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. /
Findings Of Fact The site of the proposed landfill is located near Seffner, Florida, and is northwest of and adjacent to two previously used landfill sites. The proposed site meets all zoning requirements, is not located in the vicinity of an airport so as to be subject to Federal Aviation Administration regulations, and no natural or artificial body of water is located within 200 feet of the site. Inasmuch as the operation of the earlier used landfills created much of the opposition presented at this hearing, a short history of Hillsborough County's landfill operation follows. Hillsborough County opened the old Taylor Road landfill, a tract containing 42 acres, in 1976 and closed it in 1980 when it became full. The old Taylor Road landfill site abuts to the southeast the site being applied for it these proceedings. In 1977, pursuant to a consent decree between the City of Tampa and the Federal Environmental Protection Agency (petitioners' Exhibit 14) , the City of Tampa's incinerator, at which most of the solid waste in Hillsborough County was disposed, was ordered closed by 1979. The City of Tampa engaged consultants to locate an acceptable site for use as a sanitary landfill. In 1978, Hillsborough County, pursuant to an agreement with the City of Tampa (Petitioners' Exhibit 15), assumed the responsibility for solid waste disposal throughout Hillsborough County. Thereafter, it was determined that the best site, from an ecological point of view, was adjacent to the old Taylor Road landfill. Prior to obtaining DER approval to expand this site, the selection of which the County Commission approved in April 1979, time for closing the incinerator was running out and the County was given permission to utilize a 10.6 acre borrow pit, adjacent to and west of the old Taylor Road site, which bad been given to the County by the State Department of Transportation. This approval was given by DER in January 1980. When Hillsborough County assumed the responsibility for waste disposal throughout the County, waste from Temple Terrace and Plant City was added which waste had not been disposed of by the City of Tampa incinerator. The County entered into a contract with Waste Management Inc., a large company specializing in developing and operating waste disposal facilities in many parts of the United States and abroad, to design and operate Hillsborough Heights Sanitary Landfill. The 10.6 acre site would quickly be filled so it was necessary for the County to `reapply to DER for a permit to operate a landfill capable of serving the County until 1984. At that time, modification to the incinerator to comply with clean air standards and operate as an energy recovery unit will be complete and it can be restored to operation. Before that hearing was held the 10.6 acre site filled, and it became necessary for the County to request an emergency permit from DER to operate a landfill on part of the proposed site. Following a hearing on this request, DER issued an order in July 1980, authorizing Hillsborough County to operate a sanitary landfill on 41.5 acres adjacent to the old Taylor Road landfill and the 10.6 acre borrow pit site. By the application here under consideration, as modified by Stipulation and Settlement Agreement, the Petitioners are seeking to expand this 41.5 acre site to 64 acres, thereby adding 22.5 acres to the already approved site. Two thousand tons of solid waste are deposited at this site daily, six days a week. The primary concern respecting a sanitary landfill in the proposed location is the potential for pollution of the Floridan aquifer which underlies this site and the fact that the site is located in a karst area. Unless an impervious surface lies naturally or is constructed between the base of the proposed landfill and the Floridan aquifer, pollution of the aquifer could occur should leachate from the site accumulate and percolate to the aquifer. All of Hillsborough County and much of Florida is underlain by limestone containing karst features. One unfortunate characteristic of the karst formation is the potential for the limestone to dissolve thereby creating cavities into which the surface overburden falls to create a sinkhole. Some liquids, including leachate, will dissolve limestone, thereby creating cavities into which the overburden can fall. This risk is reduced by the thickness of the clay layer over the limerock which inhibits the entry of surface water into the aquifer. The proposed site has a basal clay from five feet to twenty feet thick above the limerock. However, this base clay is not believed to be continuous throughout the site to this minimum thickness due to sand columns, pinnacles and other anomalies that have formed. Petitioners propose to remove some 35 to 45 feet of the overlying sand and intermediate clay down to the base clay to form the pit into which waste will be deposited. The thickness of this base clay over the limerock will then be tested. If at least five feet of clay is not over the limestone, Petitioners will install a minimum of five feet of recompacted clay liner with a density of at least 2.5 - X 10 (to the seventh power) cm/sec. over the bottom of the landfill. Impervious sidewalls around the edges of the landfill will be constructed of either a minimum of five feet of compacted lay or of Hypalon, a synthetic sidewall liner material, in accordance with the Stipulation Agreement. If Hypalon is used, it will be covered with at least two feet of soil before waste is put in the landfill. Petitioners will install a leachate collection system for monitoring and removing, if necessary, leachate that may collect in the bottom of this landfill. Perimeter ditches will be constructed around the bottom of the landfill with the floor of the landfill sloped toward the perimeter ditches. These ditches will contain perforated pipe to conduct leachate to sumps from which the leachate can be removed. Should leachate be generated before the landfill is closed, the leachate will be extracted by pumping; and discharged for absorption by solid waste at the landfill, or trucked to a treatment plant for processing. After each day's operations at this landfill, at least six inches of soil will be placed over the compacted solid waste accepted that day. This should provide reasonable protection for rodents and insects. Final soil coverage to be used as a top liner for this landfill will consist of at least eighteen inches of compacted clayey soil overlain by six inches of loosely compacted soil in order to provide a final cover to minimize infiltration of surface water runoff. The final surface of the landfill will be graded and sloped so rainfall will not puddle on the landfill but run off to the perimeter of the landfill. Thus, when completed, the deposited waste will be encased in a relatively impermeable container on all surfaces. Perimeter ditches will be installed to keep surface waters out of the landfill, and these ditches will be lined with 18 inches of clay to inhibit seepage of water to the landfill from these ditches. The ditches will discharge into holding ponds located south and southwest of the site. Surface waters in this vicinity flow south to southwesterly. Access to the landfill will be controlled by a perimeter fence and entry gate which will be manned during all hours of operation and locked when not manned. Disposal of hazardous or infectious waste will not be allowed. Spotters will be stationed at the dump site to inspect waste entering the site and to detect any hazardous or infectious waste that may reach the landfill. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. Litter will be controlled by temporary fencing or portable litter fences. Bare limestone exposed by excavation will be protected from flow of water from the active landfill area by berms until such time as the limestone is covered by the five feet of compacted base clay. During excavation of the landfill, a geologist or hydrologist will be stationed at the site by the operator of the landfill to determine the nature and extent of earth materials encountered. Anomalies found during excavation will be recorded and reported. This will serve to insure the impervious five feet clay base between the landfill and the limestone. Methane gas control will be provided by the base clay underlying the landfill, the liners to be constructed around the landfill perimeter, and the clay soil cover. Rising gas will vent through the soil cover. If odor problems occur, gas vents will be installed at the high point of the landfill to provide a controlled path for these gases which can then be flared. Groundwater monitoring wells will be installed around the perimeter of the site to detect any leachate which may escape. Wells upgrade of the site will be installed to determined whether metals or other impurities detected in the downgrade monitoring wells come from the landfill or are in the groundwater before it gets to the landfill. The geology of the site is complex. Numerous test borings have been taken in the 218.6 acre tract, sinkholes in the area have been studied, special photographs of the site have been taken to show where changes and moisture in soil occur as well as other geologic features. All available information shows the 64 acre parcel in the southern part of the 218.6 acre site to be the safest in the site from a catastrophic subsidence (sinkhole) Although the Intervenors contend that the site is subject to sinkholes, no credible evidence was presented that this site is more subject to a catastrophic subsidence than is the remainder of Hillsborough County. Competent evidence was presented that a sinkhole is less likely to develop at the proposed 64 acre site than in other areas of Hillsborough County. Intervenors' and the public witnesses' primary complaint and vehement opposition to the granting of the permit here requested stem largely from the manner in which the predecessor landfills in this area have been operated; and rightly so. Infectious waste has been dumped on the site on several occasions; inadequate daily cover has been provided; dogs have roamed the site; birds have been killed by insecticides dumped on the site; papers have blown over the site; surface waters from the site have been pumped outside the site in such a manner that well water could be contaminated; inadequate precautions have been taken to prevent rodent and insect infestation of the site; and unpleasant odors have emanated from the site. These complaints go to conditions that existed in the past; they are not necessarily harbingers of things to come. Hillsborough County's lease law should preclude dogs roaming the site. Strict adherence to the conditions of the permit will eliminate the vast majority of those complaints.
Findings Of Fact On November 29, 1988, Respondent, Trans Pac, Inc., (Trans Pac), a development company, filed its initial application for a construction permit to build a hazardous waste treatment and storage facility in Escambia County, Florida. Trans Pac's stock is owned by James Dahl of Los Angeles, California. Trans Pac's president is Steven Andrews. Steven Andrews is also president of The Andrews Group, d/b/a Chemical Development Company. Chemical Development Company is in the business of developing hazardous waste facilities. Sometime after filing its application, Trans Pac advertised for interested persons to contact it about the possible sale of the facility. At the time of the hearing, Trans Pac had not had any serious offers for the property and had not finally decided whether it will sell the facility. Trans Pac is seriously considering a joint venture arrangement, although no specifics as to such an arrangement have been formalized or finalized. When consideration is given to the unripe nature of this "proposed sale", it cannot be concluded that the above facts constitute competent and reliable evidence which would support the conclusion that Trans Pac had failed to give such reasonable assurances that the facility would be operated in accordance with Florida law. Too much speculation is required before such a conclusion can be reached. However, Trans Pac has stipulated that it will publish a notice of any sale prior to the closing of that sale if that event should occur. The notice would be published in accordance with the provisions and time periods established in Rule 17-103.15, Florida Administrative Code, and should afford an affected person a reasonable time to challenge the sale before the sale closes. Any contract of sale would incorporate the notice requirements and the sale would be made contingent upon compliance with the above conditions. Such a notice would afford any affected person the opportunity to challenge the ability of the transferee to operate the facility. With the above stipulation made a part of any permit, there is no failure by Trans Pac to provide reasonable assurances that the facility will be operated in accordance with Florida law. Escambia County is within the West Florida Planning Region. The West Florida Planning Region consists of Bay County, Escambia County, Holmes County, Okaloosa County, Santa Rosa County, Walton County and Washington County. The proposed site for the facility is just outside the community of Beulah, on County Road 99, northeast of and adjacent to the Perdido Landfill. The site is not within, but adjacent to the area designated by the West Florida Regional Planning Council as an area on which a hazardous waste temporary storage and transfer facility could be located. 2/ The proposed site is approximately one mile away from the Perdido River, an outstanding Florida water. The area is primarily a rural area. When the proposed location of this facility was announced in the local news, the value of property around the proposed site decreased. One person, who was within a few miles of the proposed site, lost the contract of sale on his property and was advised by the purchasers that no reduction in price would renew their interest. Another individual's property in the same area decreased in value by approximately $10,000. Many people in the Beaulah area had their dreams and the quiet enjoyment of their property threatened by the location of this facility. Some cannot afford to sell their property and relocate. At present there is no mechanism by which any of the property owners in proximity to the proposed site can recoup their losses. Some property owners believe that such a mechanism should include the establishment of some type of independent trust fund funded with enough money to cover an estimate of such losses, and an independent review of any disputed claims of loss. However, there is no provision under Florida law to impose a permit condition which establishes a procedure to cover the pecuniary losses of property owners close to the facility. The proposed facility will be a permanent storage and treatment facility and will have a maximum waste storage capacity of 106,000 gallons and a maximum treatment capacity of 2,000 gallons per day for neutralization, 5,000 gallons per day for organic separation, 2,000 gallons per day for ozonation, and 4,000 gallons per day for solidification. Hazardous waste is a solid waste which exhibits one or more of the following characteristics: a) ignitability, b) corrosivity, c) reactivity, d) EP toxicity. Such waste can be further classified as a toxic waste or as an acute hazardous waste. 3/ An acute hazardous waste is a solid waste which has been found to be fatal to humans in low doses or, has been shown in studies to have an oral, inhalation or dermal toxicity to rats or rabbits at a certain level, or has been shown to significantly contribute to an increase in serious irreversible, or incapacitating reversible, illness. A toxic waste is any waste containing any one of a number of specified constituents. A "characteristic" of hazardous waste is identified and defined only when a solid waste with a certain type of characteristic may: a) cause or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or b) pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed, and the characteristic can be: a) measured by an available standardized test, or b) can be reasonably detected by generators of solid waste through their knowledge of their waste. Put simply, hazardous waste is very dangerous to both humans and the environment and will kill or permanently incapacitate living beings and/or make the environment unlivable. Such waste has the potential to create a hazardous waste desert. A solid waste has the characteristic of ignitability if: a) it is a liquid, other than an aqueous solution containing 24 percent alcohol, which has a flashpoint of 60.C (140.F), b) it is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited burns so vigorously and persistently that it creates a hazard, c) it is an ignitable compressed gas, or d) it is an oxidizer. A solid waste has the characteristic of corrosivity if: a) it is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5 (strong acids or bases), or b) it is a liquid and corrodes steel at a rate greater than 6.35 millimeters (0.250 inch) per year at a test temperature of 55.C (130.F). A solid waste has the characteristic of reactivity if: a) it is normally unstable and readily undergoes violent change without detonating, b) it reacts violently with water, c) it forms potentially explosive mixtures with water, d) when mixed with water, it generates toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment, e) it is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment, f) it is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement, g) it is readily capable of detonation or explosive decomposition or reaction at standard temperature and pressure, or h) it is a forbidden or Class B explosive as defined in another federal rule. A solid waste has the characteristic of EP toxicity, if, using certain test methods, the extract from a representative sample of the waste contains certain contaminants (arsenic, barium, cadmium, chromium, lead, mercury, selenium, silver, endrin, lindane, etc.) at a concentration greater than or equal to specified levels for that contaminant. Although the above definitions sound exotic, the wastes which are defined are more often than not the waste generated by routine, normal living. Such waste is the result of almost any type of motor vehicle or machinery maintenance, such as oil and battery changes, metals manufacturing and finishing services, including auto body repair services, transportation services, construction and building repair services, medical and laboratory services, boat building and repair services, dry cleaning, printing of newspapers and 4/ magazines or agriculture, such as gardening. Further, such waste is generated by almost every commercial business category. Almost every person is either directly responsible through use or manufacture, or indirectly responsible through demand for a product or life-style, for the generation of hazardous waste in small quantities. These small individual quantities of hazardous waste add up to a significant portion of all the hazardous waste generated in this state and a significant portion of this waste is not disposed of properly. Improper disposal includes sending the waste to a local landfill or pouring such waste down the drain. Trans Pac's proposed facility will not be permitted for radioactive waste. The types of waste which will be treated and/or stored at the proposed facility are: Singularly or in any combination: D002 Waste --- A solid waste that exhibits the characteristic of corrosivity, but is not listed as a hazardous waste in Subpart D of 40 CFR 261. D003 Waste --- A solid waste that exhibits the characteristic of reactivity, but is not listed as a hazardous waste in Subpart D of 40 CFR 261. D004 Waste --- EP toxicity, contaminant arsenic D005 Waste --- EP toxicity, contaminant barium D006 Waste --- EP toxicity, contaminant cadmium D007 Waste --- EP toxicity, contaminant chromium D008 Waste --- EP toxicity, contaminant lead D010 Waste --- EP toxicity, contaminant mercury D011 Waste --- EP toxicity, contaminant silver Singularly or in any combination: F001 Waste --- TOXIC -- Spent halogenated solvents used in degreasing: tetrachloroethylene trichloroethylene, 1,1, 1-trichloroethane, methylene chloride, carbon tetrachloride, and chlorinated fluorocarbons, all spent solvent mixtures/blends used in degreasing containing, before use, 10 percent or more of one or more of the above halogenated solvents or those listed in F002, F004, or F005; still bottoms from the recovery of these solvents and mixtures F002 Waste --- TOXIC -- Spent halogenated solvents: tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1- trichloroethane, chlorobenzene, 1, 1, 2-trichlor-1, 2, 2-trifluoroethane, ortho-dichlorobenzene trichlorofluoromethane, 1, 1, 2 - trichloroethane, spent solvent mixtures/blends containing, before use, a total of 10 percent or more of one of the solvents listed in F001, F004, F005; and still bottoms from the recovery of these spent solvents and mixtures F003 Waste --- IGNITABLE -- Spent non-halogenated solvents: xylene, acetone, ethyl acetate, ethyl benzene, ethyl ether, methyl isobutyl ketone, n-butyl alcohol, cyclohexanone, methanol, all spent solvent mixtures/blends containing, before use, one or more of the above non-halogenated solvents and a total of 10 percent or more of the solvents listed in F001, F002, F004, F005; and still bottoms from the recovery of these spent solvents and mixtures F004 Waste --- TOXIC -- Spent non-halogenated solvents: creosols and cresylic acid, nitrobenzene, spent solvent mixtures/blends containing, before use, a total of 10 percent or more of the above non-halogenated solvents or the solvents listed in F001, F002, F005; and still bottoms from the recovery of these spent solvents and mixtures F005 Waste --- IGNITABLE, TOXIC -- Spent non- halogenated solvents: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, benzene, 2-ethoxyethanol, 2- nitropropane, spent solvent Mixtures/blends containing, before use, a total of 10 percent or more of the above non-halogenated solvents or those solvents listed in F001, F002, F004; and still bottoms from the recovery of these spent solvents and mixtures F006 Waste ---TOXIC -- Wastewater treatment sludges from electroplating from certain specified processes Singularly or in any combination: F007 Waste --- REACTIVE, TOXIC -- Spent cyanide plating bath solutions from electroplating operations F008 Waste --- REACTIVE, TOXIC -- Plating bath residues from the bottom of plating baths from electroplating operations where cyanides are used in the process F009 Waste --- REACTIVE, TOXIC -- Spent cleaning and stripping bath solutions from electroplating operations where cyanides are used in the process F010 Waste --- REACTIVE, TOXIC --Quenching bath residues from oil baths from metal heat treating operations where cyanides are used in the process F011 Waste --- REACTIVE, TOXIC -- Spent cyanide solutions from salt bath pot cleaning from metal heat treating operations F012 Waste --- TOXIC --Quenching wastewater treatment sludges from metal heat treating operations where cyanides are used in the process Singularly or in any combination: Petroleum refining: K048 Waste --- TOXIC -- Dissolved air flotation (DAF) float from the petroleum refining industry K049 Waste --- TOXIC -- slop oil emulsion solids from the petroleum refining industry K050 Waste --- TOXIC -- heat exchanger bundle cleaning sludge from the petroleum refining industry K051 Waste --- TOXIC -- API separator sludge from the petroleum refining industry K052 Waste --- TOXIC --- tank bottoms (leaded) from the petroleum refining industry Iron and steel: K062 Waste --- CORROSIVE, TOXIC -- spent pickle liquor generated by steel finishing operations of facilities within the iron and steel industry Ink formulation: K086 Waste --- TOXIC -- solvent washes and sludges, caustic washes and sludges, or water washes and sludges from cleaning tubs and equipment used in the formulation of ink from pigments, driers, soaps and stabilizers containing chromium and lead Secondary lead: K100 Waste --- TOXIC -- wastewater leaching solution from acid leaching of emission control dust/sludge from secondary lead smelting The federal law which governs hazardous waste is the Resource Conservation and Recovery Act (RCRA) and its amendments. The RCRA was part of the initial federal effort to manage hazardous waste and expressed a clear preference for the reduction of hazardous waste over managing such wastes at treatment, storage or disposal facilities. The Act required EPA to develop a national plan to manage and regulate hazardous waste and provide states with incentives to develop state hazardous waste management plans. Most of the incentives were based on the availability of federal funds. The federal funds were contingent on the states assuring EPA that a particular disposal site would be available for disposal of any waste generated by a remedial action taken under the Act. In 1980, Congress passed the Comprehensive Emergency Response Liability Act (CERCLA). The Act granted EPA the authority and funds to respond to uncontrolled site cleanup, emergency remedial activities, spills and other incidents due to hazardous waste. 5/ As of November, 1989, five such remedial sites are located in Escambia County. The Act also defines the liability of businesses that generate, transport and dispose of hazardous waste. Generators of hazardous waste, generally, have "cradle to grave" liability for the waste they generate. In 1980, the Florida Legislature enacted the state's first hazardous waste law. The law primarily adopted the federal regulations and guidelines on hazardous waste and established separate procedures for permitting and site selection of hazardous waste facilities. The act also directed DER to develop and implement a state hazardous waste management plan. The portions of the 1980 law relative to site selection (403.723, Florida Statutes) provided a cabinet override of a local decision adverse to the location of a hazardous waste facility. In order to obtain a cabinet override, the facility had to have been issued a permit by DER. Need for a hazardous waste facility was not addressed in either the permitting or site selection processes of the Act. In 1983, the legislature passed the Water Quality Assurance Act. The Act amended 403.723, Florida Statutes, to provide that each county prepare a Hazardous Waste Facility Needs Assessment and "designate areas within the County at which a hazardous waste storage facility could be constructed to meet a demonstrated need." The Act further provided in 403.723, Florida Statutes, that, after the counties had completed their assessments, each regional planning council, likewise, would prepare a regional Hazardous Waste Facility Needs Assessment and "designate sites at which a regional hazardous waste storage or treatment facility could be constructed." The regional Assessment included a determination of the quantities and types of hazardous waste generated in the region, a determination of the hazardous waste management practices in use within the region, a determination of the demand for offsite hazardous waste management services, a determination of existing and proposed offsite management capacity available to hazardous waste generators, a determination of the need for additional offsite hazardous waste facilities within the region, and the development of a plan to manage the hazardous waste generated in the region and/or to provide additional offsite hazardous waste treatment or storage facility needs. As noted earlier, these plans and designations were required to be made part of the county and regional comprehensive plans. The regional Assessment was completed by the West Florida Regional Planning Council in August of 1985. The assessment was based on a survey of suspected hazardous waste generators in the region. An overall response rate of 76.8 percent was received. The study showed that all types of hazardous waste, except for cyanide waste, are generated within the West Florida Planning Region. 