The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 95-SE-0248 may be recovered from Petitioners pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Spill Response, Inc. (Spill Response) is a corporation which was formed in approximately 1986 or 1987, and is presently inactive and without any assets. At all times material to the instant case, George Gordon has been the sole owner, president and director of Spill Response, and, as such, has directed the operations of the corporation. Spill Response was previously in the oil spill response business, as its name suggests. At such time, it had an office in Port Everglades and stored its equipment on fenced and gated property located at 3211 Southwest 50th Avenue, Davie, Florida, on which approximately a dozen large aboveground petroleum storage tanks (surrounded by concrete containment areas) also were situated. At all times material to the instant case, the property located at 3211 Southwest 50th Avenue, Davie, Florida (FPR site) has been owned by Florida Petroleum Reprocessors, Inc. (FPR), an inactive corporation that previously was in the waste oil recovery business. The FPR site, which is presently FPR's only asset, is the subject of a pending foreclosure action initiated by Charles Green, who, at all times material to the instant case, has held a first mortgage on the property. At all times material to the instant case, George Gordon has been the president and director of FPR, and, as such, has directed the operations of the corporation. In the latter part of 1994, the storage tanks on the FPR site were no longer in commercial use. At that time, Gordon, on behalf of FPR, hired Fred Rice to clean and maintain the site in preparation for its closure. Rice was instructed to remove the petroleum residue and sludge from the tanks and from the containment areas. Rice engaged in these petroleum and sludge-removal activities on a part-time basis until the spring of 1995, when he stopped working on the project after not having received timely payment for work he had performed. Rice placed the petroleum residue and sludge that he had removed, as well the rags and other materials that he had used in the removal process, in 55-gallon drums. He filled approximately six or seven such drums. A number of other 55-gallon drums containing petroleum residue and sludge (that some person or persons other than Rice had filled) were already on the FPR site. Rice put the six or seven drums that he had filled on a truck that was parked on the site and had “Spill Response, Inc.” and “Florida Petroleum Reprocessors, Inc.” markings on its sides. The truck was owned by Spill Response and had been on the site for some time. It had no battery and was inoperable. Rice told Gordon that he had put the drums he had filled with petroleum residue and sludge on the Spill Response truck. The next time Gordon went the FPR site, in late May of 1995, he discovered that the locks on the gates had been changed and that there were vehicles and equipment on the property that did not belong there. Gordon telephoned the Davie Police Department to complain about the unauthorized use of the FPR site. A police officer was dispatched to the site to investigate. When the officer arrived on the scene, he encountered Gordon outside one of the gates. Although the gate was locked, Gordon and the officer gained access to the site by squeezing through an opening in the gate. Upon entering the site, they looked around. Based upon what they saw, they correctly "figured out" that Certified Crane and Rigging, Inc., d/b/a Certified Equipment Management Company (Certified) was storing its crane equipment and trucks on the site. At all times material to the instant case, Certified has been owned and operated by William "Skip" Walton. Walton is an acquaintance of the aforementioned Charles Green, the holder of the first mortgage on the FPR site. Certified's telephone number was painted on the equipment and vehicles it was storing on the FPR site. The police officer called the number and spoke with Walton. Following his telephone conversation with Walton, the officer informed Gordon that Walton had indicated, during the conversation, that he was leasing the FPR site from Green. Gordon advised the officer that he did not want to press criminal charges (for trespassing) against either Certified or Walton. Gordon subsequently telephoned Green. Green told Gordon that it was true that he had leased the FPR site to Walton. Green explained to Gordon that he "needed to earn some money from the property." (It had been some time since Green had received any mortgage payments from FPR or Gordon.) Gordon contacted his attorney to discuss with her what legal action, if any, he could take to regain possession of the FPR site and be compensated for the unauthorized use of the property. Gordon's attorney advised him that he "would have recourse if [he] wished to pursu[e] the matter in court," but that it might not be cost-effective for him to do so. Gordon took no action, "in court" or otherwise, to regain possession and control of the FPR site; nor did he take any action to retake possession and control of the Spill Response truck or the filled drums that were in the truck and elsewhere on the site. Furthermore, he made no effort to make sure that the drums and their contents were stored and disposed of properly, believing that the proper storage and disposal of these items were now the responsibility of the new occupant of the site. He did not return to the FPR site for over a year. On or about June 6, 1995, the Department was notified (after its regular business hours) that the Spill Response truck had been discovered abandoned on the side of the road a few blocks from the FPR site. The following day,1 Ann Meador, an Environmental Specialist III with the Department, went to the location where the truck had been abandoned and served as the Department's on- scene coordinator. The truck was in poor condition and still inoperable. It had been brought (not driven) to the location by someone other than Gordon. The truck contained 37 sealed 55-gallon drums, which were in poor condition (but not yet leaking) and had oil residue on the outside. It could not be reliably determined exactly what was in the drums without removing them from the truck and examining and analyzing their contents. Meador made arrangements for OHM Remediation Services Corporation (OHM), with whom the Department had a contract to perform such services on an emergency basis, to assist in the removal of the drums from the truck. OHM personnel (with "Level B" protective clothing and equipment) responded to the scene and removed all 37 drums from the Spill Response truck. After the drums were unsealed, their contents were examined and sampled to the extent possible2 (as were the contents of three additional drums which were filled with the "Level B" protective clothing and equipment that OHM personnel had used during the cleanup operation and then discarded). Each of the drums was assigned a number for identification purposes. To save time and money, samples from some of the drums were composited. The drums were then overpacked and taken to the Department’s hazardous waste storage facility in West Palm Beach, Florida. The Department paid OHM $7,046.93 from the Water Quality Assurance Trust Fund for the services OHM performed. In requesting OHM to perform these services and in paying OHM $7,046.93 for having done so, the Department acted reasonably and prudently. The amount it paid OHM was not excessive. The Department hired Laidlaw Environmental Services (Laidlaw) to analyze the samples that OHM had collected and to then properly dispose of the drums and their contents. Laidlaw's analysis revealed the following: drums numbered 1, 2, 3, 4, 5, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 34, 35, 36, 37, and 38 contained oily sludges, oil, oil mixed with water, or oily residues; drum numbered 6 contained benzene and had a flash point between 73 and 140 degrees Fahrenheit; drum numbered 29 contained benzene and lead and had a flash point of less than 73 degrees Fahrenheit; drums numbered 10 and 11 contained benzene and lead; drums numbered 7, 8, 31, 32, 33 and 39 contained benzene, lead, and cadmium. Laidlaw properly disposed of the drums based upon the results of its analysis. The Department paid Laidlaw $21,163.90 from the Water Quality Assurance Trust Fund for the services it performed. In requesting Laidlaw to perform these services and in paying Laidlaw $21,163.90 for having done so, the Department acted reasonably and prudently. The amount it paid Laidlaw was not excessive. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $129.82 in connection with its response to the report it had received concerning the abandonment of the Spill Response truck. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the drums on the truck properly removed and disposed of was $28,340.65. It was not until Gordon received a letter from the Department advising him of the costs the Department had incurred and requesting that Spill Response and he reimburse the Department for these costs that Gordon became aware of the fact that the truck and the drums had been moved from the FPR site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Petitioners, pursuant to Chapters 376 and 403, Florida Statutes, the $28,340.65 in costs the Department reasonably incurred in connection with its response to Incident Number 95-SE-0248. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998.
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation. Its president is William T. Lamsom. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby. Porthouse learned that Orchard View was the owner of the property on which the drums were located. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor." When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground." Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated). Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum. The samples that Magnum had collected from the drums were sent to the laboratory for analysis. The analysis revealed the following: drum number 11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number 2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2 The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was $6,525.13. The Department is requesting that Orchard View reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234. DONE AND ENTERED this 15th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1998.
