Findings Of Fact A draftsman named Ward approached respondent with plans which Mr. Ward told respondent he had been given by one W. J. "Jack" Harlan. Mr. Ward also told respondent that Mr. Harlan had said that the plans were for a standard steel "pre-engineered" Mitchel Building, which Mr. Harlan proposed to construct for D & D Machine Specialties, Inc. in Fort Myers, as an annex to an existing building. Respondent was given to understand by Mr. Ward that Mr. Harlan wanted respondent "to prepare a plot plan and foundation plan, [and a plan for an] electrical riser and . . . [to] copy . . . some details furnished by" Mr. Harlan. Respondent agreed to undertake the project. In accordance with respondent's instructions, Mr. Ward drafted four sheets of drawings. Respondent "checked [the drawings] . . . , made some minor changes and corrections and . . . signed them." (T65) These drawings came in as petitioner's exhibit No. l. The first of the four sheets contains a schematic riser diagram, an electrical floor plan and a plot plan. On this sheet is written "PRE-ENGINEERED METAL BUILDING BY MITCHEL." The second sheet contains a foundation plan and detailed drawings of columns. On the second sheet is written "SPECIFICATIONS COPIED FROM ENGR. DATA BOOK, AS PUBLISHED BY MITCHEL METAL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." The third sheet contains floor plans and drawings of the north, east, south and west elevations of the proposed structure. The fourth sheet contains a roof framing plan, a stress diagram, and wall and other structural details. On this sheet is written "SPECIFICATIONS COPIED FROM COMPUTER [sic] PRINT OUT, & ENGR. DATA BOOK, BY MITCHEL STEEL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." Respondent's seal and signature appear on each of the four sheets. The first sheet is dated February 23, 1977. Each of the other sheets is dated February 14, 1977. Mr. Harlan submitted all four sheets of petitioner's exhibit No. 1 to Fort Myers' Building and Zoning Department as part of his application for a building permit. Mr. Alfred J. Heinman, Director of Fort Myers' Building and Zoning Department, and others in the Building and Zoning Department who reviewed the drawings, had reservations about the stability and strength of rails proposed along either side of the planned structure to bear the weight of a movable overhead crane. Accordingly, the Building and Zoning Department denied Mr. Harlan's application for a building permit. Mr. Harlan never told respondent that his permit application had been denied. Instead, he engaged Jorge Zorilla, a professional civil engineer whose specialty is structural design engineering, to remedy the deficiencies in the drawings respondent had done. In examining petitioner's exhibit No. 1, Mr. Zorilla concluded that, if the building had been constructed in accordance with respondent's drawings, trying to lift with the overhead crane in an eccentric position, or even a strong wind, could have caused its collapse. Specifically, the connections between roof members and columns proposed in petitioner's exhibit No. 1 were not strong enough to resist lateral forces on the building; there was inadequate provision for the support of the overhead crane; and there was no bracing system between the columns to resist winds in an easterly or westerly direction. In Mr. Zorilla's opinion, respondent gave no consideration to forces that would have been exerted on the structure by the wind and also failed to consider the consequences of an eccentric crane load. As originally drawn by respondent, the plans did not meet the requirements of the Southern Building Code. Before redrawing sheet four of petitioners exhibit No. 1, Mr. Zorilla asked Mr. Harlan for any information he had "from the Mitchell Steel Building people." (T18) Mr. Harlan answered that he had none; that the proposed building was not a standard model; and that he had collected building materials from various sources. As reflected by petitioner's exhibits Nos. 3 and 4, Mr. Zorilla made several changes in sheet four of petitioner's exhibit No. 1, including doubling the number of joists in the area where the crane load would exist; increasing from 4" to 12" the height of plates welded to columns to support the crane girders; specifying that 6" x 1/4" plates be welded to the bottoms of the joists near the points of connection with columns; modifying plans for the corner columns; specifying that sway bars be included in two bays on both of the longer walls; and specifying larger angles for bridging. Mr. Ward, whom Mr. Harlan had engaged for the purpose, drafted the changes specified by Mr. Zorilla. When Mr. Zorilla saw Mr. Ward's first draft, he asked him to make certain changes. After Mr. Ward had accomplished the changes, Mr. Zorilla signed and sealed the revised sheet four. On the basis of the plans as revised, Fort Myers' Building and Zoning Department granted Mr. Harlan's application for a building permit. Respondent testified that he was not registered as a structural engineer, "that it was a little over . . [his] head," (T56) and that he had never intended that the plans he signed and sealed should be used by themselves. Respondent testified without contradiction that it was customary, in the case of "pre-engineered" buildings, for the structural engineering to be done by one engineer, while other engineers prepared electrical, air conditioning and other plans for the same structure. The foregoing findings of fact should be read in conjuction with the statement required by Stuckey' s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspended respondent's certificate of registration for sixty (60) days. DONE and ENTERED this 5th day of May, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Respondent's proposed findings of fact have been rejected as unsupported by the evidence. Petitioner did present evidence "as to its allegation" in the first specification of the administrative complaint. Taken as a whole, the evidence did establish that respondent knew or should have known that he had taken on a structural engineering task. Petitioner's proposed findings of fact have generally been adopted, in substance, insofar as relevant, except that the evidence did not establish whether or not the plans drawn at respondent's direction resembled "a Mitchell pre-engineer[ed] building"; and the plates specified by Mr. Zorilla were six inches by one quarter inch. COPIES FURNISHED: Ford L. Thompson, Esquire Suite 701, Lewis State Bank Building Tallahassee, Florida 32302 Stephen W. Buckley, Esquire Corner Main and Broadway Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= IN THE FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS OF THE DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, a State agency, Complainant, vs. DOAH CASE NO. 77-2224 CLARENCE L. KIMBALL, Registrant. /
The Issue Whether Amendments to Rules 17-2.600 and 17-2.710, Florida Administrative Code are invalid by virtue of being an invalid exercise of delegated legislative authority. Whether the economic impact statement prepared by the Department was adequate.
Findings Of Fact The proposed amendments to Rule 17-2.600 and 17-2.710, Florida Administrative Code (the Rule) were published in the February 17, 1989 Florida Administrative Weekly, and were adopted by the Environmental Regulation Commission on March 22, 1989. MEDX timely filed a petition to challenge the Rule on March 13, 1989, prior to adoption. Promulgation of the Rule resulted from Senate Bill 1192 later codified as Section 403.704(31), Florida Statutes, which directed the department to initiate rulemaking to address the management of biohazardous waste and biological waste within the state. This statute requires such rules to address on-site and off-site incineration as well as regulation of such waste from the point of original to final incineration. The Rule here involves only the incineration of this waste. Rule 17-712, Florida Administrative Code regulates off-site handling, transportation and disposal of biological waste, while proposed Rule 10D-104 (by DHRS) will regulate on-site handling and disposal of biological waste. Biohazardous waste is generally any solid or liquid waste which may present a hazard of infections to humans. Biological waste is solid waste that causes or has the capacity of causing disease and infection, and includes, but is not limited to, biohazardous