, the City has identified 2.8 as specifically intended to mitigate the filling of wetlands within DER's jurisdiction. With respect at least to this portion, the created wetland "will function probably much the same
as the 2.8 acres" (T. 2765) to be filled in constructing the access road and "would compensate for the" (T.2765) attendant loss of vegetation.
In transplanting mature hardwoods, "[i]t's sort of a physical impossibility to get all the root material . . . [and y]ou also get some loss of branches, limbs and stems just from the physical movement of the tree." T. 2482-83. One reason a wetland "system stays wet . . . is a thick canopy." T.2486. With more sunlight streaming through a sparser canopy, the "vegetation is not going to be the same." T. 2487. "[B]ecause you don't expect the wetlands to function as well as the original wetlands you're replacing, there is a general rule of thumb that . . . you create twice as much wetlands as the wetlands you've destroyed." T. 2488.
"A three-to-one ratio would not be unusual for a good mature forested hardwood system." T.467. St. Johns River Water Management District's Applicant's Handbook calls for a ratio between 2:1 and 5:1, but states: "The ratios may also be adjusted when wetlands creation is combined with wetland mitigation proposals such as an open buffer area adjacent to the wetlands, conservation easement, wetland enhancement proposals or alternative mitigation proposals." T. 504. The ratio proposed here is less than one to one.
In all, mitigation area A would comprise 11.0 acres of what is now pine plantation. Aside from a .55 acre pond in the middle, mitigation area A would consist of wetlands contiguous to existing wetlands on which three different, if related, vegetative communities are to be planted.
In addition, the City proposes to create three different isolated wetland areas, one of which (mitigation area D) it characterizes as "high quality." Six acres of what is now pine plantation would be excavated on the north edge of the property. Using the same, experimental techniques proposed for mitigation area A, cypress trees would be placed on 3.4 acres, and 2.6 acres would be devoted to a combination of loblolly, cypress and dahoon holly.
Another 9.8 acres of isolated wetlands would be created within borrow pits, 6.8 acres in borrow area No. 1 (mitigation area B) which would include .55 acres of open water, and 3.0 acres in borrow area No. 2 (mitigation area E.) Just north and east of the truck scales, mitigation area B would receive 200 adult trees per acre planted to the extent they are available on site, or 400 trees per acre planted with nursery stock. The same density is planned for mitigation area E, to be located across the road from stormwater retention basin 4.
The City also proposes to remove a segment of a logging road built on fill that now cuts off 40 acres from the remainder of Durbin Creek Swamp. Removal of the fill and revegetation would not only increase the extent of the swamp by 0.3 acres, it would restore historic sheet flow in that part of the swamp.
Finally, the City proposes to spread muck, if available, over the shallow, southern part of stormwater retention basin 2 and plant 12 acres of grass ("[w]etland herbaceous species" City's Exhibit No. 80) which, however, the City reserves the right to dredge up "from time to time". Id. p.13.
Other Effects, Other Mitigation
Building and operating the landfill on the site proposed would displace upland wildlife and fragment largely undisturbed and undeveloped
wildlife habitat. Fences along the northern, eastern and southern site boundaries would present a physical barrier. Human activity, particularly daytime traffic on the access road, would also create a "bio-geographical barrier."
Developing a landfill at the edge of the swamp amounts to "leapfrogging," instead of expanding existing pockets of industrial or other development. A witness characterized the area to the south of the site as "rural developed"; some 164 people live within a mile of the center of the site.
T. 78. But private ranch lands to the north, like undeveloped land to the east, afford good wildlife habitat. Habitat fragmentation divides and isolates animal populations. "Fragmented populations are more susceptible to disease, inbreeding and with time, poaching." T. 2890.
The landfill would displace gopher tortoises, their commensals, if any, and other wildlife using sandhill or pine plantation habitat, as well as wildife, including wood storks and other migratory birds, making use of the isolated wetlands that are to be filled over. With the filling of isolated wetlands, migratory birds would lose holly berries and other forage. Filling or excavating acreage at the periphery of the swamp would also destroy habitat and displace wildlife.
Wildlife now on site reaching suitable habitat elsewhere will have to compete for limited space against animals that have already established territories. The result should be a net decline in populations. T.2898. Increasingly sequestered, the Durbin Swamp system is already under pressure from urbanization to the north.
For animals that remained in the vicinity, development of the landfill would occasion other difficulties. But evidence that landfill noises and odors "would have no discernible impacts to the value of wetlands as habitats for aquatic and wetland dependent species" (T. 528) went unrebutted. A buffer of at least 50 feet would separate contiguous wetlands from stormwater basins and other construction, but this is considerably less than the 528 feet Dr. Harris testified was necessary to avoid "greatly erod[ing] the native faunal diversity of the Durbin Swamp wildlife." T.3073-74.
Placement of the landfill on this site would increase the numbers of a half dozen "middle-sized mammal omnivores" (T. 3078) so that gopher tortoises, turkey, quail, "anything that nests on the ground will be subject to the plundering by the enhanced population of raccoons, opossums, gray foxes, red foxes . . . and such." T. 3079. Increased numbers of armadillos would also pose a heightened threat to animals that nest on the ground. Landfill operations can be expected to attract seagulls and birds of other species, including nest predators and the brown-headed cowbird, which takes over other birds' nests to lay its own eggs (T. 3071-2) and would pose a particular threat to Swainson's warbler.
It is not clear that any of the mitigation areas the City proposes is intended to replace wood stork feeding habitat that would be lost to dredging and filling. Wood storks feed on dense fish populations in shallow water, when receding water levels make the fish easier to catch. Isolated wetlands on site that have served this function would be lost (T. 2419), although not all of the isolated wetlands to be lost have enough water to support the kind of fish on which wood storks prey.
The deep, steep-sided ponds planned for the mitigation areas do not replicate the necessary conditions. Whether birds may safely feed in or drink from untreated stormwater run-off in shallow portions of the retention basins is doubtful. When it rains, particularly the initial flush of run-off would deliver pollutants, including oil, greases and gasoline left by garbage trucks, to the retention basins. T. 1820-1. Removing the fill road and restoring normal flows to the 40-acre patch of the swamp on the other side, as the City proposes, would not add to feeding areas available to wood storks, except for the 0.3-acre roadway itself.
The project would disrupt "very superior black bear habitat." T. 3059. Tending to avoid human activity, bears would likely range further east, foregoing foodgathering on site. On the other hand, food or other refuse brought to the landfill might lure bears to their deaths, intentional or accidental. "[C]ollisions with human vehicles," (T. 3062) is the chief cause of black bear mortality in Florida. Bears have been killed in this fashion within a mile of the site, (T. 351 1411-4, 2438) although not during daylight hours when the landfill would be in operation and garbage trucks would travel the access road.
Creation of wetlands will not mitigate destruction of upland habitat. On the contrary, additional upland would be taken to create the wetland mitigation areas planned. But the City proposes to give a conservation easement on 129 acres of upland, adjacent to the swamp, that is to remain undeveloped.
The upland easement would preclude a host of uses inimical to wildlife, and would mitigate to some extent the loss of wetland habitat for animals which use both uplands and wetlands, like the black bear, even though cut over slash pine plantation is among the very least important or productive wildlife habitats in Florida. The easement would not include sandhill habitat.
The City has also undertaken to give a conservation easement covering some 260 acres of wetlands contiguous with Durbin Creek Swamp. This would not, of course, increase the extent of existing wetlands, but it would add a measure of protection for those that survived the project. Perhaps most importantly the wetland conservation easement would preclude expansion of the landfill further into the wetlands, as long as it remained in force.
Existing regulatory restrictions on the use of wetlands prevent many uses, even without an easement. Apparently no regulation precludes harvesting bottomland hardwoods, however, so long as no excavation is involved, and vegetation, once severed, is not redeposited on site. But converting deforested areas to pinelands, without a permit from the Army Corps of Engineers would probably not be authorized, under 33 U.S.C. s.1344 (f)(2). See Avoyelles Sportmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983).
The City proposes to relocate gopher tortoises and any indigo snakes, gopher frogs or Florida mice that can be found to an unspecified new home off- site. Survival rates for gopher tortoises after similar relocations in the past have ranged between 30 and 100 per cent. By the year 2,000, the St. Johns County gopher tortoise population is predicted to fall by 90 percent, and Duval County is predicted to be devoid of gopher tortoises, even without relocation efforts of the kind proposed. Some or all of the gopher tortoises slated for removal may be descended from those who were brought to the site from Lake City. Perhaps even some who started out in Lake City would themselves make this second exodus to a new promised land.
Stormwater Management
The site proposed for the southeast landfill does not lie within a basin for which the St. Johns River Water Management District has adopted volumetric requirements. A "set of double [triple (T.1740)] box culverts five feet by eight feet . . . and . . . four other," (T. 425-6), "equalizer culverts," large enough for bears to move through (T. 415) would convey preexisting surface flows. A cross drain in the vicinity of the service plaza would serve the same function. Flood elevations would not increase more than a foot immediately upstream or more than 0.1 feet 500 feet upstream. The access road would not impound surface waters.
Exfiltration trenches paralleling the access road "designed based on South Florida's criteria" (T. 1737) would filter contaminants from water running off the road. Within 72 hours of a 24-hour, 25-year return storm, the exfiltration system would be able to treat twice the volume of stormwater that recurrence of such a storm would generate. T. 1743.
The scale plaza area where garbage trucks moving east on the access road would be weighed before being directed further down the road to a disposal area, is to be built on an upland portion of the property, and with it a wet detention pond to which surface water from the plaza and associated roadway would drain. Swales and berms would divert surface flow from undeveloped parts of the property that might otherwise reach the detention pond. The interceptor ditch and associated works would reduce by 2.5 hours the time of concentration for runoff from a 202-acre watershed, but cause no other changes in watershed characteristics.
A weir would make it possible to regulate overflows and allow detention of run off long enough for biological assimilation of most pollutants. For the 25 year return, 24-hour storm, the pre-development peak rate of discharge (6.3 cubic feet per second) is less than the post-development peak rate without detention (18.4 cubic feet per second) but more than the post- development peak rate of discharge with detention: 3.9 cubic feet per second.
An orifice below the weir, with a diameter of 1.5 inches, is designed to discharge less than half the treatment volume (22,088 cubic feet or 2.5 inches times the impervious portion of the area drained) in 64.21 hours. The design meets DER and St. Johns River Water Management District criteria.
Portions of stormwater retention basins 1 and 2, situated north of the disposal areas, would lie within the 100-year flood plain. These two retention basins are designed to receive stormwater running off the Class I site or diverted around the site, as is stormwater retention basin 3, while stormwater retention basin 4 is intended to collect stormwater flowing off or around the Class III disposal area. Stormwater retention basins 3 and 4, like the southern area of stormwater retention basin 2, are not to be excavated to a depth of more than five feet below grade, to prevent groundwater from seeping into stormwater retention basins, dewatering the wetlands where it would otherwise emerge.
With terraces at 20-foot intervals, to a height of 60 feet above grade for the Class I site and 40 feet above grade for the Class III site, both landfills would resemble Mayan temples, at build out. Ditches around the perimeter of each terrace are designed to convey stormwater to slope drains which would bear water to the level below, eventually to the perimeter ditch on grade, from which it would flow, through box culverts under roads built around the landfill, into the retention ponds. To the extent necessary to prevent
groundwater infiltration, the ditches are to be lined. Stormwater retention basin 2 has two discharge structures, while each other basin has a single discharge structure leading to a ditch that would convey stormwater to Durbin Swamp.
Perforated pipes, swathed in filter cloth, would be buried under highly permeable sand, along the sides of the retention ponds. Installed above seasonal low groundwater elevations, in order to avoid draining groundwater from the area around the ponds, during dry seasons, (T. 1781) they would have to go below seasonal high groundwater elevations, in order to be low enough to serve as drains for the retention ponds. Ambient groundwater would seep into the pipes, whenever groundwater levels outside the ponds rose above the pipes' elevation. But the pipes would still be able to drain the retention ponds, because of the relatively greater (vis-a-vis soils on site) hydraulic conductivity of the highly permeable sand to be trucked in for use as a filter medium.
In time, these side drains or underdrains would clog and require expensive maintenance. But, assuming proper maintenance of the retention pond drains and of the drains that make up the roadway exfiltration system, the landfill and associated development would not flood or dewater wetlands that are not themselves to be dredged or filled. Except what is lost to evaporation, water entering the retention ponds would reach the wetlands, whether through the underdrains, over the weirs and through the conveyance ditches, or by movement underground after seeping through the bottom of the basin.
The post-development peak rate of discharge from the area draining into the stormwater retention basins should not exceed pre-development rates for a 24-hour 100 year return storm or any lesser event. Because of roads and other impervious surfaces, a greater volume of surface water should reach the wetlands, causing stages about two inches higher than under pre-development conditions in "a typical summer thunderstorm." T.1782-3.
The increase in surface flow corresponds to a decrease in water percolating down into the groundwater, and may result in additional loss to evaporation of water that would otherwise reach wetlands. But any such effect will be slight; surface and groundwater levels and surface water flows will not be adversely affected. T. 1783. Nor will existing surface water storage capabilities be adversely affected, despite the placement of portions of retention basins 1 and 2 within the 100-year flood plain. This encroachment at the very edge of the flood plain would rarely have any effect on surface water flows. Almost all development is to occur outside the ten-year flood plain.
The stormwater basins could hold an inch of runoff without discharging water over the weirs. The underdrains, which would, when originally installed, have a hydraulic conductivity of about 130 feet per day, could remove an inch of run-off within approximately 40 hours. On the conservative assumptions that half of a two-foot vadose zone would already be saturated at the time a 24-hour, 25-year return storm dropped an additional 8.9 inches of rain on site, and that soils on site have a porosity of .5, the retention ponds could contain the resultant run-off for treatment, before discharging it first through weirs then through the underdrains.
Three surface water monitoring stations are planned. One upstream would make it possible to assess background conditions. Another at the point of discharge from stormwater retention pond 2 would reveal whether the retention ponds and their sidedrains were functioning as intended. A third monitoring
station in the southwest corner of the site should give similar information as to the roadside exfiltration system.
Hydrogeology
Except in the southeastern corner of the City's property, where the ground slopes down to the east, the land the City owns, like the adjacent land to the south owned by the McCormicks, slopes down in a more or less northwesterly direction, falling from 55 feet NGVD on the southern boundary to
15 feet NGVD at the northwest boundary, which intersects an elbow of the swamp.
Although groundwater flows east of north under the southeast corner of the property, the flow under the property is generally northwesterly, following the topography. Class II groundwater in the surficial aquifer underlies the property at depths ranging "from almost to land surface to five or 10 feet below." (T. 1517). City's Exhibit No. 161. Groundwater flowing northwesterly crops out in isolated wetlands, evaporates, transpires or discharges into the swamp.
To assure that the bottom of each exceeds seasonal high groundwater levels, measured in February of 1987, by the number of inches a 24-hour 25-year return storm would add, fill would be placed under both disposal areas, as needed. Because the Class I solid waste disposal site is to be lined, recharge by rainfall would be precluded there. With a liner intercepting percolating rainwater, groundwater would not attain predevelopment levels. The depression thus induced under the Class I site would more than offset the tendency groundwater under the Class III site would otherwise have to mound up into the bottom layers of solid waste deposited there.
Recharge from rainfall (become leachate) would continue at the unlined Class III site; the height of accumulated waste would slow or stop evapotranspiration offsetting percolation there. But groundwater would flow down steeper gradients to lower levels underneath the Class I site (which lies between the Class III site and the wetlands where groundwater discharges) rather than rising into waste disposed of on the Class III site. The horizontal component of flow would continue to exceed the vertical component by several orders of magnitude.
Beneath the surficial aquifer, which extends to depths of 50 to 100 feet below ground and consists of sand interspersed with a "matrix of soil, organic materials, clays and silts . . . little layers of clay and hardpan" (T. 1517) lies a continuous, confining layer of gray, sandy material with gravel and shell fragments, 12 to 40 feet thick, blanketing the undulating surface of the Hawthorne formation underneath.
"[S]ome 40 percent of the material comprising the Hawthorne formation in this area is clay and the remainder is a mix of sands, silt stone, shell beds and phosphatic sands." (T. 1526) This assures that rainfall or other fluids percolating into the surficial aquifer on site will move horizontally downgradiant, reentering the atmosphere or discharging to the surface, rather than penetrating the thinner aquitard above the Hawthorne formation and sinking another 250 feet or more through the Hawthorne formation itself into the Ocala group and Floridan aquifer below. No subterranean feature in the vicinity permits water in the surficial aquifer to reach the Floridan.
No peat, muck or other unstable soils underlie the site. Under 3,000 pounds per square inch, the maximum load anticipated, the ground is not expected
to settle more than one inch. The addition of fill dirt does not alter this estimate significantly.
Disposal Design
The Class III disposal area would not have a liner, a leachate collection system or gas controls. After travelling through soils under the site, leachate from the Class III site would enter the groundwater. The City proposes to train and direct staff, to the end that only yard trash and construction and demolition debris end up in the Class III disposal area, where waste would be deposited directly on fill dirt or naturally occurring soils. No solid waste is to be disposed of within 200 feet of wetlands contiguous to Durbin Swamp lying within DER's jurisdiction.
A composite liner of the kind in place at Alachua County's southeast landfill would form the corrugated bottom of the Class I landfill: a 60 mil high density polyethelene layer overlying two six-inch lifts of calcium montmorillonite, a clayey sand that is to be placed on compacted subgrade configured in "a herringbone design with peaks and valleys." T.765 Separating trenches in the valleys, sloping ground would rise, then fall at least two feet for every hundred horizontal feet. Steps would be taken to remove rocks, twigs, roots and the like, before compacting subsoils on site.
A machine called a sheepsfoot is to be deployed, once half the montmorillonite has been put down, to pulverize clods and mix the material, in an attempt to assure uniformity within each lift of clayey sand. Other machines would compact each lift to a specified Proctor density. These efforts would not succeed in eliminating all clods or other imperfections, and the sheepsfoot would mix subgrade with the bottom layer of montmorillonite, introducing new impurities. Soils on site have hydraulic conductivity ranging from 1 x 10-3 to
1 x 10-4 centimeters per second. Clayey sand is also subject to desiccation cracking; as it dries out, large cracks appear.
On top of this kneaded, compacted and finished 12-inch layer of clayey sand, once it had been inspected to assure the absence of roots, rocks, sticks, glass or other sharp objects, a specialty contractor would unroll strips of unreinforced high density polyethylene. After arranging the panels to minimize seams in the leachate collection trenches, technicians would weld the polyethylene strips to one another. An independent, third-party quality assurance contractor would inspect and test the seams before the synthetic liner was finally positioned, and as flush a fit as possible was achieved. Both the high density polyethylene and the quality assurance program are to meet the requirements of NSF Standard 54 and EPA Publication SW-870, March, 1983.
Some wrinkling and occasional flaws in the plastic liner are inevitable. Wrinkling causes ponding, not only of rainwater during construction, but also of leachate, once the landfill is in operation. Tire tracks or other indentations in the montmorillonite layer can also cause ponding. In time, under the growing weight of solid waste, and with heat that biodegradation of the waste would generate, some of the wrinkles might subside, but the liner might also sink into additional depressions. Careful construction could keep ponding to a depth of little more than an inch. T. 2971, 2979.
Extrusion welds (when done properly) render the seams stronger than the panels they join. But even if "you are really, really good" (T. 2957) and
even when you're careful you get an
occasional problem, one or two per acre, no matter how careful you are. And if you're not as careful, you get more, typically
something on the order of five holes per acre. T. 2967
Carelessness on one project resulted in as many as 60 flaws per acre. Nondestructive testing methods do not detect all defective welds. T. 2966.
Defects may develop after the plastic liner has been inspected. Stress on high density polyethylene associated with "conform[ing] itself to whatever is underneath it" (T. 2962) concentrates in scratches, gouges and crimps to cause "as much as 30 percent" (T. 2964) of the holes in the material. "[T]here is no shortage of scratches on a construction site." T. 2962.
Leachate Collection
Another high density polyethylene geotextile, chosen for its transmissivity (the geonet), is to be placed on top of the high density polyethylene liner (the geomembrane), where it would act as a synthetic drainage medium. In order to prevent overlying sand's clogging the geonet, compromising its ability to conduct leachate down into the trenches, a third, highly permeable geotextile, "a non-woven needle punched type" (T. 637) (the geofilter) would go directly on top of the geonet. The twelve-inch sand drainage layer blanketing the geofilter would have hydraulic conductivity of 1 x 10-3 centimeters per second, if sufficient quantities of suitable sand could be obtained. (T. 764) Another 12 inches of native soil is to cover the sand drainage layer.
While the geofilter and the soil layers above it would parallel the landfill liner on the slopes between trenches, they would form arches over the trenches themselves. Continuing to follow the contours of the montmorillonite, the geomembrane and the geonet would line the trench bottoms. Below these arches, inert drain field rock would fill the lined trenches, supporting one perforated PVC pipe eight inches in diameter in each trench.
The Class I landfill is to be built in fourteen 250-foot wide cells, with each cell having two leachate collection pipes on 125-foot centers. Manholes at either end of each leachate collection pipe would allow access, in case unclogging the pipe proved necessary. Longitudinally, the trenches would slope to the north, falling two to 20 feet for every 1,000 horizontal feet. Leachate reaching the trenches would flow along the trench bottoms (or through the pipes) to the manholes on the northern boundary.
Also to be made of leachate-impervious PVC, leachate drain pipes, which would not be perforated, would connect all manholes on the northern perimeter. Varying in diameter from eight to twenty inches, depending on the number of manholes they were designed to empty, they would converge at a leachate pumping station north of the perimeter road. T. 590-1. A rupture in one of the single-walled leachate drain pipes could spill massive quantities of leachate on naturally occurring soils.
Leachate which reaches the station is to be pumped into a 12,000 gallon storage tank nearby. To be mounted on a concrete slab surrounded by a curb high enough to contain all 12,000 gallons, if the tank failed, the tank would be constructed of high density polyethylene. The plan is to pump leachate from the tank through a four-inch discharge pipe into tanker trucks which would
take the leachate to the Buckman wastewater treatment plan for disposal there. During "the maximum leachate production period, when you have 10 cells open," (T.687) an average of 35,000 gallons of leachate a day would require removal for disposal in this fashion. Additional tanks could be built.
As a precaution, isolation valves would permit cutting off all flow of leachate to the pump station. In addition, isolation valves would allow cutting off the flow from any of seven pairs of cells (or slowing the flow from all, T. 705) in the event of
an abnormal circumstance where leachate production in the facility exceeds the hydraulic capacity of [the] leachate removal system, the pumping station and storage tank and the tanker truck system. T. 591.
Isolation berms separate each pair of cells susceptible to being put to use as temporary storage for leachate. The leachate drain pipes themselves afford more than 23,000 gallons of emergency storage. T.703.
Ventilation
As they decompose, materials to be deposited in the Class I landfill produce methane gas, carbon dioxide, and other, malodorous gases. Collection pipes with eight-inch diameters, running horizontally on 150-foot centers in the second and fifth lifts would allow gas to escape at either end, on the north and south sides of the landfill.
This would prevent methane's building up and exploding or catching fire. By assuring their gradual release, it should also minimize the impact of foul smelling gases, which, in any event, are generally undetectable at a distance of more than 1,000 feet. But specific condition eight of the proposed landfill permit requires that the passive system be converted to an active system, if necessary, using vacuum suction and flaring.
GIGO
Although there "is not much industry in the southeast portion of Duval County," (T. 953) sewage sludges and other industrial wastes "except any hazardous waste as defined in the Federal Register" (T. 947) would be accepted for disposal at the Class I facility, if properly manifested. The proposed southeast landfill would receive waste that would otherwise have gone to the unlined east landfill. Household waste contains toxic materials.
Tests of leachate generated in other lined landfills from which hazardous wastes are excluded have demonstrated the presence of some 30 metals and 56 organic compounds. City's Exhibit No. 89. Rainfall percolating through (and moisture already present in) waste deposited at the proposed Class I facility can be expected to leach the same array of substances from materials deposited there. Judging from experience elsewhere, leachate from the Class I facility would contain 13 or 14 (if 4-methyl phenol is included) substances in concentrations in excess of governmental standards or health-based criteria identified by a toxicologist engaged by the City. City's Exhibit No. 90.
Among these would be methylene chloride, trichloroethylene, tetrachloroethylene and benzene, (T. 1478) as to which "the current regulatory policy is that it is possible for as little as one molecule . . . to act as .
. . a carcinogenic initiator . . . [so] that there is no real threshold." T. 1447. Maximum concentrations would exceed those Florida prescribes as primary drinking water standards for titanium threefold, for benzene fivefold, for chromium more than fivefold, for sodium approximately 16-fold, for manganese 68- fold, for iron 280-fold, and for methyl ethyl ketone almost 130-fold. City's Exhibit No. 90. Methylene chloride would occur in the leachate in concentrations 39 times greater than the "USEPA proposed Preliminary Protective Concentration Limits." Id.
Only yard trash "soils/land clearing waste, waste from landscapers" (T.956) and construction and demolition debris, "clean debris, inert materials, construction and demolition wastes that are inert, roofing materials," id., and the like, not mixed either with industrial or with regular household garbage, would be accepted for disposal in the Class III facility. Unless these materials are adulterated, they are "easy to bio-degrade . . . [or] are insoluble," (T. 1923) and rainwater percolating through them should yield a leachate with "neutral pH . . . low to moderate [biological oxygen demand] . .
. [and] metals [if any] . . . below detection limits or background conditions." T.1923.
But "some materials get in" (T. 2106) despite efforts to exclude them. "Demolition debris can have oiled floors and creosoted pilings as part and parcel of the structure." T. 3008. Old paint contains lead and cadmium. Debris from old houses can include rat poisons.
Grass clippings "could contain small amounts of herbicides and pesticides." T.2101. In fact, "it's not unusual for yard waste to be very rich in biocides." T. 3009. Such chemicals are used in Jacksonville. When autopsies of seagulls found at the Girvin Road landfill revealed traces of diazanon, tests of water taken from "the stormwater ponds in the subdivision across the street" (T.990) showed diazanon was present there. Bioassays the DER runs on effluent from the City's Buckman wastewater treatment plant regularly report toxicity in excess of allowable limits (T.1877-8) and the EPA has "identified malathion and diazanon as the toxicants," (T. 1881) which are killing at least one species of flea in certain standard laboratory tests performed on the effluent.