6/ The quantity of hazardous waste produced annually within the region was estimated to be 14,245,064 pounds. The estimates for each County were as follows: Escambia County, 4,582,872 pounds; Okaloosa County, 3,203,534 pounds; Bay County, 2,433,343 pounds; Santa Rosa County, 1,866,831 pounds; Holmes County, 381,840 pounds; Walton County, 229,984 pounds; and Washington County, 170,244 pounds. Based on the survey responses, the study estimated that 11,903,738 pounds (83.6%) of hazardous waste generated annually within the region was not being properly treated or disposed of. The vast majority of the waste (78.1%) found to be improperly treated was a combination of waste oils and greases, spent solvents, and lead-acid batteries. Neither the waste oil and greases or lead- acid batteries are wastes which will be managed at the proposed Trans Pac facility. The study found that a recycling or reuse market existed for waste oil and greases, spent solvents and lead-acid batteries; and therefore, there was no need for a transfer/temporary storage facility. The remaining 2,602,630 pounds of hazardous waste not being properly managed was generated by both large and small quantity generators and is subject to a variety of appropriate waste management methods. The management plan adopted by the West Florida Regional Planning Council sought to encourage first waste reduction, second waste recycling, reuse or recovery, third onsite treatment or incineration methods, and fourth transporting wastes to offsite temporary storage facilities. One of the goals of the plan was to discourage, as much as possible, the importation of hazardous waste from outside the region, and particularly, with the close proximity of the Alabama state line, from outside the state. The plan concluded that due to the small quantity of mismanaged hazardous waste in the region there was no need for a permanent treatment and storage facility. The only need found to exist within the region was for a temporary transfer and storage facility. That need has since been met by a temporary transfer and storage facility located in Pensacola, Florida. 7/ However, Escambia County issued a Certificate of Need for a hazardous waste transfer, storage and treatment facility to Trans Pac on February 28, 1989. The Certificate of Need was issued pursuant to County Ordinance Number 85-7. The ordinance provides in relevant part that a Certificate of Need may be issued upon the Board's determination that the service or facility for which the certificate is requested "answers a public need, is necessary for the welfare of the citizens and residents of the county, is consistent with any solid waste management plan adopted pursuant to [this ordinance], and will not impair or infringe on any obligations established by contract, resolution, or ordinance." The ordinance further provides that no Certificate of Need may be denied solely on the basis of the number of such certificates in effect at the time. The issuance of that certificate appears to have been granted on the sole representations of need given by Trans Pac to gain issuance of the certificate and at a time when the Board's attention and consideration of the facility was on matters other than the true need as established in the regional plan or the exact service Trans Pac would actually provide. The evidence suggests that no formal or informal investigation of Trans Pac's representations or on the actual need of the region was conducted by the Board. Such an investigation was informally conducted by some of the Board members after the proposed facility became apparent to members of the public. The members of the public raised a great hue and cry of opposition towards the construction of the facility and prompted a closer look at Trans Pac's representations. The Board members who did conduct the informal investigation found there was no need for the facility within the county or region and discovered that the Certificate of Need had been issued in error. No evidence was presented that the County had ever formally rescinded the issuance of Trans Pac's certificate. However, the evidence did show that there was a de facto rescission of Trans Pac's certificate when the County authorized the filing of this administrative action. 8/ Trans Pac would have the ability to treat and store some of the waste generated in the region and some waste which is not generated in the region. Trans Pac would not treat or store a large part of the waste generated in the region. The small amount of regional waste which Trans Pac would be capable of handling would not be profitable. In order to be profitable, most of Trans Pac's waste would have to come from outside the region and/or the State. In 1986, Congress passed the Superfund Amendments and Reauthorization Act (SARA). The Act amended CERCLA to provide that, three years after the Act's effective date, a state could not receive any superfund monies unless the state entered into an agreement with the President providing assurance of the availability of hazardous waste treatment or disposal facilities which would have enough capacity for the treatment, disposal or storage of all hazardous waste generated within the state over the next 20 years. SARA was enacted because Congress did not believe that Superfund money should be spent in states that were taking insufficient steps to avoid creation of more superfund sites. Such steps included some provision for the future secure disposal or management of hazardous waste generated within that state. It was feared that certain states, because of public opposition and political pressure, could not create and permit enough hazardous waste facilities within their borders to properly manage, either through disposal or treatment, the hazardous waste generated within those states. Put simply, SARA requires each state to keep its own house clean and be responsible for the hazardous waste generated within its borders. SARA did not require the states to develop or permit hazardous waste facilities. The Act only required that each state provide assurances that the state possessed the capacity to manage or securely dispose of hazardous waste produced in that state over the next 20 years. Such assurances could take the form of developing hazardous waste treatment and storage facilities within that state's borders or by exporting its waste to another state. However, in order to provide adequate assurances of capacity if a state chose to export its hazardous waste, that state must enter into an interstate or regional agreement with the importing state. Such agreements could include contracts to ship hazardous waste to public or private facilities. Other assurances of capacity could be obtained through programs for the reduction of hazardous waste within the state. Whatever method of assurance adopted by a state, the goal of SARA was to force the states to provide assurances that their legislative program for the management of hazardous waste generated within their borders could work and would be used. In October, 1979, Florida entered into a Capacity Assurance Plan (CAP) with the President. The CAP established and implemented the statewide management plan required under the state statutes described earlier and under the SARA. The CAP is made up of four major components and includes a regional agreement between Florida and the other EPA Region IV Southeastern States. The four major components of the CAP are: 1) an assessment of past hazardous waste generation and capacity at facilities within or outside of Florida; 2) documentation of any waste reduction efforts that exist or are proposed for the future; 3) future projections of waste generation and capacity either within or outside of Florida and an assessment of any capacity shortfalls; and 4) descriptions of plans to permit facilities and a description of regulatory, economic, or other barriers which might impede or prevent the creation and permitting of such new facilities. The data gathered for the CAP showed that Florida currently has and will have a shortfall in its capacity to properly manage and dispose of its own hazardous waste. Therefore, Florida must provide and implement a way to increase its capacity for the management and disposal of the waste it now generates and will generate in the future or lose its funding for cleanup of superfund sites. Florida's plan to meet that shortfall consists of the interstate agreement, a commitment to a multistate treatment and storage facility and underfunded and understaffed incentives to reduce the generation of hazardous waste. The interstate agreement between the EPA Region IV Southeastern States is an effort at cooperative planning between these states for the management of hazardous waste. In reality, every state, including Florida, imports some hazardous waste from other states. Florida's imports are predominantly spent solvents and waste which can be burned as fuel. All of the imported waste was treated at recovery facilities located within the state. The majority of these imports came from Alabama, Georgia, Louisiana, Virginia and South Carolina. However, even with these imports, Florida is primarily an exporter of hazardous waste. The main recipients of Florida's exports are Alabama and South Carolina. 9/ The agreement, therefore, includes provisions on applicable interstate waste flow characteristics and quantities and on projected exports and imports between and among the participating states. The agreement provides that hazardous waste facilities presently exist or will be created and permitted to manage such exported waste. Besides the interstate agreement, Florida's plan includes a commitment to permit a multipurpose hazardous waste storage and treatment facility. The site selected for the facility is located in Union County. The permit has not yet been issued for this facility. However, the application for the facility is being processed by DER under the special statutes dealing with the Union County facility. Trans Pac's proposed facility is not required for the state to meet its assurances under the CAP entered into with the President. The hoped for benefit of the commitment to a statewide multipurpose facility is to allow Florida to reduce the amount of waste requiring export, but, at the same time allow enough waste to be exported, in accordance with the interstate agreement, to supply a sufficient waste stream to facilities in other states which need such additional waste in order to stay open. Florida's CAP also includes a waste reduction plan. The waste reduction plan is embodied in its Waste Reduction Assistance Program. The philosophy of the program is that recycling (particularly waste oil) and reduction of hazardous waste will produce greater long term across-the-board cost savings to both business and government, as well as the obvious benefit of having less of this very dangerous pollutant around in the environment. The program is not mandatory and is information-oriented. It consists of technical assistance, limited economic incentives (some of which have not been funded by the legislature), research and development, education and a waste exchange program operated by FSU and the Chamber of Commerce. The waste exchange program puts businesses in touch with other businesses who can use their waste for recycling or recovery. Additionally, in conjunction with Florida's CAP, the legislature passed Senate Concurrent Resolution #1146. The resolution states in part that, except for the siting of the Union County facility, "the Legislature has not and does not intend to enact barriers to the movement of hazardous waste and the siting of hazardous waste facilities for the storage, treatment, and disposal, other than land disposal, of hazardous waste." As can be seen from an overview of Florida's CAP, Trans Pac's proposed facility, while not being directly a part of the CAP, will have an impact on the implementation of that plan should state need not be a criteria for the issuance of a permit. A few of these potential impacts are listed below. First, a facility the size of Trans Pac's proposed facility has the potential to divert some waste away from the proposed Union County facility and may cause that facility to be unprofitable and inoperable. Second, Trans Pac's proposed facility may enable the State to handle more of its waste within its borders, thereby reducing its exports and Florida's dependency on the good offices of other states. Such reduction may or may not have an adverse impact on the interstate agreement contained in the CAP if Florida cannot meet the amount of waste established for export under that agreement. Third, Trans Pac's proposed facility has the potential to decrease the effectiveness of the State's hazardous waste reduction program by encouraging the use of its facilities instead of reduction, recycling or recovery methods. Such a decrease would be highly dependent on the prices charged by various hazardous waste facilities vis. a vis. reduction, recycling or recovery expenses, the cost of transportation to the various types of facilities, and the ease of use among the various types of facilities and reduction methods. Fourth, not considering at least the needs of the State for a hazardous waste facility allows the state to become a dumping ground for hazardous waste generated in other states. 10/ No evidence was presented on any of these points and because of the conclusions of law such an issue is not ripe for consideration in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order granting the application of Trans Pac, Inc., for a permit to construct a hazardous waste treatment and storage facility in Escambia County, Florida subject to a permit condition requiring a pre-sale notice as described in this Recommended Order. DONE and ENTERED this 16th day of April, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990.
The Issue Whether Beker Phosphate Corporation should be granted a hermit to construct an industrial waste water facility pursuant to chapter 403, Florida Statutes. By application, dated April 8, 1975, Beker Phosphate Corporation (hereinafter Beker) , sought a permit to construct an industrial waste water facility in Manatee County, Florida, from the Department of Pollution Control (now and hereinafter DER) . The application was received on April 11 and, after advising Beker that the application was incomplete a meeting was held on May 9th between DER and Beker representatives with the result that Beker filed a new application dated June 11, that was received by the DER in July. Further meetings were held in the fall of 1975 and additional in formation was received as to the application. On December 16, 1975, DER secretary. Jay W. Landers, Jr., issued a Notice Of Intent To Grant A Permit With Conditions. The conditions were unspecified in the letter of intent (Exhibit 1.) Subsequently, on December 23 and December 24, 1975, Sarasota County (hereinafter Sarasota) and the Town of Longboat Key (hereinafter Longboat Key), respectively, filed petitions with the DER alleging that their substantial interests would be adversely affected by approval of the permit application and setting forth in their petitions certain disputed questions of fact for determination. After a prehearing conference, Amended Petitions were filed by those parties to clarify and expand on such questions of fact and to resolve procedural matters. Additionally, during this period, George Browning, III, of Sarasota, Florida was granted status as an intervenor.
Findings Of Fact Beker proposes to construct a phosphate rock mine and beneficiation plant on a tract of approximately 11,000 acres in a predominately agricultural and ranching area of Manatee County about 10 miles from Myakka City, Florida. The mining will be performed by two dredges. One will mine overburden and return it to the mined-out area and the other will mine phosphate rock matrix which will be pumped to the beneficiation plant. The plant will consist essentially of two circuits. The first is a washer where the matrix pumped from the dredging operation is partially cleaned of clay and fine sand, and the coarser phosphate particles "pebbles" are separated as a product. The "fines" from the washing operation consist of small phosphate rock particles, sand, and clay. This mixture will be treated in the second section of the plant by "flotation" methods to recover the small phosphate rock particles as a product. During initial operation, the sand and clay will be stored in a temporary waste material storage area, but as the mining proceeds and the dredge pits open up, the sand and clay material will be pumped back to the dredge pits so that sand, and overburden will be mixed and redeposited to reclaim the land. Approximately 8 million gallons of fresh water per day will be drawn from the Floridian aquifer to be used in the flotation circuits. From the plant the water flows in two types of streams--one containing sand suspended in water and one containing clay suspended in water. Both streams flow into a settling pond surrounded by an earthen dam where sand and clay solids settle to the bottom. The clarified water is then decanted through six spillway structures into a hydraulic recirculation ditch outside the dam and flows back to the plant for re-use. The ponds and canals that make up the hydraulic circuit are planned to have sufficient capacity to contain rainwater falling on the site and pond system during the wet season when there are heavy rainfalls (approximately from May to September). Excess water will be decanted from the hydraulic recirculation ditch through a structure into a pipe and then discharged into Wingate Creek. The settling pond will occupy approximately 225 acres and its capacity will be about 8,458 acre- feet. The pond itself can be used to act as a reservoir and water can be built up in the pond during periods of high rainfall. It will not be necessary to release the water at any particular time. It can be released at will when the effluent contains a minimum of pollutant materials (Exhibit 1). Matrix is an unconsolidated mixture of phosphate pebbles and boulders of partly phosphatized limestone, quartz and clay. The washing operation removes unwanted oversized material and fine clays. The purpose of the flotation plant is to recover fine phosphate rock that might otherwise be lost. In the flotation process, flotation reagents, including sulfuric acid, number 2 fuel oil, tall oil, sodium hydroxide, and amines are used for treatment. The wastes are then moved to the settling pond where over a period of time the "slimes", (sands and clays) will settle to the bottom forming an impervious layer which will seal the pond. The settling process removes more than 90 percent of the contaminants from the influent. The coarser clay particles settle first and many of the fine particles settle in a process called "flocculation" by which electrical forces bring the particles together. However, some of the particles will not flocculate and remain suspended in the water. These extremely small particles constitute the total suspended solids that remain in the effluent when it is discharged from the settling area. They probably will not settle out entirely during their course from Wingate Creek into the Myaaka River and eventually to the Gulf of Mexico. However, even if it were assumed that such materials would settle somewhere between the point of discharge and Charlotte Harbor, over the entire 20 year proposed life of the mine they would form a deposit much less than 1/10th of an inch. Although it is technically possible to treat water to the degree that it would result in distilled water, realistic concepts of treatment establish that an additional settling or "polishing" pond for the proposed facility might not improve the quality of the wastewater finally discharged in state waters to any appreciable degree. Alternative proposals for the reduction of pollutants by additional processing, such as the intentional growth of water hyacinths in settling areas or use of chemical coagulants would result in creating other waste materials and thus be counterproductive (Testimony of Bromwell; Exhibit 1). The applicant's discharge of wastewater to Wingate Creek will average approximately 3.19 million gallons per day. However, since discharge will be effected primarily during periods of excessive rainfall, actual discharges can reach a maximum of about ten million gallons per day during this period. The effluent contained in such discharge will meet the test of at least 90 percent removal of organic and inorganic wastes specified by Rule 17-3.04(1), Florida Administrative Code, when measured by the influent into the settling pond and the effluent leaving that area. This treatment, however, will not produce an effluent equivalent to that produced by the "highest quality municipal waste treatment." The highest degree of treatment that has been reached by municipalities is "advanced waste treatment" as defined in Rule 17-3.04(2)(b), Florida Administrative Code. The water quality characteristics of the effluent will meet the standards of Rule 17-3.05 as to concentrations of those pollutants reasonably anticipated to be fond in the wastewater based on samples taken where the waters are discharged into Wingate Creek (Testimony of Gilgallon, Davis, Edwards, Heinzman, Bromwell, Bartow, Wellford, Exhibit 1). In preparing the application, no consideration was given to the need of meeting treatment standards for highest quality municipal waste treatment or advanced waste treatment. Neither did the recommending official of the DER, Mr. Edwards, then Regional Administrator for the Southwest Region, consider this standard because he had been advised by the DER legal staff that Rule 17-3.04(2) did not apply to Wingate Creek since it was not a tributary to one of the bodies of water listed in subparagraph (c) of the rule 17-3.04(2). This determination was based upon Resolution No. 74-83, September 17, 1974, of the Florida Pollution Control Board that was issued after legal challenges had been made to an interpretation by the Department of Pollution Control legal staff that Rule 17-3.04(2) required advanced wastewater treatment for industrial waste discharges. The Board, in its resolution, determined that since evidence had not been taken concerning treatment standards for industrial waste discharges at the time of adoption of the effluent standards for sanitary waste contained in Rule 17-3.04(2), the advanced wastewater treatment standards in the aforesaid rule would not be enforced against industrial dischargers pending full hearings on a new Rule to clearly express the Board's intent in this regard (Testimony of Gilgallon, Edwards; Exhibit 1). Special conditions that the Southwest Region, Department of Environmental Regulation, recommends should be attached to any issuance of a construction permit, other than standard conditions and those relating to other types of permits, are as follow: Approval by DER prior to the construction of any above grade phosphatic clay storage facility other than the initial settling pond. Removal efficiencies for oil and grease shall be a minimum of 90 percent and shall not exceed 14 milligrams per liter measured in the discharge effluent. Discharge effluent to Wingate Creek shall meet the water quality standards of Chapter 17-3.05(2) at the point of discharge prior to mixing with the receiving stream. Further treatment of the discharge will be required in the event compliance with proviso (c) above cannot be achieved or significant degradation of the receiving stream occurs as determined by the DER. In addition to required routine monitoring, a detailed analysis of the untreated and treated wastewater to be conducted once on representative samples during (1) month of July and (2) month of February. Such analyses shall, as a minimum, include all the parameters listed in 17-3:05(2). Applicants shall conduct an investigation into total retention possibilities of the effluent including, but not limited to, the following areas: recharge wells retention and storage of excess water during the "wet" season with subsequent reuse during the "dry" season for process and/or irrigation purposes. A report of these investigations shall be submitted prior to submission of operation permit application The location of monitoring wells shall be down gradient from the settling pond. Detailed proposal, subject to the DER approval, regarding exact location and number of wells to adequately ascertain the impact of seepage to be submitted no later than 90 days prior to commencement of operation. Bond to be posted for damages that may result from a clay settling area dam failure. Oral and written communications from the public were received at the hearing and included the following: Announcement by the County Attorney, Manatee County, that the county did not plan to appeal the DER Notice of Intent to Grant the permit (Statement of E.N. Fay, Jr.). The Division of Recreation and Parks, Department of Natural Resources, fears that the construction of the phosphate mine up-stream from the Myaaka diver State Park poses a serious potential threat to its aquatic habitat due to the possibility of a dam failure. It also fears that pollutants from the project will tend to settle as the river waters flow through the two lakes in the park. It therefore, opposes the construction until assurance can be given that proper safeguards have been taken to prevent such problems (Testimony of Alverez). The Longboat Key Garden Club believes that the project would involve too much water consumption and also that phosphate mining should be halted until further government studies are made to assure that the safety and health of the populace and the environment will not be endangered through polluted runoff and phosphate spills (Testimony of Monroe). The Save Our Bays Association in Manatee County has collected petitions from citizens in Manatee County requesting a referendum on a ballot this November for or against phosphate mining. The Association believes that such a vote should be taken before final decision is made on the subject. Its spokesman fears that if the quality and quantity of the drinking water is disrupted, it will interfere with continued tourist trade (Testimony of Howard Greer). The Palma Sola Parks Association opposes the Beker Application until there is greater assurance of environmentally safe mining (Testimony of Blankenship) A former physical and health education director is concerned about the fact that there has not been sufficient data collected on the effect of radioactive materials in runoff and waste. She believes there should be more research in these areas and asked that the public be protected from such hazards (Testimony of Mary Kay Greer). The Manasota-88 project for environmental qualities of 1968 and 1988 believes that issuance of the permit should be withheld until health implications can be determined concerning potential hazards to the Myakka and Manatee Rivers' watersheds (Exhibit 7). A former member of the Manatee County Planning Commission that approved the Beker application prior to action by the County Commission of Manatee County is in favor of the proposed project because Beker's plan to impound water will augment the water facilities of the county (Testimony of Reasoner). The City of Bradenton believes that since it is being required to meet advanced water treatment standards of discharge for sanitary sewage, Beker Phosphate Corporation should be required to meet similar standards (Testimony of Mayor A.K. Leach). A member of the Myakka City Civic Association who is an adjacent land owner to Beker Phosphate Corporation feels that the project is necessary in order to produce jobs for individuals in that area of the county (Testimony of Mizell). The U.S. Fish and Wildlife Service is concerned that proposed construction of two dams by the applicant will destroy approximately (4) acres of mangrove areas, three acres of pasture land and about 185 acres of bottom land or hardwood habitat. It recommends an alternative method of backup levies constructed around the primary settling bases on the applicant's land to contain any spills and prevent destruction of the streams and associated wetlands (Testimony of Johnston) The Conservation Council of Manatee County believes that Beker's unique mining and reclamation plan will help the farming industry and also create necessary water reserviors and recreation areas, and therefore endorses its proposal to mine in Manatee County (Testimony of Kent, Exhibit 14). Petitions were submitted at the hearing from approximately 3,000 individuals living in Manatee and Sarasota Counties opposing the issuance of the permit because they believe that phosphate mining is dangerous to the quality and supply of the water and endangers the health of the people (Composite Exhibit 9, Testimony of Humphrey).