waste, diseased or dead animals, and other waste capable of transmitting pathogens to humans or animals. The Rule sets emission and operating standards for incinerators which burn biological waste. The Rule sets different standards for different size incinerators, with the result that incinerators with a capacity of 500 pounds per hour (pph) or less, if properly constructed and operated, are likely to be able to meet the standards and the rules without the use of additional pollution control devices, such as scrubbers, depending upon the waste stream being incinerated. Incinerators with capacities of more than 500 pph are unlikely to be able to meet the standards in the Rule without the use of additional pollution control devices such as scrubbers, although it is possible that some may be able to meet these standards. The incineration of a ton of biological waste in several 500 pph capacity incinerators without scrubbers is likely to emit more total particulates and hyrdogen chloride (HCl) into the air than would be the same ton of biological waste burned in a 2,000 pph incinerator equipped with a scrubber. All biological waste incinerators, of whatever size, would be subject to all other applicable ambient air quality standards in addition to the minimum emission standards in the Rule and would be further subject to pollution limitations established for each area. Proposed Rule 17-712 and Department of Health and Rehabilitative Services proposed Rule 10D-104, which together regulate the storage, treatment and disposal of biological waste, are likely to substantially increase the number of biological waste generators regulated by the State of Florida and are likely to increase the amount of biological waste regulated by the State of Florida. It is, therefore, likely that the amount of biological waste incinerated in the state, as well as the persons contracting with biological waste incinerator facilities, will increase as a result of these rules. Currently, all incinerators with capacities of less than 50 tons per day (which includes all biological incinerators in this state) are exempt from air emission standards, with the exception of visible emissions and odor. The Rule, by setting standards for particulate emissions and HCl emissions, as well as setting standards for residence time, carbon dioxide emissions, monitoring, operator training, and start-up and shut-down procedures, will impose more stringent requirements on all biological waste incinerators than currently exist, regardless of the size of the incinerator. MEDX is a biohazardous waste transportation and disposal company founded in 1978. MEDX has two incinerators at its Miami facility with a combined capacity of 4500 pph. The older unit is rated at 2000 pph and the newer one at 2500 pph. During the last fiscal year, MEDX invested approximately 3.5 million dollars in its Dade County facility for pollution control devices, buildings and water containment. The Dade County facility incinerates all biological waste treated by MEDX in Florida. Biological waste from northern and central Florida is collected by trucks operating out of Lakeland, Florida, from where this waste is transported on larger trucks to the Dade County facility for incineration. As a result of emission control problems MEDX entered into a consent decree with Dade County in which MEDX agreed to equip its two Dade County incinerators with anti-pollution equipment (scrubbers) in 1989 at a cost of approximately $300,000 each. Prior to promulgating the Rule, DER held workshops at which MEDX and all other interested parties were invited to participate and were given the opportunity to present evidence regarding the Rule and the economic impact of the Rule. Additionally, the Department considered studies by the Environmental Protection Agency, looked at incinerators operating in Florida, consulted with other professionals in the field, contacted other states and looked at their rules, and solicited written comments from affected parties. As a result of these studies, it was concluded that the most important factor in reducing harmful emissions is to ensure good combustion. This is addressed in the Rule by requiring 1800 degrees F. operating temperature in the upper chamber, for a residence time of one second, with constant monitoring of this temperature and to require the use of trained incinerator operators. It was further concluded that good combustion could be further ensured by monitoring carbon monoxide (CO) emissions and establishing a requirement that CO emissions not exceed 100 parts per million. Manufacturers of incinerators were contacted to determine the minimum particulate emission attainable without control devices and these manufacturers agreed their incinerators could, if properly operated, attain a particulate limitation of 0.1 grain per dry standard cubic foot corrected to 7 percent oxygen. Accordingly, this standard was adopted. A majority of these incinerators burn hospital waste which generally contains large quantities of polyvinyl chlorides (plastics) which, when burned, produces HCl. The amount of HCl emissions can be controlled to a large extent by controlling the amount of plastic that is put into the waste stream. Federal regulations for hazardous waste facilities require the hydrogen chloride emissions not exceed four pounds per hour. If the incinerator can't meet that limitation they have to provide 99 percent elimination. Since most incinerators with a capacity of less than 500 pph can meet this limitation of HCl emission, that standard was adopted and is consistent with the Federal rule. Biohazardous waste incinerators are controlled air incinerators. Waste is loaded into a lower chamber which partially burns the waste creating a smoke which is burned and consumed in the upper chamber leaving, theoretically, carbon dioxide, nitrogen and water vapor. However, even the best incinerator cannot reach complete combustion and some particulates remain. Also the burning of plastics which contains chlorine results in the emission of HCl. Small incinerators with a capacity of less than 500 pph are generally referred to as batch incinerators because they are loaded with a batch of waste to burn and when that process is completed the incinerator is turned off, the ashes are removed and the incinerator is ready for another batch. Batch incinerators are usually run for 10 - 12 hours per day. Another type incinerator is the continuous burn incinerator. This type incinerator generally has a capacity greater than 500 pph and is characterized by some mechanism which can continuously feed waste material into the incinerator and remove ashes without shutting dawn the incinerator. In preparing the Rule DER conducted a survey of existing incinerators in Florida which dispose of biohazardous wastes and found the vast majority of these facilities have a capacity of less than 500 pph and a majority have a capacity of less than 200 pph (Exhibits 6 and 23). Installing pollution control devices (scrubbers) on small incinerators with capacity less than 500 pph is not economically feasible because the amount of emission reduction will not justify the cost of the scrubbers. On the other hand, larger incinerators benefit from economies of scale which allows scrubbers to be cost effective in reducing pollutants. Without controls and assuming the same combustion, an incinerator with a capacity of 2,000 pph will emit four times the pollutants of a 500 pph capacity incinerator, assuming both operate the same number of hours per day. Accordingly, the concentration of harmful emissions will be much higher in the vicinity of the large incinerator than in the vicinity of the small incinerator. The concentration of HCl, for example, is more significant in determining the adverse impact than is the quantity of HCl emitted. Petitioner's contention that the Rule will result in a proliferation of small incinerators and therefore lead to increased air pollution instead of a diminution of such pollution cannot be so. There is presently no control over any of these incinerators burning biohazardous wastes, except for visible emissions and odor; and even if the Rule did not limit the emissions which require scrubbers on the larger incinerators, the Rule would improve air quality simply by setting standards which will improve combustion in all of these incinerators. By limiting total emissions of HCl and particulates, the