Leachate Leakage
The composite liner would not keep all leachate generated in the Class I landfill from reaching the naturally occurring soils underneath, and eventually the groundwater under the site. Even under normal operating conditions, and even on the City's optimistic assumption that it can achieve a permeability of 1 x 10-7 centimeters per second, thousands of gallons of leachate a year would escape through flaws in the liner while the landfill was in operation. If leachate drain pipes burst or torrential rains required backing leachate up in the cells, thousands of gallons a day could leak. If two lifts of clayey sand achieve a permeability no lower than 1 x 10-5 centimeters per second, millions of gallons of leachate would enter the groundwater over the ten-year active life of the landfill, even without burst pipes or extraordinary precipitation.
Once the Class I landfill attained the design height, it would be capped with impermeable materials to minimize leachate generation. As with the liner underneath, the impermeable cap would be covered with sand to facilitate drainage. Vegetation would hold the drainage soil in place. Closure plans have already been drawn, but they are subject to revision and require DER approval before implementation. If necessary, side slopes could be lined to prevent
leachate seepage there. Closure would reduce, but would not end, leachate production and leakage.
Virtually impermeable to water, high density polyethylene is highly permeable to certain permeants, including some that occur in landfill leachate. Leachate constituents known as "aromatic hydrocarbons" move "right on through" (T. 3017) high density polyethylene. To some extent, the montmorillonite component of the liner under the Class I area would impede these materials' movement into naturally occurring soils. The evidence did not quantify the montmorillonite's efficacy in this regard, but the City's expert's testimony that leakage of this kind would be "insignificant" (T. 830) went unrebutted.
Permeation aside, the rate at which leachate leaks depends on the nature, number and size of flaws in the synthetic liner, the height and duration of the leachate head above the defects, and the transmissivity of what is underneath. Here transmissivity turns both on the hydraulic conductivity of the clayey sand in the vicinity and on the extent of air spaces between the clayey sand and the overlying high density polyethylene. Sand grains cause microscopic spaces, while imperfections in the montmorillonite layer and wrinkling of the polyethylene cause larger spaces. Leachate leaking into a space between the geomembrane and the soil spreads over a larger area before penetrating the clayey soil, in correspondingly larger volumes.
Calculations predicated on the transmissivity characteristics of the geonet and the sand layer above it demonstrate a theoretical leachate flow over the liner so rapid that leachate would never accumulate on the geomembrane to a depth of as much as a tenth of an inch. But these calculations assume no ponding behind wrinkles in the synthetic liner, or any other impediment to the flow of leachate. Especially since holes in liners are likely to occur near wrinkles (because stresses are greater there) a more realistic assumption, for calculating leachate leakage rates, is a head of one inch, "the smallest practical hydraulic head you can achieve." T. 2994.
On the twelfth day of hearing, when St. Johns County's liner expert testified that a six-inch layer of the montmorillonite might result in permeability as high as 5 x 10-4 centimeters per second, the City had not yet amended its application to increase the thickness of the clayey sand layer from six inches to twelve. The City's proposal now calls for two lifts of a 20 percent clayey sand with a saturated hydraulic conductivity in situ of 1 x 10-7 centimeters per second.
This can be achieved, if at all, only with material that laboratory tests indicate has hydraulic conductivity of 1 x 10-9 centimeters per second or less. "[I]f you put down clay that the lab says has a permeability of 10 to the minus 7 centimeters per second, . . . when you put it down in the field you get from one to two orders of magnitude greater permeability than that. . . .
related to how thick it is." T. 2988. Even a three-foot liner comprised of six lifts ends up with conductivity ten times greater than the same material under laboratory conditions.
Mr. Deans, who designed the liner for the City, testified that a permeability of 1 x 10-7 centimeters per second was "readily achievable" even with six inches of clayey sand, but he had never designed a liner before, and his testimony in this regard has not been credited. To judge from its eleventh- hour amendment, the City did not believe it, either. Only two lifts are to comprise the clayey sand layer. No study of a clayey sand layer as thin as 12
inches has found hydraulic conductivity of less than 1 x 10-5 centimeters per second.
Three lifts are necessary to create an effective barrier. "[Y]ou need at least three lifts to get the middle one hopefully working right." T. 2987. "[E]ngineers believe that the bottom layer gets fouled, the top layer cracks and has problems. Your best chance is the in between layers. You need at least three layers, and they would rather have four to be reasonable, and EPA says six." Id. Studies of twelve-inch liners put down in two lifts ("[t]he thinnest one we found anybody had ever studied" T. 2980) showed them to be "inadequate." T. 2987.
With an inch of head, assuming defects with an average area of 1 x 10-5 square meters, an assumption with which all the experts seemed comfortable (the City's expert assumed larger holes), the published EPA formula yields a per defect leakage rate of 6.7598 x 10-11 cubic meters per second, assuming hydraulic conductivity for the montmorillonite layer of 1 x 10-7 centimeters per second. But plans to use only two lifts to form a 12-inch layer do not give reasonable assurance of vertical hydraulic conductivity that low.
Mr. Coram's testimony to the contrary, expressly predicated on reports of laboratory tests on samples, did not address the evidence that laboratory tests do not tell the whole story, in the case of a thin layer of clayey sand compromised not only by inherent imperfections, but also by highly permeable subgrade soils, kneaded into it by the sheepsfoot. Because "clods are broken down in the laboratory and stones and cobbles are screened from the sample . . . the effects of both are not accounted for in permeability tests on laboratory compacted samples." City's Exhibit No. 190. Substituting a hydraulic conductivity of 1 x 10-5 centimeters per second, the EPA formula yields a leakage rate between 57 and 58 times greater: 3.8898 x 10-9 cubic meters per second.
Although the EPA's most recently published leak rate formula makes no allowance for less than an ideal fit between the components of a composite liner, City's Exhibit No. 190, the author of the EPA formula, who testified for St. Johns County, subscribed to modifications to the formula developed to take this factor into account. DER's Exhibit No. 35. The montmorillonite layer's hydraulic conductivity is an unrealistically low measure of the transmissivity of the medium underneath the polyethylene. Using it for this purpose, without adjustment, ignores inevitable, intervening air spaces.
Perfect contact between a synthetic liner and the soil it overlies cannot be accomplished, even in a laboratory setting. On a project of the kind proposed, contact would range from good, where the relatively larger size of sand grains in the clayey mix creates air spaces, to poor, where wrinkles (left in to avoid the weakening effects of stretching the material) cause much larger air spaces.
No expert found fault with the more recent formulae (Bonaparte/Giroud) set out in DER's Exhibit No. 35, and none quarreled with the proposition that the published EPA formula made unrealistic assumptions about the contact between polyethylene and clayey sand. The Bonaparte/Giroud formula that assumes good contact yields a leakage rate of 1.6090 x 10-8 cubic meters per second per defect, a little more than four times what the EPA formula predicts for an ideal fit, assuming an inch of head and vertical hydraulic conductivity for montmorillonite in situ of 1 x 10-5 centimeters per second.
Assuming poor contact, without varying any other assumptions, yields a leakage rate approximately 5.5 times greater: 8.8115 x 10-8 cubic meters per second.
In its proposed recommended order, at page 35, DER accepts, at least for purposes of argument, the proposition that contact between soil and geomembrane would be poor in places, and calculates a leachate leakage rate of
5.45 x 10-3 gallons per day (2.3887 x 10-10 cubic meters per second per defect.) But this assumes that "the permeability of the City's clay liner will be 1 x 10-
7 cm per second and the maximum head over liner will be 0.062 inches." The evidence showed that the maximum head could not be kept below one inch, and did not give reasonable assurances that two lifts would result in vertical hydraulic conductivity of 1 x 10-7 centimeters per second for the clayey layer. Substituting an inch for .062 inches gives a rate of 2.9177 x 10-9 cubic meters per second. Substituting 1 x 10-6 for 1 x 10-7 and an inch for 0.062 inches, the leakage rate becomes 1.6034 x 10-8 cubic meters per second.
Groundwater Contamination
Uncontroverted expert opinion put the flow of groundwater under the Class I disposal area at 0.063 cubic feet or 0.47 gallons per day (2.0592 x 10-8 cubic meters per second) through a hypothetical square or cube one foot on a side. Except under unusual conditions, leachate leaking from the Class I facility would, before entering the groundwater, pass through approximately a foot of fill dirt or naturally occurring soils, which consist in large part (92 to 99 percent) of relatively inert, quartz sand. The presence of organic materials, however small the quantities, raises the prospect of adsorption and other chemical reactions, before steady state is attained. Physically, the soil would disperse the leachate, diminishing concentrations of leachate constituents entering groundwater.
After such attenuation as the soil afforded, leachate would enter the groundwater, which would dilute and further disperse it, although not nearly as dramatically as the City's toxicologist testified. This witness assumed uniform mixing, rather than the discrete plume which persons with greater expertise in groundwater contamination convincingly predicted. By using the rate of "groundwater flow beneath a defect and the rate of leakage through that defect
. . . [he] c[a]me up with a volume to volume dilution factor to identify a concentration in the groundwater." T. 1214. Because Dr. Jones took an unrealistically low leakage rate as a starting point, he predicted an unrealistically low concentration of one part leachate to 4,400 parts groundwater, inside a cubic foot immediately below each leak. Concentrations vary directly with the leakage rate per defect. T. 1224.
The formula that assumes good, but not ideal, contact between liner components yields a leakage rate per defect of 1.609 x 10-8 cubic meters per second, if the layer of clayey sand has hydraulic conductivity of 1 x 10-5 centimeters per second. Substituting this leakage rate, the City witness' methodology yields a dilution ratio of 2.0592 parts groundwater to 1.609 parts leachate, or 1.2798:1, more than a hundred times less than the 130:1 dilution ratio that the City concedes is the minimum it must prove, at the edge of the zone of discharge. See Respondent City of Jacksonville's Motion to Strike St. Johns County's Memorandum Concerning Leachate Rates, p. 5. Substituting the coefficient for poor contact, the ratio in the hypothetical cube under the landfill becomes a paltry 2.0592 parts groundwater to 8.8115 parts leachate or
.2337:1.
Using Dr. Jones' methodology, a leakage rate of 1.6034 x 10-8 cubic meters per second per defect would result in leachate concentrations in groundwater of one part leachate to 1.2483 parts groundwater. Substituting a rate of 2.9177 x 10-9 cubic meters per second per defect yields a ratio of 2.0592 parts groundwater to .29177 parts leachate, or one part leachate to 7.0576 parts ground water. Even if the contact between geomembrane and montmorillonite were uniformly good and the clayey sand layer had a permeability of 1 x 10-7 centimeters per second at every point, a dilution ratio of only 37.4444:1 would result.
In 132 acres of high density polyethylene, the evidence showed that 660 flaws could reasonably be anticipated, and that 132 flaws were absolutely unavoidable. Methylene chloride would end up in the groundwater in proscribed, carcinogenic concentrations as far away as 20 feet from many leaks within 90 days. Under some leaks, perhaps all, benzene, a proven human carcinogen, would also occur in prohibited concentrations. As leachate plumes dispersed, concentrations would diminish, eventually to levels at which they pose "potentially acceptable" (T. 1475) risks even in the case of "a 70-year water consumption of two liters of water per day by a 70-kilogram adult." T. 1217. No evidence suggested that they would remain in concentrations above these levels by the time they reached the edge of the zone of discharge.
City's Exhibit No. 193, which uses a leakage rate much lower than the range of leakage rates likely to occur, if the landfill is built, predicts concentrations of various leachate constituents at the edge of the zone of discharge, assuming a leak at the edge of the disposal area. Multiplying predicted concentrations by quotients, obtained dividing likely leakage rates by the assumed rate, suggests carcinogenic leachate constituents would not occur in prohibited concentrations at the edge of the zone of discharge. But extrapolating in this fashion also suggests that violations may occur outside the zone of discharge, absent attenuation in the vadose zone, in the event of a leak at the edge of the Class I disposal area, for iron, manganese and methyl ethyl ketone.
Groundwater Monitoring
The City proposes to place monitoring wells at intervals of 250 to
500 feet around the Class I and Class III disposal sites. Some 25 shallow monitoring wells would be located 50 to 100 feet from the deposition areas, within the zone of discharge. In addition, seven clusters, each consisting of three wells screened at different depths, would punctuate the boundary of the zone of discharge. A cluster of wells upgradient would make it possible to monitor background conditions. With two-inch diameters and ten-foot screens, each well would receive a flow of less than a gallon a day.
The contaminant plume from the Class III landfill would be large enough to be detected readily in samples drawn from a number of wells. But there was testimony that the plume, even from a 10-foot wide leak at the edge of the Class I disposal area, could pass between two wells 500 feet apart, undetected. Rather than a single large leak, moreover, the experts predict hundreds of small leaks in the Class I disposal area liner.
The assumption is that flaws in the geomembrane would have an area of only one tenth of a square centimeter, on average. Any one of the plumes emanating from such a leak could easily pass undetected through a 500-foot gap between monitoring wells. The monitoring plan apparently relies on the great
number of leaks expected. But even if samples from a monitoring well revealed a leak, the magnitude of hundreds of other leaks would not be disclosed.
Well Contrived
After the City filed its application for a permit to construct a landfill, but before DER had issued its notice of intent to grant the application, four wells were put in on the McCormick property, within three feet of the southern boundary of the City's property, and within 205 feet of the proposed Class III disposal area. The wells are more than 500 feet from the lined, Class I disposal area. Spaced at 1,000-foot intervals, within a 125- foot-wide utility easement in favor of the City of Jacksonville Beach, three of the wells are 25 feet deep and one is 28 feet deep. McCormicks' Exhibit No. 7.
Each consists of a length of PVC pipe, 1 1/4" in diameter, leading to a red pitcher pump mounted on a wooden platform supported by four fence posts. City's Exhibit No. 194. Pumps of this kind must "periodically be pumped and primed or they have to periodically be taken apart and have the internal seals and leather valves replaced." T.2005.
On April 7, 1988, the St. Johns River Water Management District issued a warning notice to "Haden McCormick" alleging that the wells had not been grouted, had been dug without necessary permits, and had not been the subject of required well completion reports.
The next day, the St. Johns County Environmental Protection Board, apparently in response to applications inspired by the warning notice, issued a permit for each well designating the "usage" of each as irrigation. McCormicks' Exhibit No. 7. Well completion reports dated April 14, 1988, reported that the wells had been grouted. McCormicks' Exhibit No. 3.
Asked the purpose of the wells in a deposition on April 25, 1988, J.
T. McCormick said, "We need to monitor what [the landfill is] doing . . . [W]e need to . . . prepare ourselves for having people live in this area, to occupy it, to monitor it." T. 2227-8 A week earlier J. C. Williamson, Jr. had requested on behalf of B.B. McCormick and Sons, Inc. that the St. Johns County Environmental Protection Board amend the permits to show well usage as "Private Potable" instead of "Irrigation". This request was granted on April 27, 1988. McCormicks' Exhibit No. 2. On May 2, 1988, St. Johns River Water Management District's chief hydrologist wrote a lawyer for the McCormicks that "the completion reports submitted by a licensed driller, and the St. Johns County permits fulfill the requirements of the District." McCormicks' Exhibit No. 1. Analysis of samples of water taken from the wells on February 27 and 28, 1989, revealed total coliform levels acceptable for private wells.
John Haydon McCormick explained the decision to put the wells in: [D]uring that week the City had filed their
application with the DER which, in a sense,
fixed their design . . . and when we became aware that this Class III landfill was as close as it is to our border, we became concerned about the future use of potable drinking water, and after consulting with counsel we were informed that we could legally install wells along that border.
T. 2242.
No owner of the property where the wells are located lives on the property nor, as far as the record shows, has an owner or anybody who does live on the property ever drunk water from the wells. About a half mile from the City's property are two other wells near a house on the McCormick property.
When an owner's son drank water from one or more of the wells, as recently as the fall of 1988, he had to take water to the site with him in order to do it. The hand pumps require priming and nobody has bothered to store water near them for that purpose. On February 26, 1989, when the City's expert arrived for "splitting samples to submit to different laboratories," (T.1007) The "pumps were in a 20-gallon washtub in the back of . . . one of Mr. McCormick's employee's trucks. They were all removed from the well heads . . . [apparently] being soaked to generally recondition the seals in the pumps and to sanitize the pumps." T.2008 Two "of the old leather seals from the pumps [were] on the ground." T.2009.
Within the shallow aquifer, groundwater flows from the wells northerly underneath the proposed Class III disposal area in the direction of Durbin Swamp. Use of the four existing wells "would in no way modify the groundwater flow system." T. 2045. But a well or wells could be so constructed on the McCormick property that continuously pumping from them would reverse some of the groundwater flow under the proposed Class III disposal area, to the extent that water flowing from beneath the Class III disposal area could be drawn from one of the existing wells along the McCormick boundary. T. 2075-80. Nor would consumptive use permits be necessary to dig wells which could cause such a change in groundwater flows. T. 2075.
When the City discovered the wells abutting the southern boundary of its property, it did not direct its engineers to alter the design of the landfill to preclude solid waste disposal within 500 feet of the wells. The total project cost, excluding legal fees, is estimated in the neighborhood of
$46,000,000. Redrawing the plans now to reduce the size of the Class III disposal area, without altering the size of the Class I disposal area, would take two to three months, and cost approximately $100,000.
This approach would require reducing the capacity of the Class III area from 4.1 million cubic yards to 2.5 million cubic yards and, unless construction debris, which can be disposed of without a DER permit, were diverted elsewhere, its useful life from about ten years to about six years. Tipping fees would have to be higher "to recover the capital fixed costs over fewer tons." (T. 2208) Increased design costs alone would require recouping an additional 4 cents per cubic yard (more considering the time value of money) from tipping fees for Class III debris. Operations would be less efficient and presumably more expensive. T. 2207.
Alternatively, the entire facility could be redesigned to achieve the same capacity and useful life as now contemplated. Such a redesign would require four to six months' work and cost approximately $250,000. Recovering this cost through increased tipping fees for Class III wastes would add slightly more than 6 cents a cubic yard (again ignoring the time value of money.)
Alternative sites for disposal of Class III waste are available to the City. Indeed the site for which the City now seeks a permit was not even among the ten sites originally considered for the project. T. 2224-5. Decreased transportation costs to another site closer to the source of such
waste might more than offset increased tipping fees. But separate facilities could create other problems. Ms. Nogas explained:
From an operations standpoint . . .If I run
out of Class III area and . . . site a separate Class III area somewhere else, if I had a truck coming to that facility and he really should have been in a Class I area, and I say "No, go out the gate and go five miles down
the road . . .[to the] Class I facility," . . . I have a much better chance of . . . him never showing up at my Class I facility. T 2208-9.
On the other hand, when asked about placing a Class III facility elsewhere in Duval County, Ms. Nogas, reiterating an earlier statement, testified, "[I]f that were what we had to go to, I would have no operational problems with it." T.
221.
Mr. Wells' testimony that there "are 16,000 acres of less environmentally flawed acres seven to 12 miles from the generating centroid accessible from four-lane roads and not near residential or commercial properties," (T. 1248) and that the proposed site "is the furtherest site from the generating centroid, 21 and three-quarters miles to the dump site, and will cost taxpayers an extra $3 million to $5 million a year in longer haul time" (T. 1247) was received on the issue of the decisionmakers' credibility only.
CONCLUSIONS OF LAW
Because DER has transmitted petitioners' requests for formal administrative hearings to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3, Florida Statutes (1987).
Variance Sought
Central to the issues in dispute is whether the City's application for a permit to construct a landfill should be granted under Chapter 17-701, Florida Administrative Code. Listed as "Prohibitions," this Chapter's first substantive criteria proscribe solid waste disposal, "within 500 feet of an existing or approved shallow water supply well . . . ." Rule 17-701.040(2)(c), Florida Administrative Code. The City raises the preliminary question of whether its plans for the landfill must conform to this provision of the rule. While asserting that the McCormick wells do not qualify as "shallow water supply wells," the City also contends that its petition for variance should be granted, excusing it from compliance with Rule 17-701.040(2)(c), Florida Administrative Code.
After the City filed its petition for a variance from the provisions of Rule 17-701.040(2)(c), Florida Administrative Code, in accordance with the provisions of Rule 17-103.100, Florida Administrative Code, DER published notice of intent to grant the variance in accordance with the provisions of Rule 17-
103.100 and 17-103.150, Florida Administrative Code and Section 403.201(3), Florida Statutes (1987).
In response, the McCormicks filed a timely petition for an administrative hearing on DER's intent to grant the City a variance, in
accordance with Sections 120.57(1) and 403.201, Florida Statutes (1987) and Rules 17-103.100, 17-103.155 and 28-5.201, Florida Administrative Code. On or about September 28, 1988, the Sierra Club, Inc., Coastal Environmental Society, Inc., and River Systems Preservation, Inc., filed verified petitions for formal administrative hearing on the City's petition for variance. These intervenors have full party status in accordance with Section 403.412(5), Florida Statutes (1987).
Burden of Proof
A party seeking a variance from DER's rules bears the burden of demonstrating entitlement to the variance. The City seeks a variance as a step in obtaining the permit required by Rule 17-17.030(1), Florida Administrative Code. The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787, (Fla. 1st DCA, 1981); Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, (Fla 1st DCA 1977). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
DER has not taken final action here. After DER issued its notice of intent to grant the City's petition for variance, substantially affected persons made timely requests for formal administrative proceedings. DER's action on the petition must, therefore, be deemed tentative only. Couch Construction Co. v. Department of Transportation, 361 So.2d 172, 176 (Fla. 1st DCA 1978); McDonald
v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979).
With the initiation of formal administrative proceedings, DER became "a party litigant" Section 120.57(1)(b)3., Florida Statutes (1987), and its notice of intent to grant operated principally as a statement of position aligning it with the City. Of course, DER is not just any "party litigant."
On receipt of the recommended order, DER will have an opportunity to revisit the question on the basis of the facts found and record made at the formal hearing.
DER cites B. K. Roberts v. Department of Environmental Regulation, 5 FALR 1542-A, (DER; August 15, 1983) for the proposition that a third party objector must show "that the Department [proposes to exercise] its discretion arbitrarily or capriciously, or in a manner that would violate the requirements of equal protection," DER's proposed Recommended Order, page 37, in order to meet a supposed burden to persuade DER not to grant a variance. But this proposition cannot be squared with DER's rules, which explicitly provide:
In licensing (permit) proceedings, including variance, exception . . . or other similar proceedings . . . the applicant shall have
the burden of establishing, by a preponderance of the evidence, entitlement to the requested license, variance, exception . . . or other relief.
Rule 17-103.130(1)(a), Florida Administrative Code. (Emphasis supplied.) If DER proposes to grant a permit application it deems to have met all requirements laid down by statute and rule, the apparently complying applicant has the burden of proof, nevertheless, in any formal administrative hearing properly requested by third party objectors. DER's own rule provides that the burden is no less
when an apparently noncomplying applicant requires a waiver of the rules, if the permit is to issue.
The discretion Section 403.201, Florida Statutes (1987) confers on DER must be exercised in a consistent, principled fashion. By implication contending no such requirement exists, DER argues that "there is no specific requirement in any statute or rule that the Department act in a uniform manner in granting or denying variances (Roberts at 1544-A)." DER's proposed Recommended Order at page 38. This proposition, like the proposition that the agency's decision on variance requests must be respected, unless proven arbitrary or capricious, must be rejected. Failing to afford like cases like treatment violates equal protection requirements and offends fundamental notions about legitimate governmental action.
The statute authorizing DER to grant variances specifies that they be granted for the following reasons:
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular
re-quirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall
each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification.
Section 403.201(1), Florida Statutes (1987)
The City has applied under subsections (a) and (c) for a ten-year variance alleging in its petition that denial "will necessitate substantial re- design of the Class III landfill" with attendant delay and cost, that a redesigned Class III facility's small size would require developing another such site sooner, and that "any leachate emanating from the Class III landfill would not reach the wells."
It is this leachate, not the solid waste itself, that should be viewed as "pollution" for purposes of Section 403.201(1)(a), Florida Statutes (1987). For these purposes, pollution is defined as:
the presence in the outdoor atmosphere or waters of the state of any substances, contaminants . . . or man-induced alteration of the chemical, physical, biological or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human
health or welfare, animal or plant life, or property . . . .
Section 403.031(7), Florida Statutes (1987). See the last sentence of Rule 17- 701.020, Florida Administrative Code. Rainwater percolating even through yard trimmings can leach substances that will alter the "chemical integrity" of the groundwater that receives the leachate, and pose at least a potential threat to biota.
Various practicable means for the adequate control of landfill leachate are known and available. The proposed Class III facility is to be unlined, although at least one Class III facility already built in Florida has a liner and a leachate collection system. T. 2097. The Class III site could be relocated, on the City's southeast cite, or off. One of the City's engineers testified redesigning could accomplish placement of both the Class I and the Class III facilities on site more than 500 feet from the wells. This would obviate the operational problems foreseen if the size of the Class III facility were reduced.
The present case is not one where adequate control technology is beyond the engineers' ken or economically out of reach, which is what Section 403.201(1)(a), Florida Statutes, contemplates. Nor is this a case where the cost is so great it "must be spread over a considerable period of time," Section 403.201(1)(b), Florida Statutes (1987); and the city does not contend otherwise. In an appropriate case, delay might constitute "hardship of a kind other than those provided for in paragraphs (a) or (b)," Section 403.201(1)(c), Florida Statutes (1987), but this is not such a case. By redesigning when the wells were discovered, the City could have avoided any delay redesign might now entail.
The City and DER cite Dobbs et al. v. State of Florida Department of Environmental Regulation et al., 6 FALR 3439 (May 16, 1984) for the proposition that "'hardship' under Section 403.201(1)(c), Florida Statutes, may include economic hardship of a kind different than that contemplated by paragraph (1)(b)." At 3441. In Dobbs, the evidence established a need for three or four months' study "to identify the specific problem," before work on solving the problem could even begin. Here the City has been aware of the "specific problem," as well as alternative solutions, for more than a year.
DER argues that a hardship exists under (1)(c) "since the hardship may be not only the cost to the City but also to the residents of Duval County." DER's Proposed Recommended Order at 38. On a per capita basis, however, the cost would be less than a dollar for the ten-year useful life of the project. The present case does not involve any "extremely high recurring economic costs of meeting statutory or regulatory requirements." See In re: Petition for Variance of Lee-Mar Construction Co., 4 FALR 1450-A, 1451-A (April 23, 1982). At issue here is a one-time cost (amounting to less than one percent of the total cost of the project) for a facility designed to last a decade. No economic hardship within the meaning of the statute was proven.