Findings Of Fact This proceeding concerns an application for authority to construct and operate a 20-acre Class I, Class III, and an asbestos municipal solid waste landfill, as well as to close an existing 25.5-acre Class I municipal solid waste landfill located in Holmes County, Florida. This facility would function as a new regional landfill, in part, to replace the existing landfill in Holmes County. The applicant, EPAI, is a Florida corporation formed for the purpose of constructing and operating the proposed facility. EPAI has an option to purchase the site involved from its present owner, which will be accomplished after the facility is permitted, if it is, and all necessary permits for construction and operation have been obtained, then the applicant will sell stock in its corporation to City Management Corporation (City) domiciled in Detroit, Michigan. EPAI will then continue to exist as a wholly-owned subsidiary of City and will proceed to construct and operate the new landfill and initiate and complete all closure operations for the existing landfill. The Department of Environmental Regulation is an agency of the State of Florida subject to the provisions of Chapter 120, Florida Statutes, and charged with enforcing the provisions of Chapter 403, Florida Statutes, and Chapter 17- 701, FAC, as pertinent to this proceeding. It is thus charged with regulating solid waste management facilities, including permitting their construction, operation, and closure. It is charged with reviewing applications for such projects and issuing permits therefor if the statutes and rules it is charged with enforcing are found to have been complied with by a permit applicant. It has performed that function in this case up until the point that jurisdiction of the permit application dispute engendered by the filing of the subject petition resulted in transfer of the matter to the Division of Administrative Hearings. The Petitioner, CVA, is a group of Holmes County citizens opposing issuance of the landfill permit at issue. Based upon rulings on the motions to dismiss and extant law, CVA was required to present proof of its standing at the final hearing held in this cause. CVA called two witnesses, neither of whom presented evidence relevant to the issue of standing. CVA did not present any evidence, either through testimony or exhibits, to identify its members, to establish that a substantial number of its members would be affected by the issuance of the permit and the construction and operation of the landfill nor evidence which would identify members whose substantial interests will be affected by the construction and operation in a way different from any effect on the interests of the public at large. Project Background Holmes County currently leases a site on which its existing landfill is located. The site consists of 84 acres owned by Stone Container Corporation, the successor in interest to International Paper Company. The existing landfill itself covers approximately 25.5 acres. The proposed facility to be located on the same tract would serve as a new regional landfill to meet the solid waste disposal needs of Holmes County, as well as surrounding counties. The proposed facility would consist of approximately 20 acres divided into Class I, Class III, and asbestos landfill facilities. The project will be located on To Shoo Fly Bridge Road, lying approximately 3.3 miles northwest of the City of Bonifay in Holmes County. The northern portion of the present landfill is an unlined cell operated by the county which began receiving waste in 1979 and ceased depositing waste sometime in 1987. The southside cell of the landfill is clay lined with a leachate collection system. That portion of the county facility ceased accepting waste sometime in 1990. Holmes County is unable to properly operate or to close the existing landfill. Consequently, in June of 1989, the county and the Department entered into a consent order whereby the county agreed to meet certain operational, groundwater monitoring, landfill cell design, administrative and other requirements within certain time periods. The county attempted to meet the terms of that consent order but was unable to do so, primarily for financial reasons. In 1990, the county applied to the Department for a permit to close the existing landfill in accordance with the pertinent provisions of Chapter 403, Florida Statutes, and Chapter 17-7, FAC. The closure permit application was denied by Department order of May 22, 1991. Waste disposal at the Holmes County landfill had ceased in 1990, but it has not been properly closed pursuant to law and Department rules. Currently, it only has a temporary cover of soil and seeded grass in order to stabilize its slopes on the portion of the landfill commonly known as the "highrise". The closure costs for the existing landfill were estimated at approximately $700,000.00, which is beyond the resources of the county. Residents of unincorporated Holmes County currently are disposing of their solid waste by hauling it to the regional landfill in Campbellton in Jackson County nearby or by dumping it in unauthorized disposal areas, such as streams or roadsides. The City of Bonifay disposes its solid waste in the Campbellton landfill, as well. The Campbellton landfill, however, does not accept several solid waste components, such as yard trash. Since the county was unable to obtain the necessary permits to either operate or to close the existing landfill and was unable to meet State-mandated solid waste disposal and recycling requirements, it entered into an agreement with EPAI in May of 1990, whereby that entity assumed financial and legal responsibility for closure of the existing landfill, including obtaining the necessary permits from DER to close it, upon issuance of DER permits necessary to construct and operate a new Class I, Class III, and asbestos landfill at the same general site. The May 21, 1990 agreement between EPAI and the county authorized EPAI to so proceed before DER. Once EPAI obtained the permits necessary, the agreement provided that the county would surrender all right, title and interest in the 84-acre site to EPAI, convey all structures, equipment and appurtenances theretofore used by the county for its landfill operation to the corporation and to assign EPAI any legally assignable benefits which the county would receive under the 1988 Solid Waste Management Act, including recycling grants, if applicable. EPAI, the applicant, has an option to purchase the 84-acre site from Stone Container Corporation. After the issuance of any permits for closure and for construction and operation of the new facilities, the option would be exercised and the property would be conveyed by Stone Container Corporation to EPAI. Once it has purchased that property and the county has abandoned its lease on the property, pursuant to the May 21, 1990 agreement, EPAI would then hold fee title ownership and possession rights to the site. Once it obtained the necessary permits for construction and operation of the new landfill, EPAI will sell its stock to City. EPAI would then continue to exist as a wholly- owned subsidiary of City and will construct and operate the new landfill and close the existing landfill. City is a wholly-integrated waste management corporation based in Detroit, Michigan. It has been operating in the solid waste management field since 1961 and has extensive experience in landfill construction, operation and closure. It operates seven regional landfills, approximately ten transfer stations, and 30-40 residential and commercial solid waste collection companies in Michigan. It also operates hazardous waste facilities in Michigan and in Tampa, Florida. Through construction and operation of its regional landfill and hazardous waste facilities, it is familiar with and accustomed to compliance with all pertinent state and federal regulations applicable to such facilities. City holds a DER permit for its hazardous waste facility in the Tampa, Florida, area and has had a history of no major violations of applicable laws and rules. The corporation was shown to be financially sound. EPAI will operate the proposed facility, should it be permitted, as a regional landfill serving neighboring counties between Okaloosa and Jackson Counties, south to the Gulf of Mexico, and north to the Alabama border. The economic feasibility, however, was not shown to depend on interstate transport or disposal of out-of-state wastes in the landfill. Section 17-701.030, FAC, sets forth the permit submittal requirements for solid waste management facilities. CVA stipulated that EPAI met all applicable permit application submittal requirements in this section, except those in Sections 17-701.030(5)(h) & (i) and 17-701.030(7), FAC. EPAI has an option to purchase the landfill site from Stone Container Corporation, the current owner. EPAI has met the ownership requirement in Section 17-701.030(5)(h), FAC. The applicant will establish an escrow account to insure financial responsibility for closing and long-term care and maintenance of the landfill. A specific condition has been agreed to be placed in the permit requiring the applicant to submit written proof of having established financial assurance for closure and long-term care of the entire site 60 days prior to the acceptance of any solid waste at the facility and within 30 days after permit issuance for operations at the existing landfill. City has the financial ability to establish the escrow account and to provide the necessary financial assurance within 30 days after permit issuance. The applicant has thus satisfied the requirements of 17-701.030(5)(i), FAC, with regard to financial responsibility. Section 17-701.030(7), FAC, requires DER to forward a copy of the permit application to the Water Management District within seven days of receipt of the application. The Water Management District would then prepare an advisory report for DER on the landfill's potential impact on water resources with recommendations regarding disposition of the application. The Department sent the application to the Northwest Florida Water Management District, but the District did not prepare an advisory report. The administrator for the waste management program for the Department's northwest district office, who oversees solid waste facility permitting, testified that, as a matter of course, the District does not prepare an advisory report. Moreover, because the reports are advisory only, DER is not required to respond to any comments or follow any recommendations which may be made by the District in such a report. The Department normally issues solid waste facility permits as a matter of policy without having received a water management district report. 1/ Location and Site Requirements An aerial photograph of this area was prepared, as required by Section 17-701.050(4)(a), FAC. It shows the land uses, zoning, dwellings, wells, roads, and other significant features within one mile of the proposed landfill. This map shows several dwellings located within a mile of the site. The closest dwelling, as determined by aerial photograph and performance of a "windshield" survey, is approximately 2,400 feet from the site. The closest potable water well is at the dwelling located approximately 2,400 feet from the site. There are no existing or approved shallow wells within 500 feet of the proposed waste disposal areas at the landfill. Accordingly, the proposed landfill satisfies the condition in Section 17-701.040(2)(c), FAC, that solid waste not be disposed of within 500 feet of an existing or approved shallow water well. The surficial aquifer is located approximately 30 feet from the ground surface at the landfill site. The sediments in the area in which waste is to be disposed of consists of layers of clay and sandy clay having a very low vertical conductivity. The waste disposal cells will not be excavated down to the surficial aquifer. Therefore, waste will not be disposed of in ground water. Waste will not be disposed of in a sinkhole or in a limestone or gravel pit, as prohibited by Sections 17-701.030(2)(a) and 17-701.040(2)(b), FAC. The 100-year flood zone is located at approximately 120 feet national geodetic vertical datum (NGVD). The proposed landfill will be located at approximately 125 feet NGVD elevation and within a perimeter berm system. Therefore, waste will not be disposed of in an area subject to periodic and frequent flooding, as prohibited by Section 17-701.040(2)(e), FAC. The waste disposal areas are over 200 feet from Long Round Bay, the closest water body. Therefore, the 200-foot setback requirement is met. See, Section 17-701.040(2)(g), FAC. To Shoo Fly Bridge Road, on which the landfill is located, is not a major thoroughfare. There are no other major thoroughfares in the vicinity from which the landfill is visible. Accordingly, waste will not be disposed of in an area open to public view from a major thoroughfare. See, Section 17- 701.040(2)(h), FAC. The landfill site is not located on the right-of-way of a public highway, road or alley, and is not located within the bounds of any airport property. The landfill will not be located within a prohibited distance from airports, as proscribed by Section 17-701.040(2)(k), FAC. See also, Sections 17-701.040(2)(j) and (2)(i), FAC. There are no Class I surface waters within 3,000 feet of the landfill site so the setback provisions in Section 17-701.040(7), FAC, are satisfied. No lead-acid batteries, used oil, yard trash, white goods, or whole waste tires will be accepted at the Class I landfill cell. Only trash and yard trash will be accepted at the Class III cell. Therefore, the prohibitions in Section 17- 701.040(8), FAC, are not violated. A ground water monitoring plan has been developed for the landfill site, pursuant to Section 17-28.700(6), FAC, as required by Section 17- 701.050(3)(a), FAC. The original ground water monitoring plan was prepared by Post, Buckley, Schuh, and Jernigan, Inc. and submitted as part of the initial permit application. This plan addresses monitoring well placement, monitoring, and monitoring plan requirements. It proposes corrective action, as required by Section 17-28.700(6), FAC. Subsequent modifications to that plan were developed by Dr. Thomas Herbert, an expert in geology, hydrogeology, well installation and water quality monitoring. These modifications particularly address monitoring well location and provide additional assurances that the ground water monitoring plan complies with Section 17-28.700(6), FAC. These proposed modifications were submitted to DER prior to hearing. A site foundation analysis using appropriate ASTM methods to determine stability for disposal of waste, cover material, and structures constructed on site was performed and the results were submitted to DER as part of the initial application. Additional foundation stability information and the results of another field investigation regarding sinkhole development potential at the site was submitted to the Department. The field investigations and reports in evidence provide assurance that the disposal site location will provide adequate support for the landfill, as required by Section 17-701.050(3)(b), FAC. The landfill site is easily accessible by collection vehicles and other types of vehicles required to use the site. The site design provides for all weather roadways to be located throughout the site for ready ingress, egress, and movement around the site. The proposed landfill is located to safeguard against water pollution originating from disposal of solid waste. See Section 17-701.050(3)(c)2., FAC. The bottom of the waste disposal cells will be located at least six feet above the top of the surficial aquifer. To ensure that ground water is not polluted by waste disposal, the Class I cell will be lined with a composite liner system comprised of a lower unit consisting of 24 inches of compacted clay having a maximum permeability of 1 X 10-7 centimeters per second, and an upper synthetic liner unit consisting of a high density polyethylene (HDPE) of 80 mil thickness. Leachate generated by the waste in the landfill will be collected by a leachate collection and removal system. The leachate control system consists of a two- foot thick layer of sand having a minimum permeability of 1 X 10-3 centimeters per second, with a permeable geotextile filter cloth layer and a highly permeable geonet layer to collect and direct the leachate into a drainage system consisting of a collection pipe system to transfer the leachate to a containment lagoon. Once in the leachate lagoon, the leachate will be evaporated, recirculated over the working face of the landfill, or transported off site for treatment at a waste water treatment plant. The waste disposal areas are located at approximately 125 foot NGVD elevation. This is well above the 100- year flood plain and they are not located in water bodies or wetlands. An adequate quantity of acceptable earth cover is available on site. See, Section 17-701.050(3)(c)3., FAC. The soil for cover will be obtained from the northeast portion of the site located across To Shoo Fly Bridge Road from the landfill site. The landfill site was shown to conform to proper zoning, as required by Section 17-701.050(3)(c)4., FAC. The 1991 Comprehensive Plan Future Land Use Element for Holmes County designates this site for "public/semi- public/educational" land uses. The "public facilities land uses" designation includes "utilities and other service facilities" of which municipal solid waste landfills are an example. No other land use designation in the Holmes County 1991 Comprehensive Plan expressly includes landfill uses. CVA adduced testimony from Hilton Meadows, its expert witness, as to plant species he observed in the vicinity of the site. He observed plants that he identified as being species that grow on the edge of or in wetlands, but none of these species were shown to exist on the landfill site itself. Mr. Meadows observed them in locations outside the perimeter berms of the landfill site but did not identify their specific locations other than a general direction from the perimeter berms outside of which he observed the plants. He did not quantify the wetland species he observed so as to establish their dominance and did not conduct a jurisdictional wetland survey, as envisioned by Chapter 17- 301, FAC. Landfill Design Requirements As required by Section 17-701.050(4)(a), FAC, an aerial photograph was submitted with the permit drawings. Plot plans were submitted with the permit application, in evidence as EPAI exhibit 1, showing dimensions of the site, location of soil borings, proposed trenching or disposal areas, original elevations, proposed final contours, and previously-filled waste disposal areas. Topographic maps were also submitted with the correct scale and contour intervals required by Section 17-701.050(4)(c), FAC, which show numerous details such as proposed fill areas, borrow areas, access roads, grading, and other details of the design and the site. The design plans also include a report on the current and projected population for the area, the geographic area to be served by the landfill, the anticipated type, quantity and source of the solid waste, the anticipated useful life of the site, and the source and characteristics of cover materials. The landfill will be a regional facility serving the residents of Holmes and surrounding counties. The current population of the area to be served is approximately 63,183 with the projected population for the year 2000 being 76,792. The landfill will receive municipal sanitary solid waste, asbestos, petroleum-contaminated soils, and yard trash. It will not receive used oil, lead-acid batteries, biomedical wastes, hazardous wastes, or septic sludge. The permit application was shown to satisfy all design requirements of Section 17-701.050(4), FAC. Geology, Hydrogeology, and Foundation Stability Dr. Thomas Herbert, a registered professional geologist and licensed well driller in Florida testified of geologic and hydrogeologic investigations and analyses he performed. Mr. Herbert has over 25 years experience in the fields of geology and hydrogeology and was tendered and accepted as an expert in those fields. Dr. Herbert drilled shallow and deep core borings, which were converted into monitor wells to monitor ground water in the surficial and deep aquifers under the landfill site. In addition, he drilled several medium-depth borings along the western boundary of the site to analyze geologic and hydrogeologic conditions in this area, which is the portion of the site closest to Long Round Bay. Dr. Herbert used a hollow stem auger to take the soil borings and install the monitoring wells. This is a device which allows sampling tools to be placed down a hollow drill barrel for more accurate sediment sampling. Dr. Herbert used a continuous sampling system wherein a five-foot core barrel sampled the soil conditions ahead of the turning drill auger. Continuous sampling is preferable to other types of soil sampling equipment because it provides a detailed representative sample of the soil on the site and enables the sampler to precisely determine whether soil materials occur in small thin layers or bands on the site or whether there is a massive deposit of relatively uniform soils. The continuous sampling method also minimizes mixing of soils and creates an undisturbed profile that can be examined once the core barrel is opened. This type of sampling yields a very accurate picture of soil conditions on the site. In addition to the borings taken on the site by Dr. Herbert, other core borings were taken on site by Ardaman & Associates, a geotechnical engineering firm, for the purpose of analyzing the site foundation to determine the site's stability and potential for developing sinkholes. These core boring profiles were analyzed, along with those performed by Dr. Herbert, in determining the site geologic and hydrogeologic conditions. In addition to the core borings, Dr. Herbert reviewed studies on the geology and hydrogeology of the area, as well as the field investigations reported by Post, Buckley, Schuh, and Jernigan, as part of the original permit application submittal. In order to gather additional information on the geology and hydrogeology of the site, gamma ray logging was performed on the wells installed by Dr. Herbert, as well as on the existing wells at the site. Gamma ray logging measures natural gamma radiation from the sediments and permits identification of soil type based on the amount of gamma radiation coming through the soils. Generally, the higher the clay content, the higher the gamma ray count. Gamma ray logging provides an accurate means for determining clay, sand, or sandy clay soils. By examining gamma ray logs of wells he installed and sampled, as well as for wells already existing on the site, Dr. Herbert was able to obtain extensive information about the subsurface soil conditions at the site. Based on these information sources, the geology of the site was determined. The sediments ranging from the surface of the site down to more than 100 feet below the surface are part of the citronelle formation, which consists of consolidated to partially cemented sand, silt, and clay sediments, called clastics, deposited in the Plio-Pleistocene age, between one and four million years ago. The citronelle formation at the site is predominantly clay, with some thin sand lenses running through the clays. The sand lenses or "stringers" grade laterally into the clays or silts. A surficial aquifer is located between 30 and 40 feet below the land surface at the site and is confined immediately above and below by dense, dry clay layers. The top confining unit is estimated to be approximately 10 feet thick. The lower clay confining unit, down to approximately 100 feet below the land surface, consists of dense, dry clays with thin units of sandy or silty clays or clayey sands. Below the citronelle foundation, at approximately 100 feet below land surface, there is a sequence of weathered carbonate rock or mud, termed "residuum". This material is too fine-grained to yield water in usable quantities. Competent limestone is first encountered below the carbonate "residuum" at approximately 262 feet below the surface. This limestone is likely part of the lisbon- tallahatta formation, which is part of the Claiborne Aquifer. In order to investigate an area in the western portion of the site depicted in the Post, Buckley report as being sandy, Dr. Herbert installed a deep core boring and analyzed the soils in that area. He thus determined that rather than being solid sand, as depicted in the Post, Buckley report, the sediments in this area are actually sands interbedded with clay and silt stringers, which decrease the sediments' horizontal and vertical conductivity. He determined that the area is a sandy channel bounded laterally and below by dense clays. As with the rest of the site, the surficial aquifer also is confined in this area. As part of his ground water monitoring plan recommendations, Dr. Herbert recommended installation of an additional monitor well in this area. The core borings and gamma ray logging allowed accurate determination of the site hydrogeology. Transient surface water, termed "vadose" water, percolates down from the land surface through layers of clay, sand, and silt. Within these sediment layers, there are lenses of clay ranging from a few inches to a foot thick. Vadose water is trapped on top of the clay layers, creating shallow saturated zones called "perched" zones, ranging from one to a few inches thick. The vadose water and perched zones are not connected to any ground water systems. Below these perched zones, dense, dry clay layers create a confining layer above the surficial aquifer. The surficial aquifer occurs in discontinuous sandy layers 30 to 40 feet below the land surface. Beneath the surficial aquifer, dense, dry clay layers form a lower confining unit. These confining clay layers overlying and underlying