Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Voluntary Dismissal filed by the Petitioner. A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-056 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 23-4 day of March, 2010. U.S. Mail: The Honorable D.R. Alexander Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Melvin Wolfe, Esq. Town of Medley 7777 N.W. 72nd Avenue Medley, Florida 33166 Jeffrey S. Bass, Esq. Shubin & Bass, P.A. 46 S.W. First Street, 3rd Floor Miami, Florida 33131 Hand Delivery: Richard Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Paula Ford Agency Clerk Douglas M. Halsey, Esq. White & Case, LLP Wachovia Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131 Barbara J. Riesberg, Esq. 1000 Brickell Avenue, Suite 200 Miami, Florida 33131
The Issue The issues for determination in this matter are: (1) whether Petitioner, MW Horticulture Recycling Facility, Inc. (MW), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration; (2) whether Petitioner MW is an irresponsible applicant; and (3) whether Petitioner MW Horticulture Recycling of North Fort Myers, Inc. (MW-NFM), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and the Registration Denials Petitioner MW is a Florida corporation that operates an SOPF located at 6290 Thomas Road, Fort Myers, Lee County, Florida. The site is commonly referred to as the "South Yard." Petitioner MW-NFM is a Florida corporation that operates an SOPF located at 17560 East Street, North Fort Myers, Lee County, Florida. The site is commonly referred to as the "North Yard." The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of part IV of chapter 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Chapters 62-701 and 62-709. Pursuant to that authority, the Department determines whether to allow SOPFs to annually register in lieu of obtaining a solid waste management facility permit. On April 25, 2019, Petitioner MW submitted its application for registration renewal for the South Yard. On August 22, 2019, the Department issued a notice of denial. The listed reasons for denial focused on non-compliance with orders for corrective action in a Consent Order (Order) between Petitioner MW and the Department entered on February 22, 2019. The Order was entered to resolve outstanding violations in a Notice of Violation, Orders for Corrective Action and Administrative Penalty Assessment (NOV), issued on November 20, 2018. The notice of denial stated that, as of August 9, 2019, Petitioner MW had not completed the following corrective actions of the Order by the specified timeframes: (a) within 90 days of the effective date of this Order, Respondent shall remove all processed or unprocessed material (yard trash) from the Seminole Gulf Railway Right of Way and the swale along Old US 41 and establish a 20 foot wide all-weather access road, around the entire perimeter of the site; (b) within 90 days of the effective date of this Order, Respondent shall reduce the height of the piles to a height that the facility’s equipment can reach without driving (mechanically compacting) onto the processed or unprocessed material; and (c) within 90 days of the effective date of this Order, Respondent shall have all the processed and unprocessed material be no more than 50 feet from access by motorized firefighting equipment. The notice of denial also stated that when Department staff conducted compliance visits on April 29, 2019, June 27, 2019, July 7, 2019, and July 18, 2019, the following outstanding violations were documented: (a) unauthorized open burning of yard waste; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) an all-weather access road, at least 20 feet wide, around the perimeter of the Facility has not been maintained and yard trash has been stored or deposited within the all-weather access road; and (d) yard trash is being stored more than 50 feet from access by motorized firefighting equipment. On April 25, 2019, Petitioner MW-NFM submitted its application for registration renewal for the North Yard. On August 22, 2019, the Department issued a notice of denial. The notice of denial stated that compliance and site observation visits were conducted on July 9, 2019, July 30, 2019, August 1 and 2, 2019, and the following non-compliance issues were documented: (a) unauthorized open burning; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) yard trash received has been stored or disposed of within 50 feet of a body of water; and (d) yard trash received is not being size-reduced or removed, and most of the unprocessed yard trash has been onsite for more than six months. The notice of denial also stated that on March 27, 2018, May 10, 2018, and October 3, 2018, Department staff conducted inspections of the North Yard. A Warning Letter was issued on November 2, 2018. The Warning Letter noted the following violations: (1) unauthorized burning of solid waste; (2) the absence of the required 20-foot-wide all-weather perimeter access road along the southern unprocessed yard trash debris pile; (3) inadequate access for motorized firefighting equipment around the southern unprocessed yard trash debris pile (lake pile); (4) the lake pile not size-reduced or removed within six months; (5) mechanical compaction of processed and unprocessed material by heavy equipment; and (6) yard trash storage setbacks from wetlands not maintained. Petitioners' SOPFs The North Yard is located in North Fort Myers and is bound by the southbound lanes of Interstate 75 to the east and a lake to the west. The South Yard is slightly larger than the North Yard and abuts Thomas Road to the west and a railroad owned and operated by the Seminole Gulf Railway Company to the east. Petitioners' facilities accept vegetative waste and yard trash (material) from the public in exchange for a disposal fee before processing and size-reducing the material into retail products such as organic compost, topsoil, and mulch. The unprocessed material is staged in various piles generally according to waste type until it can be processed by grinding or screening. As of the date of the final hearing, both the North Yard and the South Yard were completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meander between the piles themselves. As the material in the piles decomposes, heat is produced from the respiration and metabolization of organic matter. This heat ignites the dry material and can cause substantial fires. Both the North Yard and South Yard are susceptible to fires caused by spontaneous combustion as a result of their normal operations of collecting and stockpiling organic waste. Fires Although spontaneous combustion is an inherent risk with SOPFs, the evidence at the hearing established that the material at Petitioners' facilities catches fire at an abnormally high rate as a result of poor pile management. Piles need to be turned and wetted to keep down incidents of spontaneous combustion. Monitoring temperatures, rotating the piles, and removing the material at a faster rate would help reduce the incidence of fires. Large piles with no extra land space cannot be managed in a way "to aerate and keep the temperatures at a level where you're not going to have spontaneous combustion." See Tr. Vol. I, pg. 32. Fire Marshal Steve Lennon of San Carlos Park Fire and Rescue regarded the South Yard as a fire hazard compared to other similar sites in his district. He testified that the pile heights, widths, and lengths at the South Yard are not in compliance with applicable fire-code size requirements. He also testified that if the pile sizes were in compliance, Petitioner MW would not have to put their motorized firefighting equipment on top of the piles "because [they] would be able to reach it from the ground." See Tr. Vol. I, pg. 41. As of the date of the hearing, San Carlos Park Fire and Rescue had responded to 43 active fire calls at the South Yard in the last two years, and three times in 2020 alone. In 2018, the active fire calls at the South Yard were multi-day suppression operations. In 2019, the active fire calls were mostly hotspots and flare-ups. Captain Doug Underwood of the Bayshore Fire Rescue and Protection Service District (Bayshore Fire District) testified that his department had responded to approximately 75 fire calls at the North Yard in the last two years. The most common cause of the fires was spontaneous combustion. The piles were not in compliance from a size standpoint. Captain Underwood testified that the majority of the 75 calls were to the lake pile at the North Yard. See Tr. Vol. I, pg. 59. The lake pile was a temporary site on the southern end of the lake that borders the North Yard, and for most of 2018 and 2019, contained debris from Hurricane Irma.1 The lake pile temporary site was completely cleared by the time of the hearing. Captain Underwood testified that in 2018, he recommended to Petitioners that they engage the services of an expert fire engineer. Petitioners engaged Jeff Collins who met with Captain Underwood on multiple occasions. They discussed how to address fires and hotspots and that the facilities should have a written fire protection safety and mitigation plan. Such a plan was created and Captain Underwood was satisfied with its provisions. Although the lake pile temporary site was completely cleared by the time of the hearing, it was not an entirely voluntary effort on Petitioners' part. Captain Underwood testified that Petitioners' "initial plan of action was to leave it there for . . . eight months or greater, depending on the time frame needed to have the product decompose and cool down to a temperature that they could remove it." See Tr. Vol. I, pg. 83. It took Lee County code enforcement efforts "to compel MW to remove this material off-site as quickly as possible." See Tr. Vol. I, pg. 82. 1 Throughout this proceeding, the lake pile was referred to by various names in testimony and exhibits, such as, "southern unprocessed yard trash debris pile," "lake yard," "trac[t] D," and "temporary site." As recently as February 12, 2020, a large pile of hardwood, green waste, and compost at the North Yard caught fire as a result of spontaneous combustion. The size of the fire was so large and hot that the Bayshore Fire District could not safely extinguish the fire with water or equipment, and allowed it to free-burn openly for 24 hours in order to reduce some of the fuel. The fire produced smoke that drifted across the travel lanes of Interstate 75. The free-burn allowed the pile to reduce in size "down to the abilities of the district and the equipment on-site." See Tr. Vol. I, pgs. 51-52. Captain Underwood testified that "once we started putting water on it, then the MW crews with their heavy equipment covered the rest of the smoldering areas with dirt." See Tr. Vol. I, pg. 56. Rule Violations By Petitioners' own admission, the facilities have repeatedly violated applicable Department rules throughout the course of their operations over the last two and one-half years. The most pertinent of these violations center around the Department's standards for fire protection and control to deal with accidental burning of solid waste at SOPFs. Renee Kwiat, the Department's expert, testified that the Department cited the South Yard nine times for failing to maintain a 20-foot all-weather access road. The South Yard consistently violated the requirement to maintain processed and unprocessed material within 50 feet of access by motorized firefighting equipment, and the North Yard has violated this requirement twice. The North Yard consistently violated the requirement to size-reduce or remove the lake pile material within six months. Both the North Yard and South Yard were cited multiple times for mechanically compacting processed and unprocessed material. Following a period of noncompliance and nearly 11 months of compliance assistance at the South Yard, Petitioner MW told the Department it would resolve all outstanding violations by July 1, 2018. The July 1, 2018, deadline passed and on October 18, 2018, the Department proposed a consent order to resolve the violations at the South Yard. However, Petitioner MW did not respond. On November 20, 2018, the Department issued