The City's argument that the risk of pollution upgradient is slight is not without force. Cf. In re: Petition for Variance from City of Naples 4 FALR 1449-A (DER; April 23, 1982) ("relatively limited negative environmental impact of yard trash waste disposal" upland from surface water) It might be argued that no setback upgradient even from a more insidious pollution source is needed. But no challenge to the rule has been initiated under Section 120.56, Florida Statutes (1987), and the wisdom of DER's setback rule is not at issue
here. In the absence of proof of hardship within the meaning of Section 403.201(1), Florida Statutes (1987), DER does not have discretion to apply the perceived "spirit," in defiance of the clear letter, of its rules.
The City has not made the preliminary showing necessary for a "balancing of the equities." Only when a hardship is proven is DER authorized to grant a variance if, on balance "social, economic, and environmental impacts" and other factors specified in Rule 17-103.100, Florida Administrative Code, support a variance. See In re: Petition for Variance of Lee-Mar Construction Co., 4 FALR 1450-A (DER; April 23, 1982) and In re: Petition of Variance from City of Naples, 4 FALR 1449-A (DER; April 23, 1982). Apparently, DER has never before proposed to grant a variance under Section 403.201(1)(c), Florida Statutes (1987) for a period in excess of 24 months. The statute affords no authority for grant of such a variance here.
Landfill Rule Criteria
The proposed landfill would contain a Class I facility, subject to the following more detailed location requirements, as well as specific design and performance standards:
17-701.050 Sanitary Landfill Criteria. Applicability. The criteria contained in Florida Administrative Code Rules 17-701.050 and 17-701.060 are applicable to all new landfill construction permits issued by
the Department after the effective date of this rule.
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Classification of Sanitary Landfill. Sanitary landfills are classified into three
(3) different classes based on the amount and type of wastes received at the landfill.
(a) Class I landfills are those which receive an average of 20 tons or more of solid waste per day as weighed by scale if available, or 50 cubic yards or more of solid waste per day as measured in place after covering. Such sites shall receive an initial cover at the end of each working day in accordance with Florida Administrative Code Rule 17-701.050(5)(m).
* * *
Location Requirements.
(a) Solid waste shall be disposed of only in landfills where a ground water monitoring plan, including a hydrogeological survey, has been completed in accordance with Florida Administrative Code Rules 17-28.700(6) and
17-701.050.
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(c) Site Requirements.
The land disposal site location shall:
be easily accessible by collection vehicles, automobiles and where applicable, transfer vehicles;
safeguard against water pollution originating from the disposal of solid waste;
have an adequate quantity of acceptable earth cover available. The cover material shall be easily workable and compactable.
conform with the proper zoning.
Landfill Design. Class I and Class II landfills shall have a liner. Landfills may be designed for sectioned, or phased, construction and closure at scheduled intervals throughout the life of the landfill. Landfill closure design shall address applicable requirements of Florida Administrative Code Rules 17-701.071
through 17-701.076. Landfill design plans shall include:
* * *
(e) Ground water monitoring plan.
* * *
Landfill performance and design standards. Performance standards established by the following criteria are the standards which
the landfill is to achieve. Design standards are also presented herein which may be used to achieve the performance standards. Alternative designs which achieve performance standards may be used upon approval by the Department.
Liner construction or installation.
Construction or installation of liners shall
be in accordance with the methods and procedures given in Lining of Waste Impoundment and Disposal Facilities, EPA publication SW-870, March 1983, which is hereby incorporated into this rule by reference. Copies of this document may be inspected at the Department's district offices.
Liner performance standards. The liner must be:
Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climactic conditions, the stress of installation, and the stress of daily operation;
Installed upon a base, or in a hydrogeological setting capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and
Installed to cover all surrounding earth likely to be in contact with the waste or leachate.
Liner Quality Control Plans.
Soil liners shall have a . . .
Synthetic liners shall be in accordance
with a Department approved quality control plan which incorporates the manufacturer's specifications and recommendations.
Liner Design Standards.
Soil liners:
Shall be a minimum of 3 feet of soil e.g., clay, with an in-place saturated hydraulic conductivity not greater than 1 X 10-7 cm/sec. Saturated hydraulic conductivity shall not be increased above 1X10-7 cm/sec as a result of contact with the leachate generated by the landfill.
Testing of the saturated hydraulic conductivity and the effect of leachate on soil permeability shall be performed in accordance with test methods given in EPA publication SW-870, ASTM test procedures or other tests which may be approved by the Department;
Shall not have any lenses, cracks, channels, root holes, pipes or other structural inconsistencies that can increase the saturated hydraulic conductivity of the liner above 1
X 10-7 cm/sec. . . . Where recompacted emplaced soil liners are used, they shall be placed in layers not exceeding 12 inches before compaction to maximize the effectiveness of compaction;
May consist of in-situ soils provided they meet the specifications for soil liners. Testing of in-situ soil shall be performed in accordance with the soil liner quality control plan.
Synthetic liners:
Shall consist of a 60 mil unreinforced membrane that meets minimum requirements of the National Sanitation Foundation Standard Number 54, Flexible Membrane Liners, November, 1983, which standard is hereby incorporated into this rule by reference, copies of this document may be inspected at the Department's district offices;
Shall be protected from physical damage from above and below the membrane, by bedding soil material underlying the liner and a minimum 24-inch thick protective soil layer on top of the membrane; both the bedding and protective layer shall be free of rocks, roots, debris, sharps or particles larger than 1/4 inch. The lower 12 inches of material in contact with the top of the liner, if sufficiently permeable, may be used as a drainage layer; and
Shall have factory and field seams that equal or exceed the strength requirements defined by National Sanitation Foundation Standard 54 for that lining material. All field seams must be visually inspected and
pressure or vacuum tested for seam continuity using suitable non-destructive techniques.
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Leachate control performance standards. Landfills will have a leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate from the landfill. The leachate depth on top of the liner shall not exceed one foot depth of leachate. The leachate collection and removal system shall:
Be constructed of materials that are chemically resistant to the waste disposed of in the landfill and the leachate expected to be generated;
Be of sufficient strength and thickness to prevent collapse under pressures exerted by overlying wastes, cover materials and by any equipment used at the landfill;
Be designed and operated to function without clogging through the active life and closure period of the landfill; and
Be designed and constructed to provide for removal of the leachate within the drainage system to a central collection point for treatment and disposal.
Leachate Control System Design Standards. Leachate collection and removal systems shall have:
At least a 12 inch drainage layer above the liner with a hydraulic conductivity permeability of not less than 1X10-3 cm/sec at a slope to promote drainage;
A drainage tile or pipe collection system of appropriate size and spacing, sumps, and pumps or other means to efficiently remove leachate. The design shall demonstrate through calculations in the permit application that a maximum one-foot depth of leachate on the liner will be achieved; and
Granular material or synthetic fabric filter overlying or surrounding the leachate collection and removal system to prevent clogging of the collection system by infiltration of fines from the waste or drainage layer; and have a method to test that the system is not clogged and a method for cleaning the system if it becomes clogged.
Surface water management system performance standards. Landfills shall have surface water management systems designed, constructed, operated, and maintained to prevent surface water flow onto waste filled areas, and a storm water run off control system designed, constructed, operated, and
maintained to collect and control stormwater to meet requirements of Florida Administrative Code Rule 17-25 and requirements of the respective water management district.
Surface Water Management System Design Standards.
Storm water controls should be specifically designed and sized according
to local drainage patterns, soil permeability, annual precipitation, area land use, and other characteristics of the contributing watershed;
Retention and detention ponds and drainage ways shall be designed, constructed, and maintained to meet the requirements of
Florida Administrative Code Rule 17-25, or requirements of the water management district where the Department has delegated storm water permitting to a water management district;
Stormwater management systems shall be designed to minimize to the maximum extent possible the mixing of stormwater with leachate. Stormwater or other surface water which comes into contact with the solid waste or mixes with leachate shall be considered leachate and shall be treated to meet applicable standards of Florida Administrative
Code Rules 17-3 and 17-4 at the point of discharge.
* * *
Ground Water Monitoring.
Monitor well location, construction, and collection of samples shall be as specified in Florida Administrative Code Rules 17-3.401,
17-28.700, and 17-4.246. Guidance for construction of monitor wells and collection of samples is contained in the Procedures Manual for Ground Water Monitoring at Solid Waste Disposal Facilities (EPA/530/SW-611).
Sampling and testing of ground water at landfills shall be in accordance with Florida Administrative Code Rule Sections 17-3.401,
17-28.700, 17-4.246, and 17-22, Part III and IV.
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Operation Plan. An operation plan shall be submitted with all landfill construction permit applications. The operation plan shall provide written instructions for the daily operation of the landfill. The plan shall be revised when operational procedures change. The plan shall include detailed procedures such as:
Designation of persons responsible for operation and maintenance of the facility;
Contingency operations, alternate waste handling and disposal methods in case of emergency such as a natural disaster or equipment failure;
Controlling the type of waste received at
the site. The plan shall specify inspection procedures, number and location of spotters and procedures to be followed if prohibited wastes are discovered;
Weighing or measuring incoming waste;
Vehicle traffic control and unloading;
Method and sequence of filling waste;
Waste compaction and application of cover;
Operations of gas, leachate, and storm water controls;
Ground water monitoring.
Operational design features. The disposal site shall be provided with operation features and appurtenances necessary to maintain a clean and orderly operation. These minimum features are:
An effective barrier designed to prevent unauthorized entry and dumping into the landfill site.
An all-weather access road to the site.
A special area with a stabilized roadway shall be provided within the site for wet weather operations.
Signs indicating name of operating authority, traffic flow hours of operation, and charges
for disposal (if any).
Scales for weighing solid waste received at the landfill, or in lieu thereof, estimates of the number of cubic yards received at all Class I and Class II sites. Quantitative records shall be forwarded to the Department upon request.
Dust control methods such as approved chemicals, oils, or water sprays.
Litter control devices, portable fences, or other suitable means.
Fire protection and fire-fighting facilities adequate to insure the safety of
employees and provisions to deal with accidental burning of solid waste within the sanitary landfill.
Personnel and Facilities. In order to insure proper staffing and suitable facilities the following shall be required:
During hours of operation, an attendant at Class I sites.
Communication facilities for use in emergencies at Class I sites.
* * *
Sanitary landfills shall be operated to provide for the collection, control and treatment of surface runoff from the site as necessary to meet the applicable standards of Florida Administrative Code Rules 17-3, 17-4, and
17-25;
Any leachate emanating from a landfill shall be collected and treated as necessary
to meet the applicable standards of Florida Administrative Code Rules 17-3, 17-4, and
17-25;
* * *
Pesticides used to control rodents, flies and other insects shall be as specified by
the Florida Department of Agriculture and Consumer Services.
Uncontrolled and unauthorized scavenging shall not be permitted at any sanitary landfill site. Controlled salvaging may be permitted
by the local authority responsible for the facility.
The City has given reasonable assurances that its application, as amended at hearing without objection, see Hopwood v. Department of Environmental Regulation, 402 So.2d 1292 (Fla. 1st DCA 1981) would comply with most of these detailed construction and operational design requirements. But these provisions reiterate, and do not supplant, the general prohibitions against water pollution by a stationary installation.
Rule 17-28.700, Florida Administrative Code, incorporated by reference in Rule 17-701.050(5)(a)(1), Florida Administrative Code, requires as many monitoring "wells as are dictated by the complexity of the hydrogeology of the site, the magnitude and direction of the plume or the likelihood of the threat to the public health, to ensure adequate and reliable monitoring data in generally accepted engineering or hydrogeological practice." Here the magnitude and direction of hundreds of small plumes would make detection problematic, under the plan proposed.
The extent to which landfill closure plans are relevant in proceedings like these was discussed in Herbert H. and Anna M. Huelsman v. WAC of Okaloosa County, Inc. d/b/a Waste Associates Company, No. 88-2531 (DER; May 29, 1989), where the Secretary said:
[T]he issue of how best to cap a landfill cell which is ready for closure can easily be revisited when approval for closure is
requested through the required permit. However, it is still necessary, at the landfill construction stage, to assess the amount of leachate to be expected after closure so that the leachate collection system can be sized properly . . . . At 16.
Here the plan is to use materials for a cap that would reduce leachate production significantly below levels the system would have to contend with during the landfill's active phase.
The applicant also has the burden to give reasonable assurance that discharges to groundwater will not violate applicable criteria, including the following "free from" requirement:
All ground water shall at all places and
at all times be free from domestic, industrial, agricultural, or other man-induced non-thermal components of discharges in concentrations
which, alone or in combination with other substances, or components of discharges . . .
* * *
(b) Are carcinogenic, mutagenic, terato-genic, or toxic to human beings, unless specific criteria are established for such components
. . .
Rule 17-3.402, Florida Administrative Code (emphasis supplied); and that no numeric standards will be violated outside of the zone of discharge (here proposed to extend horizontally 100 feet from the disposal area in every direction.)
In meeting these burdens, the City enjoys the benefit of a presumption that a landfill designed in conformity with design requirements will perform in conformity with performance requirements, but the "presumption of reasonable assurances which is associated with a landfill design meeting Department standards is only rebuttable." Herbert H. and Anna M. Huelsman v. WAC of Okaloosa County, Inc. d/b/a Waste Associates Company, No. 88-2531 (DER; May 29, 1989) at p. 14.
152/ In order to overcome the presumption, it is incumbent upon objecting third parties to show more than "the expected leakage or diffusion of undetermined but minute quantities of organic chemicals." Herbert H. and Anna
M. Huelsman v. WAC of Okaloosa County, Inc. d/b/a Waste Associates Company, No. 88-2531 (DER; May 29, 1989) at p. 19. "It is unrealistic to expect that, the best QA/QC plans notwithstanding, every synthetic liner can be installed with zero defects." Herbert H. and Anna M. Huelsman v. WAC of Okaloosa County, Inc. d/b/a Waste Associates Company, No. 88-2531 (DER; May 29, 1989) at p. 17. The objectors here showed that at least thousands, and perhaps millions, of gallons of leachate would enter the groundwater under the site, over the active life of the landfill, and the City demonstrated in detail what constituents would comprise the leachate and in what proportions.
DER argues for an interpretation of the "free from" rule that would allow discharges of carcinogens into the groundwater so long as, by the time they had mixed with a hypothetical "sampling volume directly beneath," they were diluted enough to pose no more than an acceptable cancer risk. But the "free from" rule, Rule 17-3.402(1), Florida Administrative Code, will not bear this construction. At the time Rule 17-3.402, Florida Administrative Code, assumed its present form, commentators explained that the amendment "moved the point of compliance from the boundary of the zone of discharge to the point of application of the pollutants to the groundwater." Green and Preston, Florida's New Groundwater Regulations, 57 Fla. Bar J. 345, 346 (1983).
Rule 17-3.402(1), Florida Administrative Code, forbids discharges into the groundwater, if the discharge contains a substance in a concentration that is carcinogenic; or if a component of the discharge occurs in such concentrations that, in combination either with other component(s) of the discharge or with one or more materials already in the water, the mixture is a cancer initiator. Only in the last situation, when the combination of something discharged with something in the receiving water creates a carcinogen (or a mutagen or teratogen), might the concentration in the groundwater be pertinent under the rule.
Otherwise, the only question is whether any component of a discharge, alone or in combination with other constituents, is carcinogenic, mutagenic or
teratogenic, in the concentration in which the component (or the combination) occurs in the discharge. If so, Rule 17-3.402(1), Florida Administrative Code, forbids the undiluted discharge directly into Class II groundwater. At the point it enters the groundwater, a discharge with components in concentrations that are carcinogenic, teratogenic or mutagenic constitutes a violation.
Other DER rules support the conclusion that Rule 17-3.402, Florida Administrative Code, prohibits discharging carcinogenic concentrations to groundwater, even though the groundwater would dilute the discharge outside some receiving volume. Rule 17-3.404, Florida Administrative Code, after adopting the primary and secondary drinking water quality standards for Class I and Class II ground water, provides
(3) These standards shall not apply within a permitted zone of discharge as provided in Rule 17-4.245, F.A.C. The minimum criteria
specified in 17-3.402 shall apply within the zone of discharge.
Rule 17-3.404, Florida Administrative Code. (Emphasis supplied.) Under this rule, the primary and secondary drinking water quality standards do not apply within the zone of discharge, unless they pertain to carcinogenic, mutagenic or teratogenic materials. As regards these materials, however, minimum standards apply "at all places," within and without sampling volumes, hypothetical or otherwise.
DER's "regulatory authority encompasses activities potentially impacting the environment, including the air and waters of the state . . . as well as public health." Cape Cave Corporation v. State Department of Environmental Regulation, 498 So.2d 1309, 1312 (1st DCA 1986) rev. den. 509 So.2d 1117 (Fla. 1987). Protection of the environment may require "more stringent regulation," id., than protection of the public health alone would entail.
An impractical rule can be amended. Until and unless that occurs, "expedience cannot be permitted to dictate its terms." Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 493 So.2d 1055, 1057 (Fla. 1st DCA 1986); DeCarion v. Martinez, 537 So.2d 1083 (Fla. 1st DCA 1989); Woodley v. Department of Health and Rehabilitative Services, 505 So.2d 677 (Fla. 1st DCA 1987); Kearse v. Department of Health and Rehabilitative Services, 474 So. 2d 819 (Fla. 1st DCA 1985). Nor is it clear what is expedient if, as a City witness testified that policy makers assume, a single molecule of methylene chloride or of any of three other leachate constituents can induce cancer.
DER and the City are, in effect, advocating a small "mixing zone" or "zone of discharge" for carcinogenic, mutagenic and teratogenic substances introduced into groundwater. Under their view, it would not offend the regulations to introduce unadulterated ethylene dibromide into groundwater flowing fast enough. But the free from rule does not contemplate a mixing zone or zone of discharge either for ethylene dibromide or for any discharge containing benzene or methylene chloride in the concentrations the City's own evidence showed should be anticipated in the Class I leachate.
Even under the City's approach, moreover, methylene chloride, which occurs in Class I leachate in a concentration more than 39 times higher than the level the City's toxicologist identified as acceptable, would, under all
realistic scenarios, exceed the standard the EPA has proposed, after dilution by groundwater flowing through the cubic foot immediately under each leak, which City witnesses chose as a sampling volume. In 90 days, methylene chloride violations would occur 20 feet away from many leaks. In accordance with Rule
17-3.402(3), Florida Administrative Code, the Secretary is empowered to set a standard for methylene chloride, whether the five micrograms per liter proposed by the EPA or some other, in an appropriate permitting case.
The Environmental Regulatory Commission has already set a specific standard for benzene (one microgram per liter) by adopting Rule 17-550.310(2), Florida Administrative Code, which Rule 17-3.404(1)(a), Florida Administrative Code, makes applicable to groundwater, and which Rule 17-3.402, Florida Administrative Code, makes applicable within the zone of discharge. Benzene would also violate the "free from" rule, within a hypothetical cubic foot directly under each of many leaks in the Class I liner, even after groundwater diluted the leachate, unless the clayey sand layer had a uniform permeability no greater than 1 x 10-7 centimeters per second. Because only two lifts are to be put in, reasonable assurance was not given that the clayey liner would have such a low permeability.
The objectors' evidence also rebutted the presumption that performance standards would be met outside the zone of discharge with regard to methyl ethyl ketone. Because of the unrealistically low discharge rate used in modeling concentrations at the edge of the zone of discharge, the applicant did not give reasonable assurances that leachate from the Class I landfill would not cause pollution in Class II groundwater, both under the landfill and, in the case of methyl ethyl ketone, more than 100 feet away.
The applicant did not seek to quantify the attenuation soils would effect, either physical or chemical, before leachate reached groundwater. An indication of the importance this factor can have is that, until it required that landfills be lined, DER relied on a five-foot separation between waste and groundwater to protect groundwater quality, albeit not entirely successfully. Although no longer required by the landfill rule, some separation is necessary to assure compliance with the "free from" rule, even when a landfill is lined in the way the City proposes here.
Obviously less than what a "high and dry" site might afford, attenuation even on the site proposed should make for smaller concentrations in the groundwater than those witnesses for all sides assumed, for purposes of analysis. But the City, who had the burden to show entitlement, did not prove how much dispersion or adsorption would scatter or diminish the leachate constituents of concern, before they reached groundwater.
The City's application compares favorably with the application turned down in Herbert H. and Anna M. Huelsman v. WAC of Okaloosa County, Inc. d/b/a Waste Associates Company, No. 88-2531 (DER; May 29, 1989) in many ways. The leachate collection system the City proposes is designed to achieve the lowest maximum head on liner practical, under normal conditions, and the liner design, despite the montmorillonite layer's meagerness, represents a great improvement over that proposed in Huelsman. The high rise design proposed here is better than the Huelsman applicant's plan to dig a pit. But the decision to locate a landfill on top of sloughs and bogs at the edge of a swamp does not compare favorably, "[g]iven the controlling significance of site geology to any proposed landfill's permittability." Herbert H. and Anna M. Huelsman v. WAC of Okaloosa County, Inc. d/b/a Waste Associates Company, No. 88-2531 (DER; May 29, 1989) at p. 14.
The evidence did not establish that leachate from the Class III site would cause pollution in violation of any of DER's rules. The evidence failed to show with any precision what the leachate would consist of. The suggestion to line a small area and collect leachate in order to find out has merit, even though the experience in at least one other Florida city could be (but was not here) looked to, as well.
The rules define a shallow water supply well as "any potable water well which pumps water from an unconfined water table aquifer." Rule 17- 701.020(54), Florida Administrative Code. (Emphasis supplied.) Rule 17- 701.040(2), Florida Administrative Code, forbids deposition of solid waste
within 500 feet of an existing or approved shallow water supply well unless disposal takes place in a sanitary landfill which was originally permitted before the shallow water well was in existence.
No permit has issued here, but neither has any shallow water supply well been proven to exist within 500 feet of the proposed Class III site. When last seen, the pumps supposedly pumping water from these wells formed a useless, if colorful, heap of metal in a wash tub. Nor was that day's inefficacy happenstance. The product of their desuetude, the pumps' inutility bore eloquent witness to a sham. While it is impossible to say that shallow water supply wells within 500 feet of the Class III site were never approved, it is clear, now that they have materialized, that approval was sought and obtained as a sham.
Road to Nowhere
Rule 17-12.060, Florida Administrative Code, describes the free form procedures which preceded formal administrative proceedings on the City's application for a permit to dredge and fill, in order to build the access road:
(10) During the processing of the permit application, the Department shall determine whether or not the application, as submitted, meets the criteria contained in Sections 403.918(1) and (2)(a)1.-7. and 403.919, F.S. If the project, as designed, fails to meet the permitting criteria, the Department shall discuss with the applicant any modifications
to the project that may bring the project into compliance with the permitting criteria. The applicant shall respond to the Department, in writing, as to whether or not the identified modification to the proposed project is practicable and whether the applicant will make the identified modification. The term "modification" shall not be construed as including the alternative of not implementing the project in some form. When the Department determines that the project, as submitted or modified, fails to meet the criteria contained in Sections 403.918(1) and (2)(a)1.-7. and 403.919, F.S., the applicant may propose
mitigation measures to the Department as provided in Chapter 17-12, Part III, F.A.C. Nothing herein shall imply that the Department may not deny an application for a permit, as submitted or modified, if it fails to meet the criteria in Section 403.918(2)(a), F.S., or that mitigation must be accepted by the Department.
In the present case, DER staff concluded that the application, although failing to meet statutory criteria without mitigation, included mitigation proposals making it acceptable.
A preliminary question is whether these criteria should be understood to apply only to dredging, filling and mitigation proposals designed specifically to offset the dredging and filling; or to roadbuilding and proposals designed to mitigate the effects of roadbuilding; or to the entire project, including all mitigation proposals.
Citing del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984) and Cape Cave Corporation v. Department of Environmental Regulation, 498 So.2d 1309 (1st DCA 1986) rev. den. 509 So.2d 1117 (Fla. 1987), DER and the objectors contend that the entire project, not just roadbuilding, must be evaluated in light of the statutory criteria pertaining to dredge and fill applications, despite the pendency of two other permit applications, which together require DER to examine all facets of the project.
At issue in the Cape Cave case was an "application for permits for dredge and fill and a storm water management system for construction of a 2800- lot residential project." 498 So.2d at 1309. In such a proceeding, the terrain and configuration of the entire project would inevitably be pertinent to the quality and quantity of stormwater runoff. The decision in Cape Cave does not require an applicant for a dredge and fill permit needed to build a road to prove that what goes on at the end of the road is "not contrary to the public interest."
But the del Campo case more nearly resembles the present case. There third parties objecting to an application for a dredge and fill permit, necessary for the building of a bridge to an island in the Ortega River, were held entitled to present evidence they claimed would show the island could not be developed in an environmentally acceptable fashion. On grounds building a bridge to the island, before its suitability for development was established, would be "risking the possibility of . . . an unconscionable waste of resources," 452 So.2d at 1006, the del Campo court reversed DER's order restricting the dredge and fill permit proceeding to the merits of the proposed bridge itself.
Unlike the would-be bridge builders in del Campo, however, the City applied for the environmental permits the project at the other end of the thoroughfare would require, at the same time it made application for a permit to dredge and fill to provide access. Three permit applications and a variance request are pending. When objectors instituted formal proceedings, these factually interrelated matters were heard together. Cf. Caloosa Property Owners Association, Inc. v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985).
This is not a case like Manasota-88, Inc. v. Gardinier, Inc., 481 So.2d 948 (Fla. 1st DCA 1986) where an applicant for a water pollution permit sought to avoid review of the air pollution consequences of a project, claiming an exemption from a requirement to obtain a permit. Unlike the applicants in the del Campo and the Caloosa Property Owners cases, the City applied contemporaneously for every permit the project would require. In the Caloosa Property Owners case, moreover, the court affirmed DER's order allowing deferral of permitting issues not raised by the application DER granted, although future proceedings on applications not yet filed were contemplated.
Here the City's comprehensive applications make it inappropriate to expand the range of issues in any one of them. The pendency of all necessary applications allows the separate evaluation of each. At the same time, in evaluating each application against the criteria that pertain, the consequences of grant or denial of contemporaneous applications may be relevant, because attendant circumstances may affect the character of the undertaking that is the subject of the application under separate consideration.
Petitions for formal administrative proceedings, filed in response to DER's notice of intent to grant the dredge and fill permit, require de novo consideration of the question whether the application meets statutory criteria. McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979).
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Section 403.918(1), Florida Statutes (1987).