The Issue The issues for determination in this matter are: (1) whether Petitioner, MW Horticulture Recycling Facility, Inc. (MW), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration; (2) whether Petitioner MW is an irresponsible applicant; and (3) whether Petitioner MW Horticulture Recycling of North Fort Myers, Inc. (MW-NFM), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and the Registration Denials Petitioner MW is a Florida corporation that operates an SOPF located at 6290 Thomas Road, Fort Myers, Lee County, Florida. The site is commonly referred to as the "South Yard." Petitioner MW-NFM is a Florida corporation that operates an SOPF located at 17560 East Street, North Fort Myers, Lee County, Florida. The site is commonly referred to as the "North Yard." The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of part IV of chapter 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Chapters 62-701 and 62-709. Pursuant to that authority, the Department determines whether to allow SOPFs to annually register in lieu of obtaining a solid waste management facility permit. On April 25, 2019, Petitioner MW submitted its application for registration renewal for the South Yard. On August 22, 2019, the Department issued a notice of denial. The listed reasons for denial focused on non-compliance with orders for corrective action in a Consent Order (Order) between Petitioner MW and the Department entered on February 22, 2019. The Order was entered to resolve outstanding violations in a Notice of Violation, Orders for Corrective Action and Administrative Penalty Assessment (NOV), issued on November 20, 2018. The notice of denial stated that, as of August 9, 2019, Petitioner MW had not completed the following corrective actions of the Order by the specified timeframes: (a) within 90 days of the effective date of this Order, Respondent shall remove all processed or unprocessed material (yard trash) from the Seminole Gulf Railway Right of Way and the swale along Old US 41 and establish a 20 foot wide all-weather access road, around the entire perimeter of the site; (b) within 90 days of the effective date of this Order, Respondent shall reduce the height of the piles to a height that the facility’s equipment can reach without driving (mechanically compacting) onto the processed or unprocessed material; and (c) within 90 days of the effective date of this Order, Respondent shall have all the processed and unprocessed material be no more than 50 feet from access by motorized firefighting equipment. The notice of denial also stated that when Department staff conducted compliance visits on April 29, 2019, June 27, 2019, July 7, 2019, and July 18, 2019, the following outstanding violations were documented: (a) unauthorized open burning of yard waste; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) an all-weather access road, at least 20 feet wide, around the perimeter of the Facility has not been maintained and yard trash has been stored or deposited within the all-weather access road; and (d) yard trash is being stored more than 50 feet from access by motorized firefighting equipment. On April 25, 2019, Petitioner MW-NFM submitted its application for registration renewal for the North Yard. On August 22, 2019, the Department issued a notice of denial. The notice of denial stated that compliance and site observation visits were conducted on July 9, 2019, July 30, 2019, August 1 and 2, 2019, and the following non-compliance issues were documented: (a) unauthorized open burning; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) yard trash received has been stored or disposed of within 50 feet of a body of water; and (d) yard trash received is not being size-reduced or removed, and most of the unprocessed yard trash has been onsite for more than six months. The notice of denial also stated that on March 27, 2018, May 10, 2018, and October 3, 2018, Department staff conducted inspections of the North Yard. A Warning Letter was issued on November 2, 2018. The Warning Letter noted the following violations: (1) unauthorized burning of solid waste; (2) the absence of the required 20-foot-wide all-weather perimeter access road along the southern unprocessed yard trash debris pile; (3) inadequate access for motorized firefighting equipment around the southern unprocessed yard trash debris pile (lake pile); (4) the lake pile not size-reduced or removed within six months; (5) mechanical compaction of processed and unprocessed material by heavy equipment; and (6) yard trash storage setbacks from wetlands not maintained. Petitioners' SOPFs The North Yard is located in North Fort Myers and is bound by the southbound lanes of Interstate 75 to the east and a lake to the west. The South Yard is slightly larger than the North Yard and abuts Thomas Road to the west and a railroad owned and operated by the Seminole Gulf Railway Company to the east. Petitioners' facilities accept vegetative waste and yard trash (material) from the public in exchange for a disposal fee before processing and size-reducing the material into retail products such as organic compost, topsoil, and mulch. The unprocessed material is staged in various piles generally according to waste type until it can be processed by grinding or screening. As of the date of the final hearing, both the North Yard and the South Yard were completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meander between the piles themselves. As the material in the piles decomposes, heat is produced from the respiration and metabolization of organic matter. This heat ignites the dry material and can cause substantial fires. Both the North Yard and South Yard are susceptible to fires caused by spontaneous combustion as a result of their normal operations of collecting and stockpiling organic waste. Fires Although spontaneous combustion is an inherent risk with SOPFs, the evidence at the hearing established that the material at Petitioners' facilities catches fire at an abnormally high rate as a result of poor pile management. Piles need to be turned and wetted to keep down incidents of spontaneous combustion. Monitoring temperatures, rotating the piles, and removing the material at a faster rate would help reduce the incidence of fires. Large piles with no extra land space cannot be managed in a way "to aerate and keep the temperatures at a level where you're not going to have spontaneous combustion." See Tr. Vol. I, pg. 32. Fire Marshal Steve Lennon of San Carlos Park Fire and Rescue regarded the South Yard as a fire hazard compared to other similar sites in his district. He testified that the pile heights, widths, and lengths at the South Yard are not in compliance with applicable fire-code size requirements. He also testified that if the pile sizes were in compliance, Petitioner MW would not have to put their motorized firefighting equipment on top of the piles "because [they] would be able to reach it from the ground." See Tr. Vol. I, pg. 41. As of the date of the hearing, San Carlos Park Fire and Rescue had responded to 43 active fire calls at the South Yard in the last two years, and three times in 2020 alone. In 2018, the active fire calls at the South Yard were multi-day suppression operations. In 2019, the active fire calls were mostly hotspots and flare-ups. Captain Doug Underwood of the Bayshore Fire Rescue and Protection Service District (Bayshore Fire District) testified that his department had responded to approximately 75 fire calls at the North Yard in the last two years. The most common cause of the fires was spontaneous combustion. The piles were not in compliance from a size standpoint. Captain Underwood testified that the majority of the 75 calls were to the lake pile at the North Yard. See Tr. Vol. I, pg. 59. The lake pile was a temporary site on the southern end of the lake that borders the North Yard, and for most of 2018 and 2019, contained debris from Hurricane Irma.1 The lake pile temporary site was completely cleared by the time of the hearing. Captain Underwood testified that in 2018, he recommended to Petitioners that they engage the services of an expert fire engineer. Petitioners engaged Jeff Collins who met with Captain Underwood on multiple occasions. They discussed how to address fires and hotspots and that the facilities should have a written fire protection safety and mitigation plan. Such a plan was created and Captain Underwood was satisfied with its provisions. Although the lake pile temporary site was completely cleared by the time of the hearing, it was not an entirely voluntary effort on Petitioners' part. Captain Underwood testified that Petitioners' "initial plan of action was to leave it there for . . . eight months or greater, depending on the time frame needed to have the product decompose and cool down to a temperature that they could remove it." See Tr. Vol. I, pg. 83. It took Lee County code enforcement efforts "to compel MW to remove this material off-site as quickly as possible." See Tr. Vol. I, pg. 82. 1 Throughout this proceeding, the lake pile was referred to by various names in testimony and exhibits, such as, "southern unprocessed yard trash debris pile," "lake yard," "trac[t] D," and "temporary site." As recently as February 12, 2020, a large pile of hardwood, green waste, and compost at the North Yard caught fire as a result of spontaneous combustion. The size of the fire was so large and hot that the Bayshore Fire District could not safely extinguish the fire with water or equipment, and allowed it to free-burn openly for 24 hours in order to reduce some of the fuel. The fire produced smoke that drifted across the travel lanes of Interstate 75. The free-burn allowed the pile to reduce in size "down to the abilities of the district and the equipment on-site." See Tr. Vol. I, pgs. 51-52. Captain Underwood testified that "once we started putting water on it, then the MW crews with their heavy equipment covered the rest of the smoldering areas with dirt." See Tr. Vol. I, pg. 56. Rule Violations By Petitioners' own admission, the facilities have repeatedly violated applicable Department rules throughout the course of their operations over the last two and one-half years. The most pertinent of these violations center around the Department's standards for fire protection and control to deal with accidental burning of solid waste at SOPFs. Renee Kwiat, the Department's expert, testified that the Department cited the South Yard nine times for failing to maintain a 20-foot all-weather access road. The South Yard consistently violated the requirement to maintain processed and unprocessed material within 50 feet of access by motorized firefighting equipment, and the North Yard has violated this requirement twice. The North Yard consistently violated the requirement to size-reduce or remove the lake pile material within six months. Both the North Yard and South Yard were cited multiple times for mechanically compacting processed and unprocessed material. Following a period of noncompliance and nearly 11 months of compliance assistance at the South Yard, Petitioner MW told the Department it would resolve all outstanding violations by July 1, 2018. The July 1, 2018, deadline passed and on October 18, 2018, the Department proposed a consent order to resolve the violations at the South Yard. However, Petitioner MW did not respond. On November 20, 2018, the Department issued the NOV to Petitioner MW regarding the South Yard. The violations included failure to maintain a 20-foot all-weather access road around the perimeter of the site, failure to ensure access by motorized firefighting equipment, mechanical compaction, and the unauthorized open burning of solid waste. On February 22, 2019, the Department executed the Order with Petitioner MW to resolve outstanding violations in the NOV. By signing the Order, Petitioner MW agreed to undertake the listed corrective actions within the stated time frames. Compliance visits to the South Yard on April 29, 2019, June 7, 2019, June 27, 2019, July 18, 2019, and August 22, 2019, documented that many violations outlined above were still present at the site. At the time of the final hearing, the preponderance of the evidence established that none of the time periods in the Order were met. The preponderance of the evidence established the violations listed in paragraphs 5 and 6 above. At the time of the final hearing, the preponderance of the evidence established that Petitioner MW still had not reduced the height of the piles such that their equipment could reach the tops of the piles without driving (mechanically compacting) onto the processed or unprocessed material. Thus, all the processed and unprocessed material was not more than 50 feet from access by motorized firefighting equipment. At the time of the final hearing, the preponderance of the evidence established more incidents of unauthorized open-burning of solid waste; and continuing unauthorized mechanical compaction of processed and unprocessed material. The evidence also established that the South Yard does not encroach on