the NOV to Petitioner MW regarding the South Yard. The violations included failure to maintain a 20-foot all-weather access road around the perimeter of the site, failure to ensure access by motorized firefighting equipment, mechanical compaction, and the unauthorized open burning of solid waste. On February 22, 2019, the Department executed the Order with Petitioner MW to resolve outstanding violations in the NOV. By signing the Order, Petitioner MW agreed to undertake the listed corrective actions within the stated time frames. Compliance visits to the South Yard on April 29, 2019, June 7, 2019, June 27, 2019, July 18, 2019, and August 22, 2019, documented that many violations outlined above were still present at the site. At the time of the final hearing, the preponderance of the evidence established that none of the time periods in the Order were met. The preponderance of the evidence established the violations listed in paragraphs 5 and 6 above. At the time of the final hearing, the preponderance of the evidence established that Petitioner MW still had not reduced the height of the piles such that their equipment could reach the tops of the piles without driving (mechanically compacting) onto the processed or unprocessed material. Thus, all the processed and unprocessed material was not more than 50 feet from access by motorized firefighting equipment. At the time of the final hearing, the preponderance of the evidence established more incidents of unauthorized open-burning of solid waste; and continuing unauthorized mechanical compaction of processed and unprocessed material. The evidence also established that the South Yard does not encroach on Seminole's real property interest. The Department did not issue an NOV for the North Yard. The preponderance of the evidence established that there were repeated rule violations at the North Yard. These violations formed the basis for denying the North Yard's registration as outlined in paragraph 8 above. The Department deferred to Lee County's enforcement action for violations of County rules as resolution of the violations of Department rules. At the time of the final hearing, however, the preponderance of the evidence established more incidents of unauthorized open burning of solid waste, and continuing unauthorized mechanical compaction of processed and unprocessed material at the North Yard. Petitioners' Response and Explanation Approximately two and one-half years before the date of the hearing in this case, Hurricane Irma, a category four hurricane, made landfall in the state of Florida. It was September 10, 2017, and Hurricane Irma significantly impacted the southwest coast of Florida, where Petitioners' facilities are located. Hurricane Irma caused extensive damage, including the destruction of trees, vegetation, and other horticultural waste which required disposal. Massive amounts of such yard waste and horticultural debris were deposited on roadways and streets throughout Lee County, creating a significant issue that needed to be addressed by local governments, and state and federal agencies. Due to the threat posed by Hurricane Irma, the state of Florida declared a state of emergency on September 4, 2017, for every county in Florida. This state of emergency was subsequently extended to approximately March 31, 2019, for certain counties, including Lee County, due to the damage caused by Hurricane Irma. An overwhelming volume of material needed to be processed and disposed of following Hurricane Irma. The Petitioners' facilities were inundated with material brought there by Lee County, the Florida Department of Transportation, the Federal Emergency Management Agency, and others. After Hurricane Irma, haulers took considerable time just to get the materials off the streets, and processors like the Petitioners, ran out of space because there was limited space permitted at the time. As a result, these materials stacked up and had to be managed over time at facilities, including Petitioners' facilities. To accommodate the material, Petitioner MW-NFM added the temporary site that was labeled the "lake pile" or "southern unprocessed yard trash debris pile" in Department inspection and compliance reports of the North Yard. In order to address the volume of material on the site after Hurricane Irma, Petitioner MW-NFM requested approval from the Department to move the material off-site to other locations in order to reduce the size of the piles at the North Yard's lake pile. For reasons that remain unclear, such authorization was not obtained, and Petitioner MW-NFM believes that this would have size-reduced the piles and prevented accumulation of material in violation of Department rules. In order to process the North Yard's lake pile and move it off-site more quickly, Petitioner MW-NFM requested permission from Lee County and the Department to grind unprocessed material on site, which would have size-reduced the lake pile and allowed it to be moved off-site more quickly. Because existing zoning did not authorize this grinding, the request was denied in spite of the fact that a state of emergency had been declared which Petitioner MW-NFM believes would have permitted such an activity. This further hampered Petitioner MW-NFM's ability to size-reduce the lake pile leading to more issues with hot spots and fires. Because the material was of such volume, and was decomposing, a major fire erupted in 2018 at the North Yard's lake pile. Petitioners' fire safety engineer, Jeff Collins, wrote reports to address this issue and recommended to the local fire department that the pile be smothered in dirt until the fire was extinguished. The request was denied by the Bayshore Fire District, which instead directed that Petitioners break into the pile in order to extinguish the fire. When Petitioners did so, the piles immediately erupted into flames as predicted by Petitioners' fire safety engineer. Moving the smoldering material to the South Yard also led to fires at the South Yard. In spite of the large volume of material at the North Yard's lake pile, Petitioners made steady progress in size reducing the material and moving it off-site. However, as of the date of the final hearing, both the North Yard and the South Yard were still completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meandered between the piles themselves. Mechanical Compaction Each party presented testimony regarding the question of whether Petitioners' facilities violated the prohibition that any processed or unprocessed material shall not be mechanically compacted. The parties disagreed over how the prohibition against mechanical compaction was applied to yard trash transfer facilities. In March of 2018, Petitioners' representative, Denise Houghtaling, wrote an email to the Department requesting clarification of the Department's definition of "mechanical compaction" because it is undefined in the rules. On April 3, 2018, Lauren O' Connor, a government operations consultant for the Department's Division of Solid Waste Management, responded to Petitioners' request. The response stated that the Department interprets "mechanical compaction" as the use of heavy equipment over processed or unprocessed material that increases the density of waste material stored. Mechanical compaction is authorized at permitted disposal sites and waste processing facilities, but is not permissible under a registration for a yard trash transfer facility.2 Mechanical compaction contributes to spontaneous combustion fires, which is the primary reason for its prohibition at yard trash transfer facilities. Petitioners' interpretation of mechanical compaction as running over material in "stages" or "lifts" was not supported by their expert witnesses. Both David Hill and Jeff Collins agreed with the Department's interpretation that operating heavy equipment on piles of material is mechanical compaction. The persuasive and credible evidence established that Petitioners mechanically compact material at their facilities. Mechanical compaction was apparent at both sites by either direct observation of equipment on the piles of material, or by observation of paths worn into the material by regular and repeated trips. Department personnel observed evidence of mechanical compaction on eight separate inspections between December 2017 and January 2019. Additional compaction was observed at the South Yard on June 7, 2019, and in aerial surveillance footage from August 28, 2019, September 5, 2019, January 30, 2020, and February 12, 2020. Petitioners' fire safety engineer, who assisted them at the North Yard lake pile, testified that the fire code required access ramps or pathways for equipment onto the piles in order to suppress or prevent fire. However, Captain Underwood and Fire Marshal Lennon testified they do not and have never required Petitioners to maintain such access ramps or paths on the piles. The fire code provision cited by Petitioners' expert does not apply to their piles. See Tr. Vol. II, pgs. 78-80. In addition, Fire Marshal Lennon testified that placing firefighting equipment on top of piles is not an acceptable and safe way to fight fires at the site by his fire department. 2 Rule 62-701.710 prohibits the operation of a waste processing facility without a permit issued by the Department. See also Fla. Admin. Code R. 62-701.803(4). Rule 62- 701.320(16)(b) contemplates the availability of equipment for excavating, spreading, compacting, and covering waste at a permitted solid waste disposal facility. Despite receiving clarification from the Department in April of 2018, Petitioners choose to ignore the Department's prohibition against mechanically compacting unprocessed or processed material piles. In addition, the persuasive and credible evidence suggests that Petitioners blanket the piles with dirt to both suppress fires and accommodate the "access roads" or "paths" on the piles.3 Ultimate findings The persuasive and credible evidence established the violations cited in the Department's registration denial for the North Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established the violations cited in the Department's registration denial for the South Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established that Petitioners did not consistently comply with Department rules over the two and one-half years prior to the final hearing. However, Petitioners established through persuasive and credible evidence that because of the impacts of Hurricane Irma, and the subsequent circumstances, they could not have reasonably prevented the violations. The totality of the evidence does not justify labeling the Petitioners as irresponsible applicants under the relevant statute and Department rule. However, Petitioners did not provide reasonable assurances that they would comply with Department standards for annual registration of yard trash transfer facilities. 3 The evidence suggests that Petitioners may prefer to follow the advice of their hired experts with regard to the practice of mechanical compaction and blanketing the piles with dirt. See, e.g., Petitioners' Ex. 16. However, the evidence suggests that the experts' level of experience is with large commercial composting and recycling facilities that may be regulated by solid waste management facility permits and not simple annual registrations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioners' annual registration renewal applications for the North Yard and South Yard. DONE AND ENTERED this this 17th day of September, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2020. COPIES FURNISHED: Clayton W. Crevasse, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Sarah E. Spector, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Carson Zimmer, Esquire Department of Environmental Protection Mail Station 49 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issue is whether Respondents should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a solid waste management facility without a permit and disposing of solid waste in an area subject to periodic or frequent flooding.