As broadly as some of these criteria might be read, they are to be understood in an environmental context, Miller v. State Department of Environmental Regulation, 504 So. 3d 1325 (Fla. 1st DCA 1987), in light particularly of the
purposes of the Warren S. Henderson Wetlands Protection Act of 1984, and considerations that DER has set out in rule form:
Florida's wetlands are a major component of the essential characteristics that make this state an attractive place to live. Wetlands perform economic and recreational functions that would be costly to replace should their vital character be lost; and
the economic, urban, and agricultural development of this state has necessitated the alteration, drainage, and development of wetlands. While state policy permitting the uncontrolled development of wetlands may have been appropriate in the past, the continued elimination or disturbance of wetlands in an
uncontrolled manner will cause extensive damage to the economic and recreational values which Florida's remaining wetlands provide; and
it is the policy of this state to establish reasonable regulatory programs which provide
for the preservation and protection of Florida's remaining wetlands to the greatest extent practicable, consistent with private property rights and the balancing of other state vital interests; and
it is the policy of this state to consider the extent to which particular disturbances of wetlands are related to uses or projects which must be located within or in close proximity to the wetland and aquatic environment in order
to perform their basic functions, and the extent to which particular disturbances of wetlands benefit essential economic development.
Rule 17-12.015 (1), Florida Administrative Code (Emphasis supplied.) In balancing statutory criteria, these rule provisions are to inform decisionmaking, "but shall not apply . . . as permitting criteria." Rule 17-
12.015 (1), Florida Administrative Code.
Under the Administrative Procedure Act, staff's conclusions enjoy no presumption of correctness, which also renders carping about their performance (which, incidentally, was most impressive) immaterial to any issue in the proceeding. No party has taken issue, however, with staff's conclusion that mitigation would be required, in order for the dredge and fill permit to issue. Applicable rules provide:
The Department shall consider any mitigation proposed by a permit applicant
in accordance with this rule. Mitigation may be proposed by a permit applicant, or suggested by the Department only where the proposed dredging and filling would otherwise be unable to meet the criteria of Sections 403.918(1)
and (2)(a), F.S., and Rule 17-12.070, F.A.C.
However, mitigation may not be required by the Department. . . .
It is understood that in certain circumstances mitigation proposals for dredging and filling projects will not be able to offset the adverse impacts of the project sufficiently to yield a permittable project. Such instances may include . . . the presence of endangered species or the likelihood that a particular wetland type may not be successfully created. Rule 17-12.310, Florida Administrative Code. (Emphasis supplied.)
17-12.340 Evaluation of Mitigation Proposals. The Department recognizes that each mitigation proposal must be evaluated on a case by case basis. It is necessary to first determine
the probability that the proposed mitigation will offset the actual adverse impacts of the
dredging and filling, including cumulative impacts, as identified by those negative aspects of the project that resulted in a negative permitting balance. The Department in making this determination will consider the likelihood
that the mitigation will be successful. The permit applicant shall provide the Department with reasonable assurances that
the mitigation shall meet the success criteria in Rule 17-12.350, F.A.C., and shall comply with the following standards, where applicable:
Type of waters of the state. Based on that analysis the Department will judge whether
the mitigation proposal will offset those identified negative aspects of the dredge and fill project. Offsetting the adverse impacts will usually be best addressed through protection, enhancement or creation of the same type of waters (e.g., Spartina marsh, cypress swamp, etc.), as those being affected by the proposed project. However, where the waters being affected have been significantly altered by human activity or other factors such as, but not limited to, drainage or invasions of exotic or nuisance species, a mitigation proposal utilizing other types of waters may be considered.
Where mitigation using other types of waters is considered, preference will usually be given to utilization of the type of waters that were historically present before alteration.
Ratios for created waters of the state. The mitigation proposed shall be sufficient to offset the adverse impacts expected to
occur due to the proposed dredging and filling that render the project unpermittable. For mitigation involving the creation of waters
of the state, the Department shall use as a guideline two acres created for each acre adversely impacted by the proposed dredging
or filling. This guideline is for preliminary planning purposes only and the actual extent of wetland creation may be more or less based on a consideration of the factors listed in subparagraphs (a) through (h) below.
The length of time that can be expected to elapse before the functions of the waters of the state identified during the permitting process as being adversely affected have been restored or offset.
. . .
The type of waters to be created and the likelihood of successfully creating that type of waters.
Whether or not the waters of the state to be affected by the proposed dredging or filling are functioning as natural, healthy waters of the state of that type, and the current condition and relative value of
functions being performed by the areas affected by the proposed activity compared to the proposed character and quality of the wetlands to be created.
Whether the waters of the state are unique for that geographical area.
. . .
The presence or absence of exotic or nuisance plant species within the waters of the state to be disturbed or altered.
Whether the proposed project eliminates waters from one type to another.
Ratios for enhanced waters of the state. It is recognized that stressed wetlands provide some degree of wetland function. When enhancement is proposed, the Department must make a judgment regarding the degree of enhancement expected to occur. The degree of expected enhancement must be weighed against the adverse impacts identified in evaluation
of the dredge and fill project. In general, ratios for enhanced waters shall be higher than for created waters. Factors that should be considered in establishing a ratio include:
The degree to which the wetlands to be enhanced have been stressed.
The type of stress the wetlands to be enhanced have experienced.
The cause of the stress.
Whether the proposed method of enhancement is one that will be low maintenance or
self-regulating once implemented.
The likelihood that the proposed enhancement will be successful in offsetting the adverse impacts of the dredge and fill projects that caused the project to be not permittable.
Protection of the mitigation area.
The permit applicant shall propose appropriate method to assure that the created or enhanced waters will not be adversely affected during the establishment phase by secondary impacts resulting from human activities such as, but not limited to, boat traffic and other recreational uses. Such assurances may include, but shall not be limited to, restricting access to the site.
Exotic or nuisance species. The proposed mitigation plan shall include a requirement that exotic and nuisance species be removed from the mitigation area. The plan shall also include reasonable measures to assure that these species do not invade the mitigation area in such numbers as to affect the likelihood of success of the project. Depending on the topography of the area and the species involved, such measures could include, but not be limited to, continuing maintenance and/or a buffer zone.
Location of mitigation area. Because the adverse impacts of a dredge and fill project rarely occur off-site, mitigation activities off-site are not generally acceptable unless they would better offset
the adverse impacts. There are some instances where on-site mitigation may not be possible or may be restricted, such as, but not limited to, road projects and utility corridors. In such instances, the mitigation should be in close proximity to the dredge and fill site, in the same waterbody or within the same drainage basin, if possible. The negative aspects of the dredge and fill project must
be offset by the off-site mitigation, as in any other mitigation.
When fish and wildlife habitat functions are a concern, several points shall be considered:
The types of habitat function being performed at the site; such as fishery nursery area, rookery, multi-species habitat, foraging value, shelter value.
The species to be affected by the project.
The relative value of the site; such as whether it is the last remaining area of that habitat in the vicinity or whether the site is pristine.
Whether the proposed off-site mitigation can reasonably be expected to offset the impacts of the project on specific habitat functions
that would be affected as a result of the project.
Use of donor sites. The use of waters of the state as plant or soil donor sites, where such use involves any dredging or filling, shall not be allowed except pursuant to an exempted activity, a Department permit
or consent order.
Location of donor site. Whenever practical, waters of the state which are to be dredged or filled shall be utilized as plant or soil donor site for mitigation under this Part.
17-312.350 Determination of Success for Mitigation Projects.
(1) Success criteria. Due to the wide range of types of projects which may be used
to create or enhance existing waters, specific success criteria will be determined on a
case-by-case basis.
The scope of the dredge and fill inquiry includes the effects both of construction and of "operation" of (i.e. traffic on) the entire road, and the effects of both on "the conservation of fish and wildlife, including [but not limited to] endangered or threatened species, or their habitats." Section 403.918(1)(a)2., Florida Statutes (1987).
Just as, in evaluating an application for a permit to construct a marina, it is necessary to consider the effects operating a marina would have on marine life and the environment, see, e.g.,Boca Grande, Inc. v. Department of Environmental Regulation, 9 FALR 887, 889 (FDER 1987), instead of restricting consideration to the effects of driving piles ("dredging") to build the marina, so here all the effects traffic over the road would have on wildlife and the environment are germane, not just the effects of dredging to install culverts and drains and of filling to construct a roadbed in wetlands.
In evaluating the dredge and fill application "separately," the breadth of the public interest criteria make it impossible to ignore the relationship between the dredge and fill project and the landfill. The nature and volume of traffic over the road depend on whether the landfill is built. Mitigation notwithstanding, building a road through wetlands to nowhere would not serve any purpose sufficient to offset the environmental disruption. The record suggests no reason to build the road, if the landfill is not built (or any likelihood that it would be undertaken.)
Final action has not been taken on the City's application for a landfill permit. In the event it is granted, the public interest would obviously require some access for dump trucks, construction equipment and garbage trucks, to the "environmental" end that a duly permitted landfill could come into being and function. Since the existing dirt road would not suffice, see Rule 17-701.050(2)(c)1., Florida Administrative Code, and the parties have stipulated that only emergency vehicles should have access from State Road 210, the City would have to build the access road proposed, or some other along a route joining U.S. Highway 1 and the site. Any such alternate route on City property would also cross Old Kings Road and wetlands contiguous to Durbin Swamp. If the landfill permit issues, building the access road would not be contrary to the public interest, despite adverse impacts on wildlife.
Without any articulated need to disturb the wetlands, the balancing of interests required by the statute and rules dictates the conclusion that dredging and filling to build a road has not been shown to be "not contrary to the public interest," Section 403.918(1), Florida Statutes (1987), if the landfill permit does not issue. In the particular context of the present case, "separate" evaluation of the dredge and fill permit application leads
paradoxically to the result that the dredge and fill permit should be granted, if the landfill permit is granted, and denied, if the landfill permit is denied.
Surface Water Management
Also entitled to separate evaluation is the City's application to construct a system to manage and store surface waters. Like the access road, the surface water system could, but in all likelihood, would not, be built, if the application for a permit to construct a landfill is denied. But the works proposed even for the surface of the landfill could, in theory, be built atop soil, instead of waste.
Under the del Campo rationale, denial of the landfill permit application in the present case would presumably require denial of the related management and storage of surface waters permit application, to avoid "risking the possibility of . . . an unconscionable waste of resources." del Campo v. Department of Environmental Regulation, 452 So.2d 1004, 1006 (Fla. 1st DCA 1984). But, as in the case of the dredge and fill application, the City will learn whether development of the landfill can occur at or about the same time that it learns the fate of its application for a permit for the management and storage of surface waters.
Under the Operating Agreement Concerning Stormwater Discharge Regulation and Dredge and Fill Regulation Between the St. Johns River Water Management District and the Department of Environmental Regulation, DER acts on applications for permits for the construction and operation of systems for the management and storage of surface waters, in accordance with Chapters 373 and 403, Florida Statutes (1987), and rules the Water Management District has promulgated, in implementing the statutes. Pertinent rule criteria are:
40C-4.301 Conditions for Issuance of Permits. (1)(a) To obtain a general or individual permit for operation . . . of a system or to obtain a conceptual approval permit, each applicant must give reasonable assurance that such activity will not:
. . .
Adversely affect recreational development or public lands;
Endanger life, health, or property;
. . .
. . .
6. Be incapable of being effectively operated;
. . .
Adversely affect existing agricultural, commercial, industrial, or residential developments;
Cause adverse impacts to the quality of receiving waters;
Adversely affect natural resources, fish and wildlife;
Induce . . . pollution intrusion;
. . .
14. Otherwise be inconsistent with the overall objectives in the District.
(b) Because a proposed system may result in
both beneficial and harmful effects in terms of various individual objectives, in determining whether the applicant has provided evidence of reasonable assurance of compliance with Rule 40C-4.301(1)(a), F.A.C., the District may consider a balancing of specific effects to show the system is not inconsistent with the overall objectives of the District. (Emphasis supplied.)
These rule provisions implement the statutory requirement that permits for maintenance or operation "of any dam, impoundment, reservoir, appurtenant work, or works will not be inconsistent with the overall objectives of the district and will not be harmful to the water resources of the district." Section 373.416(1), Florida Statutes (1987). Mitigation may be a means of meeting the requirements of rule and statute. Rule 40C-4.301(2)(a), Florida Administrative Code, lists criteria for construction permits
(2)(a) To obtain a general or indivi-dual permit for construction, . . . [or] operation, or maintenance of a system or to obtain a conceptual approval permit, each applicant must give reasonable assurance that such activity meets the following standards:
Adverse water quantity impacts will not be caused to receiving waters and adjacent lands;
Surface and ground water levels and surface water flow will not be adversely affected;
Existing surface water storage and conveyance capabilities will not be adversely affected;
The system must be capable of being effectively operated;
. . .
Hydrologically-related environ-mental functions will not be adversely affected;
Otherwise not be harmful to the water resources of the District.
(b) If the applicant has provided reasonable assurance that the design criteria specified in Applicant's Handbook Part II "Criteria for Evaluation" adopted by reference in Rule
40C-4.091(1), F.A.C., have been met, then it is presumed that the standards contained in subsection (2)(a) above have been satisfied. (Emphasis supplied.)
These rule provisions implement the statutory directive that "the department .
. . assure that the construction or alteration of any dam, impoundment, reservoir, appurtenant work or works will not be harmful to the water resources of the district." Section 373.413(1), Florida Statutes (1987).
Both the District's rules and the Applicant's Hand Book, Part II, which has the force of a District rule, because adopted as such by reference, specify design requirements, which include:
The post-development peak rate of discharge must not exceed the pre-development peak rate of discharge for the storm event as prescribed in Section 10.3.
The post-development volume of direct runoff must not exceed the pre-development volume of direct runoff for systems as prescribed in Subsections 10.4.2 and 10.4.3.
Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other watercourses
must not be altered so as to adversely impact the off-site storage and conveyance capabilities of the water resource (see Section 10.5).
Flows of adjacent streams, impoundments or other watercourses must not be decreased so
as to cause adverse impacts (see Section 10.6).
Hydrologically related environmental functions and water quality must not be adversely impacted (see Section 10.7). Section 10. 2. 1, Applicant's Handbook (Emphasis supplied.)
As in the case of compliance with the rule specifying design requirements for sanitary landfills, an application for a permit for management and storage of surface waters that meets design requirements is presumed to meet performance requirements, including the requirement that discharges to waters of the state comply with water quality standards adopted by DER. Sante Fe Pass, Inc. v. State Department of Environmental Regulation, 9 FALR 948 rev'd on other grounds 520 So.2d 618 (Fla. 1st DCA 1988). Section 10.2.1 provides, "It is presumed that a system meets the standards listed in Subsection 10.1.2 if the system meets the
. . . criteria" set out above, (a) through (e).
Because the side drains are to be placed below seasonal high groundwater elevation, they would drain not only the stormwater retention basins, but also the surrounding area, when groundwater rises high enough. Groundwater drained in this fashion would reach Durbin Swamp more directly, but without affecting groundwater levels appreciably. That this ambient flow would compete with retained stormwater for the drains would make maintenance of filter and drainpipes critical. Assuming proper maintenance, however, the proposed system should allow sufficient drainage of the ponds to meet the St. Johns River Water Management District's water quantity criteria.
Both the Applicant's Handbook, Part II, 10.1.2(f), and Rule 40C- 4.301(2)(a)6, Florida Administrative Code, also require that "[h]ydrologically related environmental functions will not be adversely affected." Section 10.7.4, "Wetland Review Criteria," to which Section 10.2.1(e) refers, sets out the St. Johns River Water Management District's interpretation of Section 10.2.1(e):
the District will, except when threatened or endangered species are involved, consider only the impacts to off-site aquatic and
wetland dependent species relative to the functions currently being provided by the wetlands to these types of fish and wildlife. This assessment of off-site impacts is based upon a review of pertinent scientific literature, soils and hydrologic information, and a general understanding of the ecological resources of the site. Generally, site specific biological data collection is not required. An applicant must provide reasonable assurance that a proposed system will not cause adverse off-site changes in:
the habitat of an aquatic and wetland dependent species,
the abundance and diversity of aquatic and wetland dependent species, and
the food sources of aquatic and wetland dependent species.
The only exception to limiting review of a system under this Subsection to off-site impacts is where wetlands are used or reasonable scientific judgement would indicate use by threatened or endangered species listed in Sections 39-27.003 and 39-27.004, F.A.C., which are aquatic or wetland dependent. In this instance, both off-site and on-site impacts will be assessed. In addition to
the assurances regarding off-site impacts discussed in the previous Paragraph, an applicant must provide reasonable assurances that a proposed system will not cause adverse changes in:
the habitat of threatened or endangered species,
the abundance and diversity of threatened or endangered species, and
the food sources of threatened or endangered species.
The District exercises jurisdiction over "waters in the state", including wetlands whether they are isolated or not.
(Emphasis supplied.)
Rule 39-27.003(11), Florida Administrative Code, lists wood storks "(Mycteria americana)" as endangered. Indigo snakes, Florida black bears and bald eagles are listed as threatened, Rule 39-27.004(11), (13) and (25), Florida Administrative Code, and the American alligator is listed as a species of special concern. Rule 39-27.005(19), Florida Administrative Code.
The City's mitigation proposals would adequately mitigate the impacts of the works proposed for the management and storage of surface waters off site, both for listed and for unlisted species in the vicinity. On site, black bears and any indigo snakes on the property would benefit not only from the wetland creation and enhancement proposed, but also from the conservation easement with which the upland portion of the site is to be encumbered.
Transplantation of mature wetland trees, if successful, could offset removal of trees from isolated wetlands now serving as bald eagles' roosts. Although it is too early to say for sure, the evidence so far makes it not unreasonable to believe that "tree spading" of mature trees can permit life to go on in another location. The plan is to transplant wetland trees now growing on sites to be covered over, to the extent they are available, even though less acreage is to be converted to wetland than is proposed for destruction.
If the landfill is not built, and no garbage (or other) trucks deposit oils, greases and gasoline on roadways over which stormwater flows, shallow portions of retention ponds would, if built, augment the City's other mitigation proposals. But, if oil, greases, gasoline and other landfill pollutants regularly wash into the stormwater retention basins, as is intended, if the landfill is built, the retention ponds, far from mitigating the loss of wetlands, might themselves constitute an additional environmental hazard to wildlife, including the endangered wood stork.
Since the City has not proposed to replace isolated wetlands where wood storks now feed with anything approaching a like extent of suitably configured, created wetlands, the City has given reasonable assurance that its application for a permit for management and storage of surface waters complies with Rule 40C-4.301(1))a)(10) and (2)(a)(6), Florida Administrative Code, and Section 10.2.1(e) of the Applicant's Handbook only if the landfill is not built, so that shallow portions of the retention ponds could function as mitigation areas.
It is, accordingly, RECOMMENDED:
That DER deny the City's request for variance.
That DER deny the City's application for a permit to construct a landfill.
That DER deny the City's application for a dredge and fill permit.
That DER grant the City's application for a permit for management and storage of surface waters, on conditions proposed in the intent to issue, unless modified by agreement of all parties.
DONE AND ENTERED this 16th day of October, 1989, in Tallahassee, Leon County, Florida.
Robert T. Benton, II Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the
division of Administrative Hearings this 16th day of October, 1989.
APPENDIX A
Petitioner St. Johns County's proposed findings of fact Nos. 1-4, 6, 10-12, 14, 16, 18, 21,23, 24-28, 33, 35, 37, 38, 41-45, 47-48, the first sentence of
No. 51, Nos. 52-56, 57 except for the first sentence, which is rejected, 58, 59,
62, 64, 66, 68-74, 95-103, 106-109, 111- 116, 118, 131, 132, 133 except for
subpart 7, 134, 136 and 137 have been adopted, in substance, insofar as material.
With respect to petitioner St. Johns County's proposed finding of fact No. 5, and the second sentence of petitioner St. Johns County's proposed finding of fact No. 51, the design rate is not the same as the current rate of deposition.
Petitioner St. Johns County's proposed findings of fact Nos. 7, 8, 9, 13,
15, 17, 22, 75, 110 and 138 relate to subordinate matters.
Petitioner St. Johns County's proposed finding of fact No. 19 accurately recites the testimony.
Petitioner St. Johns County's proposed finding of fact No. 20 is immaterial.
With respect to petitioner St. Johns County's proposed finding of fact No.
29, the City's evidence that leakage of this kind was insignificant went unrebutted.
Petitioner St. Johns County's proposed findings of fact Nos. 32 and 120-123 are immaterial to the present application.
With respect to petitioner St. Johns County's proposed finding of fact No.
30, the City's estimates were unreasonably low.
With respect to petitioner St. Johns County's proposed finding of fact No. 31, the evidence showed that nine gallons a day was at the upper limit, not that it would actually occur.
With respect to petitioner St. Johns County's proposed finding of fact No.
34, at least 13 substances occur in concentrations that exceed health-based standards.
Petitioner St. Johns County's proposed findings of fact Nos. 36 and 63, 117, 119 and 135 are proposed conclusions of law.
With respect to petitioner St. Johns County's proposed finding of fact No.
39, the probability of a leak on the edge of the disposal area was not established.
With respect to petitioner St. Johns County's proposed finding of fact No.
40, the evidence did not show that when "two or more toxic substances are combined" they necessarily have synergistic impacts.
With respect to petitioner St. Johns County's proposed finding of fact No.
46, the City's assumption of no attenuation was an appropriately conservative
approach that is not inconsistent with the City's unrefuted testimony that attenuation would occur.
With respect to petitioner St. Johns County's proposed finding of fact No. 49, the evidence did not prove that the City would allow four feet of leachate to stand on the liner.
Petitioner St. Johns County's proposed findings of fact Nos. 50 and 60 immaterial to the present application.
With respect to petitioner St. Johns County's proposed finding of fact No. 61, the evidence did not establish the contentions following the clause ending "and into Durbin Creek,".
With respect to petitioner St. Johns County's proposed findings of fact Nos. 65 and 67, the McCormick wells have served ornamental and talismanic purposes, but they were not shown to be potable water supply wells, within the meaning of the rule. At the time of hearing the pumps did not function and were not mounted on the wells.
Petitioner St. Johns County's proposed finding of fact No. 76 has been adopted, in substance, insofar as material, except that there was at least one effort to collect toxic wastes in Jacksonville.
With respect to petitioner St. Johns County's proposed findings of fact Nos. 77 through 94, proposed permit conditions are not proposed findings of fact.
With respect to petitioner St. Johns County's proposed finding of fact No. 124, the evidence was clear that more wetlands were to be destroyed than were to be created.
Petitioner St. Johns County's proposed finding of fact No. 125 is rejected as against the weight of the evidence.
With respect to petitioner St. Johns County's proposed findings of fact Nos. 126, 127 and 128, mitigation , particularly as regards the wood stork, if the landfill is built.
Petitioner St. Johns County's proposed finding of fact No. 129, Durbin Creek enters Julington Creek, shortly before the latter reaches the river.
Findings of fact proposed by petitioners J.T. McCormick and the Estate of Benjamin R. McCormick (McCormicks) Nos. 1-4, 6-10, 13, 15-17, 20, 21 and 23 have been adopted, in substance, insofar as material.
With respect to McCormicks' proposed finding of fact No. 5, a preponderance of the credible evidence did not establish that the wells would be used to supply potable water in the future, even if the pumps are repaired to make it possible. Nor did the evidence establish any such authentic, "non-forensic," use in the past.
With respect to McCormicks' proposed finding of fact No. 11, evidence was adduced that other sites had been considered by engineers the City engaged. T. 2224-5.
With respect to McCormicks' proposed finding of fact No. 12, testimony put the delay at two to three months. T. 2139. The City could have avoided this delay.
McCormicks' proposed finding of fact No. 14 has been adopted, in substance, insofar as material, except that the proportion of the Class III waste stream construction and demolition debris comprises is not stated at T. 2149.
With respect to McCormicks' proposed findings of fact Nos. 18 and 19, the four and six cents per ton computations ignore the time value of money, among other things.
McCormicks' proposed finding of fact No. 22 is immaterial.
McCormicks' proposed finding of fact No. 24 is properly a proposed conclusion of law.
Findings of fact proposed by Florida Wildlife Federation, Inc., St. Johns County Audubon Society, Sierra Club, Inc., Coastal Environmental Society and River Systems Preservation, Inc. came in two unnumbered installments. Findings of fact have addressed the substance of each. Without numbering, it is difficult to treat the material.
Petitioner STOP's proposed findings of fact Nos. 5-7, 9-10, 12-18, 20, 22-
24, 26-27, 29, 32-47, 49, 50, 52, 55-57, 59-60, 62, 63, 66, 67, 69, 70, 72 and
73 have been adopted, in substance, insofar as material.
Petitioner STOP's proposed findings of fact Nos. 1-4, 30, 31, 65, 71, 75 and 76 are properly proposed conclusions of law in part and relate otherwise to DER's preliminary analysis, which is technically immaterial.
With respect to petitioner STOP's proposed findings of fact Nos. 8 and 58, Mr. Kappes said he had seen alligator on site but, when asked for specifics, testified to tracks they had left in the southeast corner of the site. Equally ambiguously, the City stated in its draft application that alligator had been "noted" on the property. The evidence did not show that ospreys are protected or listed in Duval County.
Petitioner STOP's proposed findings of fact Nos. 11 and 74 relate to subordinate matters.
With respect to petitioner STOP's proposed finding of fact No. 19, the inference that all commensals is present is problematic here, since the gopher tortoises were relocated by man from a site many miles away.
With respect to petitioner STOP's proposed finding of fact No. 21, 80 to 82 of 105.7 acres of gopher tortoise habitat would be destroyed.
Petitioner STOP's proposed finding of fact No. 25 is immaterial to this application.
With respect to petitioner STOP's proposed finding of fact No. 28, Mr.
Wiley so testified.
With respect to petitioner STOP's proposed findings of fact Nos. 48, 51 and 64, although the conservation easement on uplands would not result in additional habitat, it would preclude further diminution.
With respect to petitioner STOP's proposed findings of fact Nos. 53 and 54, no eagles are currently nesting on site, and Eagle Nest Island, where eagles nested until 1983, is off site.
With respect to petitioner STOP's proposed finding of fact No. 61, the evidence did not establish that Mr. Kappes saw the red-cockaded woodpecker on site, even though he found six active nests within three miles of the site.
With respect to petitioner STOP's proposed finding of fact No. 68, Dr.
White so testified.
DER's proposed findings of fact Nos. 1-9, 11-15, 17, 24, 26, 33, 37, 39,
41-45, the first three sentences of No. 50, Nos. 52-56, 62-64, 66, 67, except as regards inherent legislative facts, 70-87, 89-92 and 95 have been adopted, in substance, insofar as material.