the surficial aquifer create pressure or hydraulic "head", on the water in the surficial aquifer. When a core boring or well penetrates through the upper clay confining layer, the water in the surficial aquifer rises up the well or core casing, due to the hydraulic head, to a level called the potentiometric surface, which is at a higher elevation than the elevation at which the surficial acquifer is actually located. Based on the confined nature of the surficial aquifer, it was determined that water table elevations reported in the hydrogeologic report initially submitted as part of the application are actually potentiometric surface elevations. This is consistent with the information provided in the additional information submittal as part of the permit application which indicates that the potentiometric surface at the landfill site may be five to seven feet below the bottom of the liner. This was confirmed at hearing by Mike Markey, a professional geologist with the Department, who reviewed the permit application and hydrogeologic report submitted by Dr. Herbert and prepared a memorandum dated September 2, 1992, stating that his "previous concern regarding separation of the 'water table' aquifer and HDPE liner is no longer an issue because the 'water table' aquifer was not found" by Dr. Herbert. The surficial aquifer on the landfill site cannot yield enough water to support long-term use as a potable water source. Due to the high clay content in the aquifer, the water has a high sediment content and low water quality, rendering it unusable for domestic purposes. The overall horizontal conductivity for the surficial aquifer on a site-wide basis is estimated to be low due to the discontinuous sand layers comprising the surficial aquifer on the site. While some zones within the aquifer may have high horizontal conductivity, these zones have limited lateral extent and change rapidly into zones of low horizontal conductivity. The steep hydraulic gradient from the highest to lowest areas of the site further indicates that the surficial aquifer has low horizontal conductivity. If water were rapidly moving through the surficial aquifer across the site, the hydraulic gradient would be much less steep. The presence of the hydraulic gradient across the site indicates that the clay in the surficial aquifer system is so pervasive that the water in that system essentially is stagnant. Based upon his extensive experience and familiarity with the clastic sediments like those found at the landfill site, Dr. Herbert estimated the vertical permeability of the sediments comprising the upper and lower confining layers of the surficial aquifer to be in the range of 1 X 10-6 to 1 X 10-8 centimeters per second. These projected permeability values are very low, thus, very little water is moving vertically through the surficial aquifer to deeper depths. The original hydrogeology report on the site submitted as part of the application indicated that the ground water flow is to the west, southwest, and northwest based upon monitoring well and piezometric data. Dr. Herbert's subsequent field investigations confirmed the ground water flow direction as reported in the permit application. Dr. Herbert estimated that the surficial aquifer will be located between 8 and 15 feet below the finished bottom elevation of the Class I waste disposal cell. The intermediate aquifer system is located beginning 80 or 90 feet below the landfill site and is defined as all strata that lie between and retard the exchange of water between the surficial aquifer and the underlying Floridan aquifer, including the lower clay confining unit directly underlying the surficial aquifer. In this part of west Florida, the intermediate system is estimated to be 50 to 60 feet thick and acts as an "aquatard", which means that it retards the passage of water from the surficial aquifer to lower levels. The standard penetration test (SPT), which is an engineering test of soil density, yielded values of 40 to 50 blows per inch for soils sampled in the top 20 feet of the intermediate system throughout the site. These SPT values indicate the soils in the intermediate system are extremely dense, over-compacted clay materials. Below the clays, the lower portion of the intermediate system consists of a weathered limestone residuum. Due to the extremely fine grain size of the residuum, it will not yield water in quantities sufficient to support a well. The deep core borings taken at the site indicate that the Floridan aquifer limestone underlying the landfill site has undergone paleokarst evolution. The underlying limestone has been dissolved away over a long period of time, creating the limestone residuum detected in the deep core borings. Based on the deep core borings taken at the site, Dr. Herbert concluded there is no competent Floridan aquifer limestone capable of supporting wells underlying the landfill site, and the Floridan aquifer either is not present under the site or exists only as a relict or remnant of the limestone formations that make up the Floridan aquifer system in other parts of Florida. The core borings taken on site indicate that the paleokarst terrain underlying the landfill contains no cavities, large openings, sinkholes or other features in the rock that could cause the landfill foundation to collapse. All karst features in this area are filled in and "healed" by the carbonate residuum overlying the limestone under the landfill. Dr. Herbert also investigated the geologic nature of Long Round Bay. In addition to reviewing literature regarding the geology of west Florida in the vicinity of Holmes County and topographic maps depicting the site, Dr. Herbert took at least one sediment core boring in Long Round Bay and also circumnavigated the perimeter of the Bay. Based on information from these sources, Dr. Herbert opined that Long Round Bay, like many other drainage basins in the area north of Bonifay, is a collapse feature of the paleokarst sequence in the vicinity, and is a topographic depression caused by weathering away of the limestone over time. The sediments underlying Long Round Bay consist of deep citronelle clays washed into the collapse feature. Long Round Bay is relatively flat with poorly defined outlets and receives surface drainage from the surrounding area. Because there are no defined channels connecting Long Round Bay to Wright's Creek, water movement from Long Round Bay into Wright's Creek is extremely slow. Long Round Bay is likely not an aquifer recharge area because there is no direct karst connection between Long Round Bay and any aquifer. Clays have run off the surrounding area and accumulated in Long Round Bay for thousands of years sealing off any connections between it and any underlying aquifer. In addition to Dr. Herbert's determination of the potential for active karst formation under the landfill site, Ardaman & Associates performed the foundation analysis of the site, as required by Section 17-701.050(3)(b), FAC. The foundation analysis was supervised by William Jordan, a registered professional engineer. He has an extensive education in geotechnical engineering, as well as 11 years of experience in that field. He was tendered and accepted as an expert in geotechnical engineering and materials testing. As part of the foundation analysis, Ardaman & Associates performed two deep core borings to determine the potential for development of sinkholes at the site. Both borings were taken on the western side of the landfill site, closest to Long Round Bay. One of the borings was performed in an area having a relatively high sand content in the soil, as identified in the hydrogeology report submitted in the permit application. The borings were drilled down to approximately 160 feet below the surface, to the top of the weathered limestone horizon. In Mr. Jordan's extensive experience in foundation testing and analysis, presence or potential for sinkhole development is usually evident at the horizon of the limestone or within the top 15 feet of the limestone. The core borings did not reveal any joints, open seams, cavities, or very loose or soft zones at the horizon or on top of the limestone. In addition, the sediments overlying the limestone horizon were determined to consist of medium dense to dense and medium stiff to stiff sediments, which indicate lack of sinkhole activity or potential. No indication of active or imminent sinkhole conditions were found on the site, either through the core borings or from surficial observation. In addition to the deep core borings, Ardaman & Associates, under Mr. Jordan's supervision, also performed four other core borings to a depth of 60 feet below the land surface. These borings indicated the sediments at the site are composed of clayey sands, very clayey sands, "lean" sandy clays, and sandy "fat" clays. The SPT tests performed on the soils indicate the site soils range from medium to high density and are stiff to very stiff and hard. Mr. Jordan performed a settlement analysis of the landfill based on the types of sediments present on site and assuming a compacted unit weight of 37 pounds per cubic foot for the landfill waste. This unit weight is a typical weight value for compacted municipal waste. For settlement analysis, Mr. Jordan used the SMRF elastic compression and consolidation methods, both of which are professionally accepted standard methods for determining settlement of large structures, including landfills. Using these methods, he determined that the total settlement for the landfill over its total life would be between three and five and one-half inches. Based on the uniformity of the subsurface conditions and density of the soils on the site, any settlement would be uniform and thus would not result in tearing or other failure of the landfill liner. Mr. Jordan performed a bearing capacity analysis of the site. Based on the sediments on site, he estimated the safety factor against bearing capacity to be in excess of 10. The minimum acceptable safety factor for large habitable structures, such as buildings, is in the neighborhood of two to three. Thus, the safety factor determined for the landfill site far exceeds the minimum standard for bearing capacity. Mr. Jordan performed an embankment slope stability analysis for the perimeter berm of the landfill. The inside slope of the perimeter berm has a 3:1 slope and the outside slope has a 4:1 slope. Mr. Jordan's stability analysis was performed on the inside slope of the berm which is steeper and, therefore, less stable. Due to the stability of the clay sediments composing the subgrade of the perimeter berm, and based on his extensive experience in slope stability analysis, Mr. Jordan determined there is no danger of deep circular arc failure of the landfill berm. He used a professionally accepted standard slope stability evaluation method called the "infinite slope" method, to analyze the probability for shallow circular arc failure of the berm. He determined a safety factor of 2.0 to 2.4 for the embankment slope, which is between 1.5 and 2.0 times greater than the minimum accepted safety factor of between 1.3 and 1.5 for embankment slopes. Mr. Jordan also performed an analysis of the site subgrade stability for compaction. Mr. Jordan's analysis showed that the stiff or medium dense silty to clayey sands and clays on the site provide a stable base against which compaction over the life of the landfill can safely occur. Based on the foundation analysis performed by Mr. Jordan on the landfill site, it is evident that the landfill will not be located in an open sinkhole or in an area where geologic foundations or subterranean features will not provide adequate support for the landfill. (See Section 17-701.040(2)(a), FAC). The foundation analysis indicates the landfill will be installed upon a base or in a hydrogeologic setting capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement compression, as required by Section 17- 701.050(5)(b)2., FAC. The foundation analysis further indicates the site will provide support for the landfill, including the waste, cover and structures built on the site (See Section 17-701.050(3)(b), FAC). Section 17-701.050(5)(d)1.a, FAC, requires the lower component of the landfill liner to consist of a compacted soil layer having a maximum hydraulic conductivity of 1 X 10-7 centimeters per second. Mr. Jordan analyzed nine additional core borings to determine if the native soils on the site meet the conductivity standard in the rule or if off-site soils must be blended with on- site soils to achieve the standard. To test whether the on-site soil will meet the conductivity standard, soils were compacted to approximately 95% of the standard maximum for density, which is the industry standard compaction for soil permeability testing. The soils from eight of the nine borings taken at the site exhibited conductivity values of approximately 4.8 X 10-8 centimeters per second. This value is five times less conductive than the value required by the above-cited rule. Only one boring exhibited a conductivity value in excess of the maximum value established in the rule. Based on the conductivity values determined at the site, it is likely the native soils on the landfill site will meet or exceed the maximum conductivity value mandated in the above-cited rule. If the on-site soils do not meet this standard, then bentonite or another material from off site will be blended with the on-site soils to achieve the conductivity standard mandated by the rule. Ground Water Monitoring and Water Quality As required by Section 17-701.050(3)(a), FAC, a ground water monitoring plan for the landfill site was completed in accordance with Section 17-28.700(6), FAC. The original ground water monitoring plan was submitted as part of the application. This plan was incorporated into the notice of intent and the attached draft permit for the landfill, as part of specific condition The ground water monitoring plan subsequently was modified and supplemented by Dr. Herbert to include monitor wells required to be installed by Holmes County on the site, pursuant to the consent order entered into by the county and DER on June 26, 1989, as well as the wells installed by Dr. Herbert as part of his hydrogeologic investigation. DER established a zone of discharge for the landfill site, as required by Rule 17-28.700(4), FAC. The horizontal boundary of the zone of discharge extends to the ground water monitoring compliance wells located at the western, northern, and southern portions of the site and to a line coextensive with the eastern property line for the southeastern portion of the property. The horizontal zone of discharge boundary is located inside the western, northern, and southern property boundaries. The vertical zone of discharge extends from the land surface down to the top of the clay layer underlying the site at approximately +50 to +60 feet NGVD. These zones are established in compliance with Section 17-28.700(4), FAC. The groundwater monitoring plan provides for 15 monitor wells to be located in close proximity to the waste disposal areas and the site boundaries to monitor compliance with all applicable ground water quality standards in Sections 17-3.402, 17-3.404, and 17-550.310, FAC. Four of these wells will be located near the western property boundary to closely monitor water quality to insure contaminants do not seep into Long Round Bay. To detect contamination that may violate applicable surface water quality standards in Sections 17-302.500, 17-302.510, and 17-302.560, FAC, at the edge of and beyond the zone of discharge, the ground water monitoring plan provides for several surface water sampling points on the landfill site near the edge of the zone of discharge. If contaminants are detected in the surface water monitoring system, remediation activities can be implemented to insure the surface water quality standards set forth in the above-cited rules are not violated outside the zone of discharge. As required by Section 17-28.700(6)(g)1., FAC, the ground water monitoring plan provides for a well to be located to detect natural, unaffected background quality of the ground water. The monitoring plan also provides for a well to be installed at the edge of the zone of discharge downgradient from the discharge site, as required by Section 17-28.700(6)(g)2., FAC, and for installation of two intermediate wells downgradient from the site within the zone of discharge to detect chemical, physical, and microbial characteristics of the discharge plume, in excess of the requirement for one such well contained in Section 17-701.050(6)(g)3., FAC. The location of the other wells in the ground water monitoring plan was determined according to the hydrogeologic complexity of the site to insure adequate reliable monitoring data in generally accepted engineering or hydrogeologic practice, as required by Section 17-28.700(6)(g)4., FAC. Due to the essentially stagnant nature of the ground water in the surficial aquifer system, and given the location of the intermediate monitoring wells, any contamination detected at the site can be remediated through recovery wells before it reaches the edge of the zone of discharge. Moreover, due to the confined nature of the surficial aquifer system, there is very little free water in the aquifer. Accordingly, any contamination could be quickly removed by recovery of ground water and de-watering of the area in which the contamination is detected through remediation wells. Also, given the location of the monitoring wells on the site, the northerly direction of the surficial aquifer ground water flow on the northern portion of the site near the existing landfill, and the essentially stagnant nature of the ground water in the surficial aquifer, contamination emanating from the existing cell could be discerned from that emanating from the new cell and recovery and remediation operations directed accordingly. The DER intent to issue and draft permit specify an extensive list of parameters which must be sampled at the ground water monitoring wells and surface water sampling points on the landfill site, as required by Sections 17- 3.402, 17-302.510, 17-302.560, and 17-550.310, FAC. These parameters must be sampled and reported to DER on a quarterly basis. In addition, annual water quality reports must be submitted to DER for the site. Based on the large amounts of clay content and the low horizontal and vertical conductivity values of the on-site sediments, the stagnant nature of the surficial aquifer system, the virtual absence of the Floridan aquifer under the site, and the location of the monitoring wells, the ground and surface water monitoring program provides reasonable assurance that the applicable water quality standards in the rules cited above will not be violated within and outside the zone of discharge. Liner Design, Performance, Quality Control, and Installation Section 17-701.050(5)(d)1., FAC, requires that a composite liner and leachate collection and removal system be installed in a landfill such as that proposed. Mr. Leo Overmann, is a registered professional engineer specializing in landfill engineering. He has over 10 years experience in landfill engineering, design, and construction and has worked on the design and construction of over 50 landfill facilities and 250 landfill disposal cells. He was tendered and accepted as an expert in liner design, quality control plans, and leachate control systems design and performance. It is thus established that the composite liner will have an initial 24-inch layer of compacted clay having a maximum hydraulic conductivity of 1 X 10-7 cm/sec. The 24-inch clay layer proposed by the applicant exceeds the 18- inch minimum thickness provided in the above-cited rule and will be placed in the field in layers or lifts of six inches or less. Each lift will then be treated and compacted to proper specifications in accordance with sound engineering practice in order to insure a tight bond between the clay layers. In the process of placing the clay lifts on the site, any roots, holes, channels, lenses, cracks, pipes, or organic matter in the clay will be broken up and removed, as required by the above-cited rule. In order to insure conductivity of the clay liner component does not exceed the above figure, testing will be done at the site or off-site by constructing a "test pad". A test pad is a site at which the liner construction techniques are tested using the clay material that will comprise the lower liner unit. Once the pad is constructed, the hydraulic conductivity of the clay can be tested to determine the most suitable construction methods in order to meet the above-mentioned conductivity standard and the other design and performance standards in the rule section cited last above. The applicant's liner quality control plan provides for testing of the clay liner hydraulic conductivity and compliance with the other liner design and performance standards in the rule (See Section 17- 701.050(5)(c), FAC). A synthetic geomembrane liner consisting of high density polyethylene (HDPE) will be placed directly on top of and in contact with the clay liner. If the geomembrane should leak, the clay will then retard leachate migration. Although Rule 17-701.050(5)(d)1.a., FAC, only requires a 60-mil thickness liner, the applicant has proposed to use a 80-mil liner. The thicker HDPE liner is less susceptible to stress and wear and tear in the daily landfill operation than is the thinner 60-mil liner required by the rule. The water vapor transmission rate of the 80-mil liner will be approximately 1 X 10-12 cm/sec, which is 10 times less transmissive than the maximum water vapor transmission standard of 1 X 10-11 cm/sec established in Rule 17-701.050(5)(d)1.a., FAC. The design also provides for a drainage layer and primary leachate collection and removal system to be installed above the HDPE liner, as required by the above-cited rule. The drainage layer above the liner consists in ascending order, of a layer of geonet material having an equivalent permeability of approximately three cm/sec; a layer of non-woven, needle-punched geotextile cloth, and a two-foot thick layer of sand. The sand provides a permeable layer which allows liquid to pass through it while protecting the underlying synthetic components of the drainage system and liner. The geotextile cloth component of the drainage layer filters fine particles while allowing liquid to pass through it to the geonet layer. The geonet layer is approximately 3,000 times more conductive than required by Section 17-701.050(5)(f), FAC, so as to allow rapid drainage of leachate off of the HDPE liner. The drainage layer is designed to reduce the leachate head or hydraulic pressure on the liner to one inch within one week following a 25-year, 24-hour storm event. This was determined by use of the Hydrologic Evaluation of Landfill Performance (HELP) model. This model is the standard computer model used in the landfill design and construction industry to determine leachate depth over the synthetic liner in lined landfills. The HELP model calculations submitted in the permit application were prepared by Pearce Barrett, the EPAI landfill design engineer, an expert witness. The HELP model analyzes water and rainfall that falls on active waste disposal cells and percolates through the waste, and the model helps determine the amount of leachate that will accumulate on top of the liner. To determine this amount, the HELP model uses several parameters, including rainfall amount, landfill size, and the number of waste and protective cover layers. The HELP model in this instance involved employment of Tallahassee-collected rainfall data because long-term, site-specific data for the landfill site was not available. The Tallahassee rainfall average is greater than the rainfall average for Chipley, which is closer to the landfill site and, therefore, provides a more conservative, "worst-case" rainfall figure for employment in the HELP model calculations. The HELP is itself a very conservative model, generating a worst-case determination of the amount of leachate that will end up on top of the landfill liner. The model's analysis and calculations indicate that the leachate will be reduced to a one-inch depth on the liner within one week after a 25-year, 24-hour storm event. The landfill project design specifications, in the permit application, provide that all materials in direct contact with the liner shall be free of rocks, roots, sharps, or particles larger than 3/8 of an inch. The geonet and geotextile material are in direct contact with the top of the HDPE liner and the clay liner is located directly below the HDPE liner. The project design specifically provides that the clay material comprising the clay liner component will not contain roots, rocks, or other particles in excess of 3/8 of an inch. No waste materials thus will come into contact with the clay liner. The design specifications also provide additional protection for the liner by requiring that the initial waste placed in the landfill be select waste that is monitored and screened for such things as metal objects, wooden posts, automobile frames and parts, and other sharp, heavy objects which could tear the liner. The liner design contained in the application meets the design requirements of Rule 17-701.050(5)(d), FAC. Section 17-701.050(5)(b), FAC, requires that the liner be constructed of materials having appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients, physical contact with the waste or leachate to which they are exposed, climatic conditions, stress of installation, and daily operations. The liner is constructed of HDPE, which is superior to other types of plastic for use as municipal and hazardous waste landfill liners due to its physical and chemical properties. It is a material composed of long polymeric chain molecules, which are highly resistant to physical failure and to chemical weakening or alteration. The liner is of sufficient strength and thickness to resist punctures, tearing, and