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background DDD is a corporation registered to do business in the State of Florida. Its president and sole director is William H. Stanton, Jr. The corporation is engaged in the business of "mobil recycling activities" (reduction recycling services for customers). Mr. Stanton owns a two-acre tract of property located in Section 26, Township 28S, Range 24B, on the northwest corner of Mustang Road and Longhorn Drive, Lakeland, Florida. The property is zoned for heavy industrial uses and was formerly used in some form of phosphate mining operations. The Department is the agency charged with the duty of administering and enforcing the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder. Based upon a complaint made by a Polk County Health Department employee, on October 8, 2001, a Department enforcement coordinator, Steven G. Morgan, inspected Mr. Stanton's property and observed that Respondents had filled and compacted an approximate 150 foot by 300 foot area of the site with 3 to 5 feet of "wallboard type material," which consisted of "both ground up and large pieces of wallboard." In the middle of the filled area was an additional pile of the same material around 20 to 25 feet high. Petitioner's Exhibits A, D, and E are photographs which provide an accurate representation of the site on the date of the inspection. Based on a visual inspection, but without having the benefit of his own laboratory analysis,2 Mr. Morgan concluded that the material was a solid waste made up of discarded industrial products. Under Department rules, the deposit of solid waste on such a site requires a waste facility management permit from the Department. A check of Department records indicated that Respondents do not hold a permit to operate a solid waste management facility. (DDD does hold a valid air pollution permit for grinding concrete.) During his inspection, Mr. Morgan also observed that the land adjacent to the filled area was wet, had a lower elevation than the compacted area, and contained small pockets of standing water. This was confirmed by photographs received in evidence as Petitioner's Exhibits D and E. A DDD employee who was present on the site during the inspection indicated that approximately 900 truck loads of the material had been transported to the site from Plant City after Mr. Stanton had "lost" a lease on the property on which the material had previously been placed. This was confirmed by Mr. Stanton who arrived at the site shortly after the inspection began, and who indicated that he intended to use the compacted wallboard as a sub-base (or foundation) for a wallboard recycling facility. A second site inspection by Mr. Morgan conducted on February 5, 2002, confirmed that the conditions (regarding the piles of fill material but not the standing water) at the site were unchanged from those found on October 8, 2001. On that visit, Mr. Morgan observed the site from his automobile but did not walk the property. Two other site visits were made, one on June 19, 2002, by other Department personnel. Except for a photograph (Petitioner's Exhibit C) dated June 19, 2002, which indicates the piles of material were still intact and had not been removed, the results of those inspections are not of record. Shortly after the initial inspection, the Department's Tampa District Office issued a warning letter to Mr. Stanton describing Mr. Morgan's observations and outlining the potential violations. The letter also invited Mr. Stanton to resolve the matter informally and to present a corrective action plan to mitigate the site. When the matter could not be resolved informally, the Department issued its Notice on October 10, 2002, alleging that Respondents had operated a solid waste facility without a permit and had deposited solid waste in an area prone to flooding. Even though the matter was not informally resolved, Mr. Stanton has cooperated with the Department in good faith throughout the regulatory process. The Material on the Site Invoices received in evidence reflect that the source of the deposited material was James Hardie Building Products in Plant City, Florida, and that the material was described on the invoices as "Dry Waste Material," Wet Waste Material," and "Foreign Material." James Hardie Building Products manufactures HardieBoard, which is a one-half to one-inch thick concrete formulated product used in the construction of homes and other buildings, and HardiePipe, which is used in road and bridge construction, culverts, storm sewers, and concrete pipes. The material being deposited was material used in the manufacture of HardieBoard. Mr. Stanton's long-range plans are to grind up, or recycle, the material (after all necessary permits, if any, are obtained) and then sell it to other persons, including cement manufacturing plants in the area, who will then use it for a variety of purposes, including subbase and base material, cement and concrete re-additive, and cement production. HardieBoard (as well as HardiePipe) is a variable mixture of Portland cement, water, fine silica sand, less than 10 percent cellulose (a non-toxic organic material commonly added to such products as ice cream, shampoo, baby diapers, and rayon clothing), and less than 10 percent of inert materials. The cellulose fibers are added to the concrete to avoid cracking and shrinkage and to reduce the weight of the product. Unlike concrete used for driveways and the like, HardiBoard does not have any large aggregate. Disposal of Solid Waste and Clean Debris Florida Administrative Code Rule 62-701.300(1)(a) prohibits the storing, processing, or disposing of solid waste except at a permitted solid waste management facility. In addition, no solid waste may be stored or disposed of "[i]n an area subject to frequent and periodic flooding unless flood protection measures are in place[,]" or "[i]n any natural or artificial body of water including ground water." Fla. Admin. Code R. 62-701.300(2)(d) and (e). These requirements form the basis for the charges in the Notice. Florida Administrative Code Rule 62-701.200(113) defines solid waste in relevant part as "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations." Section 403.707(2)(f), Florida Statutes (2003), provides, however, that a permit is not required for "[t]he use of clean debris as fill material in any area." See also Fla. Admin. Code R. 62-701.220(2)(f). "Clean debris" is defined in Florida Administrative Code Rule 62-701.200(15) as: any solid waste which is virtually inert, which is not a pollution threat to ground water or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes brick, glass, ceramics, and uncontaminated concrete including embedded pipe or steel. The term "virtually inert" is not defined by statute or rule. However, the parties agree that in order for a material to be "virtually inert," it must have no potential for leaking contaminants into the groundwater. In addition, if a deposited material releases contaminants into the groundwater thereby posing a threat to human health, it is considered a "threat to [groundwater]" within the meaning of the rule. The rule also provides that the material must not be a fire hazard. Finally, if a material decomposes over time after being used as fill, and releases contaminants into the groundwater, it is not "likely to retain its physical and chemical structure under expected conditions of disposal or use." Therefore, if a material has no potential for leaking contaminants into the groundwater, is not a threat to groundwater, is not a fire hazard, and is not likely to decompose over time, it constitutes clean debris and is exempt from the waste management facility permitting requirements. As noted above, Florida Administrative Code Rule 62- 701.200(15) identifies four materials that are considered to be clean debris: brick, glass, ceramics, and uncontaminated concrete. If a waste product is classified as uncontaminated concrete, it constitutes clean debris and may be used as fill without a permit from the Department. Further, clean debris may be deposited in an area subject to frequent or periodic flooding so long as flood protection measures are taken, or in a natural or artificial body of water so long as other appropriate permits (such as an Environmental Resource Permit) are obtained. Here, the central issue is whether the material deposited on Mr. Stanton's property is solid waste or clean debris. This issue turns on whether the material is virtually inert, is not a pollution threat to groundwater or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Assuming these criteria are satisfied, the material is exempt from Department permitting requirements for solid wastes. On this issue, the Department contends that the material is not virtually inert and is unlikely to retain its physical and chemical structure. Conversely, Respondents assert that the material is clean debris and falls within the category of uncontaminated concrete. Is the Deposited Material Clean Debris? In determining whether a material is virtually inert, or is a pollution threat to ground or surface waters, two extraction procedures have been sanctioned by the United States Environmental Protection Agency to assist in the measurement of the amount of contaminants that will leak from a material: the Toxicity Characteristic Leaching Procedure (TCLP) and the Synthetic Precipitation Leaching Procedure (SPLP). Under both procedures, the material being tested is ground up into small sand-size particles, mixed with an extraction fluid, and tumbled for 18 hours in a rotary agitator while the liquid solution extracts various metals that are found in the solids. The extracted liquid solution is then filtered and analyzed to determine the concentration of metals actually leached from the solids. Under state water drinking standards found in Table 1 of Florida Administrative Code Chapter 62-550, the maximum contaminant levels for chromium and barium (stated in milligrams per liter (mg/L)) are 0.1 mg/L and 2 mg/L, respectively. In reaching its conclusion that the fill material is a solid waste, the Department relied principally on certain tests of the material run by various laboratories between 1998 and 2000, which showed that the amount of chromium and barium leaking out of the product exceeded the State drinking water standards. See Petitioner's Exhibits K, L, M, and O. However, in every one of those tests, the laboratories used the TCLP, rather than the SPLC, which produced a worst case scenario. For the reasons stated below, the TCLP is not the appropriate procedure to be used for this purpose. The TCLP is the more aggressive of the two procedures, uses a much harsher solution than the SPLC, and generally leaches higher concentrations of metals. However, its principal purpose is to determine whether a material should be classified as a hazardous waste based on its leaching properties or characteristics. Using it to predict whether a material will leach into ground water is inappropriate because it will "leach things out in the laboratory that will never leach in the field." This is because it does not mimic conditions in the field and is "just not supposed to be used for this purpose." Therefore, TCLP leachate values should not be applied to drinking water standards. Conversely, the SPLC uses a less harsh solution during the preparation process, evaluates the potential for leaching metals into ground and surface waters, and is designed to provide a more realistic assessment of metal mobility under actual field conditions. In other words, the SPLC simulates what would happen if the sample were exposed to groundwater and rain to determine if under those conditions metals might leach into the water system below. Therefore, the SPLC is the more appropriate procedure to use here to determine whether the HardieBoard material will leach certain metals into the groundwater at levels that exceed State drinking water standards. Even various Department guidance documents provide that the SPLC (rather than the TCLP) should be used to determine if a material will leach metals into the ground water. See Respondents' Exhibits M, N, and O. Respondents' witness Foster collected three samples of HardieBoard deposited by Respondents