Seminole's real property interest. The Department did not issue an NOV for the North Yard. The preponderance of the evidence established that there were repeated rule violations at the North Yard. These violations formed the basis for denying the North Yard's registration as outlined in paragraph 8 above. The Department deferred to Lee County's enforcement action for violations of County rules as resolution of the violations of Department rules. At the time of the final hearing, however, the preponderance of the evidence established more incidents of unauthorized open burning of solid waste, and continuing unauthorized mechanical compaction of processed and unprocessed material at the North Yard. Petitioners' Response and Explanation Approximately two and one-half years before the date of the hearing in this case, Hurricane Irma, a category four hurricane, made landfall in the state of Florida. It was September 10, 2017, and Hurricane Irma significantly impacted the southwest coast of Florida, where Petitioners' facilities are located. Hurricane Irma caused extensive damage, including the destruction of trees, vegetation, and other horticultural waste which required disposal. Massive amounts of such yard waste and horticultural debris were deposited on roadways and streets throughout Lee County, creating a significant issue that needed to be addressed by local governments, and state and federal agencies. Due to the threat posed by Hurricane Irma, the state of Florida declared a state of emergency on September 4, 2017, for every county in Florida. This state of emergency was subsequently extended to approximately March 31, 2019, for certain counties, including Lee County, due to the damage caused by Hurricane Irma. An overwhelming volume of material needed to be processed and disposed of following Hurricane Irma. The Petitioners' facilities were inundated with material brought there by Lee County, the Florida Department of Transportation, the Federal Emergency Management Agency, and others. After Hurricane Irma, haulers took considerable time just to get the materials off the streets, and processors like the Petitioners, ran out of space because there was limited space permitted at the time. As a result, these materials stacked up and had to be managed over time at facilities, including Petitioners' facilities. To accommodate the material, Petitioner MW-NFM added the temporary site that was labeled the "lake pile" or "southern unprocessed yard trash debris pile" in Department inspection and compliance reports of the North Yard. In order to address the volume of material on the site after Hurricane Irma, Petitioner MW-NFM requested approval from the Department to move the material off-site to other locations in order to reduce the size of the piles at the North Yard's lake pile. For reasons that remain unclear, such authorization was not obtained, and Petitioner MW-NFM believes that this would have size-reduced the piles and prevented accumulation of material in violation of Department rules. In order to process the North Yard's lake pile and move it off-site more quickly, Petitioner MW-NFM requested permission from Lee County and the Department to grind unprocessed material on site, which would have size-reduced the lake pile and allowed it to be moved off-site more quickly. Because existing zoning did not authorize this grinding, the request was denied in spite of the fact that a state of emergency had been declared which Petitioner MW-NFM believes would have permitted such an activity. This further hampered Petitioner MW-NFM's ability to size-reduce the lake pile leading to more issues with hot spots and fires. Because the material was of such volume, and was decomposing, a major fire erupted in 2018 at the North Yard's lake pile. Petitioners' fire safety engineer, Jeff Collins, wrote reports to address this issue and recommended to the local fire department that the pile be smothered in dirt until the fire was extinguished. The request was denied by the Bayshore Fire District, which instead directed that Petitioners break into the pile in order to extinguish the fire. When Petitioners did so, the piles immediately erupted into flames as predicted by Petitioners' fire safety engineer. Moving the smoldering material to the South Yard also led to fires at the South Yard. In spite of the large volume of material at the North Yard's lake pile, Petitioners made steady progress in size reducing the material and moving it off-site. However, as of the date of the final hearing, both the North Yard and the South Yard were still completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meandered between the piles themselves. Mechanical Compaction Each party presented testimony regarding the question of whether Petitioners' facilities violated the prohibition that any processed or unprocessed material shall not be mechanically compacted. The parties disagreed over how the prohibition against mechanical compaction was applied to yard trash transfer facilities. In March of 2018, Petitioners' representative, Denise Houghtaling, wrote an email to the Department requesting clarification of the Department's definition of "mechanical compaction" because it is undefined in the rules. On April 3, 2018, Lauren O' Connor, a government operations consultant for the Department's Division of Solid Waste Management, responded to Petitioners' request. The response stated that the Department interprets "mechanical compaction" as the use of heavy equipment over processed or unprocessed material that increases the density of waste material stored. Mechanical compaction is authorized at permitted disposal sites and waste processing facilities, but is not permissible under a registration for a yard trash transfer facility.2 Mechanical compaction contributes to spontaneous combustion fires, which is the primary reason for its prohibition at yard trash transfer facilities. Petitioners' interpretation of mechanical compaction as running over material in "stages" or "lifts" was not supported by their expert witnesses. Both David Hill and Jeff Collins agreed with the Department's interpretation that operating heavy equipment on piles of material is mechanical compaction. The persuasive and credible evidence established that Petitioners mechanically compact material at their facilities. Mechanical compaction was apparent at both sites by either direct observation of equipment on the piles of material, or by observation of paths worn into the material by regular and repeated trips. Department personnel observed evidence of mechanical compaction on eight separate inspections between December 2017 and January 2019. Additional compaction was observed at the South Yard on June 7, 2019, and in aerial surveillance footage from August 28, 2019, September 5, 2019, January 30, 2020, and February 12, 2020. Petitioners' fire safety engineer, who assisted them at the North Yard lake pile, testified that the fire code required access ramps or pathways for equipment onto the piles in order to suppress or prevent fire. However, Captain Underwood and Fire Marshal Lennon testified they do not and have never required Petitioners to maintain such access ramps or paths on the piles. The fire code provision cited by Petitioners' expert does not apply to their piles. See Tr. Vol. II, pgs. 78-80. In addition, Fire Marshal Lennon testified that placing firefighting equipment on top of piles is not an acceptable and safe way to fight fires at the site by his fire department. 2 Rule 62-701.710 prohibits the operation of a waste processing facility without a permit issued by the Department. See also Fla. Admin. Code R. 62-701.803(4). Rule 62- 701.320(16)(b) contemplates the availability of equipment for excavating, spreading, compacting, and covering waste at a permitted solid waste disposal facility. Despite receiving clarification from the Department in April of 2018, Petitioners choose to ignore the Department's prohibition against mechanically compacting unprocessed or processed material piles. In addition, the persuasive and credible evidence suggests that Petitioners blanket the piles with dirt to both suppress fires and accommodate the "access roads" or "paths" on the piles.3 Ultimate findings The persuasive and credible evidence established the violations cited in the Department's registration denial for the North Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established the violations cited in the Department's registration denial for the South Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established that Petitioners did not consistently comply with Department rules over the two and one-half years prior to the final hearing. However, Petitioners established through persuasive and credible evidence that because of the impacts of Hurricane Irma, and the subsequent circumstances, they could not have reasonably prevented the violations. The totality of the evidence does not justify labeling the Petitioners as irresponsible applicants under the relevant statute and Department rule. However, Petitioners did not provide reasonable assurances that they would comply with Department standards for annual registration of yard trash transfer facilities. 3 The evidence suggests that Petitioners may prefer to follow the advice of their hired experts with regard to the practice of mechanical compaction and blanketing the piles with dirt. See, e.g., Petitioners' Ex. 16. However, the evidence suggests that the experts' level of experience is with large commercial composting and recycling facilities that may be regulated by solid waste management facility permits and not simple annual registrations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioners' annual registration renewal applications for the North Yard and South Yard. DONE AND ENTERED this this 17th day of September, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2020. COPIES FURNISHED: Clayton W. Crevasse, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Sarah E. Spector, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Carson Zimmer, Esquire Department of Environmental Protection Mail Station 49 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Findings Of Fact On January 31, 1979, Respondent Okaloosa County Board of County Commissioners filed an application with the Northwest Florida District Office of Respondent Department of Environmental Regulation (DER) to construct a solid waste resource recovery and management facility near Baker, Florida at the intersection of State Road 4 and State Road 4B. The proposed facility would be a sanitary landfill approximately 36 acres in size which would receive solid waste for disposal from the municipalities of Baker, Milligan, Holt, Crestview, and Blackman. Approximately six to eight additional acres at the site were previously used by the County as a dump for household trash and garbage for a period of approximately eight years. Some of the waste was burned and the remainder was buried. (Testimony of Rogers, Long, Exhibit 1) The proposed landfill is located in a rural area primarily used for agriculture which is sparsely populated. The site is surrounded by forested lands but some recent removal of trees has opened a portion of the site to public view from State Road 4. The land at the site slopes gradually in a west- east direction, and the slope is more pronounced on county land adjoining the east border of the site for a distance of about 900 feet. At this location, several springs form the headwaters of Mill Creek which flows cast through two lakes located on about 224 acres of private property owned by Petitioners Donald C. and Mary Ann Long. Mill Creek becomes a defined water course after leaving the Long property and flows into the Yellow River which is approximately two and one-half miles from the Mill Creek headwaters. The Yellow diver flows some 10 to 20 miles into Blackwater Bay near Milton. A shallow well from which potable water 15 obtained is located on the Long property but not within 1,000 feet of the landfill site. (Testimony of Rogers, Long, Exhibits 1-2) The applicant intends to use the trench method in disposing of solid waste. Trenches will be excavated to a depth of about 15 feet, but in no case will the bottom of a trench be underlain by less than two feet of the "fine sandy loam" which occurs in a layer of varying depth beneath the overlying Lakeland sand soil. Test holes dug in the landfill site indicate that the bottom of the "fine sandy loam" layer in depths of some three to twelve feet is located about eighteen feet below the surface of the ground. The applicant intends to check at 100 foot intervals while digging trenches to insure that at least two feet of that material underlies the trench bottom. If not, sufficient additional amounts of the material will be placed in the trench and compacted to make a two-foot thick layer. There will be a distance of 50 feet between centers of trenches. The trenches will be 30 feet wide at the top and 15 feet wide at the bottom. The bottom of each trench will have a slope of