bursting. The liner has a safety factor of over seven, which is three and one-half times greater than the minimum acceptable safety factor of two, required in the Department's rules for landfill liners. The liner proposed in this instance will not fail due to pressure gradients, including static head or external hydrogeologic forces. Mr. Overmann evaluated the effects of a hydrologic head of one foot over the HDPE liner and the clay liner component and determined that the protective sand layer will insure the HDPE liner does not fail. Mr. Overmann relied on the testimony of Dr. Herbert with respect to hydrogeologic site characteristics in concluding that hydrogeologic forces will not cause liner failure. The 80-mil liner proposed by EPAI will be more resistant to the stresses of installation and daily operation than will a 60-mil liner. The two-foot sand layer above the drainage layer and the HDPE liner will also help protect the liner from stresses of daily operation. Mr. Overmann analyzed the liner's potential for failure between the point at which it is anchored on the edge of the landfill and the base of the landfill where settlement is greatest due to waste deposition. He determined that the HDPE liner would elongate on the order of one percent of its length. This is far less than 700 to 800 percent elongation required to break the liner material. Based on the site foundation analysis and the proposed liner design for the landfill, the liner will not fail due to hydrogeologic or foundation conditions at the site. The liner meets the performance requirements set forth in Rule 17-701.050(5)(b)2., FAC. The liner meets requirements that it cover all of the earth likely to be in contact with waste or leachate. The liner extends beyond the limits of the waste disposal cells to an anchor trench where the HDPE liner is anchored by soils and other materials to hold it in place during installation and operation. The liner design provides reasonable assurance that the liner performance standards contained in the above rule will be satisfied. There are no site- specific conditions at the Holmes County landfill site that would require extraordinary design measures beyond those specified in the rule cited above. The permit application includes a quality control and assurance plan for the soil and HDPE liner components and for the sand, geotextile, and geonet components of the drainage layer. A quality control plan is one in which the manufacturer or contractor monitors the quality of the product or services; a quality assurance plan is one in which an independent third party monitors the construction methods, procedures, processes, and results to insure they meet project specifications. The quality control/quality assurance plan requires the subgrade below the clay liner to be prepared to insure that it provides a dry, level, firm base on which to place the clay liner. The plan provides that low- permeability clay comprising the liner will be placed in lifts of specified thickness and kneaded with a sheepsfoot roller or other equipment. Low- permeability soil panels will be placed adjacent to the clay liner and scarified and overlapped at the end to achieve a tight bond. Each clay lift will be compacted and tested to insure it meets the specified density requirements and moisture specifications before a subsequent lift is placed. Lined surfaces will be graded and rolled to provide a smooth surface. The surface of the final low- permeability soil layer will be free of rocks, stones, sticks, sharp objects, debris, and other harmful materials. If any cracks should develop in the clay liner, the contractor must re-homogenize, knead, and recompact the liner to the depth of the deepest crack. The liner will be protected from the elements by a temporary protective cover used over areas of the clay liner exposed for more than 24 hours. The plan also provides specifications for visual inspection of the liner, measurement of in-place dry density of the soil, and measurement of hydraulic conductivity on undisturbed samples of the completed liner. These tests will be performed under the supervision of the professional engineer in charge of liner installation to insure that performance standards are met. There will be a quality control plan for installation of the HDPE liner in accordance with the DER approved quality control plan that incorporates the manufacturer's specifications and recommendations. The quality assurance and quality control plan calls for the use of numbered or identified rolls of the HDPE liner. The numbering system allows for identification of the manufacturing date and machine location, so that the liner quality can be traced to insure that there are no manufacturing anomalies, such as improper manufactured thickness of the liner. The plan also addresses in detail the installation of the HDPE liner. The liner is installed by unrolling it off spools in sections over the clay liner. As it is unrolled, it is tested for thickness with a micrometer and is visually inspected for flaws or potential flaws along the length of the roll. Flaws detected are marked, coded, and repaired. Records are prepared documenting each flaw. If flaws appear frequently, the HDPE is rejected and removed from the site. As the sheets are installed, they are overlapped and bonded together by heat fusing to create a watertight seam. As the sheets are seamed, they are tested in place by nondestructive testing methods to insure seam continuity and detect any leaks or flaws. If flaws are detected, they are documented and the seam is repaired. The seams are also subject to destructive testing, in which a sample of the seam is removed in the field and tested in the laboratory for shearing or peeling apart of the sheets. If destructive testing reveals seam flaws, additional field and laboratory testing is performed and necessary repairs are made. All tests, repairs, and retests are carefully documented, and a map depicting the location of all repairs is prepared for quality control and performance monitoring. The plan for the installation of the geonet, geotextile, and sand layers provides specifications for storage, installation, inspection, testing, and repair of the geonet and geotextile layers. The liner construction and installation will be in conformance with the methods and procedures contained in EPA publication EPA/600/2-88/052, Lining of Waste Containment and Other Impoundment Facilities, as required by Section 17-701.050(5)(a), FAC. The quality assurance and quality control plan proposed exceeds the requirements contained in Section 17-701.050(5)(c), FAC. Leachate Collection and Removal System The landfill design includes a leachate collection and removal system. See Section 17-701.050(5)(e)&(f), FAC. The leachate collection and removal system meets the requirements in the above rule by providing that the design incorporate at least a 12-inch drainage layer above the liner with a hydraulic conductivity of not less than 1 X 10-3 cm/sec at a slope to promote drainage. The drainage layer consists of a geonet layer, a geotextile layer, and a two- foot sand layer. The geonet has a hydraulic conductivity of two to three cm/sec, many times more permeable than required by the rule; and the sand layer will have a hydraulic conductivity of approximately 1 X 10-3 cm/sec. The leachate collection and removal system meets regulatory requirements contained in the above-cited rule that the design include a drainage tile or pipe collection system of appropriate size and spacing, with sumps and pumps or other means to efficiently remove the leachate. The design provides that the Class I cell will be divided into operating disposal cells. The design includes a piping system consisting of a 6-inch diameter pipe to be placed down the center of each of the operating cells and encased in a granular river rock medium. The HELP model calculations included in the permit application and evidence indicate that the leachate will be removed efficiently and effectively and that the leachate head will be maintained in compliance with the performance standards in the rule. The piping system is on a slope that drains to a central location or sump. Based on a design preference of City, the piping design will be slightly modified in the construction drawings to provide that rather than going through the HDPE liner, the leachate piping will run up the side of the cell wall and leachate will be pumped out of the cell into the leachate lagoon. The leachate collection and removal system design provides for a granular material or synthetic fabric filter overlying or surrounding the leachate collection and removal system to prevent clogging of the system by infiltration of fine sediments from the waste or drainage layer. A layer of non-woven, needle-punched geotextile will be wrapped around the granular river rock material surrounding the piping system to filter out fine particles. The design also provides a method for testing whether the system is clogged and for cleaning the system if it becomes clogged. A clean-out tool can be run through the openings in the leachate collection piping system to monitor and pressure clean the pipes if they become clogged. Thus, the leachate collection and removal system will satisfy the leachate system design requirements of Section 17-701.050(5)(f), FAC. The leachate collection and removal system will meet the performance standards in paragraph (e) of that rule, as well. The leachate collection and removal system will be located immediately above the liner and will be designed, constructed, operated, and maintained to collect and remove leachate from the landfill. The HELP model analysis and calculations indicate that the leachate depth will not exceed one foot on top of the liner. The leachate collection and removal system will be constructed of materials which are chemically resistant to the waste disposed of in the landfill and leachate expected to be generated. The geonet will be comprised of HDPE, which is chemically resistant to waste and leachate due to its molecular structure. The collection piping system also will be composed of HDPE. The geotextile layer will be composed of a non-woven polyester or polypropylene fabric, which has been determined to be resistant to and compatible with municipal solid waste leachates. The sand layer will consist of non-carbonate materials that are chemically resistant to or compatible with leachate. The evidence shows that the system will be of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying waste, cover materials, and equipment used at the landfill. Geonet drainage layers, HDPE piping, geotextile fabric, and sand layers such as those proposed are routinely and effectively used in landfills, including those that are deeper than the landfill proposed in the instant situation. The leachate collection and removal system meets requirements in paragraph (e) of the above rule, as well, that the system be designed and operated to function without clogging through the active life and closure period of the landfill. The geonet and geotextile layers will prevent the piping system from clogging. If clogging occurs, the system is designed to allow cleaning of the pipes. The collection and removal system will be designed and constructed to provide for removal of the leachate within the drainage system to a central collection point for treatment and disposal. The leachate will drain by gravity from the sump into the leachate lagoon, but will be altered during construction to provide for pumping of leachate out of the system into the lagoon in order to prevent having to penetrate the HDPE liner with piping. Once the leachate is pumped into the lagoon, it will be recirculated over the landfill face, evaporated from the lagoon, or removed off site for treatment and disposal at a waste disposal and treatment plant. Surface Water and Storm Water Management System The storm water management system for the landfill is designed and sized according to local drainage patterns, soil permeability, annual precipitation calculations, area land use, and other characteristics of the surrounding watershed. (See Rule 17-701.050(5)(h), FAC). The engineering expert for the applicant, Mr. Barrett, designed the storm water management system. He considered the presence of dense clay soils on the site which do not provide good percolation because of low permeability, with regard to storm water falling on the site. He also took into account existing drainage patterns, as well as the annual precipitation. The retention and detention ponds and drainage ways designed into the system consist of three detention basins located at the north, southeast, and southwest quadrants of the site and one retention basin located on the western portion of the site. The site is divided into watersheds and is drained by an on-site gravity system consisting of runoff collection pipes to intercept the overland flow and convey the runoff into the retention and detention facilities. Runoff from the northern watershed is treated in detention basin 1, that from the southeast watershed in basin 3, and runoff from the southwest watershed area in detention basin 4. Runoff from the western area or watershed is treated in retention basin 2. A computer model was used by Mr. Barrett in determining the appropriate design for the storm water management system. The model is called the hydrologic engineering center-1 model developed by the U.S. Army Corps of Engineers. It is a model routinely and widely accepted in the storm water engineering design profession and discipline for designing such systems. It has historically been accepted by the Florida Department of Transportation, DER, the Corps of Engineers, and a number of counties and municipalities. A number of parameters, such as total runoff area, watershed characteristics, rainfall amount, time of concentration, lag time, and route description, were put into the model to develop the storm water management system design. Because no actual runoff data was available to calibrate the model, the model was run using data for two hypothetical storm events, the 25-year, 24-hour storm and the 10- year, 24-hour storm. Total rainfall amounts for these events were obtained from rainfall intensity duration-frequency curves developed by the Florida Department of Transportation (FDOT) for this geographical area. The detention basins are wet treatment facilities having permanent pools of water. Wetlands vegetation grows on the littoral slopes of the detention basins and removes pollutants from the storm water by natural uptake of pollutants contained in the water through the roots, stems, and leaves of the plants. Based on the HEC-1 model, the detention basins are designed to store one inch of runoff over the permanent pool control elevation and to retain the first one-half inch of rainfall, as required by Section 17-25.040(5), FAC, for projects having drainage areas of less than 100 acres. Each basin has several pipes to allow outflow when the water level exceeds the one-half retention level. As water rises to the outflow pipe level, it flows out of the basin and eventually discharges off site. The outflow pipes are two to three inches in diameter, allowing discharge of a controlled volume of water at a controlled rate. The discharge structures will be constructed in accordance with construction drawings that will include erosion control devices, such as rip- rap. The basins also have vertical riser pipes that discharge if water reaches a higher set elevation, specified in the permit application. Only if the water level rises to an elevation exceeding the 25-year, 24-hour storm elevation would the water flow over the berm. As required by Section 17-25.025(8), FAC, the storm water management system design provides for skimmers to be installed on discharge structures to skim oil, grease, and debris off water discharged from the basins. No more than one-half of the volume will be discharged in the first 60 hours following a storm event. The detention basin slopes that exceed a four to one slope down to a depth of two feet below control elevation will be fenced for safety purposes. See Rule 17-25.025(6), FAC. The retention basin is designed to retain the first one-half inch of rainfall with filtration of the first one-half inch through a sand filter bed in the bottom of the basin within 72 hours following the storm event. The sand filter bed will consist of clean well-graded sand having a minimum horizontal and vertical conductivity or percolation rate of six inches per hour. The retention basin has vertical risers, as provided in the application. Erosion and sediment control "best management practices" will be used during construction to retain sediment on site, as referenced in Rule 17-25.025(7), FAC. Other best management practices, such as sodding embankments or stabilizing slopes with geomats or sand bags will be used. The system is designed to minimize mixing of the storm water with the leachate. (Rule 17-701.050(5)(h)3., FAC). As waste is placed in the landfill, berms are constructed laterally across the cell face to segregate the waste disposal areas from other areas in the cell not yet receiving waste. Storm water coming into contact with waste flows down through it and eventually is collected and removed from that cell by the leachate collection and removal system described above. Storm water falling in a portion of a cell in which waste has not been deposited is collected by piping and pumped to the storm water management system for treatment of storm water because it does not constitute leachate, not having traversed on or through waste. Storm water will not come into contact with the waste within the system as designed. There are not any pipes connecting the waste disposal cells to the storm water system or basins. The storm water system in the permit application was designed in accordance with the criteria enunciated in the above-cited rule. This fact was established by the unrefuted expert testimony of Mr. Barrett and was independently confirmed by three other engineers, including the storm water program engineer of DER, each of whom reviewed the storm water system design. The storm water program engineer inspected the site and determined that the proposed management system will not pose any risk to downstream property, as required by the statute and rules enforced by the Northwest Florida Water Management District (NWFWMD). CVA adduced the testimony of Mr. Hilton Meadows in an effort to demonstrate that the storm water management system design in EPAI's application, and case-in-chief, does not meet applicable criteria in Chapters 17-701 and 17- 25, FAC, referenced above. Mr. Meadows attempted to demonstrate, by calculations determined using the "rational formula", that storm water will be discharged off the landfill site at a rate of 16.11 acre feet per minute during a 25-year, 24-hour storm event. An acre foot of water is a depth of one foot of water covering a surface acre in area. According to Mr. Meadows, all storm water would be thus discharged off site at a single discharge point creating a "blowout" of the storm water management system structure at that point which would flood and erode Long Round Bay off the site. In rebuttal, however, Mr. Barrett explained that Mr. Meadows' calculations merely determined the total amount of water that would fall on the landfill site during a 25-year, 24-hour storm event and failed to consider the time-volume reduction of storm water off the site over a 24-hour time period. Mr. Barrett clearly established that 16.11 acre feet of water would not be discharged per minute off the site during the 25-year, 24-hour storm event. It was further demonstrated that Mr. Meadows did not perform any computer modeling in analyzing site-specific compliance of the proposed storm water management system design against the framework of the applicable design and performance standards in Chapters 17-25 and 17-701, FAC. CVA did not adduce any preponderant evidence which would demonstrate that the storm water management system proposed will not meet the design performance standards contained in the rules and rule chapters referenced above. In view of the more extensive background, education, knowledge, and training acquired both through education and experience; in view of the more extensive and detailed investigation and calculations underlying his design, including the computer modeling effort referenced above; and in view of his corroboration by three other witnesses within the storm water engineering discipline, the opinions of Mr. Barrett, and the witnesses corroborating his testimony, are accepted over that of Mr. Meadows. Gas Control System The gas control system for the landfill will meet the design requirements contained in Rule 17-701.050(5)(j), FAC. It will be a passive system, meaning that no mechanical methods are necessary to withdraw gas from the landfill. A ventilation system will be installed as the final cap is placed on the landfill and will consist of perforated PVC pipes placed vertically down through the soil cover layers, to reach the solid waste disposal areas. The pipes are wrapped in geotextile fabric in order to prevent them from being infiltrated by fine soil particles which could cause clogging of the system. The pipes will run laterally across the top of the waste disposal areas to transfer gas to the vertical vents which vent the gases to the atmosphere. If gas production should exceed the capacity of the passive ventilation system, vegetation will be damaged and odor will become objectionable. If that occurs, a pump can be connected to the system to extract gases mechanically and vent them into the atmosphere or flame them off as a more positive control method. The proposed gas system is typical for landfills of this size and has been well tested for efficiency at other such facilities. The gas control system will not interfere with or cause failure of the liner or the leachate control systems. The gas control system is designed to prevent explosion and fires due to methane accumulation, damage to vegetation on the final cover of the closed portions of the landfill or vegetation beyond the perimeter of the property. It will control any objectionable odors migrating off site. The system, as proposed and proven in this case, meets the design requirements contained in the above-cited rule. Landfill Operation Paul Sgriccia, vice president of City, is a registered professional engineer specializing in landfill design, operation, and management. He has extensive professional experience in (and supervises a 20-person staff) designing landfills, obtaining permitting, and overseeing daily operation, environmental regulation compliance, compliance monitoring, hydrogeology, and groundwater monitoring with regard to landfill projects proposed, being constructed, or operated by City. Additionally, he is trained as an engineer. He was tendered and accepted as an expert in the fields of landfill operations and landfill management. The above-cited rule chapter requires landfills to have a ground water monitoring system that complies with monitor well location, construction, and sampling requirements of Sections 17-3.401, 17-4.26, and 17-28.700, FAC, and ground water sampling and testing in accordance with those sections, as well as Section 17-22, Parts III and IV, FAC. Mr. Sgriccia's testimony shows that the ground water monitoring plan proposed and considered in conjunction with the hydrogeologic investigation and ground water monitoring recommendations made by Dr. Herbert will meet these regulatory requirements. The recommendations made by Dr. Herbert concerning ground water monitoring should be incorporated as conditions on issuance of the permit. The applicant has voluntarily agreed to notify DER one year in advance of its ground water monitoring schedule so that DER can be present to collect "split samples", as referenced in Rule 17- 701.050(6)(a)3., FAC. Any grant of a permit should also be conditioned on this policy being strictly followed. The application also contains an operation plan, as required by the above-cited rule at paragraph (6)(b). The operation plan provides that EPAI will be the entity responsible for the operation and maintenance of the landfill. The plan provides that in the event of a natural disaster or equipment failure that would prevent waste from being deposited at the landfill, the waste will be disposed of at the Springhill landfill in adjacent Jackson County, pursuant to an agreement between EPAI and Waste Management, Inc., the operator of that landfill. The operation plan contains detailed procedures to control the type of waste received at the facility. Hazardous waste, biomedical waste, lead-acid batteries, white goods, used oil, and waste tires will not be accepted for disposal at the proposed landfill. Asbestos will only be accepted if it is in the proper regulatory approved containers. The operation plan specifies inspection procedures and procedures to be followed if prohibited wastes are discovered. All vehicles hauling waste to the landfill will be weighed and inspected by the operator or appointed attendants at the entry to the landfill. A load inspection will be performed to determine if the waste conforms to the approved waste description before the waste can be disposed. Paperwork, checks, controls, and records maintenance will be performed, as well as random load inspections for municipal solid waste generated by households. Spotters will observe the actual unloading of each vehicle at the active cells. Unacceptable waste will be rejected and cannot be disposed of at the site. Unacceptable waste that is already unloaded inadvertently at the site will be required to be removed immediately. DER will be notified of attempts to dispose of unacceptable waste at the landfill site. The operation plan provides for weighing and measuring of incoming waste and vehicle traffic control and unloading control. All these vehicles will be weighed and inspected before proceeding