Rule will result in improved air quality. ECONOMIC IMPACT STATEMENT Pursuant to Section 120.54(2), Florida Statutes, an Economic Impact Statement (EIS) was prepared by the Department prior to adoption of the Rule. Section 120.54(2)(b), Florida Statutes provides the Economic Impact statement shall include: An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act (FSNBA) Act of 1985. There is no issue that the EIS properly addresses the cost to the agency. The estimated cost to persons affected by the Rule, in addition to permit fees, was estimated by the Department at $20,000 to $40,000 annually for incinerators with a capacity greater than 500 pph. This figure was arrived at by annualizing the cost of a scrubber over a 20 year period, and adding the annual operating costs of that scrubber. The costs for incinerators with a capacity of 500 pph or less was estimated as a one-time expense of $15,000 to $20,000 to modify the incinerator to meet the retention time required by the Rule. No evidence was presented to refute the accuracy of these figures. MEDX contends the EIS is fatally defective because it fails to include the transportation costs associated with the operation of large off-site incinerators. While MEDX obviously incurs large transportation costs in treating in its Dade County facility biohazardous wastes generated in the Florida panhandle, for example, the same costs are not involved in treating waste generated in South Florida. Even if the Rule may result in small incinerators having a cost advantage in some areas over regional incinerators many miles away, it does not follow that large regional incinerators which are required to install scrubbers cannot compete economically with small incinerators located in the same general area, or that the EIS is fatally defective for not including such costs. Economies of scale will offset some of the additional costs involved in having to install scrubbers. In addition to not including transportation costs, the EIS also did not include the cost of facility siting or construction which could vary greatly depending on whether the facility is on-site or off-site. The EIS addresses only the costs of complying with the Rule. The Rule sets emission and operating standards and the EIS addresses only the costs associated with complying with those standards. Petitioner also challenges the statement in the EIS that the proposed revisions would benefit the public in reducing emissions in the air. The fallacy of that argument is pointed out in finding 23 above.
Recommendation From the foregoing it is concluded that amendments to Rule 17-2.600 and 17- 2.710, Florida Administrative Code are not invalid exercises of delegated legislative authority and that the Economic Impact Statement adequately reflects the economic impact of the rules on the agency, the public, and the regulated community affected by the rule. It is, therefore, ORDERED that MEDX's challenge to Rule 17-2.600 and 17-2.710, Florida Administrative Code be dismissed. DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1989. APPENDIX Treatment Accorded Petitioner's Proposed Findings Included in HO #1 and #2. Included in HO #2. Included in HO #7. Included in HO #1. Included in HO #7. Included in HO #10. Included in HO #11. Rejected as speculation and unreasonable. Accepted. Included in HO #18. Included in HO #19. 12, 13, 14. Included in HO #20. 15, 16. Included in HO #18. Accepted in principle. However, this finding is predicated upon the fact that incomplete combustion will occur when the temperature in the upper chamber is less than 1800 degrees F. Accepted. Included in HO #4. Accepted, but irrelevant to the validity of the Rule. Rejected. The Rule requires monitoring. Included in HO #4. Rejected. 24, 25. Included in HO #4. Included in HO #5. Included in HO #6. Included in HO #7. Same as 20. Same as 20. Same as 20. See HO #27. Same as 20. Accepted. First two sentences accepted. Remainder rejected as mere opinion. Rejected insofar as not included in HO #5, #6 and #9. Same as 20. Same as 20. Rejected. First paragraph accepted; remainder rejected. Rejected insofar as in conflict with HO #4, #5, #6, #7, #14 and #17. Accepted insofar as compatible with HO #22. Same as 20. Accepted as the testimony of Dr. Fishkind; conclusions that EIS inadequate rejected. Rejected as argument. 47-53. Rejected. Treatment Accorded Respondent's Proposed Findings Included in HO #1. Included in HO #2 and #4. Included in HO #8 and #9. Included in HO #6. Included in HO #7. 6, 7. Included in HO #13. Accepted. See HO Conclusion of Law 5. Included in HO #24. Included in HO #25. Included in HO #26. Included in HO #28. Accepted insofar as included in HO #23. Accepted insofar as included in HO #22 and #23. Accepted insofar as included in HO #23, #27 and #28; otherwise rejected as irrelevant. Accepted, but irrelevant to validity of Rule. Included in HO Conclusion of Law 5. Included in HO #16, #21, #27 and #28. Rejected as argument. Included in HO #23. Same as 16. Included in HO #17 and #22. Included in HO #14 and #17. Accepted. Accepted insofar as included in HO #14; otherwise rejected as argument. Rejected as argument. Accepted insofar as included in HO #17, #22 and #23. Included in HO #15. Included in HO #12; otherwise rejected as argument. COPIES FURNISHED: Paul H. Amundson, Esquire Julie Gallagher, Esquire 204 B South Monroe Street Tallahassee FL 32301 Chris McGuire, Esquire Betsy Hewitt, Esquire Suite 654 2600 Blairstone Road Tallahassee, FL 32301 William D. Preston, Esquire Laura B. Pearce, Esquire 123 South Calhoun Street Tallahassee, FL 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carroll Webb Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, FL 32399-1300 Liz Cloud Chief Bureau of Administrative Code Room 1802, The Capitol Tallahassee, FL 32399-1300
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has standing to bring this action and, therefore, whether the Intervenor has standing; whether the applicant has provided reasonable assurances of its entitlement to a construction permit for the facility; whether the applicant is precluded from availing itself of a separate biohazardous waste storage general permit through notification to the Department; whether the Petitioner is entitled to challenge the notice requirements of the general permit; and whether the facility to be permitted should be characterized as a biological waste incineration facility or a biohazardous waste treatment facility.
Findings Of Fact The Petitioner, Hamilton County Board of County Commissioners ("County"), is the governing body of Hamilton County, a political subdivision of the State of Florida. The operation of the political subdivision of Hamilton County is conducted by and through its duly-elected Board of County Commissioners. The County conducts a variety of official functions, including but not limited to, the levy and collection of taxes, construction and maintenance of county-owned buildings, roads, bridges and other facilities, the funding and maintenance of county recreational parks and related facilities, and the funding and operation of county health and welfare programs, as well as the regulation and disposal of solid waste and sewage. TSI is a Florida corporation organized to specialize in the construction and operation of incineration facilities, including biohazardous waste incineration facilities. The project sub judice is the first incinerator facility proposed for construction by TSI. The corporation and its directors, officers or operational personnel have not participated in the construction or operation of any type of incinerator facility in the past. DER is an agency of state government charged with the responsibility of regulating the quantity and quality of emissions from facilities such as the incinerators involved in the case at bar, and with reviewing applications for permits for the construction and operation of air pollution source facilities, including incinerators, as well as biohazardous waste disposal and treatment facilities and solid waste resource recovery and management facilities. Its reviewing responsibility is performed by weighing such permit applications against the yardsticks set forth in Chapter 403, Florida Statutues, and Rule Chapters 17-2, 17-4, 17-6, 17-701 and 17-712, F.A.C., which it employs to determine, among other parameters, whether a particular air pollution source facility can