less than 5 percent designed to drain the trenches and lifts of rainwater before they are filled. The upper lift will vary in depth from 5 to 7 feet depending upon the final contour desired. Wastes will be deposited either at the top or bottom of the working face of the trench and will be spread by a crawler tractor in two foot layers and then compacted. Compacted waste will be covered daily with one foot of soil and a final cover of at least two feet of sandy clay material will be obtained from a county borrow pit adjacent to the landfill and placed over trenches to prevent the movement of water into the buried solid waste. (Testimony of Rogers, Edmisten, Exhibits 1-2) The applicant plans to construct a barrier to contain the movement of leachate along the eastern border of the landfill which will be a minimum of five feet wide and as deep as necessary to "tie-in" with the existing layer of "fine sandy loam" beneath the site. The barrier is designed to prevent leachate from moving horizontally downslope toward Mill Creek. The barrier material will be compacted, but not the sides of the trenches. (Testimony of Rogers, Edmisten) The groundwaters under the site are from 55 to 65 feet below the surface of the land. Although the elevation of groundwaters normally will follow the contour of the land surface, borings at the site have not been made to the depth of the watertable. The approximation of the depth of the groundwaters was obtained from data of two monitoring wells located on county land directly east of the proposed landfill site. Twenty-four holes were dug across the site to determine the location of the "fine sandy loam" soil layer which exists below the surface. Eight additional holes were dug to obtain samples of the material for a texture analysis. In its natural state, this material has a permeability rate of about 2.5 to 5 inches per hour. After compaction, the permeability rate will be about .02 to .2 inches per hour. No permeability rate is required by pertinent DER regulations for liner material. Recent soil tests of material taken from the county borrow pit some 200 yards west of the landfill site showed a permeability rate of .004 inches to .0027 inches per hour. A recent sample taken from the bottom of an existing pit at the landfill reflected a permeability rate of .01 inch per hour. Proposed guidelines of the U.S. Environmental Protection Agency contemplate a permeability rate of only .00014 inches per hour for liner materials to restrict the rate of flow of leachate from the bottom of a landfill. The material proposed to be used by the applicant for liner material therefore will permit fairly rapid movement of leachate through the sides and bottoms of trenches, and under the eastern barrier. Further, the coarser sand underlying the "fine sandy loam" liner layer has a much higher permeability rate. As a result, an unknown amount of leachate will eventually reach the groundwater table and flow laterally downslope in an easterly direction. Leachate generation will be impeded by the vegetated, relatively impervious final top layer over the landfill, the wedge of soil located between each trench, and the eastern barrier. These measures will serve also to attenuate suspended solids in the leachate, but not organic materials and most metals. There will also be a certain amount of dilution after any leachate reaches the groundwater table. (Testimony of Rogers, Edmisten, Meister, Tomlinson, Exhibits 1-2, 5, 7) Water samples taken from in and around the area of the springs located both on county and private property to the east and from wells in the general area show that the water generally is of high quality. There is no indication that past landfill operations at the site have degraded the water quality in the vicinity of the nearby creeks, ponds and wells. (Testimony of Meister, Rogers, Long, Exhibits 1-2, 8-9) The applicant plans to control surface runoff and any consequent erosion by means of terraces, berms, and swales. However, other than notations on engineering plans of provision for a highway drainage swale, no design of such items is shown in the application. Prior erosion in the area has been satisfactorily corrected in the past by the county by the use of similar methods to those planned for the landfill site. (Testimony of Rogers, Long, Exhibit 2) The application was reviewed by DER's Southwest District permitting engineer. He found that the application and supporting documents met the statutory and regulatory criteria for the issuance of a construction permit. However, soil borings did not extend at least ten feet below the proposed excavations. (Testimony of Diltz, Exhibit 2) By letter of March 27, 1979, the Northwest District Manager of DER issued a Notice of Intent to issue a construction permit for the proposed sanitary landfill under standard and special conditions. The special conditions required construction of two approved monitoring wells east of the landfill and analysis of water samples from the wells and from a surface water sampling point in the headwaters of Mill Creek prior to issuance of an operation permit. A further condition required the applicant to submit verification that the bottoms of trenches contained at least two feet of the material specified in the application. At the hearing, DER and Okaloosa County submitted a stipulation wherein they agreed that additional monitoring wells should be placed upgradient from the site, at the downstream boundary of the first trench, at the north end of the clay barrier, and immediately east of boring number 8 prior to issuance of an operation permit. The conditions further required that well logs will be kept on all monitoring wells and reports on soils, geology and groundwater elevation he submitted to DER prior to issuance of an operating permit. Further, any identification of leachate contamination in the wells by a method to be spelled out in any operation permit will require extension of the earthen barrier west to State Road 4. Finally, a special condition required that the bottom lining material of all trenches and the barrier must be compacted prior to the issuance of an operating permit. (Exhibit 4)
Recommendation That the requested permit be issued to the Okaloosa County Board of County Commissioners as herein specified. DONE and ORDERED this 28th 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 Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Douglas H. MacLaughlin, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Wright Moulton, Esquire Post Office Box 591 Pensacola, Florida 32593 John R. Dowd, Esquire Okaloosa County Attorney Post Office Box 1964 Ft. Walton Beach, Florida 32548
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
Findings Of Fact The Department (DER) is the regulatory agency of Florida charged with the duty and authority to administer and enforce Chapter 403 and Sections 376.30-376.319, Florida Statutes, and rules and regulations promulgated thereunder. Hendry is a Florida corporation that has been conducting business in excess of 60 years. The two main aspects of its business are the dredging operation and the shipyard. Hendry's site can be loosely described as an industrial site. The shipyard division performs approximately one-half its work for governmental entities, particularly the U.S. Coast Guard, which operations are largely ship refurbishing. Hendry has a Coast Guard certificate enabling it to receive mixtures containing oil and oily water waste. A significant portion of Hendry's ship refurbishing work involves repairing/replacing steel on ships which has deteriorated due to salt water exposure. That work frequently requires cutting, welding and burning. Prior to commencing the refurbrushing work, the ships must be certified as safe. In certifying a ship as being safe, the bilge area is pumped of used oil or waste oil which collects in standing waste water and oil. Also, before that works commences, the ship is defueled. Currently, Hendry's practice is to subcontract the pumping of waste oil from the ships bilge, which waste oil is pumped directly into the tanker truck of the subcontractor. Hendry no longer pumps or stores waste oil on site. In the past, the waste oil and water from the ship's bilge was pumped from the ship through a pipeline from the dry dock across the property to a 10,000 gallon above-ground storage tank. During December 1987, the U.S. Coast Guard observed a fuel spill on the water at Petitioner's facility. Based on that observation, Respondent conducted site inspections of Petitioner's facility during March and April 1988. The fuel spill was occasioned by Petitioner's refurbishment of a tuna boat at its site. Petitioner subsequently received a warning notice regarding alleged violations in its petroleum storage tanks and contamination. The transfer pipeline is of steel construction. Between 1980 and 1984, the pipeline leaked. In 1984, the pipeline was rerun with PVC line and in 1986, it was refitted with 4 inch steel pipe. The 10,000 gallon above-ground tank is located in Area 1. The removal of waste oil occasionally resulted in accidental spills. After 1985, a smaller, above-ground tank was installed adjacent to the 10,000 gallon tank to provide a storage tank for draining off water from the 10,000 gallon tank. The small tank was used to receive only water drained from the 10,000 gallon tank. Prior to installation of the small tank, a retention pond was used to drain water from the 10,000 gallon tank. The retention pond had a 2 foot berm with a visqueen liner. In October 1988, Hendry submitted an EDI Program Notification Application, a prerequisite for EDI reimbursement eligibility, under the program for costs associated with cleanup of certain petroleum contamination. In May 1989, Hendry submitted a document entitled Preliminary Contamination Assessment III Specific Areas--Task IV Rattlesnake Terminal Facility--Westshore Boulevard, Hillsborough County prepared by Mortensen Engineering, Inc. That document included reports of analysis of oil and groundwater samples taken from the site in January, March and April 1989, demonstrating extensive contamination of soil and groundwater including "free product" in monitoring wells MW-2, MW-4 and MW-4A. By letter dated November 9, 1989, the Department informed Hendry of its determination that the facility had been denied EDI reimbursement based on specific enumerated findings. Hendry entered into a stipulation with the Department on October 16, 1990, "regarding the conduct of this case and the basis for denial. " Attached to the stipulation is a sketch of the facility grounds showing a rough division of the area into four separate areas. Area 1 has two waste tanks. One was a large 10,000 gallon closed tank approximately 20 feet high and 12 feet in diameter; the other contained a volume of approximately 1,500-2,000 gallons and was an open tank. Petitioner's practice was to pump bilge in the dry dock area, located west of "Area 2" and direct the waste through underground pipes to the 10,000 gallon tank. The smaller tank was used to "bleed" water from the larger tank. Bilge waste is approximately two-thirds water. Area 2 was the location of Hendry's diesel tank farm. In the stipulation, the Department agreed to withdraw two of the seven specific grounds for the denial, namely denial of site access and failure to report discharges. Likewise, Hendry agreed to withdraw "Area 4" from its application for EDI eligibility. In the stipulation, Hendry was informed of a then recent amendment to Section 376.3071(9), which offered certain applicants who had been earlier determined ineligible for participation in the EDI program, standards and procedures for obtaining reconsideration of eligibility. The amendment required the facility to come into compliance, certify that compliance and request reconsideration prior to March 31, 1991. Additionally, compliance was to be verified by a Department inspection. Pursuant to paragraph 5(b) of the stipulation, these standards and procedures were specifically to be applied to Areas 2 and 3 at the facility. Hendry did not make a written request for reconsideration of the denial of eligibility with respect to Areas 2 and 3 on or before March 31, 1991 or at anytime subsequently. Hendry also did not come into compliance with the underground or above-ground storage tanks system regulations on or before March 31, 1991 in that Hendry failed to register a 560-gallon above-ground diesel storage tank which was onsite on that date as required by Rule 17-762.400, Florida Administrative Code. Hendry also failed to notify the Department of the Hillsborough County Environmental Protection Commission (HCEPC), as the administrator of a designated local program at least thirty days prior to closure of the storage tank system, pursuant to Subsection 376.3073, Florida Statutes. These determinations were made on April 1, 1991 by Hector Diaz, inspector in the HCEPC tanks program. Hendry submitted a registration form for the 560-gallon tank on November 18, 1991, which was of course subsequent to the