at another site and submitted them to PPB Environmental Laboratories, Inc., in Gainesville, Florida, for a clinical analysis using the SPLC test. Those results, which have been accepted as being reliable,3 indicate that none of the leachate concentrations for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver exceed (or even approach) the drinking water standards. Therefore, the material is virtually inert, and the groundwater quality will not be adversely impacted by use of this material as fill. The parties agree that the material is not a fire hazard. Prior to depositing the material, Mr. Stanton used a commercial waste reduction machine (a Smorcazy Bandit Beast 3680 Horizontal Trough Grinder) to grind or pulverize some of the material into fine particles. As noted earlier, a small amount of cellulose fibers are added to the product during the manufacturing process. The Department contends that after the grinding process occurs, these fibers will separate from the remaining fine particles and dissolve into the ground water. Because of this separation, the Department asserts that the material does not retain its physical or chemical structure after being deposited onto the property. Although cellulose fibers are added to the product during its preparation to strengthen the material (and have been added by cement manufacturers since the 1920s), they are distributed throughout the matrix in the material. This means that the fibers become "part and parcel of the mixture" and will not deteriorate, fall out, or leach out of the material even after routine grinding processes, such as that done by Respondents. As such, the cellulose is not biodegradable, and there is no concern that the cellulose will dissolve into the groundwater. Indeed, HardiePipe, which is used in the construction of culverts, storm sewers, and drainage pipes and has essentially the same constituents as HardieBoard, was approved by the Florida Department of Transportation in 2001 for use on State road and bridge projects. Therefore, it is found that the fill material will retain its physical and chemical structure after being deposited onto the ground. Expert testimony by Dr. McClellan established that the material meets the general definition of concrete, and because it is uncontaminated, it should properly be classified as uncontaminated concrete. As such, the material is clean debris and is not subject to the Department's solid waste management permitting requirements. Finally, the Department points out that the compressive strength (measured in pounds per square inch (PSI)) is much greater for concrete used in driveways than for HardiBoard (2500 PSI versus 20 to 30 PSI), and therefore Hardiboard is not a true concrete product. While the PSI values are indeed substantially different, the load bearing ratio or compressive strength of the material does not determine whether a material falls within the generic category of concrete. Water Issues As noted above, if a material is classified as clean debris, it may be deposited into an area prone to flooding or in a natural or artificial body of water, including groundwater (subject, of course, to other unrelated requirements or safeguards). There is no evidence that the filling occurred in a "natural or artificial water body," or directly into the groundwater. In addition, the evidence demonstrates that in October 2001, the ground next to the filled area had small pockets of standing water measuring no more than a few inches deep. However, when the inspection was made, and the photographs taken, Polk County was experiencing rather heavy rainfall, presumably due to the El Nino phenomenon. Whether these conditions (pockets of standing water) exist on the property only during the rainy season is not of record. Further, prior to the filling, Mr. Stanton contacted both the Southwest Florida Water Management District and the United States Geodetic Survey and he asserted, without contradiction, that neither agency indicated that his property was prone to flooding. In any event, even assuming that the area is subject to "frequent and periodic flooding," the permit requirements or other necessary safeguards, if any, associated with filling clean debris in such an area are not the subject of this proceeding. Investigative Costs A Department representative spent 66 hours investigating this matter for the Department. At a then-hourly rate of $18.54, this totals $1,223.64 in investigative costs. The reasonableness of this amount was not disputed by Respondents.
Findings Of Fact Solite is a light weight aggregate mining and manufacturing facility located in Clay County, Florida. The mining operation extracts clay from quarries on site. That clay is then stored on site for use in the manufacturing. The Solite facility began its operations in Clay County in 1959. To convert the clay into a product, it is introduced into a rotary light weight aggregate kiln. There it is heated to a temperature of 1,900 to 2,100 degrees Fahrenheit. Once the raw feed has been subjected to the heat in the rotary kiln, it becomes light weight aggregate, a product that is used in the construction industry. Before being introduced into the kiln the raw feed clay is stored in a covered shed. When the kiln is operating clay is taken from the shed by front end loader and transported to a pug mill. The clay exits the pug mill onto a conveyor which has a weigh scale. From there, the raw feed clay is introduced into the kiln, at what is referred to as the cold end of the kiln. When a kiln is in operation the clay rolls from the cold end of the kiln through the other end during which transport the raw clay is heated. The clay is discharged from the kiln into a product cooler. From the product cooler it is transferred by a front end loader to a crushing, screening and storage area. Solite has three (3) kilns at the facility. They are kilns 1, 1A and 5. The kilns at the Solite facility are eight to nine feet in diameter and 130 to 160 feet long. When the kilns are in operation, they rotate at a speed of one to two revolutions per minute in producing the product. The fuel sources for heating the kilns on site are constituted of coal, number (2) fuel oil, propane or liquid burnable material (LBM). The LBM fuel source contains a variety of combustible waste materials. Among those waste materials are certain hazardous wastes. In 1973 Solite began to burn material which is now classified as hazardous waste. The combustion process that occurs in manufacturing the light weight aggregate creates gases that run countercurrent to the raw clay feed. The combustion gases are discharged at the same end of the kiln in which the raw clay had been introduced. In managing the hazardous waste used at the facility, Solite has installed two systems to treat the combustion gases before those gases are released into the atmosphere. Kiln No. 5 employs baghouse technology for air pollution control, a treatment system consisting of two compartments with approximately 960 bags. By contrast, the air pollution control devises for kilns 1 and 1A are individual wet scrubber systems for each kiln. As stated, the proposed permit would allow Solite to add an additional baghouse. Under this arrangement two of the existing kilns could be used simultaneously, with the existing baghouse No. 5 and the proposed baghouse No. 1 serving as air pollution control devices. The existing baghouse associated with kiln 5 has a lime injection system as part of the air pollution control system. The proposed permit contemplates a lime injection system as part of the air pollution control to be employed with the additional baghouse. The wet scrubbers associated with kilns 1 and 1A are designed to control particulate matter in emissions. The scrubbers are not designed to respond to other pollutants. To that end the wet scrubber with kiln 1A could meet applicable standards for particulate matter. The wet scrubber for kiln 1 could possibly meet the applicable standard for particulate matter if more spray nozzles were added to the scrubber. The present inability for kiln 1 to meet the applicable standard for particulate matter control is not significant because Solite may only operate kiln 1 or 1A separately. The water that is employed in the wet scrubbers becomes hazardous waste once it has been utilized in the attempt to respond to the pollutants in the air emissions generated by the respective kiln. In the past that water containing hazardous waste was introduced into a settling pond. Solite may no longer discharge that water into the settling pond in accordance with a regulatory decision that is not the subject for consideration in this case. Solite has made no other arrangements for disposing of the waste water. The proposed permit in this case would allow Solite to use the existing scrubbers to control emissions from kilns 1 and 1A in the instance where fuels were used in the manufacturing that were other than LBM with hazardous waste. At present kilns 1 and 1A have necessary permits for their use with the wet scrubber air pollution control devices, subject to the limitations that have been described. Under the terms set forth in the proposed permit the future use of LBM with hazardous waste in the manufacturing in kilns 1 and 1A would be only allowed when baghouse technology was employed as an air pollution control device. The baghouse air pollution control technology does not use water. Therefore it does not create a circumstance in which the treatment water contains hazardous waste. In that respect, kiln 1A ceased burning LBM with hazardous waste on December 1, 1990. That practice was concluded at kiln 1 on June 6, 1991. Kiln 5 ceased burning LBM with hazardous waste on August 19, 1991, but resumed burning LBM with hazardous waste on December 14, 1993 after the baghouse for that kiln was installed with its lime injection system. The baghouse proposed to be installed under the terms of the permit application is almost identical to the baghouse and associated equipment that were recently installed to operate with kiln 5. The baghouse and associated equipment with kiln 5 has achieved full compliance with all applicable state and federal air regulations as evidenced through compliance tests. As noted, with the baghouse at kiln 5 and the proposed baghouse for kilns 1 and 1A, the combustion gases are subject to treatment by lime. In that process the lime is introduced into the air emissions by pneumatic transfer. An alternative means for lime injection is established. That alternative would allow the lime to be introduced at the point where the fuel is fired at the kiln. Lime injection is used to control acid gases, either sulfur dioxide or hydrogen chloride. The combustion gases are also cooled by passing them through a heat exchanger that brings the temperature down from the exit temperature from the kiln temperature of 900 degrees Fahrenheit to approximately 400 degrees Fahrenheit. The cooled gases then enter the baghouse which is designed to control the particulate matter in the emissions. From there the remaining gases are discharged into the atmosphere. It takes four to five seconds for the combustion gases to go from the kiln through the heat exchanger proposed by this project. The particulate matter is in the form of dust that is collected in the baghouse. That dust is removed through a screw conveyor and pneumatically transferred to a kiln storage bin. The air involved in that pneumatic transfer is discharged through a small baghouse. The clay fines in the kilns bin are reintroduced into the pug mill, conveyed and mixed with raw clay before the clay fines are reintroduced into the manufacturing process in the kiln. The clay fines may also be transported from the kiln storage bin to the crusher and introduced into the finishing process for the product. On November 30, 1992, Solite made application for the permit at issue. Solite sought permission to modify the existing facility by constructing duct work that would connect kilns 1 and 1A to the kiln 5 baghouse, to construct and temporarily operate the additional baghouse and to connect kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter (the filter receiver associated with the crusher). The connection of kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter is to control the particulate matter that is captured in the baghouses. The existing pug mill filter receiver and clinker hopper filter presently serve kiln 5. If allowed the opportunity to construct a second baghouse, Solite contemplates using the second baghouse with kiln 1 or 1A. The arrangement contemplated by the proposed permit would allow kiln 1 or 1A to operate simultaneously with kiln 5. The bags in the proposed baghouse would be about six inches in diameter and twelve feet long. As the particulate matter in the air emissions enters the top of the baghouse it passes through these bags. That particulate or dust is collected on the surface of the bags, while the air that has gone through the filtration process exits through the stack to the baghouse and into the atmosphere. The dust that collects on the bags forms a "filter cake." Once a certain atmospheric pressure is achieved in the baghouse a predetermined jet of air is blasted down the bags blowing the filter cakes away from the bags. This allows the cakes to fall down into the bottom of the baghouse where a screw-auger moves that material to one end of the baghouse hopper. From there it is removed through an air lock and pneumatically transferred to the clay fines bin. The proposed baghouse would utilize a continuous monitor that is installed with the baghouse to measure the particulate matter concentration in the clean air section of the baghouse. Should a hole appear in one of the bags, that would cause a increase in the particulate concentration. Then a signal is generated by a broken bag detector which alerts the operator that a problem exists and the bag needs to be replaced. There are access doors into the baghouse that allow the operator to enter the baghouse to inspect the bags and replace them as needed. When the Department reviewed the permit application, it issued a notice of intent to grant a permit and a proposed permit. Petitioner's timely protested the intent to grant. Before hearing the Department issued two amendments to the proposed permit. It is the second amendment which forms the basis for proposed agency action. Solite does not oppose the terms set forth in the second amendment. Petitioners do oppose the grant of the second amended permit. By the actions which the parties have taken in this case, it would appear that they have conceded the standing for Petitioners to bring the challenge to the grant of a permit. The proposed project would not increase the capacity for the manufacture of light weight aggregate products. The amount of fuel used in that manufacturing and the hours of operation when compared to opportunities presently permitted would not be increased. The maximum rate of feed of authorized LBM that could be incinerated in kilns 1 and 1A does not increase when comparing the application to the existing permits for kilns 1 and 1A with wet scrubbers. The removal efficiencies with the proposed baghouse exceed or are equal to those with the wet scrubber systems when examining control of emissions of air pollutants that must be addressed. Clay County is an attainment area for all air pollutants. In considering the application, the Department determined this to be a construction request with a right to temporarily operate the equipment to check its performance. The Department considered the permit request to be one related to a stationary installation which will reasonably be expected to be a source of air pollution. See Section 403.087(1), Florida Statutes. In the proposed permit for baghouse No. 1 the Department intends to impose certain restrictions on emissions that were specified in the permit issued for the baghouse No. 5. The Department in its proposed permit employs a process similar to that set forth in the January 23, 1993 settlement agreement related to kiln No. 5. In determining the acceptability of the proposal the Department looked to Rule 62-730.181, Florida Administrative Code which speaks to standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities. In particular the Department utilized that rule in its terms wherein the rule incorporates by reference 40 C.F.R. Part 266, Subpart H, as it is designed to regulate hazardous waste burned in a boiler or industrial furnace. The regulations in 40 C.F.R. 266, Subpart H, are referred to as the Boiler and Industrial Furnaces regulations (BIF). The Solite kilns are industrial furnaces within the meaning as defined in 40 C.F.R. 266, Subpart H. The Department in its proposed permit would impose the terms set forth in 40 C.F.R. 266, Subpart H, related to the maximum concentrations of certain constituents in the LBM with hazardous wastes and the air emissions produced by their destruction. By imposing those requirements the Department is operating independently. It is not through this permit review administering the BIF regulations as set forth in 40 C.F.R. 266, Subpart H under authority from the United Stated Environmental Protection Agency and for the benefit of that federal regulatory agency. The Department has required that Solite address the combined emissions from metals and other air pollutants for all sources at the facility. By this requirement the Department intends to assure that those emissions do not result in ambient air concentrations that would harm or injure human health or welfare, animal, plant, or aquatic life or property. To demonstrate those assurances Solite was expected to conduct modeling of the emissions of metals and chlorine which could be emitted from the facility. That modeling was properly done. The requirement for modeling was in accordance with Section 403.161, Florida Statutes. In association with this requirement the Department referred to the BIF regulations at 40 C.F.R. 261. The proposed permit is considered in accordance with Rule 62-296.320, Florida Administrative Code, related to the control of air pollutants which cause or contribute to an objectionable odor. The requirements within the proposed permit include the necessity for Solite to establish reasonable precautions to minimize unconfined emissions of particulate matter as described in Rule 62-196.310(3), Florida Administrative Code. As stated in the proposed permit, if kiln 1 or 1A were in operation using the wet scrubbers they must conform to existing permits associated with kilns 1 and 1A, but those opportunities would only pertain to the instance in which the fuel sources are other than LBM with hazardous waste. For Solite to use wet scrubbers as pollution control devices for kilns 1 and 1A in an instance in which LBM with hazardous waste was used for fuel, the treatment efficiency for kiln 1 would have to be improved in the manner described and the treatment water that contained hazardous waste must be disposed of other than by placement in the settling pond. The existing wet scrubber systems for kilns 1 and 1A are not closed systems which continue to re-circulate the scrub water (a closed scrub water containment system). There is no proposal to install a scrubber water re-circulation system. If such a system were installed an arrangement would be necessary for periodically taking the scrubber water and disposing of that water off-site. Without a system for containing and re-circulating the scrubber water which contained hazardous waste, and periodic disposal of that scrubber water, Solite may not use kilns 1 and 1A with a scrubber when burning LBM with hazardous waste. This is true even though the Solite air emissions control device for kiln 1A using the wet scrubber does meet applicable air emissions standards and the scrubber system permitted with kiln 1 has the possibility to meet air emissions standards. Therefore, if kilns 1 or 1A were used with a baghouse this would create a net increase in air emissions when using LBM with hazardous waste as a fuel source. Such an arrangement would not exceed the theoretical air emissions associated with the wet scrubbers for kilns 1 or 1A when using LBM with hazardous waste that are presently set forth in the existing permits for those kilns. But the proposed permit recognizes the problem with the scrubber systems by limiting the use of the scrubber systems to those occasions in which LBM with hazardous waste is not used as a fuel. The proposed permit specifically prohibits the use of kiln 1 and 1A simultaneously. A baghouse or scrubber may only control the emissions from one kiln at a time in accordance with the proposed permit. The Oldover Corporation or another facility permitted to manage hazardous wastes under various provisions at 40 C.F.R. shall be the supplier of LBM with hazardous wastes. Under the terms of the proposed permit Solite is responsible for the LBM with hazardous wastes meeting all the requirements in any applicable state, federal and local regulations. The proposed permit limits the constituents in the LBM with hazardous waste. It does not allow any hazardous waste that is listed for dioxin or derived from the dioxin-listed waste. As set forth in the proposed permit, organic cyanides, sulfide, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services are not allowed to be part of the LBM. Other limitations are placed on the LBM with hazardous fuel concerning its constituents. They are set forth in proposed condition number 22 to the proposed permit. In accordance with the proposed permit, prior to submitting an application for an operating permit, which would allow LBM with hazardous waste to be burned, Solite is required to conduct testing at the facility for chlorinated dibenzo-p-dioxin and dibenzofuran, pursuant to a test plan approved by the Department. The proposed permit addresses test requirements and reports under various provisions set forth in Rule 62-297, Florida Administrative Code. The proposed permit reminds Solite that: Nothing in this permit shall exempt the permit to you from the requirements of 40 C.F.R. 761, polychlorinated bolychlorinated biophenyls, 40 C.F.R. 266, Subpart H, hazardous waste burned in boilers and industrial furnaces, and Chapter 62-730, Florida Administrative Code, hazardous waste, or any other requirements outside the purview of the Department's air regulation (Chapters 62-296 and 297, Florida Administrative Code). The permittee shall obtain such state and federal permits, when applicable, pursuant to any hazardous waste regulation (Rule 62-4.160, Florida Administrative Code). The proposed permit allows for an extension of the construction permit upon request of the Bureau of Air Regulation within the Department. The proposed permit makes it incumbent upon Solite to submit an application for an operation permit to the northeast district of the Department at least ninety (90) days prior to the expiration date of the construction permit. The proposed permit would allow kilns Nos. 1 and 1A to operate 24 hours a day, 7 days a week, 52 weeks a year, but no more than 760 hours during any calendar year, but not simultaneously. Concerning hazardous wastes in the LBM, procedures for testing those fuels to be used at the Solite facility are set forth in the waste analysis plan in the hazardous waste facility permit for the Oldover Corporation and the waste analysis plan for Solite. Oldover supplies those fuels to Solite. Under the waste analysis plan the generator of the waste material must complete a waste profile indicating the type of waste and its constituents which the generator proposes to supply to the facility. Initially Solite evaluates the waste profile to determine if the waste material meets all the necessary requirements for acceptance as a hazardous waste fuel for Solite. If the profile is acceptable, a representative sample is obtained from the waste generator. This sample is analyzed for a comprehensive set of parameters including physical characteristics, metals and organic compounds. If the representative sample indicates that the waste stream is acceptable it is approved and shipments are made to the Oldover facility adjacent to Solite. Once the waste stream has been approved by Solite and shipments are made, Oldover reviews the