be reasonably assured to comport with the standards embodied in those rule chapters. The Intervenor, City of Jasper ("Jasper"), is a municipality located within Hamilton County, Florida. The Jasper Industrial Park is the site of the proposed biohazardous waste incinceration facility. That site is within the city limits of Jasper. Description of Facility and Process Incineration is the most commonly used procedure for treating medical waste. The combustion of waste is especially appropriate for hospital "redbag" waste, also known as medical waste. The combustion of medical waste destroys pathogens infectious materials and spores. TSI proposes to burn medical waste in two Basic Model 3500 biohazardous waste incinerators. The incinerators will be enclosed within a large building at the Jasper Industrial Park in Jasper, Florida. Each has a charging capacity of 35 tons per 24-hour day. The proper incineration of medical waste requires a residence time of one second in a secondary chamber, having a temperature of at least 1,800 degrees Fahrenheit. These time and temperature requirements will be achieved by the proposed Basic incinerator. The incinerator's loading door will not open until the secondary chamber temperature reaches 1,800 degrees Fahrenheit. Unlike other systems, the patented Basic incinerator system has three combustion zones in the incinerator, the main chamber, the secondary chamber, and the tertiary chamber. By means of these three stages, the Basic incinerator minimizes emissions of hydrocarbons, CO and nitrogen oxide. It is characterized by a "ram feeder" which allows the waste material to enter the incinerator through an air lock so as not to disturb control of the air within the furnace. It also has a "mechanical pulse hearth" which moves and tosses the burning material while moving it through the incinerator, shaking it up, much like logs in a fireplace. It thus mixes the waste material in the air for more complete combustion. Finally, a backhoe-type device digs the ashes out of the ash pit for disposal after combustion. The third stage of the Basic incinerator changes vapors coming from the main chamber to superheated gas. The "thermal exciters" in the third stage increase turbulence and mixing in this upper zone. With the addition of air in this third stage of burning, the gas burns like natural gas, thereby completely destroying the products of incomplete combustion from the previous stages. The gas will have a residence time of at least one second in the last combustion chamber, at no less than 1,800 degrees Fahrenheit, as required by Rule 17- 2.600(1)(d)4.A., F.A.C. The Basic incinerator is designed with an air lock door which prevents it from opening until the chamber temperature reaches the required 1,800 degrees Fahrenheit. This insures more complete combustion of waste and insures that the ignition of waste does not commence until the last combustion chamber temperature requirement of Rule 17-2.600(1)(d)4.D., F.A.C., is attained. After the tertiary stage, the gases resulting from combustion go to a heat recovery boiler system incorporating a heat exchanger involving water- filled tubes. The superheated gas flows past these heat exchanger tubes which reduce the gas temperature to approximately 250 degrees Fahrenheit. This serves to start condensing the HCL acid gas so that it will be amenable to reduction and conversion by the injection of finely-powdered lime on the way to the "baghouse" scrubber device. Additionally, at this stage, a portion of the superheated gases are recirculated to the combustion chamber for further exposure to combustion temperatures in order to achieve optimum burnout of all combustible materials. When the superheated gases reach the boiler-heat recovery, steam- generating device, they are at approximately 1,800 degrees Fahrenheit. In part, they consist of metallurgical fumes containing salts, oxides, heavy metals, leads and zincs. In order to prevent these salts from clogging the boiler, the cooling device reduces their temperature so that the oxides and metals form powders. Then if any of the resultant powder adheres to the boiler tubes, conventional coal-blowing equipment blows the resulting powders on through the boiler to the emission control device or "baghouse". This, in turn, maintains the temperature reduction efficiency of the boiler heat exchanger. Because of the various combustion stages or chambers incorporated in the incinerator, as well as the heat exchanger and gas recirculation feature, the Basic incinerator prevents burning particulate particles from entering the baghouse and burning holes in the Gortex filter bags. This, of course, insures optimum emission control efficiency. After the combustion gases exit the heat exchanger-boiler device, their temperature has been reduced to approximately 250 degrees Fahrenheit. Lime is injected at this point, which reacts with the HCL acid gas and neutralizes it in part; the reaction occurring as the gas flows toward the baghouse, with the reaction being completed on the surface of the Gortex bags of the baghouse, as the lime collects thereon. The County does not contest that the Basic Model 3500 incinerator, as proposed, will perform in a manner that will satisfy most of the criteria set forth in Rule 17-2.600(1)(d), F.A.C. It will achieve approximately 95% burnout in the combustion chambers. Mr. Cross, the County's expert witness, was concerned that DER had no criteria for a standard of "burnout" of the bottom ash. In fact, DER interprets the term "complete combustion" (in the above Rule), as requiring ash burnout of approximately 95%. The Basic incinerator will achieve 95% burnout. The high rate of burnout is achieved both by the multiple combustion chambers and the use of the moving pulse hearth which constantly shakes or stirs the burning material, ending with chains suspended at the end of the pulse hearth to impede bulky waste materials from exiting the combustion chamber before they are completely combusted. Odor is controlled, in accordance with Rule 17- 2.600(1)(a)2., F.A.C., by using air for combustion purposes which is drawn by blowers from the storage area of the untreated waste. The combustion blowers pull air from the waste storage area into the incineration system. The best means of odor control is by burning, which this incinerator will achieve. The County agrees that CO emissions from the incinerators will not exceed 100 parts per million by volume, dry basis, corrected to 7% 02, on an hourly average basis. Thus, CO will be within acceptable regulatory limits and is not at issue in this proceeding. Pursuant to stipulation, the only emissions at issue with regard to the proposed facility and permit are visible emissions, particulate matter and hydrochloric acid (HCL). Particulate matter consists of finely divided solids or liquid, and the hydrochloric acid is formed when chlorinated plastics are burned. Emissions are reduced in two ways. First, emissions from the stack of the incinerator will be diluted by ambient air which dilution increases as the stack height above ground increases. Airborne emissions are also reduced by directing combustion gases through pollution control equipment before they exit the stack. The pollution control equipment proposed for the incinerators at issue is an acid gas, dry lime scrubber baghouse, with dry lime injection. The incinerator facility cannot meet particulate and hydrochloric acid standards without the addition of a pollution control device, such as a dry lime scrubber baghouse. The baghouse is the best available technology for controlling particulates and hydrochloric acid, as well as controlling metals emissions. The baghouse works much like a vacuum cleaner with a vacuum cleaner bag to trap particulate matter. Baghouses have been in use since 1970, and the technology has been scientifically demonstrated and accepted. The proposed baghouse would consist of a multiple number of bags in excess of ten feet long. They are made of fiberglass, coated with Gortex, a permeable membrane material. They have an air to cloth ratio of 3 to 1. The Gortex bags are capable of trapping 99.5% of particles in the range of 1/10th of a micron in diameter. They are, thus, capable of trapping cigarette smoke, for instance, and are resistant to acids, certain alkalines, and temperatures up to 500 degrees Fahrenheit. The bags are wrapped around a wire cage and attached to a