to disposal cells. The operation plan provides a method and sequence for filling waste into the disposal cells. Waste disposal will begin in the southwest corner of cell one and waste will be disposed in that cell up to an established final grade and the final capping process will be commenced before beginning disposal in another cell. Waste will be compacted on a daily basis when a load is received. Compaction equipment operates continuously over disposed waste loads to obtain maximum compaction. A daily cover of six inches of clean soil will be applied at the end of the day unless more waste will be disposed on the working face within 18 hours. Daily cover helps reduce disease-vectors, such as flies and rodents, as well as to reduce windborne litter. The gas control system will be maintained to insure that riser pipe vents are not dislodged and will be monitored to insure that explosive limits of methane are not reached. When leachate levels in the lagoon reach a certain level, the leachate will be withdrawn and recirculated back over the working face of the disposal area or else hauled off site to a waste water treatment facility for treatment and disposal. Leachate recirculation is becoming an accepted treatment method by regulatory agencies and is considered an effective industry standard treatment method. Leachate is recirculated by application to the active working face of the disposal cell by a watering truck and is dropped on the cell through a distribution bar or open valve pipe at the back of the truck. Leachate will not be applied during rainfall nor will it be aerially sprayed on the cell. Municipal solid waste has significant absorption capacity, so that large quantities of recirculated leachate are absorbed by the waste. The leachate that does eventually run through the waste is collected in the leachate collection and removal system and does not mix with runoff going into the storm water management system. The leachate lagoon is surrounded by a containment dike area with a loading station inside the dike for removal of leachate by truck for off-site treatment at a waste water treatment plant. A hose is hooked to a tank truck and leachate is pumped into the truck. Any spills during the loading process will be contained by the dike and will flow back into the leachate lagoon. The storm water management system will be operated to insure that there is no mingling of leachate with storm water runoff. The design provides for three diversion berms running the length of the Class I disposal cell which divide the cell into four smaller working cells. Any rainwater falling in the clean, unused cells will be removed to the storm water management system. The rain coming into contact with the working face is leachate and is collected and removed from the cell by the leachate control system. The operation plan addresses and satisfies each requirement of Section 17-701.050(6)(b), FAC. Rule 17-701.050(6)(c), FAC, requires certain operational design features to be incorporated in the landfill. Thus, the entire site will be enclosed by a minimum four-foot high fence with a gate that will be locked during off hours. To Shoo Fly Bridge Road is a county-maintained, all-weather road that provides main access to the landfill site. In addition, the roads on the site will be stabilized, all-weather roads. The operation plan provides for signs indicating the name of the operating authority, traffic flow, hours of operation, and any disposal charges, as well as scales for weighing the waste loads received at the site. Dust will be controlled by water spraying to avoid contaminated runoff due to chemical sprays and oils. Dust will be further minimized by use of paved roads, minimizing the areas of disturbed soil, vegetating stockpiles as soon as possible, and vegetating final and intermediate cover areas. Daily cover, use of portable fences, and cleaning operations by operating personnel will provide litter control. Firefighting equipment and facilities adequate to insure the safety of employees will be located on site. Daily cover will be used to minimize the potential for fire and fire extinguishers and water will be used to fight fires. If a fire is too large to effectively fight with on-site equipment, the Holmes County Fire Department will be called to assist. The operation plan for the landfill meets the requirements depicted in the above-cited rule at paragraph (d) in terms of personnel and facilities requirements. A certified attendant will be on site during all hours of operation and a telephone will be located on site. Equipment requirements are contained in the above-cited rule at paragraph (e). The applicant will thus maintain and operate a large bulldozer, soil scraper, front-end loader, water truck, motor-grader for cleaning roads, and portable pumps for storm water management and leachate management. In the event of an equipment breakdown, the plan provides for an agreement between the operator and a local heavy-equipment company to provide a compactor and other essential equipment within 24 hours. The equipment will have protective roll bars or roll cages, fire extinguishers on board, and windshields. The operation plan otherwise provides for protective devices and gear for heavy equipment and for personnel themselves, such as dust masks and hearing protection devices, hygienic facilities in the maintenance building and office, potable water, electric power, emergency first aid facilities and the like. Employees will be hired locally and trained in appropriate safety procedures and practices. In accordance with the provisions of Section 17-701.050(6)(j), FAC, the operation plan calls for solid waste in the Class I cell to be spread in layers of approximately two-feet in thickness and compacted to approximately one-foot thickness before the next layer is applied. Weekly compaction of the waste will be accomplished by heavy equipment at the Class III cell. The compostible materials and the yard trash at the Class III cell will be removed and composted on site. Bulky materials that are not easily compacted will be worked into the other waste materials to the extent practicable. As required by paragraph (k) of the above-cited rule, the compacted solid waste material will be formed into cells with the working face and side grades above surface at a slope of no greater than 30 degrees. The cell depth will be determined by the area in operation, daily volume of waste, width of the working face, and good safety practices. Waste will be placed into the cell beginning at the southwest corner and spread northward, eventually reaching grade level. As elevation of the cell approaches final grade, intermediate and final cover is applied to the cell. The final slope grade will be approximately 4:1 and will be terraced. The operation plan meets the requirements contained in paragraph (6)(1) of the above-cited rule that the cell working face be only wide enough to accommodate vehicles discharging waste and to minimize the exposed area and use of unnecessary cover material. The waste will not be spread across the entire cell immediately but instead will be spread on a small working face. The typical working area may be 50 feet by 50 feet or slightly larger, and will become larger as more loads of waste are received. Waste is deposited on the working face and compacted until final grade is reached, working across the face of the active cell in a terraced effect. Intermediate and final cover are applied to the portions of the cell that have reached design dimensions. The working face is kept as small as possible to minimize leachate generation, disease-vector problems, and the need for daily cover. The landfill operation meets the requirements contained in paragraph (6)(m) of the above-cited rule to the effect that initial cover will be applied to enclose each working cell except the working face, which may be left uncovered if solid waste will be placed on the working face within 18 hours. If there are adverse environmental impacts or problems with disease-vectors, initial cover will be placed on the working face at the end of each day for the Class I landfill cell and once a week for the Class III cell. The operation plan provides that an intermediate cover of one foot of compacted soil will be applied in addition to the six-inch daily cover within seven days of completion of the cell if final cover or an additional lift is not to be applied within 180 days of cell completion, as required by paragraph (6)(n) of the above-cited rule. The landfill will be closed in accordance with Sections 17-701.050(4) and 17-701.070-.076, FAC. The operation plan further provides that daily cover will control disease-vectors, such as flies, rather than employing use of pesticides. Uncontrolled or unauthorized scavenging will not be permitted at the landfill and will be controlled by fences and on-site personnel. Class III Cell The proposed Class III cell will be located over the old Class I cell last used by Holmes County. This area has a recompacted clay liner and a leachate collection system in place. Only yard trash will be deposited in the Class III cell, however. Based upon the Class III cell design and operating plan that will permit only yard trash disposal in it, any leachate generated from the Class III cell will not pose any threat to or violate applicable water quality standards in or outside the zone of discharge. Asbestos disposal is proposed at the landfill site. A separate asbestos disposal cell is proposed. The operation plan will provide that the asbestos be covered daily with a proper dust suppressant or six inches of non- asbestos material or will be disposed of in an area where proper warning signs, fences and barriers are present. Asbestos accepted for disposal at the landfill will be bagged and accompanied by shipping documents as required by EPA rules appearing in Title 40, Code of Federal Regulation. Persons working around asbestos will be specifically trained in its handling and must use appropriate protective equipment, as required by the National Emission Standards for Hazardous Air Pollutants set forth at 40 CFR 61.25 and other applicable federal regulations. The applicant proposes to dispose of petroleum contaminated soils at the landfill, as well. These soils will be mixed in with the waste on the working face. The soils will not be used as an intermediate cover or come into contact with surface water that will be conveyed to and treated in the storm water management system. Landfill Closure The application includes general plans and schedules for closure of the new and existing landfills. Once final grade is reached, an intermediate cover is applied over the daily cover if the working face will not receive any more waste or will receive final cover within 180 days. The gas control system will then be installed and the final cover consisting of an impermeable synthetic cap will be applied. The final cover will be a plastic cap constructed of polyvinyl chloride (PVC), HDPE, or some other synthetic material and covered by one foot of protective soil, topped by six inches of topsoil to promote vegetation growth. Soils for the closure effort will be obtained on site and will not be obtained by dredging in any jurisdictional wetlands. The final design provides for a terraced landfill profile for the new Class I cell. The waste levels will not exceed 10 feet in height and will be terraced at a 4:1 slope. The terraces will slope back against the cell wall and will be underlain by a subdrain to collect runoff and convey it to the storm water management system. This will prevent erosion of the final cover, waste exposure, and thus, additional leachate generation. The application contains a closure plan containing a general landfill information report and various other plans, investigations, and reports addressing all criteria and factors required to be addressed by Section 17- 701.073(6)(a)-(i), FAC. All such plans, reports and investigations were certified by Pearce Barrett, a registered professional engineer, expert witness and landfill designer for the applicant. The application contains a detailed estimate of closure costs and a monitoring and long-term care plan for the landfill meeting the requirements of Sections 17-701.075 and 17-701.076, FAC. An interest-bearing escrow account will be established for the landfill within 30 days of permanent issuance to cover the closure costs. Funds for closure, monitoring and long-term care of the landfill will be set aside as tipping fees are paid. As portions of the landfill are closed, funds in the escrow account will be available to pay for closure. This type of landfill closure and closure funding is termed "close as you go". This insures that available funds to close the landfill will be present so that funding problems such as those associated with the existing landfill will not arise. The long-term care plan provided for in the permit application and in the applicant's evidence provides for monitoring and maintenance of the landfill for a 20-year period after closure is complete. The storm water management system will be maintained and ground water monitored as part of this long-term care plan.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Regulation dismissing the petition filed in opposition to the permit application and approving EPAI's application for the permit at issue, authorizing construction and operation of a 20-acre Class I, Class III, and asbestos landfill, as well as authority to close the existing 25.5-acre Class I landfill in Holmes County, Florida, in the manner and under the conditions delineated in the application, as amended, the Intent to Issue and draft permit and the above Findings of Fact and Conclusions of Law. It is further RECOMMENDED that the motion for attorney's fees and cost be denied. DONE AND ENTERED this 6th day of April, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 6th day of April, 1993.
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
Findings Of Fact On February 1, 1977, DER issued an operation permit to Respondent Hillsborough County for the operation of a solid waste disposal facility (sanitary landfill) with an area of 42 acres, located at Taylor Road and Sligh Avenue in the northeast portion of Hillsborough County. The permit was effective for a period of two years and contained various conditions which required the permittee to abide by applicable rules of the DER. The conditions also specified that water samples from monitoring wells and from any waters discharged from the site should be taken and analyzed to determine water quality and such analysis submitted to the Hillsborough County Environmental Protection Commission (HCEPC) acting as the agent for DER within Hillsborough County. The conditions further prohibited open burning at the site without prior approval, control of any objectionable odors, provision for sufficient equipment, and controlled access to the site. (Exhibit 22) In December 1978, Hillsborough County applied for renewal of its operation permit until February 1, 1980. The application and accompanying letter showed that the county wished to operate the site as a "high rise land fill" due to the fact that dirt accumulated from trench excavation had raised the ground level approximately ten feet. In July, 1979, after submission of requested additional information to DER during the preceding months, the county director of solid wastes submitted closeout plans for the landfill to DER and advised that they were filing a permit application for a new landfill to the east of the current site, utilizing a borrow pit area which had been transferred to the county by the State Department of Transportation. Thereafter, by letter of October 23, 1979, the Hillsborough County Administrator requested that DER consider the previous application for renewal of its operating permit to be withdrawn and that the application be viewed as one for a temporary operating permit. (Exhibit 1) During the month of August 1979, several inspections of the existing landfill were made by DER, HCEPC, and Regional EPA personnel. A series of memos prepared by the agency personnel reflected that various violations of DER rules governing landfills had been found during the course of the inspections. These included uncontrolled ponding of water in low areas on the site, failure to control the runoff of surface water, lack of adequate control to prevent unauthorized access to the site, failure to provide the requisite six inches of daily cover over the compacted waste, lack of proper ground water monitoring, and destruction of several wells by heavy equipment, and frequent breakdown of equipment used at the site. Residents living nearby or adjacent to the landfill have observed ponding, uncontrolled runoff, and unauthorized personnel on the site. They have experienced a high incidence of rats, birds and flies on their property and have seen septic tank waste trucks at the landfill. They further have noted uncovered garbage and have seen waste flow from the landfill into the area of Interstate Highway 4 which borders the south portion of the site. The State Department of Transportation has also made complaints to the county concerning dirt and debris on the interstate right-of-way. In a letter to DER, dated October 2, 1979, the county director of public utilities and safety responded to the various complaints and alleged violations. He acknowledged the validity of a number of the problems and indicated the corrective action that had or would be taken to prevent recurrence. (Testimony of Brantner, Warner, Smoot, Exhibit 8, supplemented Exhibits 10-15, 20, 23) By letter of October 23, 1979, DER's Southwest District manager issued Notice of Intent to issue a temporary operation permit for the high-rise landfill pursuant to Section 403.087, Florida Statutes, and Sections 17-4.07, Florida Administrative Code, with an expiration date of February 1, 1980. The stated reasons for the proposed issuance of the permit were because the facility did not qualify for an operation permit, but the applicant was making bona fide efforts to provide an acceptable alternate waste disposal system, and that the permit would allow time to establish a five-year monitoring program to ensure that the site had stabilized and was not a significant water pollution source. Conditions attached to the proposed permit were such as to reasonably preclude the recurrence of past violations with regard to daily cover, controlling access to the site, establishment of a gas monitoring program, and installation of additional monitoring wells for periodic sampling as to water quality. A compliance schedule was stated which required the submission of plans to accomplish the requirements of the permit and such schedule called for the cessation of all filling operations by February 1, 1980 and commencement of the closeout operation on March 1, 1980. The petitions for hearing herein were thereafter filed with DER and referred to this Division on November 15, 1979. (Exhibit 3) In December, 19.79, DER received notification from the regional office of the United States Environmental Protection Agency that volatile organic analysis on well supply samples from private residences in the vicinity of the landfill indicated a potential health risk and that the agency had therefore advised the well owners not to drink the water. Inspections of the landfill in mid-January 1980 by DER and HCEPC personnel showed that solid waste was not being adequately covered on a daily basis and that ponding of water in various areas was observed. The county attributed the ponding to heavy rainfall during the period, but claimed that the waste had been covered on a daily basis although the heavy equipment had scattered paper and other debris through the cover soil in view of the sticky nature of the clayey soil. (Exhibits 6, 16-18) After Hillsborough County officials became aware of the EPA well tests, a private consulting firm of ground water hydrologists and geologists was employed by the county to undertake a water quality analysis of the round water in and around the landfill. The program commenced in late December 1979, and a preliminary assessment of ground water quality was submitted in February 1980. Water samples were taken from private wells adjoining the landfill and from a well within the landfill itself. Analysis of the samples led to preliminary conclusions that organic and inorganic constituents of samples from within the landfill correlated well with those wells adjacent to the landfill, thereby suggesting landfill leachate as a source of contaminants. However, the consultants are of the opinion that several wells which exhibited traces of organic but no discernible inorganic contaminants may be affected by sources of contamination not related to landfill leachate, such as petroleum products, septic tank cleaners, and other household products. It was found that inadequate regional and site specific hydrogeologic data was available upon which to base a complete statistical analysis. It was further found that the wells used in the study were "uncontrolled" and therefore did not represent a valid basis for determining the origin of their contamination. Further study is planned which will involve testing of samples from twenty new monitoring wells designed to determine the rate of movement and attenuation of leachate. The results of such study will be available within five or six months. Although it is generally agreed that ground water flows in a southwesterly direction at the site, more information is required to ascertain the precise direction of flow. At the present time surface water falling on the landfill flows toward a county owned borrow pit to the southwest of the landfill. (Testimony of Schreuder, Becker, Bush, Exhibits 7, 19) The closing plans for the landfill site provide for surface water to be channeled away from the area and directed through swales to travel in the natural direction to the west. A final two-foot cover of soil will be place over completed cells and a three and one-half foot cover of compacted soil will be placed on side slopes of the landfill. Such final cover and grading of the area is designed to preclude infiltration of surface water. Trees will be planted around the periphery of the area and trenches will be dug to force any gases upward to a high point where an exhaust will be placed. Soil borings show that there is an extensive layer of clay at the bottom of the landfill but the permeability of this material is unknown. The solid waste cells are at a maximum of 40 feet below the ground surface and the average height of the compacted waste above ground surface is approximately 28 feet. The county permanently ceased accepting solid waste at the landfill on February 11, 1980, and has commenced closing operation to a minimal degree. As a result of the fact that solid waste is no longer being accepted, the intended elevation to be reached in the southern portion of the site will not take place and accordingly the closing plan will have to be revised in that respect. It is estimated that closing will take approximately one year to accomplish. Upon final closing with vegetative cover and proper grading, it is anticipated that pending and vector problems will be resolved. At the present time, inadequate fencing exists around the boundaries of the landfill. (Testimony of Bush, Becker, Exhibits 2- 21) In recognition of the fact that Hillsborough County ceased using the landfill for disposal of solid waste, the county and DER entered into a written stipulation, dated February 25, 1980, confirming this fact and revising special conditions to the proposed temporary operating permit. These conditions included a proviso that the proposed permit would expire three years from the date of issuance to permit a long-term monitoring and surveillance program to be conducted until the site has stabilized and is not a significant water pollution source. The conditions also call for the county to establish an acceptable program for monitoring gases at different points within the landfill, to control access to the site, and to complete the study to determine the extent and source of any infiltration of foreign substances into the ground water from the site. In addition, the conditions would require the county to submit an acceptable plan for long-term monitoring of ground water, including the installation of additional monitoring wells if required. It also provides that the final closeout of the site shall be completed within one year from the date of the final order and that such closeout shall be completed in accordance with applicable law and in accordance with previous closeout plans to the extent made possible by final elevations. (Exhibit 4)
Recommendation That the applicant Hillsborough County be issued a temporary operating permit for the closing of the landfill specified in the application. DONE and ENTERED this 26th day of March, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Jacob Varn Morris W. Milton, Esquire Secretary, Department of Douglas A. Mulligan, Esquire Environmental Regulation Post Office Box 13517 2600 Blair Stone Road St. Petersburg, Florida 33713 Tallahassee, Florida 32301 Alfred W. Clark, Esquire Vincent L. Nuccio, Jr., Esquire Department of Environmental Post Office Box 1110 Regulation Tampa, Florida 35601 2600 Blair Stone Road Tallahassee, Florida 32301 Gene T. Hall, Esquire Elliot Dunn, Esquire 209 East Robertson Street Post Office Box 1110 Brandon, Florida 33511 Tampa, Florida 33601 Richard S. Smoot Ronald Frink, President Post Office Box 682 Florida Water Well Association Seffner, Florida 33584 Post Office Box 11648 Tampa, Florida 33680
The Issue The issues in this case are whether the Respondents, Enos Kerr and Custom Care Dry Cleaning, Inc., are guilty of the violations alleged in, should take the corrective actions described in, and should pay the penalties assessed in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment, DEP OGC File No. 06-2382-37-HW (the NOV).