manifest associated with each shipment to determine the existence of any prohibitive constituents in the fuel before the fuel is accepted. Oldover tests the wastes for a limited number of parameters to determine whether or not the shipment conforms with the pre-established waste profile. If discrepancies are discovered between the waste profile and testing results the shipment may be rejected if the problems with the shipment cannot be reconciled with the anticipated waste profile. Comprehensive waste analysis are performed on an annual basis as well as at the initial point at which Solite begins to do business with a waste generator or upon the occasion when there is a significant change to the generator's waste stream. As it appears, the LBM with hazardous waste obtained from outside generators is generated off-site. Through this processes Solite has provided reasonable assurance that the use of LBM's with hazardous waste envisioned by the proposed permit will not allow the burning of hazardous waste that is listed for dioxin or derived from the dioxin-listed wastes: FO20, FO21, FO23, FO26 or FO27 as specified in 40 C.F.R. 261, Subpart H, or organic cyanides sulfites, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services. Solite has provided reasonable assurance that the LBM with hazardous waste will be properly analyzed to quantify the concentration of any constituent that may reasonably be expected to be in the waste. Those constituents will be identified and quantified, if present. This process of identification and quantification will be at levels detectable by analytical procedures prescribed in EPA method SW-846. That method is the prescribed method for analyzing hazardous LBM under the BIF rules. As a means to promote reasonable assurances that the proposed project will comply with applicable state and federal emissions standards, emissions from kiln 5 using its baghouse have been tested and the emissions at kiln 5 using the baghouse meet all applicable state and federal emission standards. Given that the proposed baghouse for kilns 1 and 1A will be very similar to the baghouse associated with kiln 5, it is to be expected that the emissions from kilns 1 and 1A using the proposed baghouse would be comparable to the experience with kiln 5 and its baghouse. Using a baghouse results in significant reductions in the emissions of particulate matter when compared to the experience with wet scrubbers. The emissions from the proposed project will not exceed emission standards for particulate matter. The use of the lime injection system with the proposed baghouse will decrease emissions of sulfur dioxide. The emissions from the proposed project will not exceed standards for sulfur dioxide. Neither the existing wet scrubber system nor the baghouse system are expected to have any significant impact on nitrogen oxide emissions. Consequently, there will be no significant change in nitrogen oxide emissions associated with the installation of the proposed baghouse. The emissions from the proposed project will not exceed emission standards for nitrogen oxides. The proposed baghouse will result in a reduction in the emissions of metals due to the increased efficiency in the removal of particulate matter. The emissions from the proposed project will not exceed emission standards for metals. The proposed baghouse will result in a reduction in mercury emissions due to increased efficiencies in the removal of mercury in particulate form. The proposed baghouse will not cause a change in the emissions of hydrogen chloride when compared to the experience with the wet scrubbers. The levels of hydrogen chloride when using the baghouse as a control device will not exceed any standards. Nor will there be emissions in excess of standards for chlorine gas. The proposed baghouse when contrasted with the experience in the use of wet scrubbers will not change the amount of emissions of organic materials. The proposed baghouse when contrasted with the wet scrubber system will result in a reduction of the emissions of dioxins and furans. The proposed project will comply with standards applicable to dioxins and furans by exclusion from the LBM and limiting the inlet temperature to the baghouse. The proposed permit prohibits the facility from accepting any dioxins bearing waste. The fuel is screened to insure that it does not contain dioxin. PCB's in excess of five parts per million are not allowed. This is a means to limit the formation of dioxins and furans from the PCB's. The maximum temperature of gases entering the baghouse is established at 450 degrees Fahrenheit and an automatic shut-off device is required if this temperature is exceeded in order to control the secondary generation of dioxins and furans. The inlet temperature to the baghouse is set at 425 degrees. The modeling that was done to examine emissions of metals and chlorine provided reasonable assurances that the ambient concentrations caused by the impact of these pollutants from this facility will be less than the Department's annual air reference concentrations, as a means to ensure that harm or injury to human health or welfare, animal, plant or aquatic life or property does not occur. Solite is required by the terms of the proposed permit to have continuous emission monitors for carbon monoxide and hydrocarbons. When the emission standard for carbon monoxide or alternatively hydrocarbons nears the exceedance level, then the automatic waste feed shut-off is activated to assure that the carbon monoxide or, alternatively, hydrocarbon emission standards are not exceeded. Kiln 5 with its associated baghouse has demonstrated a destruction and removal efficiency for regulated organic pollutants in excess of 99.99 percent. Having similar technology, the proposed permit for a baghouse can be expected to meet the 99.99 percent destruction and removal efficiency for organic pollutants. The addition of the proposed baghouse with its associated features provides reasonable assurance that the particulate matter standard of 0.08 grains per dry standard cubic foot corrected to seven percent O2 will be met. As a protection against exceeding emission standards for various pollutants the proposed permit requires that Solite continuously monitor for carbon monoxide, oxygen, baghouse inlet temperature and sulfur dioxide at levels established in the proposed permit. Furthermore, the proposed permit requires that an automatic shut-off device be installed to maintain established emissions limits for temperature, oxygen or hydrocarbons. Such devices have been installed on the existing kiln 5 with its baghouse. Efficient combustion can be expected in kilns 1 and 1A based upon residence time for burning, turbulence, temperature and oxygen availability. The residence time for the fuels is approximately four seconds. The rotation of the kilns and movement of the clay material ensures adequate turbulence. The temperature of the kiln must be maintained at or above 1,800 degrees Fahrenheit and the fuel feed of LBM with hazardous waste is automatically shut-off if the temperature falls below 1,850 degrees. Oxygen levels are to be continuously monitored. The gas flow rates for fuel introduced into the kiln may not vary significantly. These arrangements are contained in the proposed permit. The re-introduction of clay fines or dust into the kiln to be incorporated into the product has been taken into account in establishing estimates of emissions for kilns 1 and 1A. That phenomenon has been measured in emissions for kiln 5. In using the dust Solite will not create conditions which violate standards for emissions. To support these findings all experts who testified at the hearing agreed that the proposed project will meet all applicable rules and emission standards. Solite has established reasonable assurances concerning those standards. The Solite application was sealed by a professional engineer, Dr. John Koogler, who was among those experts mentioned. The Solite facility uses an industrial furnace which is similar in design to furnaces regulated by the Environmental Protection Agency in its hazardous waste regulatory program. Nothing about the facility is extraordinary, thus requiring a more rigorous regulatory response to this facility which uses LBM with hazardous waste in kiln No. 5 and proposes to do so through the project under consideration. It was not shown that the Department must impose its "Air toxics" permitting strategy for controlling toxic emissions from stationary sources at levels which will not endanger public health in order to adequately consider the proposed project. The "Air toxics" permitting strategy is a non-rule policy. Although not specifically required by rule or standard Solite performed additional modeling concerning the emissions of organics from the facility with the advent of the use of the proposed baghouse. The modeling indicated that there would not be an exceedance of the no threat levels established in the state air toxics strategy. Similarly, although not required, Solite conducted additional modeling of dioxins emissions which indicated that there would be no significant risk posed as a result of the proposed project. Solite has qualified for interim status under the United States Environmental Protection Agency (EPA) regulations to burn hazardous waste at its facility. Solite has filed EPA required precompliance certification for all three kilns and certification of compliance for kiln 5. Solite has obtained an extension from EPA for filing their certification of compliance for kilns 1 and 1A. In addition Solite has submitted an application for hazardous facility permit to EPA and this application is currently under review by EPA. In reviewing the permit application past violations of statutes and rules were considered by the Department. This was done to determine whether Solite had provided reasonable assurances that the Department standards in application to the proposed project would be met. The Department correctly decided that Solite's past violations did not justify denial of the permit. Those violations were not severe and Solite corrected the problems. Furthermore, the proposed project would improve air pollution control to the extent that it reduces or eliminates problems that led to the previous violations.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which grants the construction permit for the air pollution source subject to the provisions set forth in the second amended proposed permit. DONE and ENTERED this 30th day of August, 1995, at Tallahassee, Florida. CHARLES C. ADAMS, 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 30th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed findings of facts by the parties: Petitioner's facts Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 12 are not requirements that must be considered in deciding to grant or deny the permit. Paragraphs 13 through 16 are contrary to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraph 18 is rejected in its suggestion that Solite has not given the necessary reasonable assurances. Paragraph 19 is subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 and 22 are rejected in the suggestion that the activities at Solite caused these problems. Paragraphs 23 through 28 are rejected in the suggestion that the emissions tests associated with the permit request are inadequate or that Solite has routinely exceeded air emissions requirements or used unacceptable LBM with hazardous waste in the past. Paragraph 29 is rejected in the suggestion that the Department has inappropriately considered the permit request. Paragraph 30 is rejected in the suggestion that the Department would allow unacceptable fuels to be burned in the kilns. Paragraphs 31 and 32 are subordinate to facts found. Paragraph 33 is rejected as not establishing a requirement for granting or denying this permit. Paragraph 34 is rejected to the extent that it suggests that the Department has failed to take into account appropriate circumstances when determining to grant or deny the permit. Paragraph 35 is rejected in the suggestion that the Solite facility has caused problems for local gardeners. Paragraphs 