steel plate, anchoring them to the flues, which conduct the gases to them. All of the flue gases enter the baghouse and go through the bags and then exhaust to the atmosphere through the stack. The bags, thus, trap most particulate matter and metals. Additionally, lime will be injected into the flue gas stream for acid control before the flue gases reach the bags. The lime dust, a base, reacts with HCL, an acid, to produce calcium salts, which are PH neutral. The dry lime will be conducted from a silo or other means of storage in the form of fine dust or talc which enters a metering hopper so that the amount of lime injected into the system can be controlled. The lime is injected immediately after the gases are condensed and cooled to a 250 degree Fahrenheit level. This causes optimum reaction of the acid gases with the lime which then travel together to the bags. The Gortex bags are coated by the lime dust which further enhances the HCL removal reaction. Because of the recirculation of the superheated gases and the cooling of them through the heat exchanger device, it is very unlikely that any sparks or embers from the incinerator chambers will land on the bags to burn holes in them and, thus, reduce their efficiency. This is an inherent advantage of the design of the Basic incinerator when used with the Gortex' baghouse scrubber. There is a biohazardous waste incineration facility in operation at Stroud, Oklahoma. It uses a Basic incinerator also employing an acid gas, dry lime scrubber baghouse, in essence like the one proposed here. That incinerator has been tested for visible emissions, particulate matter emissions, and HCL emissions. The tests occurred while the incinerator was actually combusting twice the amount of medical waste proposed for the proposed incineratcrs. The visible emissions test at that facility resulted in an opacity of less than 5% (visible emissions). The PM test resulted in 0.014 grains per dry standard cubic foot. HCL emissions from the incinerator were tested at 43.6ppm (parts per million). The Stroud system thus achieved a 97.2% removal of HCL. A medical waste incineration facility is located at Fairfax, Virginia, which uses a baghouse and lime injection system. The Fairfax facility test results also establish that a baghouse lime injection system reduced particulate matter and HCL emissions to below the Florida standards. Experts testifying on behalf of both the applicant and the County agree that the design characteristics and pollution control capabilities of various lime injection systems and baghouses differ markedly. Certain baghouse designs would not be appropriate for the pollution control application at issue. The County's expert noted that the method of lime injection is a critical component of overall HCL control. Certain baghouses incorporate intermittent lime injection systems which are effective for protecting the individual baghouse components, but inappropriate for HCL removal purposes. The applicant's expert, Mr. Basic, also recognized the importance of the type of lime injection system involved. Various baghouse manufacturers inject lime at differing points within the system; and certain injection applications are, in his opinion, inappropriate for effective HCL control. Temperature is a critical factor in the effectiveness of the lime injection procedure in neutralizing the acid gases (HCL). The method proposed by the applicant of cooling the gases to approximately the range of 250 degrees Fahrenheit before injection of the lime has been shown to be effective in neutralizing the HCL gases at issue, when coupled with the Gortex-laminated, fiberglass bags upon which further neutralization will occur as the dry lime powder is deposited thereon and the gas passed through it. The baghouse cleaning system is also a component of major importance. Baghouse cleaning involves the removal of calcium chloride particulate buildup from the surface of the filter bags. They eventually become clogged with the precipitate, reducing the systems effectiveness unless they are periodically cleaned. Baghouses can be cleaned while the incineration system is shut down which is known as "off-line cleaning". They can also be cleaned during operation by "on-line cleaning". "Pulse-jet" cleaning involves taking a portion of the bags off line with a damper system bypassing the flue gases to other bags which remain in operation. The bags taken off line are then injected with a rapid pulse or pulses of compressed air, thereby removing the calcium chloride cake from the bags. The County's expert opined that pulse-jet cleaning is less effective than off-line cleaning and that it also requires a dedicated air compressor, as air from within the plant may contain moisture, oil or other contaminants, which are inappropriate for injection into the baghouse since they may permanently clog or otherwise harm the bag material. The applicant's expert, Mr. Basic, expressed like concerns regarding the baghouse cleaning system. He testified at length about the characteristics and appropriateness of on-line versus off-line cleaning. He established that off-line cleaning, also knowh as "reverse air" or "reverse jet" cleaning, is the most effective under the situation prevailing in this project and, in essence, agreed with the County's expert on this subject. Reverse air cleaning involves both the incinerator and the air pollution control system being shut down, with air from the blower being blown in reverse through the bags to remove the calcium carbonate residue. Mr. Basic's testimony establishes that a reverse air, off- line cleaning process can maintain the effectiveness of the Gortex- fiberglass filter bags and, thus, assure that emission and ambient air standards are continuously met by the facility. Stack Emissions Modeling of the stack emission results predicted at the facility with the originally-proposed 40-foot stack height was performed by Mr. David Buff, the applicant's expert witness in this regard. The model he employed demonstrated compliance with all ambient air quality standards set forth in Chapter 17-2, F.A.C. There is no ambient air quality standard in the rules at the present time for HCL, however. DER does have a policy, established without dispute in this record, that an acceptable ambient level of HCL would be 150 micrograms per cubic meter for a three-minute value and 7 micrograms per cubic meter on an annual average. Shortly prior to hearing, a "re-modeling" of the stack and resultant emissions was done, postulating a stack at 98 feet high. Five years of meteorological data from the Valdosta, Georgia, weather station were used to include such factors as prevailing winds, etc., which modeling ultimately demonstrated a three-minute maximum HCL concentration of 16.4 micrograms per cubic meter. This resulted in a maximum HCL concentration at ground level of a factor of 10 below the 150 micrograms per cubic meter level, which is acceptable under DER policy. The average annual impact of HCL concentrations would be 0.2 micrograms per cubic meter, well below the acceptable level of 7 micrograms per cubic meter annual average. Mr. Buff's model also predicted a maximum annual average impact at any location in the vicinity of the proposed incinerator of HCL at .16 micrograms per cubic meter. This maximum value is a factor of more than 40 below the administrative level of 7 micrograms per cubic meter on an annualized basis. A spatial distribution of the annual average hydrochloride concentrations in the vicinity of the incinerator demonstrates an annual average concentration declining to 0.09 micrograms per cubic meter in the direction of the City of Jasper. The 98-foot stack proposed by TSI thus meets all ambient air requirements. Although the stack height was changed from the 40 feet shown in the application to 98 feet, all other design elements of it, such as stack diameter, stack temperature, and gas flow rate, remain unchanged. The modeling of the 98-foot stack included all of the design criteria found in the application. There is, in essence, no dispute regarding the efficacy of the modeling performed by Mr. Buff. All modeling and modeling results were not controverted. In addition to the main stack, there is an emergency relief stack, also known as a "dump stack". The dump stack does not have pollution control equipment. It is opened when the system is first started up in order to purge