Findings Of Fact Enos Kerr is the President and manager and an owner of Custom Care Dry Cleaning, Inc., a dry-cleaning business located in Tallahassee, Florida. The Respondents have been in business for approximately twenty-five years. For approximately ten years, Custom Care has used Vista LPA-142 as a dry-cleaning solvent. Custom Care uses a spotting agent known as "Picrin" for removal of difficult stains. Vista LPA-142 is also known as paraffinic, napthenic solvent, and aliphatic solvent. It contains 100 percent paraffinic or napthenic solvent. It looks like water but is a white oily liquid that has the odor of hydrocarbon and is a kind of "mineral spirits." "Picrin" contains more than 98 percent chlorinated hydrocarbon. It is listed at 40 Code of Federal Regulations (CFR) § 372.65 and exceeds the de minimis concentration defined in 40 CFR § 372.38. On August 18, 2006, John Johnson, a DEP Environmental Specialist, inspected the premises of Custom Care. He found two partially full 55-gallon steel drums of Vista LPA-142 outside of secondary containment, which contained a 110-gallon storage tank and Custom Care's Midwest dry-cleaning machine (which has a base tank that stores used Vista LPA-142 which has passed through a Filter King purification system for reuse in the dry-cleaning machine). He testified that, not only did Mr. Kerr tell him the drums were full or partially full, they were heavy enough from being full or partially full that Mr. Johnson could not move them easily. On August 18, 2006, Mr. Johnson also observed, hanging on the outside of the wall of the secondary containment area, above the 55-gallon drums, some of the clear plastic tubing, a pump, and a PVC pipe extending from the end of the tubing, which were used to transfer Vista LPA-142 from the 55-gallon drums into the 110-gallon storage tanks. The floor beneath the transfer equipment and the 55-gallon drums was not sealed or otherwise treated to render it impervious. In another part of the premises on that date, also outside secondary containment, was a Forenta spotting board used for removal of difficult stains from fabric before placement in the dry-cleaning machine. Various chemicals, including a plastic bottle containing "Picrin," were in a box or tray attached to the spotting board. Beneath the spotting board was an open plastic waste basket used to collect and contain spotting agent suctioned from the item of clothing being cleaned and funneled to the basket. The floor under the spotting board was not sealed. Custom Care's Filter King purification system uses cloth filters. Periodically, Custom Care replaces the filters containing lint from the dry-cleaning process. The old filters are allowed to air-dry in the secondary containment area before disposal in the municipal solid waste dumpster outside the premises. At the end of Custom Care's dry-cleaning process, the dry-cleaned clothes are wrung out during a mechanical spinning cycle and then manually transferred while still damp or somewhat wet to a Huebsch dryer, which is outside secondary containment and on a floor that was not sealed on August 18, 2006. Air- drying is the last step in the process. DEP did not have the filters and lint analyzed to prove that they were contaminated with Picrin or any other hazardous substance. Instead, DEP assumed that there was some contamination, however small, and relied on the federal "mixture" rule that even the smallest amount of hazardous waste contamination turns previously unregulated solid waste into regulated hazardous waste. Count I - Secondary Containment Respondents' factual defenses to Count I, for not having the Vista LPA-142 in secondary containment on August 18, 2006, are: (1) secondary containment was not required because Vista LPA-142 is not a "dry-cleaning solvent"; and (2) if secondary containment was required, all of the Vista LPA-142 was in secondary containment because the 55-gallon drums and transfer equipment were empty. In support of their first defense to Count I, Respondents maintain that Vista LPA-142 is an aqueous solvent because an analysis of a sample from the base tank that collects used Vista LPA-142 after use and filtration for reuse in the dry- cleaning machine indicates the presence of 0.34 percent water. However, the presence of that small amount of water in the sample did not prove that Vista LPA-142 is an aqueous solvent. Custom Care also contends that Vista LPA-142 is not a "dry-cleaning solvent" because Custom Care buys it from Phenix Supply Company, which not only sells product to dry-cleaners but also sells to other businesses for other uses, making Phenix Supply something other than a "wholesale supply facility." This contention is rejected. See Conclusion 33, infra. Also in support of their first defense to Count I, Respondents pointed to information received from the producer of Vista LPA-142 that it was biodegradable to carbon dioxide and water. However, biodegradation would occur only in the presence of water and naturally-occurring microorganisms and aerobic conditions. Such biodegradation does not mean that Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum- based, dry-cleaning solvent. Respondents also believed Vista LPA-142 was not a petroleum-based dry-cleaning solvent because it has a flashpoint above 140 degrees Fahrenheit. But there was no evidence to prove that having a flashpoint above 140 degrees Fahrenheit means that the Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum-based, dry-cleaning solvent. In support of their second defense to Count I, Mr. Kerr denies telling Mr. Johnson the 55-gallon drums were full or partially full and maintains that the presence of a bung wrench on one of the drums was a fail-safe sign that both were empty (and, essentially, proved that Mr. Johnson was lying). Supposedly, according to Respondents, the Vista LPA-142 always is transferred immediately upon delivery from the 55-gallon drums into the 110-gallon tank and, sometimes, also into the base tank, and that the bung wrench is placed on one of the empty drums as a signal to the supplier that the drums are empty and ready to be removed when the supplier returns in two weeks to check on the drums to see if they are empty and ready to be picked up. This explanation is not logical. To the contrary, the use of the bung-wrench signal tends to prove the opposite--i.e., that the drums were not empty. If the Vista LPA-142 always is immediately transferred in its entirety, there would be need for a bung- wrench signal. Indeed, the Vista LPA-142 could be immediately transferred by the supplier (or by the Respondents while the supplier was still on the premises). In addition, Mr. Kerr conceded that there have been many other occasions when the 55- gallon drums were not completely transferred into the 110-gallon storage tank immediately upon delivery. There also have been occasions when three 55-gallon drums have been delivered by the supplier, all of which would not fit into the 110-gallon reserve tank and the base tank. In addition, during an enforcement meeting on September 13, 2006, to discuss a draft Hazardous Waste Inspection Report, while noting other issues with findings in the report, Mr. Kerr did not take issue with findings concerning the 55- gallon drums. Also in support of their second defense to Count I, Respondents maintain that the transfer equipment is emptied of all Vista LPA-142 before it is re-hung on the wall. This can indeed be accomplished by quickly extracting the PVC extension from the drum, reversing its orientation by 180 degrees so that it point toward the ceiling, and continuing to run the pump until the tubing is empty. In any event, while stains on the concrete floor under where the PVC pipe is hung on the wall may be from Vista LPA-142, which would suggest that the procedure is not always followed to perfection, the NOV did not cite Respondents having the transfer equipment outside of secondary containment. Count II - Unsealed Flooring Respondents' factual defense to Count II, for not having the flooring sealed between the secondary containment area where the dry-cleaning machine was and where the Huebsch dryer was, or where the 55-gallon drums were, is that secondary containment was not required because Vista LPA-142 is not a "dry- cleaning solvent." Factually, that defense already has been addressed in Findings 11-14, supra. Count III - Disposal of Solid Waste Respondents' factual defenses to Count III, for unpermitted and unauthorized disposal of solid waste (i.e., the filters and lint) on August 18, 2006, are: (1) that disposal of the filters and lint in the municipal solid waste dumpster is permitted and authorized because they are not hazardous waste; and (2) that, if they were hazardous waste, they were hazardous due to contamination with Picrin, not with tetrachloroethylene, also known as perchloroethylene or "perc," as alleged in the NOV. In support of their first defense to Count III, Respondents contend that all Picrin used in spot removal would be suctioned out of the item of clothing and collected in the container below the spotting board, or would be evaporated by the steam used in the spot removal process. Indeed, Picrin's boiling point is 165 degrees Fahrenheit, which is lower than the temperature of steam. Respondents contend, as proof of their first defense, that if any trace of Picrin remained on clothing after spot removal, it would be diluted in the Vista LPA-142 used in the dry-cleaning process and then returned to the base tank for reuse after the clothes are wrung out, but that a laboratory analysis of a sample of from the base tank did not indicate the presence of anything but water. However, actually the analysis was only performed to detect the presence of water; the sample was not analyzed for the presence of Picrin, or any of its breakdown products, or anything other than water. There may be traces of Picrin in the contents of the dry-cleaning machine's reservoir. Besides, even if there is no Picrin in the dry-cleaning machine's base tank, that evidence would not preclude the possibility that Picrin is filtered out by the Filter King purification process and is present in the filters and lint. Regardless, while the first defense to Count III was not proven, DEP presented no evidence on the question whether it is likely the filters and lint would be contaminated with Picrin. Rather, DEP's evidence assumed contamination without any further proof. As to Respondents' second defense to Count III, the NOV does in fact reference tetrachloroethylene, also known as perchloroethylene or "perc." However, it also calls the chemical "Picrin ® which contains 100% Tetrachloroethylene ('Perc')." The confusion arose because, during his inspection, Mr. Johnson obtained from Custom Care's files a Material Safety Data Sheet (MSDS) for Picrin. When he consulted with the manufacturer, he was told that the MSDS was out-of-date, and the manufacturer provided him with the current MSDS for Picrin. Then, the draft Hazardous Waste Inspection Report discussed during the enforcement meeting on September 13, 2006, referred to "today's Picrin [which] contains 100% Trichloroethylene ('Perc')." Mr. Kerr pointed out that "perc" was tetrachloroethylene, not trichloroethylene. From this, Mr. Johnson and Mr. Byer understood Mr. Kerr to be admitting to the use of "perc," which he was not. In an attempt to correct the report in accordance with Mr. Kerr's comment, DEP modified the report so that the final draft referred to: "today's Picrin [which] contains 100% Tetrachloroethylene ('Perc')." Even if the NOV is not defective in referring to "Perc" instead of clearly stating that Picrin was the alleged hazardous waste involved, DEP failed to prove that Picrin was mixed with the filters and lint. For that reason, DEP did not prove the allegations in Count III. Count IV - Investigative Costs The Department's proof of investigative expenses incurred consisted of the salary compensation paid to its investigators. Mr. Johnson’s salary is $17.53 per hour. He spent approximately 55 hours conducting inspections and investigating this case, which totals $964.15. Mr. Byer’s salary is $22.87 per hour. He spent approximately 96 hours investigating this case, which totals $2,195.52. Corrective Actions Upon re-inspection of the premises on November 8, 2006, Respondents were in compliance with all requirements. Deliveries of Vista LPA-142 were being transferred into the 110-gallon storage tank and base tank by the supplier upon delivery, and Respondents had sealed the flooring appropriately. It is not clear from the evidence what was being done with the filters and lint, but apparently they were being appropriately disposed of as hazardous waste at the time of the follow-up inspection. Other Mitigating Circumstances The evidence reflects a misunderstanding on the part of Respondents that, because Custom Care uses Vista LPA-142 and is considered a "mineral spirits" dry-cleaner, as opposed to a "perc" dry-cleaner that uses "perc" or some other form of chlorinated hydrocarbon that is a hazardous material in its dry- cleaning machine, it is not governed by dry-cleaning statutes and regulations.
The Issue Is Respondent, Watson Construction Company, Inc. (Watson), entitled to a general permit allowing it to operate a construction and demolition debris facility in Newberry, Alachua County, Florida?