With respect to DER's proposed finding of fact No. 10, 0.9 acres of wetlands contiguous to Durbin Swamp and within the jurisdiction of the St. Johns River Water Management District would be used for a storm water retention basin.
DER's proposed findings of fact Nos. 18 and 20 have been adopted, in substance, except that these steps do not ensure or guarantee a quick return of water quality functions.
DER's proposed findings of fact Nos. 21, 32, 35, the last sentence of No.
50, Nos. 51, 88 have been rejected as against the weight of evidence.
With respect to DER's proposed findings of fact Nos. 22 and 28, mitigation areas with deep ponds in the middle will permit fish to avoid the conditions under which wood storks feed.
With respect to DER's proposed finding of fact No. 23, the steep sided ponds, sparser canopies and lesser extent of created isolated wetlands offset their "higher quality."
With respect to DER's proposed finding of fact No. 25, the mitigation proposed does not amount to a one to one ratio. While significant, the easements preserve the status quo and do not compensate for lost wetland functions.
With respect to DER's proposed finding of fact No. 27, the evidence suggested no reason why bears would not forage in isolated, as well as contiguous wetlands.
With respect to DER's proposed finding of fact No. 29, to the extent possible, existing trees would be transplanted; if they all survived, the number of perches would be undiminished, except for branches broken in the process.
With respect to DER's proposed finding of fact No. 30, sightings nearby and habitat on site amount to evidence of use of the site. As regards the indigo snake, testimony that these animals were introduced to the site was uncontroverted.
With respect to DER's proposed finding of fact No. 31, alligator tracks were found in the southeastern part of the site.
With respect to DER's proposed finding of fact No. 34, no southeastern kestrel nests were found on site.
With respect to DER's proposed finding of fact No. 36, it is not in the public interest to issue a permit for a lined landfill that would cause pollution in violation of DER's water quality standards. If a landfill were properly permitted, it would be in the public interest to have access.
With respect to DER's proposed finding of fact No. 38, the first sentence (which seems to contradict the fourth) has been adopted, in substance, insofar as material.
With respect to DER's proposed finding of fact No. 40, there was no evidence of cumulative impacts to Durbin Swamp, as opposed to Durbin and Julington Creeks.
With respect to DER's proposed findings of fact Nos. 46-48, the clayey sand, placed in two six-inch lifts, would have much greater permeability as a unit than samples of the same material screened for certain imperfections and tested in the laboratory. In the field, it would not be possible to remove all clods and other materials that make for greater vertical hydraulic conductivity of the unit. Subgrade mixing would occur, in putting down the first of the two lifts. A 12-inch layer would be many more times transmissive than a liner of the same material put down in six six-inch lifts to attain the three feet DER requires, when no synthetic liner is used. Mr. Fluet did not testify that a 12-inch layer would achieve a permeability of 1 x 10-7 centimeters per second. He testified that nobody who had studied 12-inch layers had reported permeability of less than 1 x 10-5 centimeters per second for a clayey layer of that thickness.
With respect to DER's proposed finding of fact No. 49, the geomembrane is subject to the effects of pressure and temperature variation would contribute to wrinkling.
With respect to DER's proposed finding of fact No. 57, leachate leakage would diminish after closure, but would not stop altogether.
With respect to DER's proposed findings of fact Nos. 59 and 60, the working hypothesis is that even a single molecule of certain leachate constituents may initiate cancer, although concentrations below the levels identified are said to pose no more than an acceptable risk of doing so.
DER's proposed finding of fact No. 61 describes the methodology correctly, but the particular results have not been accepted.
With respect to DER's proposed finding of fact No. 65, predicted concentrations depend on the leakage rate assumed.
With respect to DER's proposed finding of fact No. 68, data showing the composition of discharges to ground water from other Class III landfills were not presented. Supposed "legislative facts" do not constitute evidence.
With respect to DER's proposed finding of fact No. 69, the evidence did not show what concentrations of biocides or other chemical constituents were likely to be.
With respect to DER's proposed finding of fact No. 93, the phrase "monitoring well" was not used.
With respect to DER's proposed finding of fact No. 94, wells Nos. 21 and 22 were between 25 and 35 feet deep. Haydon McCormick testified that a shallow well near the house was for potable water supply.
DER's proposed finding of fact No. 96, has been adopted, in substance, except that additional time might not be required for permitting.
With respect to DER's proposed findings of fact Nos. 97 and 99, balancing of social and economic interests is appropriate only if hardship is proven, and immaterial otherwise.
The City's proposed findings of fact Nos. 1-9, 16-18, 20-25, 30, 33, 35-38,
42, 44, 46, 49, 50, the first two sentences of No. 55, Nos. 58-62, 65, 73, 74,
except for the last sentence, Nos. 75, 77-83, 88-92, 94-100, 104, 107, 108 and
110 have been adopted, in substance, insofar as material.
With respect to the City's proposed finding of fact No. 10, despite timbering of the uplands the site was characterized as "relatively unaltered."
With respect to the City's proposed finding of fact No. 11, no decline in water levels was shown to be irreversible.
With respect to the City's proposed finding of fact No. 12, the study was of "trivial value."
With respect to the City's proposed finding of fact No. 13, bald eagles and wood storks do make use of the site and indigo snake(s) were set loose there.
With respect to the City's proposed finding of fact No. 14, a witness testified to his "confidence" (T.2918) that the kestrel he spotted was a Southeastern kestrel. Signs of alligator were found near the southeast corner of the property.
With respect to the City's proposed finding of fact No. 15, hunting was mentioned.
The City's proposed findings of fact Nos. 19, 54, 56 and 84 pertain to subordinate matters.
With respect to the City's proposed finding of fact No. 26, the witness so testified.
With respect to the City's proposed finding of fact No. 27, it was not proven that noise would be "minimized."
With respect to the City's proposed finding of fact No. 28, bears could move through the culvert, but elsewhere the access road (particularly during the day), fences and human activity on site would indeed "impede black bear movement in the area."
The City's proposed findings of fact Nos. 29, 48, the last sentence of 55, Nos. 57, 71, 72, 85, 87 and the last sentence of 101 have been rejected as being against the weight of the evidence or as unsupported by the preponderance of evidence.
With respect to the City's proposed finding of fact No. 31, mobility will not assure successful relocation if existing populations are fully utilizing habitat in the vicinity.
The City's proposed findings of fact Nos. 32, 86 and 93 are properly proposed conclusions of law.
With respect to the City's proposed finding of fact No. 34, groundwater was shown unlikely to reach solid waste on site.
With respect to the City's proposed finding of fact No. 40, the maximum head would not be less than one inch.
With respect to the City's proposed finding of fact No. 41, such sand might not be available on site.
With respect to the City's proposed finding of fact No. 43, some leachate would leak through the liner.
With respect to the City's proposed finding of fact No. 45, some rainwater would infiltrate.
With respect to the City's proposed finding of fact No. 47, the evidence did not show that the clayey sand layer would attain so low a vertical hydraulic conductivity. If these liners have performed well, it has not been without leakage, both through flaws and by permeation.
With respect to the City's proposed finding of fact No. 51, the subgrade would be inspected, in an effort to assure complete removal of sharp objects.
With respect to the City's proposed findings of fact Nos. 52 and 53, permeability is specific to the permeant. The values quoted are for water. High density polyethylene is highly permeable to aromatic hydrocarbons. That liners leak is not speculation.
With respect to the City's proposed finding of fact No. 63, the design engineer envisioned circumstances that would require backing leachate up in the landfill.
With respect to the City's proposed finding of fact No. 64, violations were proven, in the absence of sufficient attenuation in the vadose zone, and attenuation there was not quantified.
With respect to the City's proposed findings of fact Nos. 66 and 67, these evaluations assumed unrealistically low leachate leakage rates.
With respect to the City's proposed finding of fact No. 68, this elaborate house of cards bears little relationship to the language of the free from rule. But this approach, too, shows violations, if realistic leakage rates are used.
With respect to the City's proposed finding of fact No. 69, credible and credited evidence of dramatically higher leachate leakage rates than they assumed contradicted their conclusions.
With respect to the City's proposed finding of fact No. 70, the witness so testified.
With respect to the City's proposed finding of fact No. 76, the precise constituents of the Class III leachate were not proven.
With respect to the City's proposed finding of fact No. 102, the witness so testified.
With respect to the City's proposed finding of fact No. 103, the well that Haydon McCormick jetted in was 25 to 35 feet deep.
With respect to the City's proposed findings of fact Nos. 105 and 106, wells could be placed so that enough water drawn from them would reverse the gradient and cause pollutants to move toward the McCormick property.
With respect to the City's proposed finding of fact No. 109, the evidence about the effect on operations was ambiguous.
With respect to the City's proposed finding of fact No. 111, it is unlikely that the McCormicks would take steps to reverse the flow of groundwater.
APPENDIX B
Three methods of calculating per defect leachate leakage rates (in cubic meters per second) were proven at hearing, each expressed as an equation or formula requiring values for three variables, for their solution, viz.:
h = height of leachate head over defect (in meters) a = area of defect (in square meters)
Ks = permeability (vertical hydraulic conductivity) of clayey sand layer beneath defect (in meters per second)
The method advocated by the City, published by the EPA, and shown (by the author) to reflect ideal contact between liner components, which does not obtain in practice, is:
Q = (0.7) x (h) x (a0.1 x Ks0.88).
The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect good contact between liner components, shown likely to occur in places, is:
Q = (0.21) x (h0.9) x (a0.1 x Ks 0.74)
The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect poor contact between liner components, shown likely to occur in places, is:
Q = (1.15) x (h0.9) x (a0.1 x Ks 0.74)
In each case, Q represents the flow of leachate through each defect.
COPIES FURNISHED:
Carlos Alvarez and Carolyn S. Raepple
Hopping, Boyd, Green and Sams Post Office Box 6525 Tallahassee, Florida 32314-6526
Harrison D. Upchurch and Frank D. Upchurch, III
Upchurch, Bailey, and Upchurch, P.A. Post Office Box 170
St. Augustine, Florida 32085-0170
Joseph M. Glickstein, Jr. Glickstein and Glickstein
444 Third Street
Neptune Beach, Florida 32233-5111
David S. Dee and Allan Wagner
Carlton, Fields, Ward, Emmanuel Smith & Cutler, P.A.
Post Office Drawer 190 Tallahassee, Florida 32302
C. Rufus Pennington, III Margol and Pennington, P.A.
Suite 1702, American Heritage Tower
76 South Laura Street Jacksonville, Florida 32202
Debra Swim
1323 Diamond Street
Tallahassee, Florida 32301
Sidney F. Ansbacher
Turner, Ford and Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32207
Dan Brooks Hendrickson and
104 Sixth Avenue 4620 Arapahoe Avenue Pass-A-Grille, Florida 32706 Jacksonville, FL 32208
Frank X. Friedman, Jr.
T. R. Hainline, Jr.
G. Stephen Manning Marcia P. Parker
Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive
Jacksonville, Florida 32207
William H. Congdon and Chris McGuire
2600 Blairstone Road
Tallahassee, Florida 32399-2400
Kathryn L. Mennella Post Office Box 1429
Palatka, Florida 32078-1429
Larry Gilmore
9131 Fort Caroline Road Jacksonville, FL 32225
Larry A. Wells
237 Pablo Road
Ponte Vedra Beach, FL 32082
Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
J. T. McCORMICK; THE ESTATE OF BENJAMIN R. McCORMICK; STOP, INC; and ST. JOHNS COUNTY,
Petitioners, OGC CASE NO. 88-0389 DOAH CASE NOS. 88-2283
and 88-2352
88-2462
LARRY WELLS, 88-2967
88-2968
Invervenor, 88-2969
88-2970
vs. 88-2971
88-2972
THE CITY OF JACKSONVILLE and 88-4699
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
T. McCORMICK; ESTATE OF BENJAMIN R. McCORMICK; THE COASTAL ENVIRONMENTAL SOCIETY; RIVER SYSTEMS PRESERVATION, INC; and THE NORTHEAST GROUP OF THE FLORIDA CHAPTER OF THE SIERRA CLUB,
Petitioners, DOAH CASE NOS. 88-4699 88-4950
v. 88-4951
88-4952
THE CITY OF JACKSONVILLE and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On October 16, 1989, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to me and all parties his Recommended Order, a copy of which is attached as Exhibit A. On October 25, based on a stipulation of all parties, Respondent City of Jacksonville filed a Motion for Extension of Time for filing exceptions to the Recommended Order, responses to exceptions, proposed final orders, and issuance of the Final Order. On October 27 I entered an Order Granting Extension of Time. Timely exceptions were then filed by Respondent Department of Environmental Regulation (Department), Respondent City of Jacksonville (City), Petitioner St. Johns County (County), Petitioner J.T. McCormick and the Estate of Benjamin R. McCormick (McCormick), Petitioner St.
Johns Taxpayers Opposing Pollution (STOP), and Intervenors Larry A. Wells et. al. (Intervenors). Timely responses to exceptions were filed by the City, the County, McCormick, STOP, and Intervenors. On October 13 the Department filed a Motion for Extension of Time, based on a stipulation of the parties, to extend the time for issuance of the Final Order to and including January 22, 1990.
That motion was granted by Order entered December 21, 1989. The matter thereafter came before me as Secretary of the Department for final agency action.
BACKGROUND
On April 15, 1988, the Department's Northeast District, issued an Intent to Issue Permit No. SC16-143188 for the construction of a landfill in the southeast corner of Duval County. The proposed landfill site consists of 880 acres, of which 132 acres would be used as a Class I landfill and 88 acres as a Class III landfill. On May 20, 1988, the Department issued an Intent to Issue Permit No. 161332949 for dredging and filling necessary for an access road to the site.
Approximately 2.8 acres of contiguous wetlands would be filled. On May 25, 1988, the Department issued an Intent to Issue Permit No. 148069 for the management and storage of surface waters (MSSW) for the site. Such permits are normally issued by the St. Johns Water Management District (the District), but the District has delegated MSSW permitting back to the Department for projects associated with landfills. The MSSW system would impact approximately 46.3 acres of wetlands within the jurisdiction of the District. On August 31, 1988, the Department issued an Intent to Issue Variance No. VE-16-440 to allow the disposal of solid waste within 500 feet of a shallow water supply well.
Petitioners filed timely requests for formal administrative proceedings for each permit and the variance. All petitions were referred to DOAH and consolidated.
Following thirteen days of evidentiary hearing in February and March, 1989, the Hearing Officer issued his Recommended Order. The Recommended Order found that the statutory prerequisites for the variance had not been fulfilled, that leakage from the landfill was likely to cause violations of water quality criteria, that the dredge and fill aspects of the project were permittable only if the landfill were permitted, and that the mitigation for impacts to habitat proposed in the application for the MSSW permit was inadequate. The Hearing Officer therefore made the following recommendations:
The request for variance should be denied.
The application for a landfill construction permit should be denied.
The application for a dredge and fill permit should be denied, but only if the landfill permit is denied.
The application for MSSW permit should be issued, but only if the landfill permit is denied.
Because of the complexity of the case, the number of issues and parties, and the narrative nature of many of the exceptions, I shall address each permit and the variance separately, referencing the exceptions applicable to each issue. References to pages in the transcript shall be "T.#." References to the Recommended Order shall be "R.O.#" (for numbered Findings of Fact) or "R.O. pg.#" (for Conclusions of Law). Since the Department's exceptions were not consecutively numbered, the exception entitled "The `Free-from' Rule" on page 2 shall be referred to as Exception 1, the exception entitled "The Rebuttable Presumption" on page 5 shall be referred to as Exception 2, the exception entitled "The Landfill" on page 17 shall be referred to as Exception 3, and the exception entitled "Endangered Species" shall be referred to as Exception 4.
Citations to rules, unless otherwise noted, are to Department rules found in Florida Administrative Code (F.A.C.).
RULINGS ON EXCEPTIONS
The Variance (City's Exception VIII; County's Exception 11; McCormick's Exceptions 1-3)
The City takes exception to the Hearing Officer's conclusions concerning the variance on the grounds that he afforded insufficient weight to the costs incurred by a delay and redesign of the landfill, and that a variance is not needed in any case because the wells in question are not "shallow water supply wells" within the meaning of Department rules. Both the County and McCormick take exception to the Hearing Officer's finding that the wells near the proposed landfill are not shallow water supply wells.
The wells in question were installed by a neighboring landowner (McCormick) after he found out that a landfill was to be built, but before the permit could be issued. The City then requested a variance from the provision of Rule 17- 701.040(2)(c), which prohibits the disposal of solid waste within 500 feet of shallow water supply wells. The Department granted the variance based on two statutory criteria: that there is no practicable means to control the pollution because there would be no pollution from the Class III landfill that could affect the McCormick wells (Section 403.201(1)(a), Florida Statutes (F.S.)); and to Prevent hardship which would be caused by the delay and cost of redesigning the Class III landfill to be 500 feet from the wells (Section 403.201(1)(c), F.S.).
The Hearing Officer concluded that the leachate from the Class III site would be pollution, and that there were means to control it, such as lining the site. However, he also concluded that "the evidence did not establish that leachate from the class III, site would cause pollution in violation of any of DER's rules." (R.O. pg. 77)
The Hearing Officer concluded that there was no hardship because the City could have redesigned the project once the wells were discovered, thereby avoiding any delay, and because the costs of redesign were small compared to the total cost of the landfill. However, the Hearing Officer also found that the nearby wells were not "shallow water supply wells," because they did not currently pump water and were not used for providing potable water.
As the Hearing Officer correctly noted, Rule 17-701.020(54) defines "shallow water supply well" as "any potable water well which pumps water from an
unconfined water table aquifer." Therefore, if the wells in question do not meet the definition in the rule, there is no need for a variance, and it is unnecessary for me to determine whether the City properly demonstrated entitlement to a variance.
The Hearing Officer found, in Findings of Fact #115-121, that the wells had not been constructed, used or maintained for the purpose of supplying potable water. Then, in his Conclusions of Law, the Hearing Officer made further findings that:
When last seen, the pumps supposedly pumping water from these wells formed a useless, if colorful, heap of metal in a wash tub. Nor was the day's inefficacy happenstance. The product of their desuetude, the pumps inutility bore eloquent witness to a sham. While it is impossible to say that shallow water supply wells within
500 feet of the Class III site were never approved, it is clear, now that they have materialized, that approval was sought and obtained as a sham.
(R.O. pg. 77-78.)
The definition of "shallow water supply well" in Rule 17-701.020(54) depends on the existence of facts that must be determined on a case-by-case basis. In this case, the Hearing Officer's findings in connection with such facts are supported by competent substantial evidence, and I am therefore without liberty to disregard those findings. Section 120.57(1)(b)10., F.S.
In view of the foregoing, I accept the City's Exception VIII to the extent set forth above, and I reject Exception 11 of the County and Exceptions 1-3 of McCormick. I further find that the Hearing Officer erred in recommending that the Department deny the City's request for a variance (R.O. pg. 97). Having determined on the basis of competent substantial evidence that the wells in question did not constitute "shallow water supply wells" for purposes of the 500-foot setback requirements, the Hearing Officer should properly have found that the variance issue was moot.
The Landfill Construction Permit
Before a landfill construction permit may issue, an applicant must demonstrate that the landfill design will meet all of the performance criteria in Chapter 17-701, which include providing reasonable assurance that the landfill will not violate water quality standards or criteria. The Hearing Officer concluded that the landfill had met the design criteria in Department rules, and therefore was entitled to the rebuttable presumption that the landfill would meet all of the performance standards in the rules. However, he also concluded that the Petitioners had rebutted this presumption by demonstrating that leachate from the landfill would violate water quality standards, specifically the "free-from" rule (Rule 17-3.402(1)). He found that numerical water quality standards outside the zone of discharge would not be violated. He indicated that the ground water monitoring plan submitted with the application may be inadequate. Finally, he concluded that the closure plan
submitted with the application was adequate, and that the design of the Class III landfill was adequate.
The "Free From" Rule (Department's Exception 1; City's Exceptions III and VII)
The, Department takes exception to the Hearing Officer's conclusions regarding the interpretation of Rule 17-3.402(1), on the ground that the Department's interpretation requiring a hypothetical sampling event was permissible. The City takes exception to these same conclusions on the grounds that the Rule criteria cannot be implemented unless the Department adopts standards pursuant to Rule 17-3.402(3)(Exception III.A); that the Hearing Officer erroneously applied primary and secondary drinking water standards within the zone of discharge (Exception III.B); that the rule is only applicable where exposure to humans is possible, which would not include the ground water underneath a landfill (Exception III.C); and that there is no "current regulatory policy" that one molecule of a substance may act as a carcinogenic initiator (Exception VII.B).
Rule 17-3.402 includes the following "free from" requirement:
All ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man-induced non-thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges (whether thermal or non-thermal):
* * *
(b) Are carcinogenic, mutagenic, teratogenic, or toxic to human beings, unless specific criteria are established for such components in Rule 17-3.404; or
* * *
(d) Pose a serious danger to the public health, safety, or welfare ....
* * *
(3) The following procedures shall apply in the implementation of subsection (1)(b).
The Secretary is authorized to make determinations, in individual permitting or enforcement proceedings, that a particular level for a substance is a prohibited concentration in violation of a minimum criterion pursuant to subsection (1)(b). This determination may not be delegated to the districts.
Any notice of proposed agency action published pursuant to Rule 17-1.62, F.A.C., which contains such a determination shall include notification of the particular substance and prohibited concentration level being proposed. .. (Emphasis supplied.)
The Hearing Officer concluded that the rule "forbids discharges into groundwater, if the discharge contains a substance in a concentration that is carcinogenic ..." and that "[a]t the point [the undiluted discharge] enters the groundwater, a discharge with components in concentrations that are carcinogenic
... constitutes a violation." (R.O. pg. 72) Since the Hearing Officer also found that the leachate contained at least some carcinogenic chemicals and that
at least some leaking would occur, he concluded that any such leakage, containing even one carcinogenic molecule, would thus result in a violation of the rule.
This interpretation must be rejected. The rule states that "All ground water shall ... be free from ... components of discharges in concentrations which ... are carcinogenic." (Emphasis supplied.) In other words, the rule language is directed at concentrations in the ground water, not in the leachate itself. The rule's intent, as expressed in its language, is to protect the ground water, but not to prohibit any discharge whatsoever. As I stated in Huelsman v. WAC of Okaloosa County Inc., 11 FALR 3777 (Final Order dated May 29, 1989), the ground water rule is not a "no discharge" rule. Rather, the rule language "in concentrations which" necessitates the existence of a measurable quantity of ground water to determine compliance with that portion of the rule. In the instant case, the Hearing Officer found that all landfills leak and that all Class I landfills accept hazardous constituents that would be subject to the "free from" rule. (R.O. Appendix A, responding to City's proposed findings of fact 52 and 53) To accept the Hearing Officer's interpretation of the "free from" rule would thus have the effect of banning the construction of all landfills, thereby rendering irrelevant the performance standards for such construction contained in Chapter 17-701. The Hearing Officer appeared to acknowledge that his interpretation has this effect, by suggesting that the "free from" rule may be an "impractical rule." (R.O. pg. 73) The impracticality, however, comes from how the Hearing Officer chose to interpret the rule. It was contrary not only to the Department's interpretation, but also to the above noted language of the rule itself, which focuses on concentrations in ground water and not in the leachate. With this interpretation the Hearing Officer ignored a cardinal rule of statutory interpretation, equally applicable to rules, that they should not be interpreted in a way that renders them meaningless. Cf. Finlayson v. Broward County, 471, So.2d 67 (Fla. 4th DCA 1985), aff'd 533 So.2d 817 (Fla. 1988). The Hearing Officer also chose to disregard another interpretative rule, that he may not substitute his own interpretation of the rule for that of the agency; he must "defer to any interpretation within the range of possible interpretation." Natelson v. Department of Insurance, 454 So.2d 31, 32 (Fla. 1st DCA 1984). The Department's Exception 1, therefore, is accepted.
The Hearing Officer also concluded that the "free from" rule applies to substances for which a specific water quality standard has been set, inside a zone of discharge. This interpretation contradicts the clear language of the rule, which states that all ground water must be free from certain substances "unless specific criteria are established for such components in Rule 17-3.404." The referenced criteria are the specific water quality standards. The interpretation also contradicts Rule 17-3.404(3), which states that such specific standards "shall not apply within a permitted zone of discharge as provided in Section 17-28.700, F.A.C. The minimum criteria specified in 17-
3.402 shall apply within the zone of discharge." Therefore, the City's Exception III.B is accepted.
In arguing that the Hearing Officer's interpretation of the "free from" rule is wrong, the City offers two alternative interpretations. It proposes that unless the Secretary sets standards, the rule is unenforceable. It also suggests that the rule requires exposure to humans, which is impossible underneath a landfill. These interpretations must also be rejected.
The City's first argument (Exception III.A) is based upon the provisions of Rule 17-3.403(3), which states that the Secretary "is authorized" to set
standards for carcinogenic substances, provided the procedure set forth in the rule is followed. In this case, no party did so request, and no standard- setting procedures have been initiated. Actually, no "free from" analysis was required at the outset. As previously stated, there is a rebuttable presumption that if the performance criteria will be met, the landfill is presumed to meet all ground water criteria and standards. Once the petitioner places the matter at issue, then the inquiry becomes appropriate, but the presumption is still with compliance. See Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981). In the instant case, once placed at issue by the Petitioners, and without any request to use the "Secretary is authorized" section of the rule, the testimony of toxicologists established carcinogenic concentrations for particular substances. Such testimony was entirely proper, and in fact was consistent with the procedure established by the Department for determining such concentrations, as described in the Department's "Ground Water Minimum Criteria Guidance " memorandum, which was admitted into evidence. Since it was appropriate for the Hearing Officer to consider this evidence, Exception
III.A is rejected.
The City's second argument (Exception III.C) is that since the "free from" rule states that a component must not be carcinogenic to humans, no component could therefore be considered carcinogenic in this proceeding because exposure to humans of ground water directly beneath the proposed landfill would not be possible. The rule, however, applies to "all ground water at all times. The ground water beneath the landfill is classified as Class G-II (Pre-hearing stipulation pg. 10), and Rule 17-3.401 designates the use of Class G-II ground water for potable water. For these reasons, the ability to obtain water from a particular segment of ground water for the purpose of drinking that water is not considered in implementation of the rule. Because that segment, like adjacent segments, is designated for potable use, discharges to it are required to meet the criteria established for Class G-II ground water. Therefore, the City's Exception III.C is rejected.