the system. No waste is burned at that time. The stack is also opened after a shutdown during a cooldown period after all waste has been removed from the furnace. The likelihood that the relief stack will operate outside of a startup and cooldown period is very slight. The facility will have an electrical generator backup emergency power source in case of power failure. The primary reason for the stack's opening, power loss, is thus eliminated by the system as proposed. There is a relief valve in the steam line so that if steam pressure in the boiler exceeds operating pressure, the system can be relieved through the relief valve with the only loss being steam which would have to be replenished with soft water. Such a malfunction would not result in the emergency stack opening, however. The only other circumstance under which the emergency stack would open, and vent gases to the atmosphere without emission control, would be a malfunction of the blower or induced draft fan system which pulls the gases out of the main stack. This could be caused by failure of the drive belts or a burnout of a motor. With proper maintenance, the belts will not fail and the motors will function for years without replacement. In an emergency situation, however, if a shutdown does occur, the frequency of the pulse hearth can be increased to push the waste stream into the quench pit in approximately 20 minutes, thus, eliminating emission of pollutants through the stack. The County's expert, Mr. Cross, also agreed that most of the causes of the opening of the emergency dump stack have been eliminated by the proposed Basic design. In any event, even in an emergency situation where the dump stack must open, the inherent design capabilities of the incinerator, related to operating temperature, residence time and the multiple combustion chambers, result in only one part per million CO, as well as very low nitrogen oxide and hydrocarbon levels being emitted from the facility even with no other pollution emission control provisions. In the event the emergency stack opens, the highest HCL emissions occur immediately, but then quickly drop to acceptable levels. This is so because combustion of materials immediately in the furnace would be finished, but no other charging of the furnace would occur until the malfunction is alleviated. Rule 17-2.250, F.A.C., allows, in any case, with an emergency opening of dump stack, the excession of permit limits for up to two hours. The results of modeling the operation of the dump stack at a 40-foot height and at 30 pounds per hour of HCL emissions shows that the 7,500 threshold limit value ("TLV"), which the Occupational Safety and Health Administration ("OSHA") sets to protect worker safety, will not be exceeded anywhere off the plant property, which boundaries lie 50 meters or more from the stack location. The HCL administrative level set by DER (by policy) of 150 micrograms per cubic meter will be exceeded in an area out to approximately 400 meters from the stack. Beyond 400 meters, the level is less than that and drops off rapidly thereafter so that at 800 meters, under the model prediction, the level of HCL concentration would be only 57 micrograms per cubic meter and at 2,000 meters, 37 micrograms per cubic meter. The county prison site, the Hamilton County landfill, recreation park, middle school, county road camp, senior citizens center, other schools and a nursing home, of which concern was expressed about proximity to incinerator emissions, are all 900 meters or more from the site of the incinerator and the location of the stack. It has thus been established that ambient HCL concentrations will not reach the prohibited level of 150 micrograms per cubic meter for the three-minute average at any of these locations. The permit applied for is a "minor source construction permit". Such a permit allows the applicant to construct the source, having an initial startup and performance compliance testing period to demonstrate that the facility can meet emission standards provided for in the permit and related rules. After demonstrating compliance, the applicant can then seek an operating permit. The test methods required as conditions by DER's proposed grant of the permit and the "draft permit" are standard ones sanctioned by the U.S. EPA. They are reliable and acceptable and have undergone independent testing and development and are used by all states. Thus, the combustion chamber exit temperature must be monitored for the purpose of determining if the unit complies with the 1,800 degree Fahrenheit rule, the criteria for complete combustion. Oxygen must also be monitored for the purpose of determining if the incinerator is operating properly and achieving good combustion which is essential to control of hydrocarbons, nitrogen oxides, CO and other pollutants. When oxygen falls below certain levels, the computerized micro- processor monitoring system shuts down the loader to prevent charging of the furnace until combustion standards are again reached to prevent insufficient combustion due to low oxygen and excession of pollutant limits. In order to insure that the CO limit of 100 parts per million is not exceeded, a continuous CO monitoring capability will be installed within the incinerator. The lower the CO, the better the combustion efficiency. Although the rules require a 100 parts per million limit, CO test results at the Stroud facility, which is essentially identical to the one proposed, averaged 1.1 parts per million. Test results at the Stroud facility also demonstrated that the dry lime scrubbers installed there accomplish high HCL and particulate removal. The Stroud facility meets all Florida rule standards. Mr. Cross acknowledged that the test results on that facility demonstrate that dry lime scrubbers on medical waste incinerators "will do the job". Design details of the 98-foot stack and the lime injection baghouse scrubber facility were not included in their entirety in the application and the evidence adduced. Design details of the 98-foot stack, however, were provided in the application on page 6 as to the 40-foot stack. The changing of the stack height to 98 feet does not change the remaining design details, and they are still valid and have been proven so. Although no design or plans for the lime injection baghouse proposed have been adduced, the testimony of Mr. Basic establishes that such a facility will meet all pertinent emission standards prevailing in the Florida rules and policies, as such a facility did in the Stroud tests. Mr. Basic's testimony was unrefuted and establishes that the dry lime injection baghouse scrubber facility, such as he proposes and about which he is knowledgeable, based upon his manufacture, installation and operation of other incineration facilities, will reasonably assure that all pertinent disputed emission standards will be met (for particulate matter, opacity and HCL). Mr. Basic, as equipment vendor for the project, has responsibility for the entire incineration facility. He will oversee construction, installation and testing of the incinerators and emission control equipment (baghouse and stacks). He has guaranteed that all Florida emission standards will be met as the manufacturer and vendor for the project. A grant of the permit at issue should be conditioned upon Mr. Basic performing, as testified at the hearing and as agreed to by the applicant, as overseer for the construction, installation and testing of the proposed facility. Specific Condition No. 14 in DER's notice of intent to grant the permit requires the applicant to test the resultant ash to see if it is hazardous. Ash from the proposed facility must be tested in accordance with 40CFR 262.11, which requires testing and characterization of the waste. Ash from the proposed facility will be tested; and if it tests as hazardous, it will be handled as hazardous waste by sending it to an approved hazardous waste landfill or treatment facility. In any event, it has been stipulated by the applicant that the ash will not be deposited in a Hamilton County landfill; and the permit should be so conditioned. Most ash coming from infectious waste incineration is non-toxic. Controlled air incineration produces a sterile ash, which is a non-combustible residue, and may be disposed of in an ordinary landfill. Ash tested at the Stroud facility, after burning medical waste of the type to be incinerated in the