March 31, 1991 deadline. Hendry stored petroleum products and waste material including petroleum constituents in the above-ground tanks until approximately March 25, 1991 when it initiated tank removal. Hendry's above-ground storage tanks, which were in use at its facility for approximately three years after extensive soil contamination was documented, were without secondary containment. In November 1991, Hendry submitted a document entitled Supplemental Preliminary Contamination Assessment Report, prepared by Keifer-Block Environmental Services, Inc. (Supplemental PCAR). The stated purpose of the study was solely to determine whether hazardous constituents were present in groundwater in Areas 2 and 3. The report included laboratory analysis of groundwater samples taken from the site in August 1991 including monitoring wells located in Area 3. The results of these analysis reflect that Area 3 is contaminated solely with heavy metals, lead and chromium. No petroleum hydrocarbon contamination was detected in Area 3. In the area adjacent to Area 2, seven of eight monitoring wells show chromium or lead contamination. Hendry had, and continues to have, a practice of removing paint from vessels by blasting them with a gritty material known as "black beauty." This practice takes place in the dry dock area near Areas 2 and 3. The waste blast grit/paint chip mixture is vacuumed or shoveled into wheelbarrels or a frontend loader and dumped into an open pile. Occasionally, the waste blast grit/paint mixture is blown about or spilled. Waste "black beauty" has been observed scattered on the ground throughout the facility. Paints sometime contain heavy metals, specifically, lead and chromium. The concentrations and distribution of lead and chromium contamination at the site are consistent with Hendry's long-standing practice of grit-- blasting paint from ships and other vessels and allowing the metal-contaminated paint and waste mixture to fall to the ground. Areas 2 and 3 are contaminated with substances other than petroleum or petroleum products, namely heavy metals. Costs associated with cleanup of lead and chromium are not reimburseable under the EDI program. Paragraph 5(c) of the stipulation allowed Hendry an opportunity to establish eligibility for Area 1 by providing information regarding operating practices at two above-ground storage tanks and a retention pond in that area demonstrating that contamination in that area is predominantly from leaks or unintentional spills of petroleum products from the tanks in that area. Hendry did not provide the required information. On January 27, 1992, Hendry submitted to the Department an affidavit executed by its principal, Aaron Hendry, which Hendry contends fulfills the requirements of paragraph 5(c) of the stipulation. Hendry, the principal who executed the affidavit, is an affiant with a legal and financial interest in the outcome of the EDI eligibility determination. The executed affidavit did not contain specific information with respect to "operating practices at the tanks and retention ponds as required by the stipulation." Specifically, the affidavit is silent as to: What the tanks were made of; When, how and by whom they were installed; What piping, leak detection or overfill protection was associated with them; What repairs or alterations had been made to them; What inventory reconciliation methods were used; Where the materials came from which was put into the tanks; In what manner, how often, and by whom material was put into the tanks; In what manner, how often, and by whom material was removed from the tanks; Disposition of material removed from the tanks; When, how, by whom and why the retention pond was dug; How and for what period of time the retention pond was used; How, often and by whom inspections of the tanks were conducted; When and how leaks occurred and were discovered at the tanks; When and how spills occurred and were discovered at the tanks; What records, including reports to state or local agencies, insurance claims, newspaper accounts, and so forth were kept with respect to leaks or spills at the tanks; What cleanup efforts were made at the time of any leaks or spills; Documentation related to registration of the tanks with state or local agencies; and Documentation with respect to any removal of the tanks, including any description of the condition of the tanks when, or if, removed. For years, the facility's retention pit was used as a "waste pit" namely, a rectangular hole in the ground, approximately 30 feet by 120 feet by 3 feet, for direct discharge of bilge waste piped from vessels at the dry dock area to the waste pit, prior to installation of the storage tank systems. After installation of the large tank in Area 1, the retention pit was used to bleed water from the bilge tank. In the past, the Department has denied eligibility to facilities where a retention pond was used for disposal of petroleum related waste and cleanup of contamination resulting from use of a retention pond. Hendry's affidavit nor other documentation submitted to the Department prior to the EDI redetermination or at hearing establishes that the bilge waste taken from the storage tanks was "a liquid fuel commodity" or recycled into such a commodity. By letter dated June 9, 1992, the Department notified Hendry that reconsideration of its EDI eligibility request for Areas 2 and 3 was denied and that the affidavit of Aaron Hendry submitted with respect to Area 1 did not satisfy the requirements of the stipulation. Thereafter, Hendry challenged the Department's denial of reconsideration and EDI eligibility which joins the issue for this proceeding. The hazardous waste allegation discovered during an inspection of Hendry's facility on April 14, 1988, resulted in a consent order which was entered as a final order of the Department on November 21, 1990. The consent order allowed Hendry an opportunity to demonstrate that not all areas at the facility were hazardous waste disposal areas and, thus, not all areas would be subject to closure and cleanup under the permitting requirements of Subsection 403.722, Florida Statutes and the remediation standards set forth in Chapter 17-730, Florida Administrative Code. To establish appropriate remediation standards and procedures which would be applicable to various areas, Hendry was required to prepare a property diagram designating areas at the property exhibiting any of the following types of contamination: Areas contaminated solely by petroleum or petroleum products or used oil which is not hazardous waste; Areas contaminated by materials which are not hazardous waste; Areas contaminated by the past or present disposal of hazardous waste. The consent order allows contamination assessment and remediation pursuant to the standards and procedures set forth in Chapter 17-770, Florida Administrative Code, for areas contaminated solely by petroleum or petroleum products. (Petitioner's Exhibit 5, paragraph 11.) The consent order requires contamination assessment and remediation pursuant to the Department's corrective action and groundwater contamination cases for all areas at the facility contaminated by used oil which is not hazardous waste or by hazardous material. (Petitioner's Exhibit 5, paragraph 12.) The consent order requires contamination assessment and remediation pursuant to a closure permit with a contingent post-closure plan to close the areas at the facility contaminated by the disposal of hazardous waste. In response to the consent order to delineate areas on the property exhibiting various types of contamination, Hendry submitted the supplemental PCAR. By letter dated March 19, 1992, the Department responded to the supplemental PCAR with a determination that: Area 1 can be assessed and remediated through the standards set forth in Chapter 17-770, Florida Administrative Code. Contamination in Areas 2 and 3 includes heavy metals, which are hazardous materials. Thus, Areas 2 and 3 should be assessed and remediated through the corrective action process for groundwater contamination cases. A hazardous waste facility closure permit application should be submitted for assessment and remediation of Area 4, which, because of the presence of Dichloroethylene, a hazardous substance and chlorinated solvent, should be expanded to include the location of monitoring well MW KBMW-2. Hendry had a practice of cleaning electrical motors by placing such motors on the ground outside the electrical repair shop near Area 4. The motors were sprayed with Trichloroethylene, a waste solvent, which was allowed to runoff into the soil. At the time of this practice, the intention was to leave the solvent contamination unchecked. The Department, pursuant to directives from the United States Environmental Protection Agency (EPA), characterizes the disposition of hazardous waste to the environment as a result of intentional, ongoing industrial practices as "disposal of hazardous waste" within the meaning of Subsection 475.703(21), Florida Statutes and 40 CFR 260.10. The consent order allowed Hendry an opportunity to challenge the Department's determination with respect to delineation of the various areas by filing a petition per paragraph 21 of the order for formal administrative hearings. Hendry filed its petition with respect to the March 19, 1992 letter, which petition is the subject of DOAH Case No. 92-2312.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent, Department of Environmental Regulation, issue a Final Order in these consolidated cases concluding that 1) the contamination areas at issue herein are not eligible for EDI reimbursement under Subsections 376.3071(9) and (12), Florida Statutes; 2) that Petitioner cleanup the contamination in Areas 1, 2 and 3 under the guidance document entitled "Corrective Actions for Groundwater Contamination Cases"; and 3) that Area 4 be expanded to include the location of monitoring well MW KBMW-2 and closed through a hazardous waste closure/post closure permit application process. DONE AND ENTERED this 26th day of April, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 26th day of April, 1993. APPENDIX Rulings on Petitioner's proposed findings of fact: Paragraph 14, partially adopted in Paragraph 13, Recommended Order. Paragraph 19, rejected, contrary to the greater weight of evidence and speculative. Paragraph 20, rejected, unnecessary. Paragraph 21, rejected, contrary to the greater weight of evidence, Paragraphs 24-28, Recommended Order. Paragraph 22, partially adopted, Paragraphs 13 and 14, Recommended Order. Paragraph 23, partially adopted, Paragraph 15, Recommended Order. Paragraph 29, partially adopted, Paragraph 18, Recommended Order. Paragraphs 31, 32, 35, 48, 49, 51, 52, 60, 62 and 73 rejected, unnecessary. Paragraph 33, adopted in part, Paragraph 23, Recommended Order. Paragraph 38, adopted in part, Paragraph 23, Recommended Order. Paragraph 41, rejected, contrary to the greater weight of evidence and the two cases cited at hearing where Respondent exercises his discretion are distinguishable from Petitioner's failure to timely apply. Paragraph 43, rejected, unnecessary and/or argument. Paragraph 45, rejected, contrary to the greater weight of evidence. Paragraph 50, rejected, contrary to the greater weight of evidence, Paragraphs 37-39, Recommended Order. Paragraph 54, rejected, not probative. Paragraph 55, rejected, not probative. Paragraphs 56 and 57, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraphs 58 and 59, rejected, contrary to the greater weight of evidence, Paragraphs 23 and 24, Recommended Order. Paragraph 61, rejected, speculative and unnecessary. Paragraph 63, rejected, speculative. Paragraph 67, rejected, not probative. Paragraph 68, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraph 69, rejected, not probative. Paragraph 70, adopted in part, Paragraph 23, Recommended Order. Paragraph 72, rejected, irrelevant and not necessary to the issues posed. Paragraph 74, rejected, contrary to the greater weight of evidence and unnecessary. Paragraph 75, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 76, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 77, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraphs 78 and 79, rejected, irrelevant and unnecessary. Paragraph 80, rejected, not probative. Rulings in Respondent's proposed findings of fact: Paragraphs 2 and 3, adopted in part, Paragraph 9, Recommended Order. Paragraph 12, adopted in part, Paragraph 23, Recommended Order. Paragraph 23, adopted in part, Paragraph 32, Recommended Order. Paragraph 27, adopted in part, Paragraphs 38 and 39, Recommended Order. Paragraph 30, rejected, unnecessary. COPIES FURNISHED: Thomas J. Patka, Esquire Rory C. Ryan, Esquire HOLLAND & KNIGHT 200 South Orange Ave - Suite 2600 Post Office Box 1526 Orlando, Florida 32802 Agusta P. Posner, Esquire Lisa Duchene, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Virginia B. Wetherell Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Daniel H. Thompson, Esquire Acting 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.