While rejecting the Department's interpretation of the "free from" rule, the Hearing Officer did find to be accurate the Department's methodology for calculating concentrations in a cubic foot of ground water. The City and the Department argued at hearing that since the rule regulates carcinogenic concentrations of substances in ground water, a volume of ground water had to be determined in which to measure the concentration. The evidence showed, and the Hearing Officer found, that one cubic foot of water was the smallest amount of water which could theoretically be sampled by a monitoring well. Under the Department's interpretation of the rule, therefore, the concentration of a carcinogenic substance in one cubic foot of ground water is determinative of whether the rule would be violated. This concentration can be calculated, at least theoretically, by assuming certain concentrations of carcinogens in the leachate, and calculating the leakage rate of leachate through a hole in the plastic liner.
While no volume, of ground water is mentioned in the rule, it must require some concentration and therefore some volume to calculate the concentration in ground water. This is a necessary interpretation of the rule, which requires contaminants to be in "concentrations" in the ground water. In this case the Hearing Officer found that one cubic foot is a reasonable volume of ground water in which to calculate concentrations. I accept the methodology proposed by the Department aid the City to calculate anticipated concentrations of carcinogens in ground water for purposes of determining whether violations of the "free from" rule are likely to occur.
Given this methodology and under conditions that reasonably could be expected at this landfill, the evidence does not support a conclusion that ground water under the landfill would contain chemicals in concentrations which are carcinogenic to human beings. The Hearing Officer's conclusions in this regard are not entirely clear. The Hearing Officer found that "current regulatory policy" is that one molecule of methylene chloride, trichloroethylene, tetrachloroethylene, or benzene can act as a cancer initiator. There was testimony that the Environmental Protection Agency ("EPA") does believe this, and therefore sets no "safe" threshold for carcinogens.
However, this same witness (and others) went on to explain that EPA uses a complicated risk analysis to determine which concentrations of carcinogens pose an unacceptable risk, based on lifetime exposure and rates of cancer. For methylene chloride, for example, the level was set at five parts per billion because that level, ingested by a 70 kilogram man at the rate of 2 liters a day for 70 years, would create a one-in-a-million chance of cancer. The Department has by rule established water quality standards for the other substances, which are based on concentrations, not on the presence of one or more molecules.
There is no evidence that it is the current regulatory policy of the Department that one molecule of any substance will cause a violation of the "free from" rule; rather, the express language of the rule provides differently, that such a substance must be found "in concentrations which," if ingested, would pose an unacceptable risk of cancer. The Hearing Officer apparently agreed with this interpretation; in the response to the Department's Proposed Finding of Fact #59, the Hearing Officer stated "one molecule can cause cancer, but concentrations below identified levels pose no more than an acceptable risk of it." Based on the foregoing reasons, the City's exception (Exception VII.B) is accepted.
Reasonable Assurance (Department's Exception 2; City's Exceptions I, IV, VI, VII)
The Department takes exception to the Hearing Officer's conclusion that Petitioners had rebutted the presumption enjoyed by the City that the proposed landfill would meet all of the performance criteria in Department rules, on the grounds that the findings of fact concerning anticipated leakage rates and water quality were not, based on competent substantial evidence. The City takes exception to this same conclusion on the grounds that the Hearing Officer's findings constituted an attack on the design criteria of the Department rules, not on site specific hydrogeological factors (Exception I); that the findings of fact concerning leakage rates and water quality were ambiguous, erroneous, or based on policy considerations (Exceptions VI, VII.C); and that the findings concerning the ground water monitoring plan were speculative (Exceptions IV, VII.D).
Applicants for Department permits are not required to give absolute guarantees that their project will not under any circumstances cause pollution. Such a guarantee would contravene the express language of Department statutes and rules. For example, Section 403.021(3), F.S., states:
It is declared to be the public policy of this state and the purpose of this act to achieve and maintain such levels of air, quality as will protect human health and safety and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the' comfort and convenience of the people, promote the economic and social development of this state, and facilitate the
enjoyment of the natural attractions of this state. In accordance with the public policy established herein, the Legislature further declares that tie citizens of this state should be afforded reasonable protection from the dangers inherent in the accidental release of toxic or otherwise hazardous vapors, gases, or highly volatile liquids into the environment. (Emphasis supplied.)
Section 403.021(10), F.S., states:
It is the policy of the state to ensure that the existing and potential drinking water resources of the state remain free from harmful quantities of contaminants. ... (Emphasis supplied.)
Rule 17-4.030, F.A.C., states:
Any stationary installation which will reasonably be expected to be a source of pollution shall not be operated, maintained, constructed, expanded, or modified without the appropriate and valid permits issued by the Department, unless the source is exempted by Department rule. The Department may issue a permit only after it receives reasonable assurance that the installation will not cause pollution in violation of any of the provisions of Chapter 403, F.S., or the rules promulgated thereunder. ... (Emphasis supplied.)
Rule 17-701.030(6), F.A.C. states:
The Department, following an evaluation of a permit application and all supporting information, shall:
(d) Deny the issuance of a permit if reasonable assurances are not provided that the requirements of Florida Administrative Code Rule 17-701 arid other applicable laws and rules will be satisfied. (Emphasis supplied.)
The Hearing Officer found that, even accepting the hypothetical one cubic foot of ground water dilution factor advocated by the Department, under "realistic" scenarios the minimum criteria would be violated. To reach this conclusion the Hearing Officer relied upon calculations of leachate leakage through the landfill's liner system, the amount of dilution of the leachate in ground water, and the concentrations of contaminants in the leachate. The calculations are based upon findings concerning:
Holes in the landfill's plastic liner;
The head of leachate over the liner;
The permeability of the clay under the plastic liner;
The contact between the plastic and clay liners;
The flow of ground water under the liners; and
The concentration of contaminants in the leachate.
Some of these findings are essentially uncontested, and are discussed below only because they are relevant to the ultimate conclusions concerning leakage.
However, in his findings concerning the leachate head, the permeability of the clay, the contact between liners, and the concentration of contaminants in the leachate, the Hearing Officer found that a "worst case" scenario could occur for each finding individually, and concluded that it is realistic to assume that all such scenarios will occur simultaneously. While some of these "worst case" findings might individually be possible, the simultaneous and continuous occurrence of all worst-case scenarios is unrealistic, overly speculative, and unreasonable -- far beyond any "worst case scenario" that may be appropriate for the Department to consider in the context of reasonable assurance. Cf. Pacetti
v. Department of Environmental Regulation, 8 F.A.L.R. 4050 (Final Order dated April 18, 1986).
The following sections discuss the assumptions and findings concerning leachate leakage which the Hearing Officer made to reach the conclusion that the "free from" rule would be violated. Exceptions to these findings are also discussed.
Liner defects
Before attempting to calculate concentrations of carcinogenic substances in ground water, leaks in the liner system must first be assumed. The Hearing Officer found that from one to five "pinholes" (holes with an area of 10-5 square meters, or one-tenth of a square centimeter) could be expected per acre in the plastic liner, with the larger being the more likely number. (R.O. #100,
110) Contrary to thee assertions made by the City (Exception VI.A), the Hearing Officer did not determine that holes would only result from poor quality assurance during installation; indeed, the estimate of five holes per acre was based on testimony that this would occur with good quality assurance, and that the best possible quality assurance program, such as is found in some hazardous waste landfills, would still result in at least one hole per acre. (R.O. #75) The Hearing Officer's findings in this regard were based on competent substantial evidence and are accepted. The City's exception is therefore rejected.
Leachate head
The Hearing Officer found that calculations of leakage rates through such holes depends upon the amount of leachate head over the hole, the permeability of the clay under the plastic liner, and the contact between the plastic and clay liners. (R.O. #94: Appendix B) This section addresses the first such factor.
The proposed liner system employs a geonet to assure a rapid flow of leachate over the plastic liner. The evidence was undisputed, and the Hearing Officer apparently accepted (R.O. #95) that calculations provided by the City show that the amount of head over the liner would be less than one-tenth of an inch where the liner was smooth. The Hearing Officer also found that "some wrinkling and occasional flaws in the plastic liner are inevitable" and that wrinkles and other indentations can cause ponding of leachate. (R.O. #74) He therefore found that the "smallest practical head" one could achieve would be one inch. (R.O. #95) This finding was based on competent substantial evidence,
and the City's and Department's arguments (City's Exception VI.B; Department's Exception 2.A.2) that the Hearing Officer did not properly weigh this evidence are rejected. The findings that "some" wrinkles would occur, that over time some of the wrinkles might subside," and that "the liner might also sink into additional depressions" (R.O. #74) all support the Hearing Officer's statement that "the maximum head would not be less than one inch." (R.O. Appendix A, responding to City's Proposed Finding of Fact #40). They do not, however, support a finding that one inch of head would occur universally over the liner, and the Hearing Officer did not specifically make such a finding. In fact, the evidence was clear that the amount of head would vary between one inch and less than one-tenth of an inch depending on the proximity of wrinkles and other depressions. While the Hearing Officer did find that holes are more likely to occur near wrinkles, there was no finding that holes in the liner are likely to occur only near wrinkles, or that they would occur only on the ponded side of a wrinkle (as the Department points out in its Exception 2.B). The Hearing Officer did not specifically find that one inch of head would occur over every defect in the liner, and no competent substantial evidence would support such a finding. Under any realistic scenario, the only reasonable assumption that can be made is that some holes would have a one-inch head over them, and some would not.
Permeability of clad liner
Another factor necessary to calculate leachate leakage rates is the permeability of the clay layer underlying the plastic landfill liner. The Hearing Officer found that the City did not provide reasonable assurance that the proposed 12-inch clay layer would have an in situ permeability of 10-7 cm/sec. The City argues that the liner installation quality assurance plan will prevent subgrade fouling and dessication cracking, thus assuring that the clay layer will achieve the desired permeability. (Exception VI.E) This exception is an attempt to reweigh the evidence, and is rejected.
While there was evidence that a 12-inch clay layer was highly unlikely to achieve the desired permeability, the City correctly points out (Exception VI.C) that the draft permit requires that the "permeability of the installed clay layer will not be greater than 10-7 cm/sec" (City's Exhibit 76), and the applicants will be required to meet that permeability figure in situ. Since I have concluded that the permit should be modified to require 18 inches of clay with a permeability measured after installation of 10-7 cm/sec (See Section
II.D. of this Order), and since it must be assumed that applicants will comply with permit conditions which are not impossible to meet, any calculations based on a higher permeability are irrelevant. The City's exception is accepted as regards the permeability requirements of the permit.
Contact between liners
The third factor necessary to calculate leachate leakage rates is the amount of contact between the plastic and clay liners. The better the contact between liners, the less leakage will occur. The Hearing Officer found that the contact between the two liners will vary from good to poor throughout the liner system. (R.O. #103) While the City used a formula published by the United States Environmental Protection Agency (EPA) which assumed good contact, the Hearing Officer found that two "modern" formulas offered by the County's expert predicting good and poor contact were more accurate. Since the EPA formula is not adopted in any Department rule, there is no assumption of accuracy associated with it, and the Hearing Officer was free to adopt these two "modern" formulas, based on expert testimony. As the Hearing Officer notes, no expert
found fault with these two formulas. (R.O. #104) Whether the EPA formula assumes good contact, as the evidence seems to indicate, or ideal contact, as the Hearing Officer finds, is irrelevant since the Hearing Officer found that other formulas were more accurate. The City's exception regarding the appropriateness of using the "modern" formulas (Exception VI.F) is an attempt to reweigh the credibility of experts, and is rejected.
Dilution factor
Once the leakage flow through the holes is calculated, the amount of dilution in ground water must be determined. The Hearing Officer found, and the evidence was undisputed, that 0.47 gallons of ground water would flow through one cubic foot of soil each day beneath the landfill's clay liner. Assuming that the soils beneath the clay liner would not reduce the concentration of leachate in the ground water (the Hearing Officer found that they would (R.O. #106), but no party was able to calculate the amount of any adsorption or dispersion due to the soils), it is thus possible to calculate a dilution factor for each leakage rate. All this will show, however, is the concentration of leachate in the ground water, not the concentrations of particular contaminants.
Leachate constituents
The City (Exception VII.A) and the Department (Exception 2.B) take exception to the Hearing Officer's findings that particular constituents would be found in the leachate and thus in the ground water at levels high enough to cause violations of water quality standards, on the grounds that the evidence did not shod that such constituents would actually occur at such levels.
The City performed a survey of leachate analyses from ten landfills in Florida which have liner systems. All analyses are "post-RCRA" meaning that they were done since the promulgation of rules requiring separation of hazardous and solid waste. The concentrations of numerous constituents in these leachates were collected and summarized. It was found that 13 constituents had been found in concentrations exceeding some standard or health-based criteria in at least one leachate analysis. Seven have primary or secondary standards (trichloroethylene, tetrachloroethylene, benzene, chromium, sodium, manganese, and iron); six have other guidelines or health-based criteria associated with them (aluminum, magnesium, titanium, methylene chloride, methyl ethyl ketone, and hexanoic acid), of which one (methylene chloride) is carcinogenic. (City's Exhibit 90) There was much discussion in the Recommended Order of methyl ethyl ketone, but while there are health-based criteria for it, there was no evidence or finding that at particular concentrations it is carcinogenic, mutagenic, teratogenic, or toxic to humans. Of the ten landfills surveyed, six tested the leachate for methylene chloride; four found no detectable amount, while two found some amount. The highest concentration found was 181 ug/l (parts per billion). (City's Exhibit 89)
At the hearing, the City presented calculations of predicted concentrations of carcinogenic constituents in ground water leaking through holes in a liner system, based on the highest concentrations of contaminants found in leachate in Florida. (City's Exhibit 90) These calculations were for "a hypothetical landfill leachate" based on "examination of the maximum concentrations of constituents detected in representative landfill leachate." (Id., citing to City's Exhibit 89) The author of City's Exhibit 89 testified that leachates exhibit "a large range of variability" (T. 1175) and that it is impossible to predict the specific characteristics of the leachate from the proposed landfill. (T. 1170) Contrary to what the Hearing Officer found (R.O. #86), there was no
competent substantial evidence that such concentrations in leachate would actually occur in the leachate from the proposed landfill, only that the range of concentrations would probably be the same as was found in other landfills. (T. 1175) For methylene chloride, this range would be from an undetectable amount up to 181 parts per billion, with the former being the more common amount. (City's Exhibits 89-90) The Hearing Officer also accepted the fact that the City's prescreening program could impact the quality of the leachate by preventing disposal of hazardous wastes. (City's Exhibit 87A; City's Proposed Finding of Fact #36) The Hearing Officer should properly have found that the anticipated leachate could have concentrations of contaminants as high as the maximums found at other comparable landfills. Therefore, the exceptions of the Department and the City are accepted. Under any realistic scenarios, the only reasonable assumption is that most of the leachate leaking through holes will have less than the maximum concentrations, although some leachate may contain this maximum amount.
Concentrations in ground water
The Hearing Officer found that methylene chloride "would end up in the groundwater in proscribed, carcinogenic concentrations as far away as 20 feet from many leaks within 90 days." This finding was apparently based upon the testimony of Dr. Swallows, who based his calculations on Mr. Fluet's testimony that the landfill would leak at a rate of two to nine gallons per acre per day. Mr. Fluet's estimate, however, was based upon a six-inch layer of clay beneath the plastic liner. (T. 2994) Furthermore, calculations show that even with poor contact between liners, a one-inch head over the liner, five holes per acre; and a permeability for the clay of 10-7 cm/sec, the leakage rate per acre would be
0.330 gallons per day per acre, and only 0.066 gallons per day per defect. The City (Exception VII.D) argues that Dr. Swallows' calculations are based upon faulty mathematics, but there is no evidence of this in the record, and this exception is rejected. However, his calculations are based upon assumptions which, according to the Hearing Officer's own calculations, are inaccurate, and there was no showing why leakage rates per acre are relevant for showing violations resulting from any particular defect. Therefore, the finding that there would be violations 20 feet away from leaks was not based upon competent substantial evidence.
Using the calculations accepted by the Hearing Officer, the concentration of methylene chloride in ground water will exceed five parts per billion (the health-based criteria) beneath a hole in the plastic liner when the concentration in leachate over the hole is equal to the highest known to have been found in Florida; when the head over the hole is one inch; when the contact between liners under the hole is poor; when the permeability of the clay is 10-7 cm/sec or greater; and when attenuation in the soils beneath the liner is ignored. While it is possible that each of these individual conditions could occur, the assumption that all will occur simultaneously and continuously is unreasonably speculative, and essentially puts the burden on the City to guarantee that no pollution will result from the proposed landfill under any conceivable set of circumstances. Such speculation is insufficient to overcome the presumption the City enjoys that its landfill, by meeting design criteria, will not violate water quality criteria. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981)("the Hearing Officer would not be authorized to deny the permit unless contrary evidence of equivalent quality is presented by the opponent of the permit.").
Furthermore, the burden of overcoming such speculation would contravene the entire concept of reasonable assurance. The Department's Exception 2.C is therefore accepted.
The Hearing Officer also "suggested" that violations of water quality standards "may" occur outside the zone of discharge for iron, manganese, and methyl ethyl ketone. (R.O. #111) Not only does this contradict undisputed evidence and the Hearing Officer's own findings that violations outside the zone of discharge would not occur, it is based on a mathematical extrapolation which is not part of the record. In addition, no water quality standard has been established for methyl ethyl ketone. This finding, if it is one, is not based upon competent substantial evidence, and the City's exception in this regard is accepted (Exception VII.C).
Rebuttable Presumption (Department's Exception 2; City's Exception I)
In Huelsman v. WAC of Okaloosa County, Inc., 11 FALR 3777 (Final Order dated May 29, 1989), it was determined that an applicant enjoys a presumption that a proposed landfill meets the performance standards of Rule 17-701.050 if it meets the design standards of that rule. Huelsman also noted that "the presumption of reasonable assurances which is associated with a landfill design meeting Department design standards is only rebuttable," and that "site geology," "site specific conditions," or "site specific geotechnical considerations" may require "alternative design configurations." Id. at 3787.
The City argues that since the Hearing Officer based his conclusion almost exclusively on leakage rates, which in turn are based on leachate head, hole size, number of holes, permeability of the clay liner, and the contact between the plastic liner and the clay liner, which are elements of the landfill design rather than site specific conditions, the presumption was not overcome.
It is important at the outset to note the differences between the case at hand and the Huelsman case. In Huelsman, the Hearing Officer found that the applicant had not complied with all of the design standards in the rule, due to deficiencies in the leachate collection system and the calculations of leachate production after closure, and was therefore not entitled to the rebuttable presumption. In addition, even if the presumption had attached, it was overcome by evidence that the ground water would sometimes rise above the liner, and that the applicant's soil characterization was inadequate. Design flaws, as well as site-specific hydrogeological considerations, led to permit denial. In the present case, however, the Hearing Officer's conclusions are based upon a series of hypothetical assumptions that question the design criteria as they are set forth in the rule, not as they are applied in this specific project.
In the Recommended Order in this case, the Hearing Officer concludes that the City has given reasonable assurance that the proposed landfill complies with "most of" the detailed construction and operational design requirements of Rule 17-701.050. (R.O. pg. 69) However, the Hearing Officer does not identify any design criteria with which the City's application do not comply, and concludes that "the City enjoys the benefit of a presumption that a landfill designed in conformity with design requirements will perform in conformity with performance requirements." (R.O. pg. 70)
The Recommended Order contains no findings regarding site hydrogeology which would necessitate design measures exceeding the design criteria of Rule 17-701.050. The fact that the City's proposal actually exceeds the design criteria as regards the liner and leachate collection system does not constitute evidence that such alternative designs are required by Department rule, or result from any site-specific considerations. Only two findings even suggest
that site-specific conditions are relevant, and neither has any bearing on the ultimate conclusion that the landfill is likely to cause pollution.
The first finding is that the landfill would be located "on top of sloughs and bogs," which does not compare favorably with other proposed landfills in the state "given the controlling significance of site geology to any proposed landfill's permittability." (citing Huelsman R.O. pp. 76-77) However, there is no specific finding, evidence, or conclusion that this location in any way contributes to the quantity or quality of leachate entering the ground water.
The second finding is that attenuation of leachate in the soils beneath the landfill would be "less than what a `high and dry' site might afford," but the Hearing Officer went on to find that such attenuation had not been calculated and was not considered in leachate leakage calculations. (R.O. pg. 76) While the Hearing Officer concludes that "some separation" between the liner and the ground water table is necessary, there is no evidence that this would have any effect on the permittability of this landfill given the absence of evidence on soil attenuation.
It is thus apparent that the presumption of compliance was not overcome by any site-specific considerations. The Hearing Officer's findings regarding the leachate leakage rates are not specific even to the City's design; they are applicable to the design of all landfills. His findings regarding the number of defects per acre, the head of leachate over the liner, the contact between the plastic and clay liners, and the permeability of the clay layer (since the clay is to be imported to the site), which led to the conclusion that water quality standards would be violated, are applicable to every lined landfill, regardless of location. Because these findings are unrelated to the specifics of the site and design in this case, their adoption would supplant the design criteria in the rule. As a result, the landfill permitting process would suffer from a total lack of consistency and predictability. This process would also be devoid of the scrutiny and public input which the procedures of rule adoption provide.
Unlike the Huelsman case, the conclusions of the Recommended Order do constitute an "end run" challenge to the provisions of Chapter 17-701, and such a challenge is inappropriate in an evidentiary hearing such as this. I therefore accept the exceptions of the City and the Department, and reject the Hearing Officer's conclusion that the challengers rebutted the presumption of compliance that the City enjoyed as a consequence of meeting the design criteria in Department rules.
Minor Modification (City's Exception II)
The Hearing Officer found that the 12-inch clay layer to be installed beneath the plastic liner proposed by the City would not be able to meet the permeability figures offered for it. The City argues in its exception that there is ample evidence in the record upon which to base a requirement in this Order that an additional lift of six inches of clay be added so that the permeability will be 10-7 cm/sec.
The Hearing Officer's conclusion was premised on two factual findings. First, he found that laboratory tests on clay's permeability are unreliable, because "when you put it down in the field you get from one to two orders of magnitude greater permeability than that." (R.O. #96) Second, he found that a 12-inch clay layer comprised of two lifts would not be able to achieve the desired permeability. (R.O. #105) This finding was based on evidence that "the bottom layer gets fouled, the top layer cracks and has problems," (R.O. #99) and
that studies of clay layers 12 inches thick consistently showed permeabilities of greater than 10-7 cm/sec. (R.O. #98)
While I accept the Hearing Officer's finding regarding the accuracy of laboratory tests, its relevance in this case is undemonstrated. The City's application and draft permit call for a clay liner, composed of two six-inch lifts of calcium montmorillonite, which would have a permeability of 10-7 cm/sec in situ. This means that the permeability of the clay must be established by testing the clay in the field, not in a laboratory. The City's quality assurance plan states that the clay layer "should be of sufficient uniformity in quality and composition to consistently achieve a coefficient of permeability of less than 1x10-7 cm/sec under saturated conditions when installed according to the design specification." (City's Exhibit 76) The quality assurance plan also requires construction of a test plot prior to construction of the clay liner to verify this permeability. Since the City will be required to test the clay in the field, rather than merely in the laboratory, any inadequacies in the laboratory testing process are meaningless.
I accept the Hearing Officer's finding that the two lifts of clay proposed in the permit application will not provide a consistent permeability of 10-7 cm/sec. I also accept his findings in this case that "three lifts are necessary to create an effective barrier" (R.O. #99) and that "a clay liner must be installed in six inch lifts to a depth of 18 inches or more because `you need at least three lifts just to get the middle one hopefully working right.'" (R.O. Appendix A, responding to County's Proposed Finding of Fact #19) These findings were apparently based on evidence that a middle layer of clay will not have the cracks and flaws that the top and bottom lifts are likely to have. (R.O. #99) There was also record testimony that 18 inches of clay will work as a composite liner. (T. 2994-5) While there was no specific finding that 18 inches of clay, installed in three lifts, will achieve a consistent permeability of 10-7 cm/sec, the record evidence and findings of fact, coupled with the requirement for field testing of the installed clay layer, are sufficient to establish that such a permeability is achievable. I note that if the field tests do not indicate an in situ permeability of 10-7 cm/sec, or if adding six inches of additional clay necessitates a redesign of other aspects of the landfill, the City cannot proceed with construction without a modification to the permit, which would if obtained provide a new point of entry pursuant to Rules 17-4.054(6) and 17- 103.155.
The County has argued in its response, to exceptions that a permit modification requiring 18 inches of clay is beyond the authority of the Department and would deny due process to the County. The authority of the Department to modify permit conditions as a result of changes recommended by both parties and by the Hearing Officer is well established. Hopwood v. State Dept. of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981). In this case, the modification is an expansion of a design element in the original application, and must be considered a minor modification. The County should not be in a position to complain that it would be injured by the incorporation of such a provision, since in its Proposed Finding of Fact #78 the County proposed that a condition be added to the permit stating, "First, if the City uses a single composite liner at its Class I landfill, the liner should include at least 18 inches of clay, installed in at least three lifts." It was also the County's witness who first suggested that 18 inches of clay should be required.
For these reasons, I accept the City's exception. The landfill permit shall be conditioned on the City installing 18 inches of clay, in three lifts,
which will be tested in situ and will demonstrate a permeability in the field of not more than 10-7 cm/sec.
The Ground Water Monitoring Plan (City's Exceptions IV, VII)
In his conclusions, the Hearing Officer questioned the suitability of the ground water monitoring plan proposed by the City, noting that "[h]ere the magnitude and direction of hundreds of small plumes would make detection problematic, under the plan proposed." (R.O. pg. 69) He also rejected without comment the Department's Proposed Finding of Fact #88 dealing with the adequacy of the monitoring plan. The City argues that this finding is ambiguous, and therefore assumes that the Hearing Officer has approved the plan. Needless to say, Petitioners argue to the contrary.
The Hearing Officer's conclusion that the monitoring plan was "problematic" was based upon his findings that a leachate plume "even from a 10-foot wide leak at the edge of the Class I disposal area, could pass between two wells 500 feet apart, undetected" (R.O. #113), and that all of the leaks from anticipated flaws in the liner would not be detected from wells 500 feet apart (R.O. #114). While I accept these findings, they do not form the basis for a conclusion that the monitoring plan fails to comply with Department rules.