instant facility, tested as non-hazardous. The ash will be removed from the facility in closed containers. Storage of Biohazardous and Biomedical Wastes DER regulates biohazardous waste incineration under the air permitting program, requiring an air permit, as sought in the instant case. DER does not require a separate solid waste treatment and sewage permit. Biomedical waste is regarded as a special waste which requires an element of care beyond solid waste, but does not require the extraordinary care required of hazardous waste. Sections 17-712.420 and 17-712.800, F.A.C., deal with the permitting of biohazardous waste storage. There are two ways in which an applicant can notify DER of its intent to use a general permit for the storage of biohazardous waste: It can apply for a general permit by notifying DER on a specific form of its intent to use a general permit for the storage of the waste; or It can include the information as part of an air permit application. With either option, there is no difference in the way DER processes the two types of notification. DER reviews the information submitted to make sure that it indicates that the facility will meet the requirements of Rule 17-712.420, F.A.C. The DER district waste program administrator, Mr. Mike Fitzsimmons, established in his testimony that the applicant has met the qualifications for the general permit for biohazardous waste storage. Five areas have been designated for storage of the biomedical waste to be incinerated at the TSI facility. It is anticipated that most of these areas will normally be empty. The storage areas are available, however, in case one of the incinerators is inoperative for any reason. There are contingency plans for re-routing the waste in the event one or both incinerators are inoperative for a significant period of time. Area A is the primary area of the facility where boxes are loaded onto a conveyor system and continuously fed into the furnaces. Area B is considered a secondary storage area where palletized boxes can be stored pending their placement onto the conveyor system for charging into the incinerators. The secondary area here can also be used for backup storage. Areas C and D are truck unloading docks,. The trucks, themselves, also can be used for storage capacity. Area E on Exhibit 7, the permit drawings, shows an outdoor storage area which will hold a number of trucks which transport the biohazardous waste. All of the trucks bringing waste into the facility will remain locked until brought to the unloading dock for unloading and incineration of their contents. The loading docks for the trucks located at the back of the facility are designed with drainage to prevent storm water runoff. Both the indoor and outdoor storage areas will be concrete. The concrete joints will be grouted and sealed, and the concrete will have an impermeable sealant placed on it. To maintain a sanitary condition, the area will be swept daily; and any spill area will be disinfected. The indoor areas will be disinfected weekly regardless of spills. Access to the proposed facility will be restricted to prevent entry of unauthorized persons. The outer perimeter will be enclosed with an 8-foot cyclone fence. It will be monitored with closed-circuit television. The building itself will only be accessible by authorized persons. The fence and all of the entrances will be marked with the international biohazardous symbol with the words "biohazardous wastes or infectious wastes". The facility will be operated so as to prevent vermin, insects or objectionable odors offsite. All materials will be packaged according to Rule 17-712.400(3), F.A.C. Refrigeration is not contemplated because EPA guidelines on management of infectious waste do not recommend refrigeration. Instead, storage times will be kept as short as possible prior to incineration. There will be minimal handling of boxes at the facility. Semi-trailers will be unloaded by means of an extendo conveyor system which will convey the boxes directly to the incinerators. If a box is dropped, breaks or a spill occurs, the area will be disinfected immediately. All floor drains, which will be installed both indoors and outdoors, will have a slight slope in the direction of the drain so that the floors can be scrubbed and hosed down and disinfected with all liquid material being flushed down those drains. Liquid waste created by the disinfection process can be safely disposed of thereafter in the city sanitary sewer system. The storm water management system on the site and the drainage sewage system are entirely separate, however. Employees will be required to wear either rubber or plastic gloves and white disposable clothing. All biohazardous waste generators (hospitals, etc.) and transport companies will be required to put the waste in "red bags", strong plastic bags. The medical waste will be required to be sealed in strong plastic bags, which are then placed by the generator of the waste in sealed cardboard boxes having a 275-pound bursting strength. All boxes must be marked with the name and address of the generator of the waste (hospital, etc.). The transporter of the waste, typically a trucking company, will be required to keep the trailers transporting the waste locked and the boxes intact and unopened. The applicant, as a condition of the permit, will not accept delivery of any waste shipments not so packaged and maintained. In fact, in addition to the rules governing the packaging and transport of biomedical waste contained at 17- 712.400, 17-712.410, F.A.C., TSI will require, by written contract, generators and transporters of the biomedical waste to insure delivery of waste properly packaged in accordance with Florida law regardless of which State the waste is generated and transported from. Additionally, the applicant will maintain records of waste origins and shipments in accordance with Rule 17-712.420(7), F.A.C., in its computerized record system. A detailed contingency plan will be prepared for the proposed facility by Lloyd H. Stebbins, P.E., an expert in environmental incident planning. The contingency plan will include more detail than is required by the biohazardous waste rules. The plan will address how medical waste is handled in order to insure public safety and the safety of employees as it is transported to and enters the plant and how ash will be safely handled when it exits the plant. Mr. Stebbins will also prepare an operation plan which will include personnel training in disinfection procedures and a description of those procedures for submittal to DER as a condition of a grant of this permit. That operation plan will contain procedures for all three types of disinfection methods authorized by Rule 17-712, F.A.C. This will enable the applicant to have the flexibility to use all three procedures, hot water, sodium hypochlorite, iodine or an EPA approved germicide. Mr. Stebbins will direct and provide training to insure that personnel comply with the regulations concerning disinfection and proper application of disinfectants. As an additional safety factor, the facility is designed to operate efficiently at approximately 85% of its actual capacity in order to allow for "down time" and maintenance. Standing TSI has challenged the County's standing to participate in this proceeding, asserting that Hamilton County, through its duly-elected Board of County Commissioners, does not possess a substantial interest in the outcome of this proceeding different from that of the public generally. It contends that the concerns various members of the general public might have concerning location and installation of the incinerator facility are the only concerns that the County has in participating in this proceeding; and, therefore, that the County has no substantial interest of its own justifying its standing to be a party to this proceeding. The record, however, reveals a strong citizen opposition in the County and City of Jasper to the applicant's proposed project. During the public comment portion of these proceedings, it became obvious that the citizens of Hamilton County have a variety of health and safety concerns which have engendered wide spread opposition to the applicant's project. Principal concerns are the matters of transportation and potential spillage of infectious hospital- generated medical wastes which the incinerator will be treating. Additionally, a strong concern has