Findings Of Fact On November 16, 1988, Industrial Waste Service, Inc. (IWS), obtained approval to provide garbage and trash collection services to the City of Pembroke Pines (City) when the City passed and adopted Resolution No. 1876 approving the assignment of the contract for such services between the City and Citywide Sanitation Company, Inc. (Citywide), to IWS. Citywide's contract was to expire June 30, 1993. On November 6, 1991, the city amended Chapter 112 of its Code and passed and adopted a solid waste franchise ordinance, called the "City Solid Waste Franchise Ordinance," Ordinance No. 975, effective November 6, 1991. The Ordinance provides in pertinent part: Sec. 112.39 FRANCHISE REQUIRED TO OPERATE; RESTRICTIONS ON OPERATING IN THE CITY; AWARD OF FRANCHISE It shall be unlawful to commence or engage in the business of collecting and disposing of solid waste originating in the city without a franchise issued by the franchising authority in accordance with the provisions of this subchapter. It shall be unlawful for any hauler operating in the city to dispose of solid waste collected in the city at any location other than to the Resource Recovery System transfer station or facilities designated in the plan of operation under the Solid Waste Disposal Agreement, as defined in section 94.22 of the code, the City's Flow Control Ordinance. (Underscore and strike through omitted) On February 13, 1992, the City and IWS entered into a "Solid Waste Collection & Disposal Agreement" (Agreement). The Agreement provides in pertinent part: 2. DEFINITIONS Contract Collection Area shall include all of the City of Pembroke Pines, Florida, as the boundaries of said City shall exist at all times during the life of this Contract. * * * 4. TERM & EFFECTIVE DATE The term of this Contract shall be for a five (5) year period beginning February 1. 1992 and termi- nating January 31, 1997. This Agreement shall become effective upon execution by the parties hereto. On April 1, 1992, the Agreement was amended, "First Amendment to Solid Waste Collection & Disposal," which provides in pertinent part. DEFINITIONS * * * Commercial Service shall mean the collection and disposal of Garbage, trash, Solid Waste and Processable Waste for all Business, Commercial, Industrial, hospital, school, governmental and quasi-governmental establishments, including the collection and disposal of Construction and Demolition Debris. * * * Processable Waste shall mean that portion of Waste Stream that is capable of being processed in the Corporation's resource recovery and compost facility, including but not limited to materials which are recyclable and all acceptable Waste other than Non- Processable Waste (as defined herein). * * * Solid Waste shall mean all waste accumulations consisting of garbage, residential/household trash, commercial/business trash and construction and demolition debris, including but limited to all materials which are recyclable. * * * CONTRACTOR'S RIGHTS (D) The City further grants to Contractor the exclusive right to service all Residential Curbside, Apartment, Condominium, Business, Industrial, and Commercial establishments that are certified for occupancy after February 1, 1992, provided, however, a certificate of occupancy issued as a result of remodeling with no change in ownership shall not require the owner to change service to the Contractor except for the Solid Waste (i.e. Construction Demolition and Debris) created thereby. * * * The City grants to the Contractor the exclusive right to provide Solid Waste collection and disposal services to any Residential Apartment, Business, Commercial or Industrial establishments for the following customers as of February 1, 1992: For CONTRACTORS's existing customers; and For customers that have a change in ownership after the City's approval of the Agreement; and For customers which received Solid Waste collection and disposal services in the City prior to the City's approval of the Agreement and whose contract for such services expires and is not renewed with the same provider in the future. (Underscore and strike through omitted) On November 4, 1992, the City passed and adopted an ordinance, Ordinance No. 1016, amending Chapter 94 of its Code providing for a new subchapter entitled "Garbage Collection" and providing new sections. The Ordinance provides in pertinent part: Sec. 94-10 Agreement with Private Collector. The City acting by and through its City Commission, and in accordance with the provisions of Section 112.37 through 112.41 of the Code, approved a Solid Waste Collection & Disposal Franchise Agreement dated January 15, 1992, as amended by the First Amendment dated April 1, 1992 ("Agreement") between the City and Industrial Waste Service Inc. ("Collector"). All providers of Solid Waste collection and disposal services other than Collector who provide such services within the City boundaries shall be referred to herein as "Haulers". All terms not otherwise defined in this Subchapter shall have the meaning ascribed thereto in the Agreement. The Agreement is specifically made a part hereof as Appendix A, and a copy of same will be maintained at the City Clerk's Office at City Hall. Pursuant to the Agreement the City has granted the Collector the following rights and obligations to provide Solid Waste collection and disposal services: * * * The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries, present and future, for all Residential Curbside, and all Apartment, Condominium, Business, Industrial and Commercial establishments that are certified for occupancy after February 1, 1992, and govern- mental establishments to the extent permitted by law, provided, however, that a certificate of occupancy issued as a result of remodeling with no change in ownership of the property shall not require the Customer to change to Collector except for construction/remodeling demolition and debris created thereby; and The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for all construction or remodeling demolition and debris within the City; and As of February 1, 1992, the exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for; [sic] Collector's existing Customers; Customers/property owners in the City that have a change in ownership; and customers/property owners whose contract for solid waste collection and disposal services expires and is not renewed with the same provider. Sec. 94.14 Certain Acts Prohibited. * * * (C) It shall be a violation of this subchapter for any person, firm, corporation or other entity, other than Collector to collect and/or dispose of Solid Waste originating in the City except to the extent the same is specifically permitted by the terms of this subchapter. (Underscore and strike through omitted) By letter dated June 10, 1992, IWS notified South Florida State Hospital that it (IWS) was the exclusive contractor for solid waste collection and disposal. South Florida State Hospital (Hospital) is a state mental health treatment facility operated and administered by the Division of Health and Rehabilitative Services (HRS) pursuant to Chapter 394, Florida Statutes. The Hospital is located on state property and is situated within the city limits of the City of Pembroke Pines (City), Broward County, Florida. In December 1993, HRS published an Invitation To Bid (ITB) on Bid # 595-591 for waste disposal services at the Hospital. Browning Ferris Industries, IWS, and Southern Sanitation Service submitted bids. On December 8, 1993, a pre-bid conference was held which included an opportunity for questions and answers. At this conference, HRS pointed out, among other things, that the City had an exclusive contract with IWS for waste disposal services but it (HRS) was also obligated by Florida Statutes to ensure the bidding remained competitive and that all waste collected from the Hospital had to be deposited at land fill sights designated by the City. In or around January 1994, HRS notified the bidders of Bid # 595-591 that, due to the bid document being flawed, a contract would not be awarded. All the bidders filed protests but none raised the City's exclusive contract with IWS as an issue. Ultimately, the contract was awarded to IWS but for only a six-month period. In April 1994, HRS published another ITB on Bid # 595-594 for waste disposal services at the Hospital. In the section entitled "SECTION A. INTRODUCTION," the ITB provides in pertinent part: STATEMENT OF NEED [T]he department requires the services of a qualified waste disposal company to provide waste disposal services to maintain sanitary conditions essential to the health, safety and well being of residents and staff living and working at the hospital. STATEMENT OF PURPOSE Pursuant to Florida Statutes, Chapter 287, this Invitation to Bid is being issued by the State of Florida, Department of Health and Rehabilitative Services, South Florida State Hospital, to obtain the services of a suitably qualified provider to enter into a contract for the removal and disposal of garbage from the hospital campus, and related services; in keeping with hospital requirements and the waste flow control ordinance of the City of Pembroke Pines. In the section "SECTION B. ITB SPECIFICATIONS: MINIMUM DEPARTMENTAL REQUIREMENTS," the ITB provides in pertinent part: PROGRAMMATIC REQUIREMENTS Method of Service Delivery 13) The provider will dispose of waste collected from the hospital at disposal site(s) specified by the City of Pembroke Pines, in keeping with the city's waste flow control ordinance. * * * Other Special Requirements * * * 2) Bidders Eligibility Requirements The successful bidder, in order to contract with the department to provide the services requested by this Invitation to Bid, must have all licenses and/or permits in accordance with city and county ordinances, rules, regulations, and provisions. All licenses and/or permits must be obtained at provider's expense. All costs for tests and inspections shall be paid for by the provider. GENERAL INFORMATION * * * Acceptance of Bids [T]he department reserves the right to reject any or all bids or waive minor irregularities when to do so would be in the best interest of the State of Florida. Minor irregularities are those which will not have a significant adverse effect on overall competition, cost or performance. In the section entitled "SECTION E. BID EVALUATION CRITERIA AND BID TABULATION," the ITB provides in pertinent part: 1) Evaluation Committee An evaluation committee of at lest three (3) members will be established to select the lowest responsive and qualified bidder. * * * 3) Evaluation of Bids Following the bid opening, the committee will review bid packages, beginning with the lowest cost bid, for compliance with the ITB requirements. A Fatal Items Checklist (Appendix IX) will be used to evaluate all bid packages. All items on the checklist MUST be met in order for the proposal to be considered. Receipt of a "No" response for any item will result in automatic rejection of the bid. All references will be checked. Only bidders with a good record of satisfactory performance will be considered. The contract will be awarded to the lowest responsive and qualified bidder who meets all the criteria