The Hearing Officer found that the City proposes to place monitoring wells at intervals of 250 to 500 feet around the Class I and Class III disposal areas. Some 25 shallow wells would be located 50 to 100 feet from the deposition areas, within the zone of discharge. In addition, seven clusters, each consisting of three wells screened at different depths, would be placed at the edge of the zone of discharge. Upgradient wells will monitor background conditions. (R.O. #112)
Rule 17-28.700(5)(a) states that the intent of the ground water monitoring requirement is:
... to ensure that the permitting of zones of discharge, or exemptions therefrom, will not cause a violation of ground water standards. Monitoring is intended to allow a predictive evaluation of the movement and composition of the
discharge plume. Efforts shall be made in all cases to minimize the number and cost of monitoring wells consistent with the ability to obtain reliable information.
Rule 17-28.700(6)(g) requires that in addition to one upgradient well, one downgradient well at the edge of the zone of discharge, and one intermediate downgradient well within the zone of discharge, the permittee install:
Such other wells as are dictated by the complexity of the hydrogeology of the site, the magnitude and direction of the plume or the likelihood of threat to the public health, to assure adequate and reliable monitoring data in generally accepted engineering or hydrogeological practice.
Thus, the Department's review of the monitoring plan must include a determination of whether additional wells are needed, balancing the need to obtain information regarding water quality at the edge of the zone of discharge against efforts to minimize the number and cost of monitoring wells.
There is no finding nor any evidence that a 10-foot wide leak at the edge of the Class I disposal area is likely to occur. This figure was suggested by a witness presumably to demonstrate that the monitoring plan would not detect all leaks coming from the landfill. (T. 3124-27) I accept this premise, since the same formula used to predict the plume flow from a 10-foot wide leak (T. 3124- 3127) shows that, theoretically, the leak from one hole with an area of one- tenth of a square centimeter, which the Hearing Officer found was the most likely size of expected flaws, could pass between two wells six inches apart.
No monitoring plan can be expected to detect all leaks unless the wells are placed side-by-side at the edge of the landfill. (T. 1715)
The fact that a monitoring plan may not detect individual plumes from every possible leak from a landfill is not a basis for permit denial. Rather, the Department must balance the costs of the plan with its ability to detect the magnitude and direction of the discharge plume from the landfill as a whole.
The Department must also balance the costs against the likelihood of threat to the public health from such a plume, taking into account the likely constituents of the plume and the uses expected for the ground water. In this case, any potential discharge plume would likely be the result of hundreds of small leaks in the liner system (R.O. #113), dispersing in a widening manner. (T. 1583-.84) The evidence was undisputed that the monitoring plan would be able to detect any significant, generalized leakage. (T. 1586-88; 1711-13) The only evidence as to its deficiencies was that it might not detect every individual plume. (T. 3124- 27)
The Hearing Officer found that no violations of water quality standards at the zone of discharge are expected (R.O. #110). There was evidence that consumption of ground water which had flowed beneath the landfill was highly unlikely anywhere near the site. The likelihood of any threat to public health must be considered low. In addition, the Hearing Officer's findings ignore the presence of 25 intermediate wells to be placed near the landfill and less than
500 feet apart. Since there is no evidence that the monitoring plan will not provide adequate and reliable monitoring data, or that increasing the number and costs of monitoring wells is justified by the likelihood of obtaining more reliable information, I accept the City's exceptions and find that, problematic or not, the ground water monitoring plan meets the requirements of Department rules.
The Class III Landfill (County's Exception 3; Intervenors' Exception 10)
The County and Intervenors take exception to the Hearing Officer's conclusion that the Class III landfill would not cause pollution, on the grounds that the burden was on the City to show that the leachate from the Class III landfill would not cause violations of water quality standards, and that the City failed to show this.
Class III landfills are defined in Rule 17-701.050(1)(c) as those which receive only trash or yard trash. The rule further states that a Class III landfill "may be exempt from the liner and leachate and gas controls required [for Class I landfills] ... In determining whether a Class III landfill qualifies for the exemptions ... the Department shall consider the hydrogeology, types of waste, and methods used to control types of waste received for
disposal." The City had the burden to show entitlement to this exemption. The proposed Class III disposal area will not have a liner or leachate control system.
There was evidence that the hydrogeology of the site was such that a liner need not be required, and the Hearing Officer made no findings indicating otherwise. (R.O. #63-65; 68) Only yard trash and construction and demolition debris will be accepted, which are appropriate types of waste for a Class III site. (R.O. #88) The application includes a plan for screening the waste before disposal to ensure that unauthorized waste is not accepted, and this screening program will help to control the types of waste received. (R.O. #70)
The Hearing Officer found that other materials sometimes get mixed in with the trash and debris, and that biocides or other chemicals may occur in grass clippings. (R.O. #89, 90) However, he concluded that the evidence did not show what leachate from the site would consist of, and that "the evidence did not establish that leachate from the Class III site would cause pollution in violation of any of DER's rules." (R.O. pg. 77) Curiously, he accepted the County's Proposed Finding of Fact #59, which states that "The preponderance of the evidence demonstrates that the proposed Class III landfill will cause ground water contamination. The extent and degree of contamination are unclear." In light of his conclusion, it must be presumed that the Hearing Officer found that some amount of contamination would occur, but not enough to cause violations of Department rules.
The County and Intervenors correctly point out that the burden is also on the City to provide reasonable assurance that Department water quality standards will not be violated, and that such assurance must be demonstrated by "plans, test results, installation of pollution control equipment, or other information." Rule 17-4.070(1) In addition to the design plans and screening program, the City provided a variety of evidence regarding quality of the anticipated leachate, demonstrating that it is unlikely to cause a violation of water quality standards and criteria. This evidence was based upon the knowledge and expertise of witness, as well as actual data collected from other similar landfills. (T. 1562-68; 1922-23; 2088-94; 2177; 2282-84; City Exhibit
While the Hearing Officer found that no specific data was presented to prove what the constituents of the leachate would be (R.O. Appendix A, responding to City's Proposed Finding of Fact #76 and Department's Proposed Finding of Fact #68), he did find that there was reliable information concerning the quality of such leachate. (R.O. Appendix A, responding to County's Proposed Finding of Fact #57) The information provided by the City is the type of information contemplated in the rule.
Conversely, the County and Intervenors argue that they have affirmatively demonstrated that the leachate from the Class III landfill poses a significant threat to ground water quality, but fail to substantiate that assertion by any citation to the record. The only evidence on the issue, which was accepted and considered by the Hearing Officer, was that some other materials, which contain potentially dangerous constituents, may find their way into the Class III site. Any conclusions that leachate from the site will contain contaminants in sufficient quantities to cause violations of ground water standards would be pure speculation. As I stated in Huelsman, "the expected leakage ... of undetermined but minute quantities of unknown ... chemicals" is not a sufficient reason to deny a permit. (Huelsman at 3791) Since the City carried its burden to provide reasonable assurance, and the challengers did not rebut this evidence, their exceptions are rejected.
Landfill Closure (County's Exception 5)
The County takes exception to the Hearing Officer's conclusion that the closure plan for the landfill was adequate on the grounds that the plan does not provide sufficient detail, and that the financial responsibility documentation is inadequate.
The City submitted a plan for the eventual closure of the landfill along with its application for construction. The Hearing Officer found that this plan, involving a plastic liner for the top of the landfill, would significantly reduce the amount of rain water percolating into the landfill and thus reduce the amount of leachate generated, and was therefore adequate for purposes of the construction permit. (R.O. pp. 6970) The financial responsibility documentation provided by the City was approved by the Department, and the County Stipulated that no evidence regarding financial responsibility would be presented. The Hearing Officer stated that issues for which no evidence was presented would be resolved in favor of the applicant, and he did so in this case. See also Department of Transportation v. J.W.C. Compay, Inc., 396 So.2d 778, 789 (Fla.
1st DCA 1981)(burden is on permit challenger to "identify the areas of controversy and allege a factual basis that the facts relied upon by the applicant fall short of providing reasonable assurances.")
A closure plan is, by its nature and in compliance with Rules 17-701.050 and 17-701.070-.075, not as detailed or complete as the final closure permit will be. As I stated in Huelsman, the closure plan is reviewed in conjunction with the construction and operations designs to ensure those designs incorporate needed components for effective closure, and also to ensure that the financial responsibility documents are adequate. At the time of closure, more detailed closure plans are submitted for approval. To require detailed closure design at this early stage would waste the resources of the applicant and the Department, since the final closure design would almost certainly be different due to changing rules and the specific operational history of the site. The alleged inadequacies of the closure plan are not grounds for denial of the landfill construction permit, and the exception is therefore rejected.
The Dredge and Fill Permit (County's Exceptions 6-10, 14; STOP's Exceptions 1, 2; Intervenors' Exceptions 6-9)
Background
As part of the overall landfill project, a dredge and fill permit was required for the construction of an access road through jurisdictional wetlands. Construction of the road would entail filling 2.8 acres of jurisdictional wetlands (wetlands connected to waters of the state). As mitigation, the City proposed to create 2.8 acres of equivalent wetlands, as well as to provide a conservation easement over 260 acres of contiguous wetlands in Durbin Swamp and
129 acres of adjacent uplands.
Evidence offered by the Department at the hearing established that the Department considered the project, together with the proposed mitigation, to meet the public interest criteria set forth in Section 403.918(2), F.S. The Department's rationale, in essence, was that the negative impacts that the project would be expected to have on wildlife and wildlife habitat would be offset by the proposed mitigation measures and by the positive environmental benefit that would result from having an environmentally sound method of disposing of solid waste. In applying and balancing the seven public interest criteria of Section 403.918(2), F.S., the Department regarded the "project", as
that term is used in the statute, as including all activities occurring within the actual area to be dredged and filled, as well as certain activities occurring on other upland areas of the overall project that are closely linked or causally related to the dredge and fill activity itself. The Department considered the landfill to be sufficiently linked to the construction and operation of the access road that the environmental benefit of constructing and operating the landfill, as well as certain negative factors associated with the landfill (in this case the adverse effects on endangered or threatened species and their habitats), should be considered and weighed in applying the statutory public interest criteria in Section 403.918(2), F.S.
In the Recommended Order, the Hearing Officer concluded that the term "project" as used in the statute should only include the access road, since the remainder of the landfill site was the subject of a separate Department permit. (R.O. pp. 79-81). After further discussion and analysis, however, he also concluded:
In evaluating the dredge and fill application "separately," the breadth of the public interest criteria make it impossible to ignore the relationship between the dredge and fill project and the landfill... If
the landfill permit issues, building the access road would not be contrary to the public interest, despite adverse impacts on wildlife.
(R.O. pg. 89)
Before proceeding to a specific discussion of and rulings on the various exceptions, I would again reiterate the well-established principle that I am not at liberty to overturn findings of fact made by the Hearing Officer that are supported by competent substantial evidence. Section 120.157(1)(b)10., F.S. However, in applying and balancing the public interest criteria in Section 403.918(2), F.S., and evaluating the offsetting effect of any mitigation measures proposed by the applicant, the Department, and not the hearing officer, is responsible for the final decision, subject, of course, to appellate review. 1800 Atlantic Developers v. Department of Environmental Regulation and City of Key West, So.2d , 14 F.L.W. 2604 (Fla. 1st DCA, Case No. BQ-267, November 9, 1989). Therefore, I should note at the outset that, while I agree with the ultimate recommendation of the Hearing Officer with regard to the issuance of the dredge and fill permit if the landfill permit also issues, I disagree with and reject his legal analysis to the extent it implies that the existence of a separate permitting requirement for landfills (which contains no provision for balancing of public interest criteria) precludes consideration of otherwise relevant impacts in applying the balancing test required by Section 403.918(2),
F.S. This issue is explained more fully in the specific rulings on exceptions that follow.
Scope of Review
My review of a dredge and fill permit application is governed by Section 403.918, F.S. Under Subsection (1) of this Section, an applicant is required to provide reasonable assurance that water quality standards will not be violated by the proposed dredge and fill activities. In the instant case, there are no allegations of water quality violations in connection with the dredging and filling. Therefore, this subsection is not at issue in this case.
Under Section 403.918(2), F.S., an applicant is required to provide reasonable assurance that the project is not contrary to the public interest. Subpart (a) of this provision requires that -the Department consider and balance seven criteria in its public interest determination. Subpart (b) of this provision requires that the Department consider mitigation if the applicant is unable otherwise to meet the public interest criteria. In this case, the challengers have alleged that the City's project, including both the proposed dredge and fill activities and the associated landfill, is contrary to the public interest.
In 1800 Atlantic Developers, the First District Court of Appeal held explicitly that the determination under Section 403.918(2)(b), F.S., of the sufficiency of proposed mitigative measures must be made by the Department and not by a hearing officer. Id. at 21-22. As support for its holding, the Court cites the directive in Section 403.918(2)(b), F.S., that "the department ... shall consider" the proposed mitigation. Because identical language is used in Section 403.918(2)(a), F.S., ("the department shall consider and balance") the Court implicity holds that the Department, not a hearing officer, must weigh and balance the effects of the proposed project in the context of the seven public interest criteria. The hearing officer's task, as envisioned by the Court, is to make findings of fact regarding the underlying disputed factual issues. Id. at 22.
Following the mandate of the decision in 1800 Atlantic Developers, I turn first to the findings in the Recommended Order relating to the City's compliance with the seven public interest criteria contained in Sections 403.918(2)(a)1.- 7., F.S., and the exceptions dealing with those findings.
Intervenors' Exceptions 6 7; County's Exceptions 6 10: STOP's Exception 1 Regarding any adverse impacts upon "the public health, safety or welfare or
the property of others" (Section 403.918(2)(a)1., F.S.), although the Recommended Order contains no explicit findings, it concluded that "the public interest would obviously require some access, .. to the `environmental' end that a duly permitted landfill could come into being and function." (R.O. pg. 89)
The only specific testimony on this criterion was by the Department's expert in dredge and fill permitting, who testified that
[t]he project is providing an environmen- tally sensitive means of disposal of the City's solid waste, and we felt this was very important and it was highly in the public interest.
(T. 429-30)
Intervenors in their Exception 6 argue that the need for access is irrelevant under Section .403.918(2), F.S. In 1800 Atlantic Developers, however, the Court specifically held that "the fact that a substantial public need or benefit would be met by approving a project may be taken into consideration [in the balancing analysis]." Id. at 26 (emphasis added). Thus, I reject the Intervenors' exception on this point.
The County's Exception 10 attempts to inject a new issue and new facts into these proceedings by asserting that alternate access routes are available to the landfill. This issue was not raised at hearing. In fact, the parties entered
into a Stipulation of Facts, filed at hearing, which specifically stated that St. Johns County is opposed to, and would deny, the alternate access which it has now proposed in this exception. The County stipulated:
St. Johns County has consistently taken the position that access off Phillips Highway [U.S.1] or County Road 210 through St. Johns Counts to the Southeast Landfill for daily use by garbage trucks will be denied by St. Johns County. (Emphasis supplied.)
(Stipulation of Facts pg. 2).
Perhaps more importantly, the Counts's Exception 10 contains statements not supported by any evidence in the record, and refers to an attachment ("Attachment A") which was not an exhibit at hearing. Contrary to the Hearing Officer's express finding (R.O. pg. 89), the County states that an alternate access route could be constructed "without crossing Durbin Creek or the Durbin Swamp." (County's Exception 10 at pg. 23) The record contains no evidence regarding the property south of the landfill site, and it is now too late for the County to attempt to introduce new evidence via its exceptions. For these reasons, I reject the County's Exception 10.
Regarding adverse impacts upon fish and wildlife or their habitats (Section 403.918(2)(a)2., F.S.), there appears to be no genuine dispute that, in the absence of mitigation, the project (whether defined as only the access road or as the entire landfill project including the access road) would result in adverse impacts. The Recommended Order concludes that there are "adverse impacts on wildlife." (R.O. pg. 89) The Recommended Order also contains numerous factual findings regarding wildlife. (R.O. #2-19, 37-50) The significance of these wildlife findings is rendered unclear, however, by the Hearing Officer's somewhat ambivalent recommendation that the impacts of the landfill not be considered in the context of the dredge and fill permit application:
Here the City's comprehensive applications make it inappropriate to expand the range of issues in any one of them. The pendency of all necessary applications allows the separate evaluation of each. At the same time, in evaluating each application against the criteria that pertain, the consequences of grant or denial of contemporaneous applications may be relevant, because attendant circumstances may affect the character of the undertaking that is the subject of the application under separate consideration.
(R.O. pg. 81).
It appears that, notwithstanding his extensive findings regarding wildlife, the Hearing Officer declined to consider the adverse impacts of the landfill in his review of the dredge and fill permit (although he clearly considered the environmental benefits of the landfill) and, instead, only considered the impacts of the construction and operation of the access road. (R.O. pp. 79-81, 88-89) Nevertheless, many of the wildlife findings relate solely or primarily
to the impacts of the landfill and are not relevant in the review of any other permit application pending before the Department. In light of the Hearing Officer's recommendation not to consider the impacts of the landfill in the Section 403.918(2)(a) balancing analysis, his inclusion of such findings in the Recommended Order is somewhat puzzling; similarly, any weight which he afforded these findings in his analysis and conclusion of "adverse impacts" is unclear.
I decline to adopt the Hearing Officer's recommendation not to consider any impacts of the landfill in my review of the City's dredge and fill permit application. See Cape Cave Corporation v. Department of Environmental Regulation, 498 So.2d 1309 (Fla. 1st DCA 1986), rev. den., 509 So.2d 1117 (Fla. 1987); del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984). Cf. Manasota-88, Inc. v. Gardinier, Inc., 481 So.2d 948 (Fla. 1st DCA 1986); Caloosa Property Owners Association, Inc. v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). To that extent, I adopt the County's Exception 6, STOP's Exception 1, and Intervenors' Exception 7
. Furthermore, I do not find it necessary to reject any of the Hearing Officer's findings regarding wildlife and potential impacts upon wildlife. Rather, I consider the relevance and significance of the Hearing Officer's wildlife findings in light of several Department policies, clearly explained at the hearing by the Department's representative, Ms. Janet Llewellyn, and not challenged by any party.
First of all, in defining the scope of a particular project for purposes of applying and balancing the statutory public interest criteria, the Department looks at the actual jurisdictional area to be dredged and filled, and any other relevant activities that are "very closely linked or causally related to the proposed dredging and filling." (T. 423-24) In considering and evaluating impacts to upland resources that are closely linked or causally related to the proposed dredging and filling, the Department only considers impacts to significant resources -- primarily archeological resource or listed wildlife species (T. 428). Within the category of listed wildlife species, the Department looks at and assigns weight to potential impacts to such species based on a hierarchy, with endangered species being the most important, followed by threatened species and then species of special concern. (T. 440-41). The Department then considers and weighs the amount of use of the site by those species -- for example, whether they nest there, whether they only use the site for feeding, or whether they are only intermittently seen on the site. (T. 441).
Specifically in the context of permitting access roads and bridges, it has been the policy of the Department to consider what will be at the end of the bridge or road. (T. 457-58). Of course, if the activities or impacts proposed at the end of the bridge or road are remote in distance or conceptual relationship from the dredge and fill activity, those activities or impacts should be weighed accordingly in applying the statutory balancing test.
Finally, the purpose of these Department policies is to implement the express legislative mandate of Section 403.918(2), F.S., and to protect the significant resources of the state identified in the statute. Thus, the Department does not consider impacts to non-jurisdictional isolated wetlands where those impacts are taken into consideration in the permitting process of a Water Management District. (T. 423 #462).
These policies are entirely consistent with prior final orders in which evidence of a "stray" individual of a species on a site or occasional use by a species of a site was not deemed significant in the permit review. Old Port Cove Property Owners Association, Inc. v. DER, 9 FALR 3821, 3833-34, 3859-61
(Final Order dated July 1, 1987); Schatz v. ITT Community Development Corp., 7 FALR 907, 915-18 (Final Order dated December 9, 1984). They constitute permissible interpretations by the Department of Section 403.918(2), F.S., and represent a practical, workable approach that permits application of the statutory criteria to the unique facts of each case. This approach also avoids the difficulties obviously encountered by the Hearing Officer in attempting to maintain absolute conceptual separations of the permits while simultaneously recognizing that the outcome of each one inextricably influences the outcome of the others.
Turning now to the category of adverse impacts upon navigation or the flow of water (Section 403.918(2)(a)3., F.S.), and harmful erosion or shoaling, I note that the Recommended Order contains no specific findings. Pursuant to stipulation, the challengers presented no evidence on this criterion. (T. 1048) The record contains testimony that Department staff considered this a "neutral" factor. (T. 430)
Regarding adverse impacts upon fishing or recreational values or marine productivity (section 403.918(2)(a)4., F.S.), the Recommended Order contains no specific findings. Although Finding of Fact #19 discusses Durbin Creek and its headwaters as a "juvenile fish nursery," neither that finding nor any other determines that the project will adversely impact Durbin Creek or its headwaters. There appears to be no genuine dispute, however, that in the absence of mitigation, this is a negative factor to the extent that the project involves the loss of 2.8 acres of wetlands. (T. 431-32).
Regarding the temporary or permanent nature of the project (Section 403.918(2)(a)5., F.S.), the Recommended Order contains no findings. The expected life of the landfill is ten years. (T. 940) Pursuant to stipulation, the challengers presented no evidence on this criterion. (T. 1048) At the time the Intervenors agreed to this and other stipulations, they were informed that, by default, the issue would be resolved in the City's favor. (T. 1022) The Intervenors' belated attempt in Exception 6 to raise this is as a negative factor contains only conclusory statements unsupported by the record. I therefore reject the exception on this point.
Regarding adverse impacts upon significant historical or archeological resources (Section 403.918(2)(a)6., F.S.), the Recommended Order contains no findings. Pursuant to stipulation, the challengers presented no evidence on this issue. (T. 1048; Stipulation of Facts pg. 3). Again, in their Exception 6 the Intervenors belatedly attempt to raise this as a negative factor. However, the statements in their exception are unsupported by the record and I therefore reject the exception on this point.
Regarding the current condition and relative value of the functions being performed by the wetlands to be affected (Section 403.918(2)(a)7., F.S.), there appears to be no genuine dispute that, absent mitigation, this is a negative factor.
Under the decision in 1800 Atlantic Developers, supra, I must consider and balance the Hearing Officer's factual findings in light of the above seven criteria. I consider the evidence as to the criterion in Section 403.918(2)(a)1., F.S., to be a strongly positive factor. I consider the evidence as to the criteria in Sections 403.918(2)(a)2., 4., and 7., F.S., to be negative factors. I consider the evidence as to the criteria in Sections 403.918(2)(a)3., 5., and 6., F.S., to be neutral factors. The Recommended Order contains no specific findings or conclusions regarding any balancing performed
by the Hearing Officer, although the Hearing Officer notes that "[n]o party has taken issue ... with the staff's conclusion that mitigation would be required in order for the dredge and fill permit to issue." (R.O. pg. 83) Accordingly, I likewise conclude that on balance, absent mitigation, the project does not meet these criteria and that, therefore, mitigation is required.
Section 403.918(2)(b): Mitigation
Mitigation proposed by an applicant need not address all negative factors under the seven public interest criteria. The mitigation need only address those negative factors which, when balanced against and offset by positive factors, make the net impact negative and the project therefore unpermittable. Chipola Basin Protective Group., Inc. v. Department of Environmental Regulation and Developers Diversified 11 FALR 467, 484-85 (Final Order dated December 29,
1988); Port Everglades Authority v. DER, 9 FALR 5613, 5618-23 (Final Order dated
October 9, 1987).
The Recommended Order describes the City's proposed mitigation plans in detail. (R.O. #27, 29, 32-36, 46, 48, 50) The City proposes two mitigation plans, one in connection with its dredge and fill permit application and another in connection with its surface water management system permit application. The primary features of the mitigation proposed for the dredge and fill activities, which impact 2.8 acres of contiguous wetlands within the Department's jurisdiction, are: (1) the creation of 2.8 acres of wetlands by transplanting mature trees from impacted wetlands; (2) a conservation easement upon 260 acres of contiguous wetlands in Durbin Swamp; and (3) a conservation easement upon 129 acres of adjacent uplands.
The Recommended Order concludes, implicitly if not explicitly, that the mitigation proposed by the City is sufficient. Because the Hearing Officer noted that mitigation is required (R.O. pg. 83) and concluded that the project is not contrary to the public interest (R.O. pg. 89), he necessarily concluded that the mitigation effectively addresses those negative factors which otherwise make the project unpermittable.
I likewise conclude that the City's proposed mitigation is adequate and addresses those negative factors not offset by the strongly positive factor under Section 403.918(2)(a)1., F.S. Finding of Fact #29, among other findings, supports the Hearing Officer's conclusion and my conclusion on this issue. In that finding, the Hearing Officer quotes a St. Johns County witness and determines that the 2.8 acres of created wetlands will probably function much the same as the 2.8 acres to be filled, and will compensate for the attendant loss of vegetation.
Findings of Fact #46-49, and the Hearing Officer's conclusions at pages 96-
97 of the Recommended Order, describe the benefits provided by the conservation easements. The value, in appropriate circumstances, of conservation easements as mitigation is acknowledged in Rule 17-12.340(1), and in prior final orders. Chipola, supra, at 485; Port Everglades, supra, at 5621-23.
Other findings in the Recommended Order which refer to the mitigation proposed for the dredge and fill activities are either irrelevant or inconclusive. For example, Findings of Fact #28 and 30 are irrelevant and inconclusive in light of Finding of Fact #29 and the Department's mitigation policies. See Port Everglades, supra. Finding of Fact #31 is also irrelevant in light of the Department's mitigation policies, see Chipola, supra, and because it focuses upon the provisions of Rule 40C-4. In that I agree with the
Hearing Officer as well as the Department's witnesses and conclude that the City's proposed mitigation is sufficient to offset the adverse impacts of the project (including the relevant impacts of the upland portions of the project as discussed earlier), I conclude that the City has provided reasonable assurance that the project is not contrary to the public interest under Section 403.918(2), F.S., and that the dredge and fill permit should issue.
County's Exceptions 7, 8 9 and 14; Intervenors' Exceptions 2, 3, 4, 6 8, 9, and 11; STOP's Exception 2
In its Exception 7, the County argues that, because the Hearing Officer did not consider the impacts of the landfill, the matter must be remanded to him for such consideration. Although I have declined to adopt the Hearing Officer's legal conclusion that impacts of the landfill should not be considered, I need not remand the matter to him in light of the decision in 1800 Atlantic Developers, supra, and the fact that his factual findings are sufficient for me to perform the statutorily required evaluation and balancing. As mandated by the applicable statutory and case law, I have considered these impacts independent of the Hearing Officer's conclusions and in light of the Department policies explained at the hearing and set forth above. Therefore, I reject the County's Exception 7.