36 and 37 are not necessary to the resolution of the dispute. Paragraph 38 is rejected in the suggestion that Solite has not complied with applicable standards for lead. Paragraphs 39 through 43 are not necessary to the resolution of the dispute. Paragraph 44 is not relevant. Paragraphs 45 through 47 are rejected in the suggestion that the Department has not adequately considered those circumstances necessary to determine whether to grant or deny the permit. Paragraphs 48 through 49 are subordinate to facts found. Paragraphs 50 and 51 are rejected in the suggestion that these matters must be considered by the Department in deciding whether to grant or deny the permit. Paragraph 52 is subordinate to facts found. Paragraph 53 is not necessary to the resolution of the dispute. Paragraphs 54 through 57 are subordinate to facts found. Paragraph 58 is not relevant. Paragraph 59 is a conclusion of law. Paragraph 60 is rejected in the suggestion that inappropriate modeling was conducted by Solite in support of its application. Paragraph 61 is a conclusion of law. Paragraph 62 is not necessary to the resolution of the dispute. Paragraph 63 is rejected in the suggestion that the air toxics strategy should have been employed in this case. Paragraph 64 is subordinate to facts found. Paragraphs 65 through 67 are not necessary to the resolution of the dispute. Paragraph 68 is not relevant. Paragraphs 69 through 73 are rejected in the suggestion that reasonable assurances have not been given concerning compliance with applicable standards for emissions levels. Paragraph 74 is subordinate to facts found. The first sentence to Paragraph 75 is contrary to facts found. The second sentence is not a requirement for resolving the proposed permit request. Paragraphs 76 through 80 are not relevant. Paragraph 81 is subordinate to facts found. Paragraph 82 is contrary to facts found. Solite's facts: Paragraphs 1 through 5 are subordinate to facts found. The first sentence to Paragraph 6 is not necessary to the resolution of dispute. The second sentence is subordinate to facts found. Paragraphs 7 through 16 are subordinate to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 through 42 are subordinate to facts found. Paragraph 43 is contrary to facts found in its suggestion that LBM with hazardous waste may be used with the existing wet scrubbers and the lack of increase in the capacity to burn LBM with hazardous waste if the proposed permit is granted. Paragraphs 44 and 45 are subordinate to facts found. Department's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is rejected in the suggestion that kilns 1 and 1A may use LBM with hazardous waste when operating with the wet scrubber notwithstanding what the permits may say. Paragraphs 11 through 28 are subordinate to facts found. COPIES FURNISHED: Thomas K. Maurer, Esquire Foley & Lardner Post Office Box 2193 Orlando, FL 32801 Julie Hellmuth 1205 Orange Circle North Orange Park, FL 32073 Priscilla Norwood Harris Post Office Box 702 Green Cove Springs, FL 32043 Jefferson M. Braswell, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.
The Issue The issue is whether Petitioner is liable to Respondent for costs it incurred in removing a drum containing gasoline and water that was located on Petitioner’s property.
Findings Of Fact At all times relevant to this proceeding, Petitioner owned a house (Petitioner's property or site), located at 217 20th Avenue North, St. Petersburg, Florida. The back of Petitioner's property was adjacent to an alley. Next door to Petitioner's property was another house owned by Petitioner. Between September 1995 and December 1995, Petitioner's property was unoccupied and undergoing extensive renovations. Petitioner hired Craig Quirk as the carpenter for the renovation project. Mr. Quirk worked on the project on a full-time basis during the entire period Petitioner's property was being renovated. One morning in late September when Mr. Quirk arrived at Petitioner's property to work, he discovered a wrought-iron stand and a 55-gallon drum in the backyard of Petitioner's property. Prior to that day, the drum had not been on Petitioner's property. Because the stand and drum were in the area where Mr. Quirk usually parked the vehicle, he and a helper dragged the drum and rack to the edge of the yard. The drum had a cap on it and was not leaking. Later that morning, when Petitioner came to the site, Mr. Quirk reported his discovery of the 55-gallon drum on Petitioner's property. At the time renovations were being made to Petitioner's property, Petitioner rented a dumpster which was used as a receptacle for construction debris. Mr. Quirk knew that the house owned by Petitioner and next door to Petitioner's property was on the market. Therefore, during the renovation of Petitioner's property, Mr. Quirk always utilized the dumpster in order to keep Petitioner's property clean. One or two days after learning about and observing the 55-gallon drum on the site, Petitioner telephoned a friend, Anthony Regan, to seek advice about removing the drum from Petitioner's property. At the time of Petitioner's call, Mr. Regan had two-and-a-half years of experience working as a truck driver for a hazardous waste facility. Although Mr. Regan is not a hazardous waste expert, because of his work experience, he is familiar with certain aspects related to hazardous waste and its disposal. Furthermore, Mr. Regan knows individuals within his company who can provide specific information regarding hazardous waste. At Petitioner's request, Mr. Regan went to the site to examine the 55-gallon drum and to assess what should be done with it. After being shown the drum by Petitioner, Mr. Regan temporarily removed the cap from the drum and inserted a stick in it. Based on his observation and assessment, Mr. Regan determined that the 55-gallon drum contained petroleum and water. When Mr. Regan observed the drum, it was not leaking and did not appear to be an environmental hazard. While at the site, Mr. Regan informed Petitioner that county amnesty program might provide assistance in removing the 55-gallon drum from Petitioner's property. Also, Mr. Regan told Petitioner that he would get an estimate from someone at the hazardous waste company for which Mr. Regan worked regarding the cost of removing the drum. Mr. Regan indicated that, after he checked on the county amnesty program and the estimate, he would report his findings to Petitioner. Between eight and ten days after going to Petitioner's property, Mr. Regan shared the results of his inquiries with Petitioner. First, Mr. Regan learned that the county amnesty program would not remove the drum because it did not belong to Petitioner, but had been dumped on Petitioner's property. Second, Mr. Regan reported to Petitioner that the hazardous waste company for which Regan worked could remove the 55-gallon drum from Petitioner's property for $350.00. Mr. Regan offered to look into the matter further, but prior to doing so went out-of-town for four or five weeks. Upon Mr. Regan’s return, Petitioner immediately contacted him to determine if additional information had been obtained concerning removal of the drum. While Mr. Regan had obtained no more additional information regarding removal of the drum, he suggested that Petitioner call the Sheriff’s Office. It was then that Petitioner made calls to several local agencies regarding the removal of the drum. Petitioner first called the police department, which in turn referred him to the county dump. The county dump could not assist Petitioner, but referred him to the Sheriff’s Office. Petitioner then called the Sheriff’s Office and spoke to Bob Aukenbaur, who told Petitioner that it was Petitioner's responsibility to have the drum removed. Because Petitioner was dissatisfied with Mr. Aukenbaur’s response, Petitioner called and attempted to speak to the Sheriff. Although unsuccessful in this regard, Petitioner did speak to an executive assistant, who promised to check into the matter. Approximately two days later, the executive assistant telephoned Petitioner and indicated that he was unable to find an amnesty program that would provide assistance to Petitioner. However, the executive assistant provided Petitioner with the telephone number of the Department of Environmental Protection and suggested that Petitioner call that agency for help. Petitioner then contacted the Department's regional office in Tampa, where he spoke to Jane Donnelly. The focus of Petitioner’s inquiry was whether it was his responsibility to remove the drum that had been “illegally dumped” on his property. After asking Petitioner several questions, Ms. Donnelly promised to get back with him. Several days after Petitioner contacted Department, Leslie Webster, an employee of the Department's regional office in Tampa and a Department trainee, visited the site to investigate the matter. When Ms. Webster arrived at the site, Petitioner and Paul Roney, the project design supervisor, were there. Petitioner showed Ms. Webster where the drum was located and explained to her that the drum had been dumped on his property. After Ms. Webster's on-site investigation, a form entitled "Initial Report of Emergency Response Incident" (Initial Report) was completed and forwarded to the Department's Tallahassee office. Petitioner was not provided with the Initial Report. The form bears the signature of Leslie Webster and is dated November 29, 1995. According to the Initial Report, the date of the incident was two weeks prior and the date the incident was reported to the Bureau of Energy Response was November 27, 1995. These dates do not accurately reflect the date of the incident and the date the incident was first reported. The Initial Report indicates that the incident was reported by Petitioner; that the “type of incident” is identified as “dumping“; that the incident description is noted as “abandoned drum(s)"; that the responsible party is “unknown”, and that the material in the drum is identified as from one to fifty- five gallons of gasoline and water. Also, the Initial Report has a “narrative” section. Nothing in this section indicates that Ms. Webster or anyone in the Department informed Petitioner that he was responsible for having the drum removed from the site. In situations such as this, the Department typically explains to the property owner what his responsibilities are with respect to a nonleaking drum. The property owner is then given a specified amount of time in which to remove the drum. The amount of time given to the property owner to remove the drum from his property varies, depending on the particular circumstances. The Department communicates this information to property owners in person, by telephone, or in writing. However, the Department's preferred manner of providing notice to property owners is to “talk face to face with people and let them know the circumstances they’re under.” When a Department investigator or other staff member visits a site and talks to the property owner about his responsibilities for removing pollutants or hazardous substances, no written notice is provided to the property owner reiterating the substance of the conversation. When Ms. Webster went to investigate the matter related to the drum on Petitioner’s property, there is no evidence that she told the Petitioner that he was responsible for removing the drum and that he was required to do so within a specified time. Likewise, there is no evidence that Ms. Webster told Petitioner that if he failed to remove the drum, the Department would have it removed and assess Petitioner the cost of such removal. Several days after Ms. Webster went to the site to investigate the matter, the drum remained on Petitioner’s property. Concerned that the drum had not been removed, Petitioner again called the Department's regional office in Tampa and spoke to Ms. Donnelly. During this conversation, Petitioner acknowledged that Ms. Webster had been to his property, but he expressed concern that the drum had not yet been removed. Ms. Donnelly then told Petitioner not to worry about it and stated, “I think we’re going to take care of it.” On or about November 29, 1995, the Department of Environmental Protection had the drum removed at a cost of $1,783. By letter dated August 5, 1996, more than eight months after the drum was removed from Petitioner’s property, the Department billed Petitioner $1,873.64 for costs and expenses incurred in removing the drum from Petitioner's property. This amount included administrative and investigative costs of $90.64 and $1,783 for the removal of the drum. Pursuant to the letter, Petitioner was given thirty days from the date of the letter in which to remit the amount due. Petitioner refused to pay the $1,873.64, and on the date of the hearing, the amount remained outstanding. The Department has incurred litigation costs of $2,090.93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department dismissing the claim against Petitioner, James J. Wooten, and finding that he is not liable to the Department for $3,964.57 in costs. DONE AND ORDERED this 18th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James J. Wooten, pro se 145 25th Street, South CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1997. St. Petersburg, Florida 33705 Kathelyn M. Jacques, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