specified in this ITB. The section entitled "General Conditions" of the ITB Contractual Services Bidder Acknowledgment form provides in pertinent part: 7. AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. In response to the ITB, HRS received bids from Browning Ferris Industries which had previously bid on Bid # 595-591, Coastal Carting, Ltd., IWS which had also previously bid on Bid #595-591, Son Mar South Sanitation, Inc. (SON MAR), and Southern Sanitation Service which had also previously bid on Bid # 595-591. SON MAR was the apparent lowest bidder with a bid of $72,200.48 for the first year, $79,420.52 for the second year, and $87.362.57 for the third year, totalling $238.983.57, and IWS was the apparent second lowest bidder with a bid of $106,739.84 for the first year, $112,734.46 for the second year, and $121,971.12 for the third year, totalling $341,445.42. Subsequently, IWS' bid was recalculated due to HRS discovering a calculation error by IWS. The recalculation was performed without a reconvening of the Evaluation Committee and resulted in IWS' bid being $113,579.84 for the first year, $119,814.46 for the second year, and $129,291.12 for the third year, totalling $362,685.42. The Evaluation Committee reviewed all the bids and evaluated them using, among other things, the Fatal Items Checklist. If one item in the checklist were not satisfied, a bid would be disqualified. Pertinent to this case, both SON MAR and IWS satisfied the Checklist and all other evaluation criteria used by the Committee. On May 12, 1994, the Bid Tabulation sheet was posted. HRS indicated its intent to award Bid # 595-594 contract to SON MAR as the apparent lowest and responsive bidder. At that time, HRS was aware that SON MAR had no licenses or permits issued by the City. The Evaluation Committee considered the absence of a license or permit as not material to awarding the bid 1/ and were aware that an awardee obtaining a license or permit would involve a simple process of the awardee completing an application for and paying a fee to the City. By letter dated May 20, 1994, HRS requested that the City advise it of any permits and/or licenses required by the City for an awardee to provide waste removal services to the Hospital. HRS did not receive a written response to its letter. Instead, the City orally advised HRS that it (the City) would issue SON MAR a special permit which would be issued upon SON MAR making application for an occupational license and paying a franchise fee. SON MAR was agreeable to complying with the City's terms and conditions. SON MAR dispatched one of its representatives to the City to obtain an application for the license. However, the City refused to provide SON MAR an application. By letter dated June 13, 1994, IWS filed its formal bid protest of Bid # 595-594 with HRS alleging, among other things, that SON MAR did not have a license from the City to provide waste removal services because it (IWS) had the exclusive waste removal contract with the City, that, without a license, SON MAR could not comply with the bid eligibility requirements and that, therefore, the bid should be awarded to it (IWS). On or about June 28, 1994, SON MAR notified the City that its refusal to issue it (SON MAR) an occupational license was unconstitutional per a U.S. Supreme Court case and requested immediate issuance of the license. SON MAR forwarded HRS a copy of this notification and request. By letter dated June 30, 1994, the City notified SON MAR that it would not issue it (SON MAR) a permit to provide waste removal services in the City, as such an action would violate the exclusive franchise agreement that it (the City) had with IWS. On or about June 30, 1994, HRS was aware that the City would not permit SON MAR to provide waste removal services in the City as it received a copy of the City's letter to SON MAR. On July 14, 1995, HRS and IWS settled the protest filed by IWS, without involving SON MAR in the negotiations. The terms of the settlement, which were communicated to SON MAR on July 15, 1995, were that IWS would dismiss its protest if, within ten days, 2/ SON MAR obtained a license/permit from the City, produced the license to HRS and otherwise remain qualified for the award and that, if SON MAR was unable to obtain a license from the City, HRS would declare SON MAR unqualified and declare IWS the lowest responsive and qualified bidder and award the bid to IWS. SON MAR was unable to obtain a license from the City. Moreover, the City refused to provide SON MAR with an application, remaining consistent with its letter of June 30, 1994, to SON MAR. As SON MAR was unable to obtain a license within the prescribed ten- day period, by letter dated July 29, 1994, HRS notified all bidders to Bid # 595-594 that it was declaring SON MAR unqualified and of its intent to award the bid to IWS, as the next lowest and qualified bidder. Further, HRS notified the bidders that the bids of IWS and another bidder were recalculated to correct a calculation error, which would not affect the order of the bids. By letter dated August 9, 1994, SON MAR notified HRS of its intent to file a formal protest. On or about August 24, 1994, SON MAR filed its formal protest. At no time material hereto, has SON MAR pursued any civil action to challenge the validity of the exclusive contract between the City and IWS or the constitutionality of the City's Ordinance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order awarding Bid # 595-594 to Industrial Waste Service, Inc. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of March 1995. ERROL H. POWELL 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 28th day of March 1995
The Issue Whether Petitioner was the subject of an unlawful employment action.
Findings Of Fact Respondent is an employer within the meaning of Chapter 760, Florida Statutes. Petitioner has had diabetes since his youth and requires regular insulin and other medications for his condition. However, even with medication, Petitioner experiences a variety of symptoms due to low or high blood sugar. At the time relevant to this proceeding, Petitioner’s symptoms ranged from mild to severe and included periods of disorientation, faintness and passing out. Around October 1986, Petitioner was hired by Bay County (County) as an Equipment Operator. In that position, he was required to drive trucks. At the time of his employment, the County was aware of Petitioner’s diabetes. However, the evidence was not clear that the County was aware of the severity of Petitioner’s diabetic symptoms at the time of his hire or that Petitioner’s diabetes might have been severe enough to constitute a handicap at the time of his hire. Unfortunately, Petitioner had two accidents during his tenure as an Equipment Operator. Petitioner’s first accident occurred in 1989 and resulted in a reduction of pay. Petitioner’s second accident occurred in 1990 and led to his demotion from the Equipment Operator position. After his demotion, Petitioner assumed the position of Maintenance II with the County. In October 2005, the County changed the title of the Maintenance II position to Senior Maintenance Worker. Under either title, the duties of the maintenance position required heavy physical labor outdoors. The duties included shoveling, lifting, road work and ditch work. Such work was performed in all types of weather experienced in North Florida, including high heat conditions. Petitioner remained in the Senior Maintenance Worker position until December 2, 2007. At some point around early 2005, during Petitioner’s employment as a maintenance worker with the County, his diabetes became a handicap that impacted his major life functions. Petitioner experienced many episodes where he became uncooperative, faint and/or disoriented because of his diabetes. Some of the episodes occurred without warning when Petitioner would become uncommunicative, begin wandering, or pass out. Other episodes had some warning when Petitioner would report that he felt ill and needed to rest or take medication. The evidence demonstrated that Petitioner’s supervisors and co- workers were aware of his diabetic condition and would assist him in recuperating from these hypoglycemic or other diabetic- related episodes. Additionally, although the record is not clear, there was some evidence that summer heat in combination with strenuous labor exacerbated Petitioner’s ability to control his diabetic symptoms. On the other hand, there was some evidence that indicated Petitioner could experience symptoms from his diabetes under any environmental or working conditions. In 2005, the episodes were significant enough for the County to require Petitioner to undergo a medical examination to assess his fitness to safely perform his duties as a maintenance worker. At that time, the doctor recommended that Petitioner learn to control his diabetes better and be monitored for several months to see if Petitioner gained control of his diabetic episodes. Significantly, the doctor did not find Petitioner unfit to perform his duties as a maintenance worker. Petitioner was never denied a break that he needed as a result of his diabetes and was not disciplined because of his diabetic episodes. Indeed, throughout Petitioner’s employment as a maintenance worker, the County reasonably accommodated Petitioner’s diabetic condition and, as needed, allowed him to sit in the shade, eat, rest, test his blood sugar levels, and/or take medications. County supervisors provided Petitioner candy bars or soft drinks to help resolve his diabetic episodes, allowed Petitioner to take unscheduled breaks, leave work early because of his diabetes, and, at least once, provided a County vehicle to transport Petitioner to his home to get medications. Throughout the years of his employment with the County, Petitioner submitted job interest forms to the County. The job interest forms did not demonstrate that there were job openings or positions available at the time Petitioner expressed an interest in those jobs. The jobs Petitioner expressed an interest in were equipment operator, heavy equipment operator, lab field technician, dump truck driver, parks maintenance worker, traffic sign technician, and water treatment plant operator trainee. Petitioner was interested in the positions identified in the job interest forms because he wanted to better himself professionally. Importantly, Petitioner did not pursue the jobs identified in the various job interest forms he submitted as reasonable accommodations for his diabetes. The fact that the County’s doctor indicated in a 2005 medical examination and report assessing Petitioner’s fitness for duty that work under less strenuous conditions might be warranted should Petitioner not gain better control of his diabetes does not demonstrate that Petitioner requested or required transfer to another position in order to reasonably accommodate his diabetes. Indeed, the documentary evidence demonstrated Petitioner did gain control over his diabetic episodes in 2006 and 2007 with reports of such episodes being substantially reduced and one doctor, in 2007, advising the County that Petitioner could drive a truck as long as he monitored his