In its Exception 8, the County argues that the record is inadequate to determine the use of the site by wildlife species and the impacts upon species using the site. As grounds for its exception, the County cites the Hearing Officer's finding that a wildlife survey conducted by the City was inadequate. (R.O. #11)
The City's wildlife survey, however, constitutes only a minor part of the evidence presented at hearing by the City and the challengers regarding wildlife and impacts upon wildlife. The survey, admitted for corroborative purposes only, summarizes the results of a two-week (430 man-hours) investigation on the site by the City's experts. (R.O. #10, 11) That investigation comprises less than one-third of the total man-hours (1400) spent on the site by the City's experts. (R.O. #10) The evidence presented by the City at hearing -- that is, the testimony of its wildlife expert -- was based not only upon the survey but also upon other sources, including a review or "inventory" of relevant literature, as well as range and distribution maps (T. 295); communications with experts in governmental agencies, academic institutions, and environmental groups (T. 295); discussions with staff who, prior to the survey, had spent approximately 1,000 man-hours on the site (T. 295-96); and, particularly as to impacts, upon the expert's knowledge of wildlife behavior. (T. 322-26, 327-28, 334-35, 336-38) For example, in stating his conclusions regarding the Florida panther, the City's expert relied not upon the survey but upon the inventory and his knowledge of the literature. (T. 326-27) Similarly, in stating his conclusions regarding the use of the site by wood storks or bald eagles, the expert relied upon the inventory and his knowledge of suitable habitat. (T. 331- 33, 360-63, 417)
Furthermore, the City's expert was only one of many expert witnesses to testify at hearing regarding wildlife, including three Department experts, two in wetlands ecology (T. 418-81, 481-512) and one in zoology and wetlands ecology (T. 518-44); a St. Johns County expert in wildlife biology (T. 2794-2864); an Intervenors' expert in wildlife ecology (T. 2864-2929); and another Intervenors' expert in wildlife biology (T. 3056-3110). In addition to this expert testimony, at least eight lay witnesses testified under oath regarding wildlife. (T. 1320-21, 1337-40, 1353, 1359-62, 1370-73, 1373-82, 1410-14, 1417-25, 1431-
39, 1440, 1449-58) In total, literally hundreds of pages of testimony was elicited at hearing regarding wildlife species which may occur on site and potential impacts upon those species.
Thus, contrary to the contention in Exception 8, the record is replete with evidence regarding the presence and absence of wildlife species at the site and potential impacts upon such species. I therefore reject the County's Exception 8.
The County's Exception 9, and Intervenors' Exceptions 2, 3, 4, 8, and 11, argue that the Hearing Officer's implicit conclusion regarding the adequacy of the City's proposed mitigation and various findings relating to that conclusion are either erroneous or incomplete. To the extent these exceptions ask me to overturn findings of fact supported by competent substantial evidence, I reject them. I also reject these exceptions because, pursuant to the mandate in 1800 Atlantic Developers supra, I have considered the City's proposed mitigation based on facts established by the record and independent of the Hearing Officer's conclusions of law.
The County's Exception 14 seeks a remand to the Hearing Officer for clarification of his rulings on the County's proposed findings of fact #126, 127, and 128. These findings were the subject of a Motion for Corrected Order dated October 26, 1989, and denied by the Hearing Officer in an Order dated November 6, 1989. As the Hearing Officer correctly ruled in his denial, other findings and conclusions render any typographical error or omission as to these findings immaterial. I also note that these findings related to the adequacy of the City's proposed mitigation which, as stated previously, I have considered independent of the Hearing Officer's conclusions.
Intervenors Exception 6, portions of which I have discussed above, and STOP's Exception 2 fault the Hearing Officer's conclusion, following his consideration of the City's proposed mitigation, that the dredge and fill project is in the public interest under Section 403.918(2)(b), F.S. These exceptions suffer in several respects. Intervenors' Exception 6 contains numerous conclusory statements without citations to, and unsupported by, the record. Both exceptions, in discussing wildlife species and impacts upon those species, ignore the Department policies which were explained at hearing and which I have employed in my review. Finally, the exceptions are immaterial in that I have reviewed the project independent of the Hearing Officer's conclusions. I therefore reject Intervenors' Exception 6 (to the extent I have not rejected it above), and STOP's Exception 2.
In their Exception 9, the Intervenors have excepted to the Hearing Officer's finding regarding cumulative impacts under Section 403.919, F.S. Because the Hearing Officer's finding is supported by competent substantial evidence, I reject the Intervenors' exception on this issue. (T. 142-43, 231, 447; Stipulation of Facts pg. 4)
The MSSW Permit (Department's Exceptions 3, 4; City's Exception V)
The Hearing Officer concluded that the City's surface water management system permit should be issued, but only if the landfill permit is not issued. This conclusion is based on findings that endangered wood storks use isolated wetlands on the site as habitat, that the landfill will destroy some of that habitat, that the City's mitigation plan does not mitigate for the loss of this habitat, and that stormwater runoff from roadways associated with the landfill will render a retention pond dysfunctional as mitigation for the loss of wood
stork habitat occasioned by the project. (R.O. #2, 4, 6, 9, 17, 43, 44 & pp. 96-
97)
The City and the Department argue that the Hearing Officer's findings on the MSSW permit are flawed because there is no evidence of wood storks having been seen on site recently (Department's Exception 4; City's Exceptions V.A and V.B), because there is no evidence that runoff from the road into the retention basin would harm any feeding storks (Department's Exception 4; City's Exception V.C, and because other mitigation areas proposed would provide wood stork habitat (Department's Exception 4; City's Exceptions V.C and V.D).
Conditions for issuance of MSSW permits are set forth in Rule 40C-4.301, which requires an applicant seeking a MSSW permit to provide, among other things, reasonable assurance that operation of the system will not adversely affect natural resources, fish and wildlife. These requirements are repeated and expounded in Applicant's Handbook, Part II, Section 10.7.4., which has been adopted as a St. Johns River Water Management District Rule. Relevant portions of Section 10.7.4 provide that
where wetlands are used or reasonable scientific judgement would indicate use by threatened or endangered species ...
which are aquatic or wet land dependent an applicant must provide reasonable
assurances that a proposed system will not cause adverse changes in:
the habitat of threatened or endangered species,
the abundance and diversity of threatened or endangered species, and
the food sources of threatened or endangered species.
The City and the Department argue that because there is no proof that wood storks "currently" use the site, the Department need not consider impacts on their habitat.
The Hearing Officer found that the wood stork is a wet land dependent species (R.O. #17), that wood storks wade and feed in the isolated wetlands on site (R.O. #6), and that wood stork habitat would be lost if the project is permitted (R.O. #43). The evidence shows that wood storks were seen on site as recently as 1987; that wood storks nest nearby; that the site is within their range; and that some wetlands on site are suitable for feeding. (T:331-2, 361, 533-4, 2416-9, 2428, 2809, 2888) This is the sort of evidence from which a trier of fact may draw factual conclusions that "reasonable scientific judgment would indicate use by" wood storks. As there was competent substantial evidence to support these findings, I reject the Department's Exception 4 and the City's Exceptions V.A and V.B in this regard.
As the Hearing Officer points out, it is not clear that any of the mitigation areas the City proposes is intended to replace wood stork feeding habitat. (R.O. #43) The reason for this is obvious from the record: neither the Department nor the City believed that the landfill site was used by wood storks. While the City may argue post-hearing that certain of the open water areas proposed as mitigation would provide suitable habitat for wood storks, there was no expert testimony or other evidence presented during the hearing that these
areas would serve that purpose. The only evidence presented by the City was that certain areas of the stormwater retention ponds might provide suitable wood stork habitat (T:333), and that there is "a potential for these retention areas to be constructed with particular attention to hydrology that could provide wood stork feeding habitat. (T:363) Other evidence showed that wood storks require wetlands that will draw down water to a depth of six inches so that fish are concentrated for feeding (T: 361-2, 2807-8), and that none of the stormwater retention areas are capable of being drawn down to such a depth. (T: 724-7) Accordingly, I find that the City has failed to demonstrate that areas other than the retention pond would provide suitable mitigation for the loss of-wood stork habitat, and reject the Department's Exception 4 and the City's Exceptions
V.C and V.D in this regard.
The Hearing Officer concluded that shallow portions of the stormwater retention ponds could augment the City's other mitigation proposals and mitigate for the loss of existing habitat, except that oil, greases, gasoline and other landfill pollutants would wash into the retention basin and pose a threat to any wildlife which might be using it. While it is undisputed that the stormwater runoff will contain such contaminants, there is no evidence that they will be present in quantities or concentrations which would be harmful to wildlife. On the other hand, there is no evidence that this runoff will not adversely affect wildlife, and if the City is proposing to offer the retention basin as mitigation for wildlife impacts, the burden is on the City to show that the basin "replaces the habitat functions of the wetland which is lost." (Applicant's Handbook, Section 16.1.4.)
The City argues that because the MSSW system is presumed to meet water quality standards (R.O. pg. 94), it should also be presumed that the water in the retention ponds will not harm wildlife. This reasoning, however, ignores the very purpose of the stormwater retention pond, which is to treat polluted runoff so that it will not violate water quality standards when it is discharged into waters of the state. There is no evidence, finding, or presumption that the water in the pond will meet water quality standards at the point that runoff enters the pond. The City has not carried its burden, as regards the retention basin or any other areas proposed as mitigation for the loss of wood stork habitat. I must therefore reject the remainder of the City's Exception V and the Department's Exception 4 as they relate to these issues.
Although the combined effect of my rulings on the issues relating to the landfill permit and the MSSW permit would ordinarily be to adopt the Hearing Officer's recommendation that the MSSW permit be denied, I find that such action is not necessary under the circumstances of this case. The proposed MSSW system has been found to be adequate in all respects by the Hearing Officer, except that its accompanying mitigation proposal did not make adequate provision for the loss of wood stork habitat. No party has challenged the findings or conclusions of the Hearing Officer relating to any other aspect of the MSSW permit. Rather than reject an otherwise well-designed stormwater management system, I find the appropriate remedy to be to grant the permit subject to an additional condition that no construction shall commence until the City has amended its mitigation plan to include additional mitigation that will adequately mitigate for the loss of wood stork habitat, and received final Department approval of the amended mitigation plan. The additional mitigation shall include, at a minimum, adequate provision for proper depth, suitable hydroperiod, and sufficient vegetation to sustain a healthy population of appropriate fish species to serve as a food source for wood storks, equivalent in quantity and quality to those food sources that will be eliminated by the proposed landfill and its stormwater management system; and reasonable assurance
shall be provided that Class III water quality standards will be maintained in all such mitigation areas, whether or not such areas technically constitute "waters of the state" upon completion.
This ruling should not be construed as an open-ended approval of the practice of conditioning permits on the submission of satisfactory mitigation plans that were not in existence at the time the permit application was processed. Rather, it is based on the particular circumstances of the instant case, among which are: (1) that an extensive mitigation proposal had already been developed and approved during the processing of the permit application; (2) that the only deficiency in the existing mitigation proposal was that it failed to mitigate for habitat loss of a species whose presence on the site was contested up to and including the hearing; (3) that the evidence provides support for a reasonable likelihood of success in creating the necessary mitigation; and (4) that the design of the MSSW system is in all other respects acceptable.
Miscellaneous Exceptions (County's Exceptions 1, 2, 4, 12, 13; Intervenors' Exceptions 1, 5; City's Exception VI.D.)
County's Exceptions 1 and 2
In its Exception 1, the County excepts to the Hearing Officer's rulings on proposed findings #77-94 (titled "Additional Permit Conditions for Class I and III Landfills") in its proposed recommended order. In the Recommended Order the Hearing Officer rejects these paragraphs on the grounds that they are not findings of fact, but rather proposed permit conditions. The County argues that this ruling does not provide a sufficiently specific explanation of the reason for rejection.
The Hearing Officer has clearly ruled on the specific paragraphs and has provided a brief statement of the grounds for rejecting them. There is no requirement in the law that the Hearing Officer list each proposed finding separately and repeat the statement that each is a proposed permit condition. The requirement for explicit rulings on each proposed finding is based upon a need for any reviewing court to "sort out which proposed finding was rejected on which ground and whether such rejection was proper or improper." Island Harbor Beach Club v. Department of Natural Resources, 476 So.2d 1350, 1352 (Fla. 1st DCA 1985) The Hearing Officer committed no error by not listing each proposed finding separately, since the grounds for each rejection are clearly stated.
I also agree with the Hearing Officer that the paragraphs in question are actually proposed permit conditions rather than proposed findings of fact.
Except as noted below, each paragraph is addressed in the context of the Recommended Order, and is thus subordinate or cumulative. A remand to the Hearing Officer for more specific rulings on each finding would be pointless, and would not affect the fairness of the proceeding or the correctness of the action except to add unnecessary delay. See Port Everglades Authority v.
Department of Environmental Regulation, 9 F.A.L.R. 3122 (Order of Remand dated June 29, 1987).
As discussed above, I observe that the first sentence of the County's proposed finding #78, conditioning the landfill permit on the addition of six inches of clay to the liner system, has been adopted by this Order. Proposed findings #88, 89, and 93 refer to permit conditions which were stipulated or agreed to at hearing by the City. Therefore, these permit conditions will be incorporated into the landfill construction permit.
As an alternative to its argument that paragraphs 77-94 be remanded for rulings as findings of fact, the County argues that I should rule on those portions which contain conclusions of law. Even if some of these proposed findings could be considered proposed conclusions of law, Section 120.59(2), F.S., requires that the Department include in the final order " ... a ruling upon each proposed finding [of fact] and a brief statement of the grounds for denying the application or request." Nothing in Florida law requires an agency to rule upon a proposed conclusion of law asserted by a party, and I decline to analyze each proposed finding to determine whether it might be a conclusion of law. For these reasons, I reject this exception.
County's Exception 4
In its Exception 4, the County argues that the Hearing Officer failed to adopt its proposed conclusion of law that the City failed to prove that there will be no synergistic impacts associated with the leachate constituents.
However, the Hearing Officer is not required to rule on proposed conclusions of law. Synergistic impacts were discussed by the Hearing Officer in his conclusions of law. Since the City enjoyed a presumption that its project met the Department's water quality criteria, the burden was on the petitioners to rebut this presumption, not on the City to prove that no synergistic impacts would occur. Therefore, I reject this exception.
County's Exception 12
In its Exception 12, the County incorporates the exceptions of all other petitioners. The rulings on those exceptions are addressed elsewhere.
County's Exception 13: McCormick Motion for Remand
In the County's Exception 13 and the McCormick Motion for Remand, those petitioners object to the Hearing Officer's refusal to allow the Petitioners to introduce evidence of alternate landfill sites and waste disposal methodologies. Petitioners argue that because such evidence is relevant to the permit and variance proceedings, the case should be remanded.
In an Order dated October 25, 1988, the Hearing Officer ruled that evidence of alternate landfill sites or waste disposal methodologies "is not relevant to the disposition of these consolidated cases." This ruling is entirely correct. Nothing in Department rules requires a review of alternative sites or technologies that might be available for a landfill, and the Department has no authority to issue or deny a landfill permit on the basis that it is or is not the best possible location for the landfill, or that other disposal options exist. The fact that evidence concerning other sites may have been introduced in other cases, or even in this case, does not make it relevant to the permitting process.
The Department may consider alternatives when reviewing a variance application, to determine the hardships the applicant may face in complying with Department rules. Since I have found that the variance issue is moot, consideration of alternatives is unnecessary. I would note, however, that the Hearing Officer did consider other sites for the Class III landfill, and addressed the availability of other sites in his findings. (R.O. #126) For these reasons, I reject this exception and deny the request to remand.
Intervenors Exception 1
Intervenors except to the Hearing Officer's list of counsel, on the grounds that Sydney F. Ansbacher represented only the environmental organizations that intervened in the permit cases. While irrelevant to the outcome, I accept this exception for purposes of clarification.
Intervenors Exception 5
In their Exception 5, Intervenors except to Finding of Fact #90 as being incomplete and misleading, and suggest additional language concerning the Buckman plant which will treat leachate from the Class I landfill. Finding of Fact #90 is a discussion of anticipated leachate from the Class III landfill, not a finding related to the ability of that plant to treat leachate. There is nothing incomplete or misleading about the Hearing Officer's failure to digress into a discussion on sewage treatment plants in the middle of a discussion of Class III leachate. Further, the proposed additional language is not relevant to Department rule criteria for landfills. A landfill permit applicant is not required by Department rules to prove that a treatment plant which will treat leachate generated by the landfill, along with wastes from other sources, will always comply with state and federal water quality standards. Compliance with these standards is more properly addressed in the treatment facility's permit. Therefore, this exception is rejected.
City's Exception VI.D
The City takes exception to the Hearing Officer's Finding of Fact #98 that David Deans has never designed a liner before. This finding was made in the context of a discussion of composite liners, and there was ample evidence that Mr. Deans had never installed a composite liner. Taken in context, there was competent substantial evidence to support this finding, and the exception is rejected.
Summary Of Rulings
The following is a summary of my rulings on findings of fact and conclusions of law:
The variance request:
The McCormick wells near the Class III landfill are not shallow water supply wells, and the 500-foot setback required by Rule 17-701.040(2)(c) is inapplicable. Therefore, no variance is required.
The landfill permit:
The City enjoys a rebuttable presumption that the proposed landfill, by meeting the design criteria in Rule 17-701.050, also meets the performance standards in that rule and the water quality standards in Chapter 17-3. While many of the Hearing Officer's findings regarding leachate leakage rates have been accepted, his conclusions that these leakage rates will result in violations of the "free from" criteria in Rule 17-3.402 were rejected for the following reasons:
The "free from" rule does not prohibit all discharges which may contain carcinogenic constituents. The rule requires a showing that these constituents will appear in ground water in carcinogenic concentrations. Calculating this
concentration using a "hypothetical sampling event," as proposed by the Department, is a reasonable methodology to determine compliance with the rule.
Using the leachate leakage rates and leachate constituents accepted by the Hearing Officer, it is possible to hypothesize some scenarios wherein the "free from" criteria might be violated even under the Department's interpretation of the rule. However, I have rejected the Hearing Officer's conclusion that the simultaneous occurrence of all such scenarios is "realistic," and find that such an assumption is so speculative and unlikely that it amounts to requiring an absolute guarantee that water quality criteria will not be violated. Department rules require that an applicant provide reasonable assurance that these criteria will not be violated, and the City has done so in this case.
The presumption of compliance may be rebutted only by evidence that site-specific conditions require alternatives to the design criteria in Rule 17-
701.050. Such site-specific conditions have not been shown to exist on the proposed site, and attacks on the design criteria themselves cannot be used to rebut-this presumption, because such attacks in effect render the rule criteria meaningless.
The landfill permit should be modified to require an additional six-inch lift of clay in the liner system. The ground water monitoring plan, Class III landfill design, and landfill closure plan were found to be adequate.
The dredge and fill permit:
The dredging and filling associated with the landfill was determined not to be contrary to the public interest, because the negative effects of the project are offset by the proposed mitigation and the public interest in having the landfill built. While I have rejected the Hearing Officer's conclusion that the impacts of the landfill on wildlife are not relevant to the dredge and fill issues, I have accepted his conclusion that the dredge and fill permit should issue if the landfill permit is issued.
The MSSW permit:
The City did not provide adequate mitigation for the loss of wood stork habitat which would be occasioned by the construction of the landfill. The project was otherwise permittable. Therefore, the permit should issue subject to an additional condition requiring additional mitigation to compensate for the loss of wood stork habitat.
Table of Exceptions and Rulings
The following is a table summary of the exceptions filed in this case, showing in what sections of this Order they are addressed, and the ruling on them. This is only a summary, and it may be, for example, that an exception noted as "accepted" may contain some subordinate statements which I have not accepted.
Exception City | Location of | Discussion | Ruling |
I. | II.B., | II.C | Accepted |
II | II.D | Accepted | |
III.A. | II.A | Rejected | |
III.B. | II.A. | Accepted |
III.C. | II.A | Rejected | |||
IV | II.E. | Accepted | |||
V.A. | IV | Rejected | |||
V.B. | IV | Rejected | |||
V.C. | IV | Rejected | |||
V.D. | IV | Rejected | |||
VI.A. | II.B.1. | Rejected | |||
VI.B. | II.B.2. | Rejected | |||
VI.C. | II.B.3. | Accepted | |||
VI.D. | V | Rejected | |||
VI.E. | II.B.3. | Rejected | |||
VI.F. | II.B.4. | Rejected | |||
VII.A. | II.B.6. | Accepted | |||
VII.B. | II.A. | Accepted | |||
VII.C. | II.B.&. | Rejected | in | part, | |
Accepted | in | part | |||
VII.D. | II.E. | Accepted | |||
VIII | I | Accepted | |||
County | |||||
1. | V | Rejected | |||
2. | V | Rejected | |||
3. | II.F. | Rejected | |||
4. | V | Rejected | |||
5. | II.G. | Rejected | |||
6. | III.B. | Rejected | |||
7. | III.E. | Rejected | |||
8. | III.E. | Rejected | |||
9. | III.E. | Rejected | |||
10. | III.B. | Rejected | |||
11. | I | Rejected | |||
12. | V | Accepted | in | part, | |
Rejected | in | part | |||
13. | V | Rejected | |||
14. | III.E. | Rejected | |||
Department | |||||
1. | II.A. | Accepted | |||
2. | II.B. | Accepted | in | part, | |
Rejected | in | part | |||
3. | IV | Rejected | |||
4. | IV | Rejected | |||
McCormick | |||||
1. | I | Rejected | |||
2. | I | Rejected | |||
3. | I | Rejected | |||
STOP | |||||
1. | III.C. | Accepted | |||
2. | III.E. | Rejected | |||
Intervenors | |||||
1. | V | Accepted | |||
2. | III.E. | Rejected | |||
3. | III.E. | Rejected | |||
4. | III.E. | Rejected | |||
5. | V | Rejected | |||
6. | III.B., | III.E. | Rejected | ||
7. | III.B. | Accepted | |||
8. | III.E. | Rejected | |||
9. | III.E. | Rejected | |||
II.F. Rejected
III.E. Rejected
Accordingly, based upon the foregoing analysis and conclusions, it is ORDERED:
The findings of fact and conclusions of law contained in Exhibit A are adopted, except as modified herein.
The Department shall forthwith issue Permit No. SC16-143188, with the following added conditions:
Litter control programs shall be instituted by the City as necessary to prevent litter from leaving the active disposal areas in the Class I and Class III landfills. The City shall collect all litter, at least once per day along the access road to the Southeast Landfill and at least twice per week along U.S. 1 (Phillips Highway) within a one and one-half mile distance to the north and a one and one-half distance to the south of the entrance to the access road for the Southeast Landfill. Open burning of litter shall be prohibited. The City shall maintain a log, listing a supervisor's name and times, documenting the daily litter collection.
The City shall monitor and patrol County Road 210 and Racetrack Road on a random basis at least twice each week to prevent the use of these roads by the City's contract or authorized solid waste haulers. All contracts between the City and its residential solid waste haulers executed after the effective date of this permit shall contain a provision prohibiting the use of County Road 210 and Racetrack Road by their vehicles using the Southeast Landfill for the disposal of solid waste. The contracts shall provide that violation of this prohibition may be grounds for the City voiding the contract.
The City shall encourage other incorporated municipalities within Duval County to include such a restriction in contracts or franchised for the collection and disposal of solid waste at the Southeast Landfill.
The City shall maintain a log listing a supervisor's name, dates and times, documenting the monitoring and patrol activities.
Landfill operations shall be limited to the hours of 6:00 a.m. to 7:00 p.m., Monday through Saturday.
The clay layer beneath the plastic liner shall consist of three lifts of six inches each, and shall demonstrate an in situ permeability, measured in the field, of 1 X 10-7 cm/sec.
The Department shall forthwith issue Permit No. 161332949.
The Department shall forthwith issue Permit No. 148069, with the following additional conditions:
No construction shall commence until the City has amended its mitigation plan to include additional mitigation that will adequately mitigate for the loss of wood stork habitat, and received final Department approval of the amended mitigation plan.
The additional mitigation shall include, at a minimum, adequate provision for proper depth, suitable hydroperiod, and sufficient vegetation to sustain a healthy population of appropriate fish species to serve as a food source for wood storks, equivalent in quantity and quality to those food sources that will be eliminated by the proposed landfill and its stormwater management system; and reasonable assurance shall be provided that Class III water quality standards will be maintained in all such mitigation areas, whether or not such areas technically constitute "waters of the state" upon completion.
The request for oral argument filed by the City is DENIED.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE and ORDERED this 22nd day of January, 1989, in Tallahassee, Florida.
DALE TWACHTMANN
Secretary FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S. 120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
1-22-90
Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Procedural Order has been furnished to the below listed persons by U.S. Mail, this 22nd day of January, 1990.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
David A. Crowley Deputy General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
Frank X. Friedmann, Jr., Rufus Pennington, III Esquire Margol & Pennington
Rogers, Towers 222 East Forsyth Street
1300 Gulf Life Drive Jacksonville, Florida 32202 Jacksonville, Florida 32207
Carlos Alvarez, Esquire Debra Swim
Carolyn S. Raepple, 1323 Diamond Street
Esquire Tallahassee, Florida 32301 Hopping, Boyd, Green
& Sams
P.O. Box 6526
Tallahassee, Florida 32314
David S. Dee, Esquire Dan Hendrickson
Carlton, Fields, Ward, Leon County Courthouse
Emmanuel, Smith, & 4th Floor North
Cutler, P.A. 301 South Monroe Street
P.O. Drawer 190 Tallahassee, Florida 32301 Tallahassee, Florida 32302
Kathryn Mennella Sidney F. Ansbacher
St. Johns Water Management Turner, Ford & Buckingham District 1904 Gulf Life Tower
P.O. Box 1429 Jacksonville, Florida 32207 Palatka, Florida 32078-1429
Mr. Larry A. Wells Lawrence B. Gilmore, Sr.
237 Pablo Road 9131 Fort Caroline Road
Ponte Vedra Beach, Florida Jacksonville, Florida 32225 32302
Robert T. Benton, II William H. Congdon
Hearing Officer Assistant General Counsel 1230 Apalachee Parkway Department of Environmental The DeSoto Building Regulation
Tallahassee, Florida 2600 Blair Stone Road
32399-1550 Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Oct. 16, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 22, 1990 | Agency Final Order | |
| Oct. 16, 1989 | Recommended Order | Landfill applicant must show entitlement de novo to variance despite DER's intent to grant. No mixing zone allowed for carcinogens leaking from lining. |