Findings Of Fact On April 29, 1983, the Respondent Waste Aides Systems, Inc. (hereafter referred to as Waste Aides), filed with the Department of Environmental Regulation (Hereafter referred to as DER) an application to construct and operate a solid waste transfer station. The proposed transfer station would be located at the site of an existing solid waste landfill at Ridge Road and Landfill Road, New Port Richey, Florida. On May 24, 1983, DER, by letter to Waste Aides, requested additional information concerning the permit application and seeking further assurances with regard to control of wash down water and storm water runoff. On June 7, 1993, Waste Aides, by letter provided the additional information, and on June 14, 1983, DEP issued a letter of intent to issue the permit to Waste Aides. The proposed facility is to be located on a parcel of land previously used as a solid waste landfill, but the area where the facility is to be built is not a previously filled solid waste area. The proposed facility will utilize a building which is enclosed on the south, east, and west, and open to the north. The building will be approximately 120 feet wide, 48 feet deep, and 31 to 34 feet high. The general operation of the facility will be to transfer residential and commercial solid waste from garbage trucks to large tractor-trailer trucks for transport to a more isolated solid waste landfill. The facility will not accept hazardous waste or heavy industrial waste. The solid waste will be transported to the facility in garbage trucks. The solid waste will be dumped on a concrete floor inside the building and will then be pushed into a loading chute which sits directly above a waiting trailer. Once the trailer is filled, the solid waste is then transported to an offsite landfill where it is ultimately disposed of. Security at the facility will be accomplished through fencing and gates. The entire property is surrounded by a fence. A gate will be placed at Ridge Road, and a second gate will be installed at the entrance to the property itself. No unauthorized vehicles will be permitted to enter the property or unload solid waste at the facility. The facility will be equipped with two fire control hoses located on the east and west walls of the building. Potable water will be provided to the facility through a hookup to a 16-inch water main at Ridge Road. The facility will have impact sprinklers and spray bars inside the loading chute. Each vehicle on site will be equipped with a fire extinguisher, and two portable fir extinguishers will be located inside the building at appropriate locations. The impact sprinklers will also be utilized for dust control. Each vehicle on site will be equipped with a two-way radio which provides contact with the administrative office and maintenance area of the applicant. The phone in the cardboard recycling facility located on the same property of the proposed facility will be available for use by the operator of other employees of the transfer facility. The recycling facility is owned and operated by the applicant and is directly adjacent to the proposed transfer facility. The operator will be responsible for keeping records of materials handled by the facility. A recordation of volume will be measured and entered as collection trucks discharge their contents at the facility. A scale will be built into the loading area of the transfer trailers, and the weight of all refuse transferred will be recorded by load on a daily basis. These records will be open during normal business hours for inspection by DER representatives, health inspectors, and other authorized regulatory and enforcement agencies. The transfer station operator will be the foreman of the facility and will be present during all hours of operation. The tractor-trailer operator and the operators of the garbage trucks will be present at the facility during unloading and loading. Two or three other employees will also be present on the grounds at varying times for cleanup, grounds work, and other duties at the facility. The facility will be visited and checked approximately twice daily by William R. Peterson and his brother, the owners and operators of the proposed facility. The applicant has available personnel presently in the employment of the applicant, who is a certified driving instructor and who is skilled in the instruction of safe and efficient operating procedures. Additionally, Waste Aides will provide instructions in first-Aides procedures by a person presently employed who is a trained emergency medical technician. Debris will be controlled by certain mechanisms built into the design of the building and by certain operational procedures that will be observed by the transfer station operator. The tipping floor where solid waste is discharged will be enclosed on three sides. When the solid waste is discharged onto the tipping floor, it is immediately pushed into a chute which allows it to fall into the waiting transfer trailer. There is approximately an 8-inch tolerance between the chute and the top of the trailer, and the chute has been designed to angle in toward the trailer so that solid waste will be directed into the trailer to avoid spillage. Additionally, a rubber or fabric membrane will encircle the chute so that when the transfer trailer drives beneath it, the membrane will be inside the transfer trailer, thus directing all solid waste into the trailer itself. An additional benefit of this design is that it will avoid the possibility of drafts of air blowing refuse in the trailer over its sides. The trailer area itself is depressed and thus out of the direct wind stream. Drafts are further buffered by vegetation windbreaks consisting of trees and shrubs located on the west and south sides of the building and by the topographical nature of the surrounding lands on the other two sides. The entire area of the transfer station is fenced as a final barrier to debris escaping the transfer station site. The refuse will normally be on the tipping floor a very short period of time because of the fact that it will be pushed into the transfer trailer immediately upon discharged from the collection vehicle. The refuse, as it is discharged from the collection vehicle, does not lend itself to a debris problem in that it is in a compressed state and tends to remain in a semifragmented mass until it is moved into the trailer. The entire transfer station and surrounding grounds will be cleaned at the end of each day by the station operator. The station will be operated at all times to be in compliance with the applicable noise regulation and ordinances of Pasco County. For noise abatement, Waste Aides has designed the building with noise control in mind. The tipping floor will be constructed with steel rails imbedded in the concrete to eliminate the noise of the front-loading metal bucket scraping on the concrete surface. Six-foot walls buffet all sides of the tipping floor except the north side. The north side is open to an approximate 10-acre tract which was the previous landfill site and will be unoccupied. The tipping floor is enclosed by a building which will provide a significant amount of noise control in a and of itself. There are vegetation screening barriers and earthen berms on the north, west, and south boundaries of the site. The berms will be covered with mature vegetation and will act a both a noise and visual barrier for the site. All equipment used in the operation will meet all county, state, and federal operational decible standards. Odor control will be provided primarily by operational standards which will emphasize the rapid removal of refuse from the site. All refuse will be removed daily except for the possibility of partially filled trailers remaining overnight on site. Should a transfer trailer be required to remain on the site overnight, it will be driven inside the building not less than every 48 hours or in accordance with an approved DER schedule. The tipping floor will be completely cleaned at the end of each workday by being swept broom-clean and then washed down with hoses. When the floor is washed down, the water and debris will flow along the sloped floor to a grid system which will direct the flow into a sand trap and a grease trap and then into a septic tank. The traps will be checked each day after wash down and will be cleaned periodically. The building has been designed in such a manner that no square corner will exist for the possible buildup of refuse. These same operational procedures and design features will discourage any attraction to vermin or birds. Similar transfer station operations in Florida have not experienced the vermin and odor problems typically associated with landfill site operations. The prosed facility will have electric service available. Shelter as well as hand-washing and toilet facilities are available for employees for the facility at the adjacent recycling building. Maintenance on trucks and other equipment will be performed at the applicant's maintenance area located on Osteen Road, approximately 1 to 1 1/2 miles from the proposed facility. Although the proposed facility is surrounded by developed residential areas, the property which is directly contiguous to the property where the proposed facility will be located remains undeveloped. The objectors' travel- trailer park is the closest developed area, and the distance from the nearest trailer to the proposed facility is approximately 950 feet. The design and proposed operation of the transfer station meets or exceeds the criteria contained in Rule 17-7.09, Florida Adminstative Code. Numerous residents in the area object to the location of a garbage transfer station. Their objections are based upon their experience with odor, vermin, birds, and litter experienced in connection with the landfill operation. However, the uncontradicted evidence established that those problems will not exist to any substantial degree in connection with the operation of the proposed garbage transfer station.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Environmental Regulation issue a permit to Waste Aides Systems, Inc., for the construction and operation of the proposed transfer station, subject to the specific conditions contained in DER's Notice of Intent. RECOMMENDED this 4th day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1984. COPIES FURNISHED: Harvey v. Delzer, Esquire Post Office Box 279 Port Richey, Florida Douglas H. MacLaughlin, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 John G. Hubbard, Esquire Post Office Box 1170 Dunedin, Florida 33528 Ms. Victorai Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF ENVIRONMENTAL REGULATION ORCHID LAKE VILLAGE CIVIC ASSOCIATION, et al., Petitioners, v. OGC Case No. 83-0363 DOAH Case No. 83-2155 WASTE AIDES SYSTEMS, INC., and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS 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 June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