blood sugar adequately. The evidence did not demonstrate that Petitioner sought transfer to a lighter-duty position as a reasonable accommodation until late 2007 as described later in this Recommended Order. Moreover, all but one of the job interest forms Petitioner submitted during his employment with the County sought reemployment to the equipment operator position from which he was demoted. All of these positions required driving or operating machinery. They all required heavy physical exertion and lifting between 45-to-90 pounds. All positions also required exposure to the heat from the sun and exhaust from machinery. However, the evidence demonstrated that these positions were not as strenuous as the maintenance position that Petitioner held. These positions were also promotions from his maintenance worker position. Additionally, Petitioner offered no evidence that his driving had improved or that he was qualified to operate heavy equipment or drive trucks given his insulin-dependent diabetes and the severe symptoms that he experiences as a result of his diabetes. In fact, since Petitioner’s symptoms included disorientation, faintness and passing out, it would have been negligent for the County to allow Petitioner to operate trucks or other heavy equipment. In short, none of the equipment operator/driver positions constituted a reasonable accommodation for Petitioner. As for the other jobs of Laboratory Analyst I, Parks Maintenance Worker, Traffic and Sign Technician or the Water Treatment Plant Operator Trainee positions that Petitioner expressed an interest in, Petitioner did not know the minimum qualifications for these positions and did not offer any evidence that he was qualified for such positions. Similarly, Petitioner offered no evidence that he sought these positions as reasonable accommodations for his diabetes. Additionally, Petitioner’s interest in these jobs was expressed prior to 2007 or 2008, well outside the relevant time period for purposes of this discrimination claim. In September 2007, Petitioner provided the County a Family Medical Leave Act certification from Dr. Steven Wise that stated he could perform all of the essential functions of the maintenance worker position he held. The doctor’s notes do not state that he is unable to perform the duties of his maintenance worker position under current working conditions. In fact, Petitioner never gave the County any document that stated he could not perform the duties of the maintenance worker position and needed a less strenuous and hot job in order to accommodate his diabetes. On October 18, 2007, Petitioner conducted himself in a rude, combative, and extremely argumentative manner during a County-sponsored Diabetes Awareness Seminar. As a result, Petitioner was suspended without pay for one day. On November 1, 2007, Petitioner erupted into a profanity-laced tirade at the workplace only one week after serving the suspension for his outburst during the County’s Diabetes Awareness Seminar. Petitioner gestured his middle finger at a co-worker, threatened to beat an employee’s a _ _, and told the co-worker f_ _ _you, “if you stand up I will kick you’re [sic] a _ _,” “loud mouth punk,” and “you smart mouth d _ _ _head.” Petitioner directed his threats and profanity at co- workers and supervisors in response to another person who had parked their vehicle improperly and blocked or interfered with Petitioner’s ability to move his parked vehicle. At the time, Petitioner was undergoing a change from insulin shots to a continuous insulin pump. Such a change requires a period of adjustment in order for the pump to provide the correct dose of insulin to the user. There was no evidence that the County was aware of the change in Petitioner’s insulin regimen at the time of these outbursts. Additionally, the evidence was unclear that the change in Petitioner’s insulin regimen caused either of these outbursts although such behavior is consistent with a hypoglycemic reaction. As a result of Petitioner’s behavior, the County recommended his termination. Notably, such aggressive outbursts could have led to any employee’s termination, irrespective of whether the employee was handicapped or not, since the ability to get along with co-workers is essential to any working environment. Petitioner was provided a pre-termination hearing prior to the County making a final decision on his recommended discharge. During Petitioner’s pre-termination hearing, he explained that his profanity-laced outburst resulted from a low blood sugar episode and that he felt it was due to the changes he was undergoing in his insulin regimen. Petitioner’s spouse, who is a nurse, also explained his diabetic condition to the County Manager. Petitioner also submitted a note from his physician, Dr. Steven Wise, stating that a “job requiring less heavy physical exertion” would help Petitioner control his diabetes. Petitioner asked that he remain employed with the County and be allowed to transfer to a job with little or no physical exertion, less manual labor, and that was not exposed to the elements. Based upon Petitioner’s claim that his diabetes caused the outburst, his wife’s explanation of his diabetic condition, and the doctor’s note, the County decided to provide Petitioner an opportunity to remain employed in a less strenuous position. Ms. Smith, the County’s Human Resources Director, reviewed Petitioner’s personnel file to ascertain what jobs he had previously demonstrated an interest in and what positions he might be qualified for. After review, the Solid Waste Attendant position was the only position the County had available in November 2007 that fit the less heavy physical exertion requirement requested by Petitioner. At hearing, Petitioner submitted a list of available County jobs for 2007 and 2008. The list does not indicate which of the jobs was available in November 2007 when Petitioner first sought a job transfer as a reasonable accommodation. Additionally, the jobs Petitioner expressed an interest in were the same jobs Petitioner had expressed an interest in that were discussed earlier in this Recommended Order. As to those positions, the record shows that either Petitioner was not qualified for those jobs or there was no substantial or credible evidence that demonstrated the availability of any other less strenuous positions that Petitioner was qualified for in November 2007. Sometime after the pre-termination hearing, the County offered Petitioner the position of Solid Waste Attendant. At some point, the County met with Petitioner before he accepted the Solid Waste Attendant position. At that meeting, Petitioner was told about the duties of the Solid Waste Attendant position. Those duties included counting money, inputting data into a computer, and/or processing paperwork. Two of the essential functions of the Solid Waste Attendant position were the ability to use computers and the ability to make correct change when handling cash. At the time, and even though Petitioner now admits he is not good at math and has not used a computer to any great extent, Petitioner was pleased with the Solid Waste Attendant position and did not raise any concerns or objections regarding his ability to perform the duties of that job. In fact, Petitioner testified during the hearing that he “thought that it would be a good job.” Petitioner accepted the Solid Waste Attendant position and started work on December 3, 2007. He did not lose any pay or benefits when he was transferred to the Solid Waste Attendant position. As with any other County employee, Petitioner was on performance probation status when he assumed the Solid Waste Attendant position. The County’s probationary employee policy allows employees to be discharged prior to the completion of the probationary period. Petitioner was in the Solid Waste Attendant position for approximately two and a half months. With the exception of two weeks (December 28, 2007, until January 14, 2008) that he missed because of hand surgery on his non-dominant left hand, Petitioner spent the remaining ten weeks in training. However, prior to Petitioner’s leaving for surgery on his left hand he was having problems performing the Solid Waste Attendant’s duties. Upon Petitioner’s return to work on January 14, 2008, Petitioner was placed on light duty. He was not restricted in relation to the use of his left hand. However, for a short time, use of his left hand was difficult since it required elevation. Importantly, the evidence did not demonstrate that Petitioner’s surgery on his left hand significantly interfered with his ability to perform the duties of the Solid Waste Attendant position over the period of time he worked in that position. Nor, was there any credible evidence that Petitioner’s large hands hindered his ability to use the computer keyboard at work. Petitioner’s difficulties in mastering the duties required in the position did not involve the speed with which he could input data into the computer system. His problems did involve his ability to do math, understand the waste computer program and learn the codes for appropriately accounting for solid waste disposal. John Beals, Rose Day, and Cynthia Thompson trained Petitioner in the duties of the Solid Waste Attendant position for periods ranging from a couple of weeks to two months. Petitioner was provided training on how to complete solid waste attendant paperwork, computer operation, scale operation, customer service, and cash-handling procedures. Despite the training, his job performance in the Solid Waste Attendant position was unsatisfactory. Specifically, Petitioner was unable to retain the information necessary to complete solid waste attendant tasks, did not understand the WasteWork computer program, did not count money correctly when giving change, could not remember account numbers or material codes relevant to required environmental accounting for solid waste processing, failed to complete forms correctly, and could not multi-task while processing customers leaving waste at the solid waste facility. Petitioner’s performance did not improve after his return from the hand surgery. As a result of Petitioner’s inability to understand the Solid Waste Attendant’s job duties and unsatisfactory work performance in the position, the County terminated Petitioner’s employment during his probationary period. There was no credible evidence that Petitioner’s termination was based on his diabetic condition or was a pretext for discrimination based on his handicap. Petitioner simply could not perform the essential functions of the Solid Waste Attendant job. Finally, the evidence did not demonstrate that any other position was available to Petitioner for which he was qualified. Given these facts, the evidence did not demonstrate that Petitioner was discriminated against based on his handicap and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief be dismissed. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2009. COPIES FURNISHED: Cecile M. Scoon, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Reynaldo Velazquez, Esquire Velazquez Law Firm, P.A. 100 Almeria Avenue, Suite 340 Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