Findings Of Fact DEP, in accordance with Chapter 403, Florida Statutes, is responsible for enhancing the beauty and quality of the environment; conservation and recycling of natural resources; prevention of the spread of disease and creation of nuisances; protection of the public health, safety and welfare; and provision for a coordinated statewide solid waste management program. It accomplishes these tasks, in part, by regulatory oversight directed to entities who operate solid waste facilities in Florida. That oversight includes permitting the activities by the facilities subject to compliance with statutory and rule requirements. Watson wishes to operate a solid waste facility in Newberry, Florida. In particular, Watson seeks to operate a C&D facility for off-site disposal of C&D debris to be placed where sand has been mined. Watson would pursue this enterprise by using a general permit, as allowed by DEP. Petitioner, City of Newberry (the City), is a political subdivision of the State of Florida. It opposes Watson's use of a general permit to conduct business as a C&D facility, based upon the belief that Watson has not demonstrated compliance with regulatory provisions that would allow Watson to use a general permit. Petitioner, Citizens for Watermelon Pond, Inc. (Citizens), is a corporation constituted of persons who oppose the use of the general permit for the same reasons expressed by the City. On July 21, 1994, Watson noticed DEP that it intended to use a general permit to operate a C&D facility. On July 29, 1994, a notice was published in the Gainesville Sun, a local newspaper, concerning the pendency of the use of a general permit to operate the C&D facility in Newberry, Florida. On August 12 and 16, 1994, the Petitioners filed petitions seeking an administrative hearing on the use of a general permit by Watson to operate the C & D facility. On August 19, 1994, DEP issued a Notice of Denial of the permission to use a general permit to operate the C&D facility. This permit request was under an arrangement between Watson and a co-applicant, Whitehurst. Following the Notice of Denial, no further action being requested by the applicants, DEP issued an order closing its file. In December 1994, in its name only, Watson resubmitted an application to use a general permit to operate the C&D facility in question. The level of consideration at that time was as a pre-application review. This was followed by a formal notice by Watson and application to use a general permit to operate the C&D facility. The formal application was filed on January 17, 1995. On January 24, 1995, notice was published in the Gainesville Sun concerning the more recent intention to use a general permit to operate the C&D facility. On February 6, 1995, Citizens filed a verified petition opposing the use of the general permit contemplated by the January 17, 1995 application. Two days later, the City filed a verified petition in opposition to the most recent request to use a general permit to operate the C&D facility. On February 15, 1995, DEP gave notice that it did not object to Watson's use of a general permit to operate the C&D facility. Watson's most recent request to use a general permit to operate a C&D facility was made on a form provided by DEP in accordance with Rule 62- 701.900(3), Florida Administrative Code. The application to use a general permit was sealed by a professional engineer. The legal description of the property in question is described in the application. It is located in Newberry, Alachua County, Florida. The site location for the proposed C&D facility is one and one-eighth mile south of Southwest 46th Avenue on the east side of County Road 337 in Newberry, Florida. Documentation has been provided which identifies the legal authorization to use the property as a C&D facility. The C&D facility has a planned active life of 50 years. It is intended that the sand that is excavated will be replaced by C&D debris at a similar grade. The mailing address and telephone number of the C&D owner and operator is identified. Watson is the owner/operator. There are 158 acres within the proposed site. Approximately 143 acres would be used in the C&D operation by mining sand as a prelude to recontouring the site by placing the C&D debris. It is intended to excavate tan sand and silty sand to a depth of 20-30 feet. Although Watson anticipates excavating sand to a depth of 30 feet, bore hole data reveals the existence of sand below that depth. Watson does not intend to excavate below 62 feet mean sea level (MSL). In any event, it is not the intention to excavate below the interface of the sand and underlying sandy clays. Once the sand has been excavated, it is anticipated that the bottom of the C&D disposal area will be approximately 15 feet above the piezometric water table associated with the Floridan Aquifer, according to the applicant. The proposed site is located in rolling terrain, whose elevations range from approximately 80 feet MSL to 100 feet MSL. To support the use of a general permit, Watson has provided a site plan with a scale not greater than 200 feet to the inch, which identifies the project location, with proposed disposal areas, total acreage of the site and of the proposed disposal area, and other relevant features that exist on or within 500 feet of the site. The property boundaries are identified. The site would be fenced. Access to the facility would be controlled by a locked gate on County Road 337. The gate would be open during daily operations. The site does not contain surface water. There being no surface water, the C&D facility does not require a surface water management permit from the Suwannee River Water Management District. The site does not present a problem with stormwater runoff. A potable well is located within 500 feet of the property boundary. However, placement of C&D debris would be offset by a 500-foot buffer from the well. Wetlands are located 2,100 feet from the southern edge of the proposed site in the eastern part of the adjacent Whitehurst parcel. Within 3,000 feet of the proposed site is an old phosphate mining pit on the Whitehurst parcel, and 6,200 feet from the proposed site is the northern-most unnamed pond associated with Watermelon Pond. The site is not susceptible to flooding at present. The sand mined at the proposed site would be used to build roads and for foundations for houses and other buildings. Clay removed from the building sites to make room for the sand would be placed in the C&D facility. The material that is removed from building sites and substituted by sand fill is clay with a high shrink and swell factor. That material, together with flint rocks, tree limbs and stumps, would be transported to the C&D facility by Watson's dump trucks. At present, Watson has 20 dump trucks. The dump trucks hold 20 yards each. In addition to those materials removed from Watson job sites by dump trucks, Watson has approximately 36 roll-off dumpsters which hold 20 yards each. Two Watson trucks are available to transport the roll-off dumpsters to the C&D facility. The roll-off dumpsters are placed on construction sites, not exclusively Watson's, and construction materials not used in the building process would be placed in the roll-off dumpsters for disposal at the C&D facility. Approximately 70 percent of the fill material to be placed in the C&D facility would be unsuitable soils, trees, limbs and stumps. The remaining material would be the C&D debris from construction at sites where the dumpsters have been placed. The dump trucks that hold the clay, limbs and stumps would be loaded by Watson employees, who can control what is placed in the trucks. Watson would not control what is placed in the roll-off dumpsters at other construction sites. The Watson dump trucks from job sites directly related to its activities would arrive at the C&D facility and dump their loads for compaction. Those loads would not be spotted for unsuitable fill materials. By contrast, the roll-off dumpsters would be examined at the construction site by the Watson driver. If the driver discovers excessive amounts of material not classified for C&D fill, contact would be made with the Watson office and the material taken to the Alachua County landfill for disposal. If the driver picks up the dumpster at the construction site and there are limited amounts of material not suitable for disposition at the C&D facility, the dumpster would be taken to the C&D facility. The material would be spread out, and a spotter would segregate materials that are not suitable for C&D fill. The unsuitable material would be placed in temporary containers at the disposal site and transported off-site to a permitted landfill or other appropriate facility. Some material brought to the landfill would be recycled. Woods, such as pine or hardwood would be recycled. The limbs and stumps would be placed in the pit as fill. Copper, aluminum, steel, iron, and any other metal would be recycled. The metals would be sold to a scrap-iron facility. An employee at the landfill would keep the money earned from recycling. Metal embedded in broken concrete would be used as fill. The C&D facility would be operated by two persons: one, a loader/operator who loads the dump trucks with the sand that is being excavated; the second individual, a bulldozer operator who pushes the dump truck loads of clay, limbs, and stumps into the fill area and spreads them. He would also spot the roll-off dumpsters and segregate the fill material from unsuitable material. The sorted construction material to be used as fill would be pushed into the working face of the pit, where the tree limbs, stumps and clay would have also been placed. It is anticipated that six to ten roll-off dumpsters with C&D material would be brought to the C&D facility on a daily basis. The amount of unsuitable material that must be sorted from the dumpsters would vary with the individual loads. Watson operates an existing C&D facility in Alachua County, Florida. The proposed C&D facility would be similar in its operation. Based upon the experience in the existing facility, there is no indication that the proposed C&D facility could not be adequately operated by two employees, taking into account the need to segregate unsuitable material before filling. The spotter would receive verbal training concerning his duties. The training provided the spotter is on-site training. He would be reminded once a week of the need to do an adequate job of looking for unsuitable materials. At present, Alachua County inspects the existing C&D facility on a weekly basis and reminds the spotter at that facility what is appropriate for placement and what is not. The expectation is that the same function would be performed at the proposed facility. If sinkholes are encountered in excavating the sand, the equipment operator would contact the Watson office. In turn, Watson would contact its consulting engineer to address the problem, to include placing a plug or cap to repair the breach caused by the sinkhole. In the event that limerock is encountered in the excavation, a clay cap will be placed to prohibit leachate from flowing into the ground water. Areas where limerock is located at higher elevations and not covered by clay present the greatest risk for sinkhole formation. The period between excavation and fill will be approximately two years, leaving the site exposed at the level of excavation before fill is replaced. When the site is closed, the front-end loader operator and bulldozer operator will spread 24 inches of soil as a cap and grade the site in preparation for planting of pine trees. The soil material would be constituted as six inches of top soil suitable for planting pine trees. The remaining 18 inches would contain clay with high shrink/swell properties. The planting of pine trees would be done through a contract forester. The equipment operated at the facility would employ approved muffler systems. Odor generated by the facility is not anticipated to be a problem, in that household garbage, if found, would only be temporarily maintained, pending placement in an appropriate landfill. The site will be examined on a weekly basis to remove blown "litter". Proper provision is made for maintenance of slopes and compaction of fill material as it is placed. Through the application process noticing DEP that Watson intends to use a general permit to operate its C&D facility, DEP has been informed of the location of the proposed site. DEP would have permission to inspect the site during normal business hours. In response to Rule 62-701.420, Florida Administrative Code, Watson conducted a geotechnical investigation and prepared a report to support the application for a general permit. In support of the application Kenneth J. Hill, P.E. investigated the subsurface conditions at the proposed site through drilling activities. The drilling was done at the site and adjacent to the site. In May, 1995, Douglas L. Smith, Ph.D., P.G., conducted an electrical resistivity study (ER) at the site to investigate the subsurface conditions. Thomas H. Patton, Ph.D., P.G. and Charles Swallows, P.E. assisted in the investigation of the subsurface conditions at the site. Ralph E. Eng, P.E., signed and sealed the application for general permit for the proposed C&D facility. In rendering a report following his investigation of the subsurface conditions, Mr. Hill signed and sealed the report and supporting documentation. Likewise, Dr. Smith signed and sealed the report and supporting documentation associated with the ER study, together with Anthony F. Randazzo, Ph.D., P.G. The contribution by Dr. Patton and Mr. Swallows to the geotechnical investigation did not include signing and sealing a report and documentation. Nonetheless, Dr. Patton and Mr. Swallows, when testifying concerning the permit request, as with other professional witnesses, were found qualified to offer testimony consistent with their professional credentials and factual knowledge. 1/ A foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the fill material revealed that the weight of the construction debris was approximately 70 pounds per cubic foot, whereas the weight of the existing sand to be excavated is approximately 100 pounds per cubic foot. Thus, the placement of fill material following excavation would impose less stress on the subsurface than before. No significant settlement of the fill materials is expected to occur, resulting from its weight. The nature and fate of leachate promoted by the placement of fill at the site, in an environmental susceptible to bio-chemical and physical influences in transport through the subsurface, has the potential to adversely impact ground water. Those impacts could possibly cause violations of water- quality standards, ground-water standards, and drinking-water standards. These issues are considered based upon facts associated with the imperatives which must be properly addressed through the geotechnical investigation. That process anticipates gaining an understanding of subsurface conditions, to include the soil stratigraphy and ground-water table conditions. The ground-water table conditions involves estimations of the average and maximum high ground-water table. The geotechnical investigation should also explore the possibility of and address the existence of any sinkholes on the site. No specific testimony was given concerning the degree to which leachate, when present in the ground water at the Floridan Aquifer, might promote water-quality violations. Leachate properties and constituents were described in general terms of water-quality considerations, for example, hardness, nitrates, nitrites, alkalinity, presence of ammonia, chlorides, iron manganese, phenols, barium, arsenic, cadmium, lead, mercury, zinc, TDS and sulfates, urea formaldehyde, plaster, creosote, glues, and mastic hardeners. The evidence presented concerning the parameters for water quality did include a reference to barium, ranging from .5UG/L to 8UG/L in basically similar circumstances. The fill material can influence the natural PH by creating acidic conditions causing the PH to fall from a neutral 7.0 to 5.5 to 6.5. The process that takes place over time with the fill material also releases gases, such as methane, hydrogensulphide, and carbon dioxide. Rainwater falling on the ground's surface forms the basis for transporting the leachate through the subsurface. Only the Floridan Aquifer is potentially at risk, there being no surface water bodies or surficial aquifer at the site. Taking into account rainfall disposition by evapotranspiration, storm- water runoff, and subsurface infiltration, without certainty as to the amounts in those processes, it can be said that a significant amount of rainfall is available through infiltration to recharge the Floridan Aquifer and to transport leachate promoted by the fill. This is borne out by the absence of surface water bodies and a surficial aquifer on the site. To gain basic information concerning the subsurface conditions, Watson had 14 standard penetration test borings conducted by Mr. Hill and his firm. Those borings were advanced to depths of 35-72 feet. Additionally, three auger borings were performed to a depth of 40-50 feet. The auger borings were at sites A-1, A-2, and A-3, performed on April 17, 1993. In July of 1993, standard penetration test borings were performed at sites B-1, B-2, B-3, and B-4. In April of 1994, standard penetration test borings were performed at sites B-5, B-6, B-7, and B-8. In September of 1994, standard penetration test borings were performed at sites B-9, B-10, B-11, B-12, B-13, and B-14. The borings that were performed at the proposed site were at B-2, B-5, B-6, B-9, B-10, and B-14, for a total of six borings. The other borings were performed on the adjacent parcel. The borings at the proposed site were widely dispersed over the 143 acres contemplated for excavation and fill. The borings on the adjacent parcel, referred to as the Whitehurst parcel, were widely dispersed over 475 acres. Logs of the soil borings were prepared depicting the findings in the subsurface. The soil stratigraphy found in the borings was varied with sand, clayey sand, sandy clay and limerock present in some but not all borings. The sands that have been described are Aeolian. The sands are remnants of an ancient coastal dune system. Soil permeability tests were conducted on a limited basis at boring B- 9 at a 25-foot sample depth. The tan and orange clayey sand described had a co- efficient for permeability of 1x10-6. That sample and others described were obtained through a split-spoon. At B-12, at 35 feet, tan and orange clayey sand was found with a co-efficient for permeability of 2.6x10-8. At B-13, at 30 feet, tan and orange clayey sand was found and tested as 2.0x10-8 for the co- efficient for permeability. At B-14, at 30 feet, tan and orange sandy clay was found with a co-efficient for permeability of 9.6x10-9. In describing the soils, sieve analysis was not performed to more precisely classify the sediments encountered. This description of the strata is by appearance and texture. The clayey sand and sandy clay found in the borings retard discharge of the leachate to the ground water in the Floridan Aquifer based upon the permeability in those soils. Generally stated, the tan sands described have a co-efficient for permeability of 10-1 to 10-4. These sands are highly permeable, presenting an easy opportunity to convey the leachate contained in the infiltrating rainwater. Anomalous findings concerning soil permeability are shown at B-4, an off-site location, which portrays only sand in the boring. Also, B-9, which was drilled four to five feet east of a known sinkhole at the site is noteworthy in that the boring log describes tan and orange sandy clay, with trace limerock below 30 feet. This is in contrast to the field notation by the driller of the "p" for push and drilling rod "free fall" from 38 feet BLS to 42.5 feet BLS before encountering limerock, connoting a possible cavity in the 38-foot BLS to 42.5-foot BLS region. The karst feature that is located in the area where boring B-9 was conducted will be surveyed and marked with fence posts prior to excavation. No excavation will be conducted within 200 feet of that site. In addition to the phenomenon at the B-9 boring area, sinkholes at the surface were observed one-half to three-quarters of a mile northeast of the site. Sinkholes can occur when the placement of fill changes the hydraulics and loading in a karst environment. Finally, at B-6, limerock was encountered above the 46.9 feet MSL regional piezometric surface of the Floridan Aquifer. That limerock is considered part of the aquifer system. The head pressure at that location was not sufficient to force the ground water from the Floridan Aquifer. The more typical experience was as shown in B-5, where the surface of the limerock was lower than the regional piezometric surface. In B-5, ground water was not encountered until the clayey layer was breached and water rose in the drill hole. On occasions, such as the experience in B-5, there was an indication that Artesian conditions existed at those places. At the locations where the Artesian conditions were experienced, the Floridan Aquifer is confined. At B-6, where the limestone rises higher than the regional piezometric surface, the Floridan Aquifer is not confined. The bore hole at B-2 was terminated before breaching the clayey layer, and ground water was not encountered. Watson's consultant Hill considered that the ground-water table was found within the Floridan Aquifer at the site whose regional potentiometric surface was 46.9 MSL. He perceived that the findings showed ground water at 45 feet MSL constituting the average for the site. Watson estimated that the "seasonal high" ground-water table at the site was 48 feet MSL. The term "seasonal high" is equated to maximum high. Watson claims that the fluctuation in the ground-water table would be only a few feet. This would mean that the 45 feet MSL from bore hole data would represent not only the average across the site but the average value at the site at any point in time during the year. Watson makes this assertion notwithstanding that the borings were made over two years during different seasons. The basis for the estimate of maximum high ground-water table is not evident. In Dr. Patton's remarks in the application, there is a reference to the fact that the lowest encountered elevation for the Floridan Aquifer was 45 feet MSL and the highest was 55 feet MSL, making the average 50 feet MSL. This runs contrary to the remarks by Hill in which Hill said the elevation in the region was 46.9, the elevation detected was 45, and that the seasonal high would be 48. The only borings that were made in which the log reflects the MSL elevation and the boring depth are borings that were conducted in April 1994. On that date, the boring depth at which ground water was encountered varied from 37-43 feet and the MSL depth varied from 39-47 feet. If only the information for B-5 and B-6 on the site proper is used, those two data points associated with the borings on April 1994 reveal ground water at an excavation depth of 37 feet and between 45-47 feet MSL, respectively. Overall, without reference to MSL, the depths at which the ground water was encountered in the borings varied from 19-44 feet, if encountered. Although it is not shown in the boring log what the relationship is to MSL, at B-9, water was found at a drilling depth of 38 feet; at B-10, at a depth of 36 and one-half feet; at B-2, no water had been encountered at a drilling depth of 50 feet; at B-14, no water had been encountered at a drilling depth of 35 feet; at B-1, water was encountered at a level of 44 feet; at B-3, water had not been encountered at the concluding depth of 50 feet; at B-4, water had not been encountered at the concluding depth of 50 feet; at B-11, water was encountered at a drilling depth of 31 and one-half feet; at B-12, water was encountered at a drilling depth of 19 feet; at B-13, water was encountered at a drilling depth of 21 and one-half feet. Where elevations were measured for the water table in the bore holes, the holes were left open until the drillings had been concluded. Then the measurements were made. In this project, the consultant did not equilibrate the ground-water table by the traditional method of leaving a piezometer in the bore hole to maintain its integrity for a day before making the measurement. Watson has not provided sufficient information and explanation to determine a proper estimate of the average and maximum high ground-water table across the site. Returning to the ER investigation, it involved 39 soundings, which is roughly equivalent to drilling bore holes. The sounding profiles were determined through Wenner-Array Sounding and Lee-Directional Equipment. This technique involves the passing of an electrical current underground and measuring its resistance to flow. The expectation is that earth materials, for example, clay, sand, limestone, and cavities will resist the flow of electrical current differently. Substantially greater contrast in the degree of resistance, anomalies, is used to identify and locate earth materials, as well as the presence and shape of cavities. The sounding measurements reveal two- dimensional detail below the surface at progressively-greater depths. Lee- Directional measurements determine the direction of higher or lower resistivity along the survey line. While in the field, electrodes are placed in the ground at equal distances from one another. After a measurement, this distance is increased in an orderly fashion. The greater distance between the electrodes, the greater the depth of penetration. The ER equipment's electrical current has the capacity to penetrate through clay and into lower features in the subsurface. Subsurface from depths five to 100 feet were examined in this study. Within the 39 groundings surveyed, various soils were encountered. Generally, a thick cover of unconsolidated sand was found overlying clayey sand, with a clay layer varying in thickness and limestone found in some soundings, but not others. Where limestone was detected, it was at deeper levels in the southwestern part of the site. Because ER cannot distinguish between clayey sand and sandy clay, the area where those soils are found is referred to in the report as a thinner clayey sand layer. Also, in some places the upper surface of limestone has suffered weathering or deterioration and may appear as the lower part of the clay unit in terms of its electrical properties. The general portrayal in the ER study concerning the soil stratigraphy, wherein reference is made to dry sand up to 30 feet in thickness overlying a thinner clayey sand layer, approximately 10 feet in thickness, overlying a relatively thick clay layer from 10-60 feet and then limestone, does not coincide with the complexity in the stratigraphy found in the soil borings. In the ER study, at stations 8 and 10, voids were encountered. The nature of those voids is unexplained by this investigative process. At station 8, the void was found at approximately 100 feet deep. At station 10, the voids were at 50 feet and 100 feet deep. At station 14, anomalous findings were explained as the placement of fill and organic material during land-clearing operations. The suggestion in the written report, which summarizes the findings in the ER investigation, that a water table was encountered at approximately 40 feet deep, coinciding with the top of the clay layer, is contrary to the findings in the soil borings. To the extent that finding is intended to suggest that there is a perched water table or surficial aquifer above the clay layer, that view is contrary to other evidence adduced at hearing and is rejected. Like the soil borings, the ER soundings examined very discreet areas, but revealed less discreet information. This investigative process is not designed by itself to resolve disputes concerning the character of the subsurface, taking into account statutory and rule requirements for issuing a general permit. To portray the subsurface conditions, in June 1995, Petitioners undertook another basic study by employing ground-penetrating radar (GPR) to reveal the subsurface conditions. Again, GPR, like ER, affords limited insight into the conditions in the subsurface. More precise information than is revealed in the results from the GPR study would be needed to understand the subsurface conditions. GPR is comprised of several pieces of equipment that are connected with cables and a power source. This equipment is mobile. It uses a transmitter and receiver antenna that essentially glides along the ground surface. A signal is emitted through the transmitter. It perpetrates into the ground. It is reflected off materials of different electrical properties back to the receiving antenna and charted. The record that is made is continuous. Unlike ER, GPR is capable of detecting small anomalies in the subsurface. In employing the equipment in this investigation, Petitioners' consultant was looking for either stratigraphic or water-table reflectors and anomalous conditions. The experience at this site was comparable to the experience at other sites in gaining an understanding of how geologic materials are deposited. The GPR investigation covered approximately 10 percent of the site. Four lines were traversed east to west. Two lines were traversed north to south, and two other lines were traversed on a diagonal. GPR will not significantly penetrate clay. Its ability to penetrate is dependent in some measure upon the nature of the clay unit encountered. However, GPR reveals contrasts in the conductivity of clay, when compared to the overlying sand. The greater the contrast, the greater the reflection event. In this connection, the presence of moisture can slow or prohibit the electromagnetic energy generated by GPR. The GPR study revealed a substantial number of subsurface anomalies that might be indicative of possible access for leachate generated by the placement of fill to enter the Floridan Aquifer. These anomalies might represent sand columns and cover subsidence sinkholes. Any sinkholes on the site would be expected to be "cover subsidence"- type sinkholes. Those sinkholes occur through a process in which overlying strata slowly subsides into the sub-adjacent karst feature, rather than suddenly collapsing. Sinkholes develop rarely, but pose more risk of development in areas where sinkholes have occurred previously. Sinkholes are not always seen at the land surface. Sinkholes can present a risk to ground water in the aquifer in view of solution cavities found in the limestone which is part of the aquifer, thus allowing leachate to flow through the cavities into the ground water. Some anomalies found in the GPR study were more significant. One that was observed in the third traverse was 100 feet wide by 80-90 feet deep. There is an indication that this area might be filled with sands, creating a more ready access to the lower subsurface than would be expected with other soils. Another anomaly discovered was 200-300 feet long and 400-500 feet wide, approximately 50 feet below the surface. Overall subsurface conditions are not readily understood. Watson, through its consultant, suggests that the site is part of the Newberry Sand Hills region of the Brooksville Ridge system. As such, karst activity has proceeded in a slower manner than other places in Alachua County, with no presently active karst conditions. In opposition, Petitioners assert that the site is part of the Brooksville Ridge System, which is an internally-drained area of karst-dominated highly fractured terrain, according to its consultants. If Petitioners are correct, those circumstances lead to solutioning of the limestone and are not indicative of area of continuous impermeable clay layers found at the site as part of the Hawthorne formation that Watson's consultant surmises. The exact nature of the site concerning factors that must be considered in this permit application have not been adequately resolved in this record. While it is sufficiently evident that the Floridan Aquifer is not confined, it is unclear whether the circumstances at the site present unacceptable risks to the ground water, in view of existing subsurface conditions. From the record, the proper manner to resolve the issue would be to perform more soil borings on the site proper to identify the subsurface conditions concerning soil stratigraphy and ground-water location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Watson the use of a general permit to operate the proposed C&D facility. DONE AND ENTERED this 7th day of August, 1996, in 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 7th day of August, 1996.
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