been expressed by various citizens of Hamilton County and the City of Jasper, concerning potential HCL emissions and their potential negative health effects on residents of the city and county, particularly those who utilize the many publicly-owned facilities located in proximity to the project site. These facilities include a middle school, a senior citizen center, a county road camp or prison, the county landfill, county equipment, a bridge and other buildings, as well as the fact that the material to be incinerated will be transported on trucks through a residential area. Additionally, the Hamilton County Correctional Institution is immediately adjacent to the proposed project site and employs several dozen county residents. Concerns were also expressed about increased traffic flow resulting from trucks bringing waste through the county and city to the proposed incinerator site, as well as the health and safety of the citizens who will be employed at the proposed facility itself, and the lack of sufficient emergency equipment and facilities within Hamilton County. Many citizens expressed their opposition to the proposed facility at the public comment portion of the hearings, through petitions submitted to their city council and the board of county commissioners and at public meetings conducted by those two governmental bodies. Thus, it can be inferred that there is a concensus of opposition by citizens of the city and the county which has been expressed to their respective governing commissions, who are the Petitioner and Intervenor in this proceeding. There is no question that the proposed project has the potential to cause some pollution or degradation of air and water in Hamilton County and the City of Jasper. Section 125.01(1), Florida Statutes, delegates broad powers and duties to county governments. Those powers and duties are enumerated in the Conclusions of Law below and include such authority as to establish and administer programs of air pollution control; to provide for and regulate waste and sewage disposal; to operate solid waste disposal facilities pursuant to Section 403.706(1), Florida Statutes; to establish, coordinate and enforce zoning and such business regulations as are necessary for public protection; to perform other acts not inconsistent with the law which are in the common interest of the people of the county, and to exercise all powers and privileges not specifically prohibited by law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and aguments of the parties, it is therefore, RECOMMENDED that DER enter a final order approving TSI's applications for permits for the subject two biological waste incineration facilities in accordance with the conditions specified in the notice of intent to grant the permit and enumerated in this Recommended Order. DONE AND ENTERED this 24th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6824 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-11. Accepted, although not necessarily dispositive of material issues presented, standing alone. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not, in itself materially dispositive of material disputed issues. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject[matter and as not directly relevant in the de novo context of this proceeding. 15-22. Accepted. 23. Accepted, but not itself materially dispositive. 24-31. Accepted, but in themselves materially dispositive of disputed issues and subordinate to the Hearing Officer's findings of fact on this subject matter. 32-43. Accepted. 44-48. Accepted, but subordinate to the Hearing Officer's findings of fact on these subject matters and not, standing alone, dispositive of material disputed issues. 49. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence. 50-55. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 58-64. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, contrary to the preponderant weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 68-73. Accepted. Respondent, TSI Southeast, Inc.`s Proposed Findings of Fact: 1-15. Accepted. 16. Rejected, as a discussion of testimony and not a finding of fact. 17-52. Accepted. 53-70. Accepted. 71-73. Rejected, as not materially dispositive of disputed issues in the de novo context of this proceeding. 74-75. Accepted. 76. Rejected, as unnecessary and immaterial. 77-123. Accepted. 124-129. Accepted, but not themselves dispositive of the material disputed issue of standing. Respondent, DER's Proposed Findings of Fact: 1-41. Accepted. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 David D. Eastman, Esq. Patrick J. Phelan, Esq. Parker, Skelding, Labasky & Corry 318 North Monroe Street Tallahassee, FL 32301 John H. McCormick, Esq. McCormick & Drury 2nd Street at 2nd Avenue Northeast Jasper, FL 32052 Ross A. McVoy, Esq. Vivian F. Garfein, Esq. Fine, Jacobson, Schwartz, Nash, Block & England Suite 348 315 South Calhoun Street Tallahassee, FL 32301 William H. Congdon, Esq. Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Is Respondent, Watson Construction Company, Inc. (Watson), entitled to a general permit allowing it to operate a construction and demolition debris facility in Newberry, Alachua County, Florida?
Findings Of Fact DEP, in accordance with Chapter 403, Florida Statutes, is responsible for enhancing the beauty and quality of the environment; conservation and recycling of natural resources; prevention of the spread of disease and creation of nuisances; protection of the public health, safety and welfare; and provision for a coordinated statewide solid waste management program. It accomplishes these tasks, in part, by regulatory oversight directed to entities who operate solid waste facilities in Florida. That oversight includes permitting the activities by the facilities subject to compliance with statutory and rule requirements. Watson wishes to operate a solid waste facility in Newberry, Florida. In particular, Watson seeks to operate a C&D facility for off-site disposal of C&D debris to be placed where sand has been mined. Watson would pursue this enterprise by using a general permit, as allowed by DEP. Petitioner, City of Newberry (the City), is a political subdivision of the State of Florida. It opposes Watson's use of a general permit to conduct business as a C&D facility, based upon the belief that Watson has not demonstrated compliance with regulatory provisions that would allow Watson to use a general permit. Petitioner, Citizens for Watermelon Pond, Inc. (Citizens), is a corporation constituted of persons who oppose the use of the general permit for the same reasons expressed by the City. On July 21, 1994, Watson noticed DEP that it intended to use a general permit to operate a C&D facility. On July 29, 1994, a notice was published in the Gainesville Sun, a local newspaper, concerning the pendency of the use of a general permit to operate the C&D facility in Newberry, Florida. On August 12 and 16, 1994, the Petitioners filed petitions seeking an administrative hearing on the use of a general permit by Watson to operate the C & D facility. On August 19, 1994, DEP issued a Notice of Denial of the permission to use a general permit to operate the C&D facility. This permit request was under an arrangement between Watson and a co-applicant, Whitehurst. Following the Notice of Denial, no further action being requested by the applicants, DEP issued an order closing its file. In December 1994, in its name only, Watson resubmitted an application to use a general permit to operate the C&D facility in question. The level of consideration at that time was as a pre-application review. This was followed by a formal notice by Watson and application to use a general permit to operate the C&D facility. The formal application was filed on January 17, 1995. On January 24, 1995, notice was published in the Gainesville Sun concerning the more recent intention to use a general permit to operate the C&D facility. On February 6, 1995, Citizens filed a verified petition opposing the use of the general permit contemplated by the January 17, 1995 application. Two days later, the City filed a verified petition in opposition to the most recent request to use a general permit to operate the C&D facility. On February 15, 1995, DEP gave notice that it did not object to Watson's use of a general permit to operate the C&D facility. Watson's most recent request to use a general permit to operate a C&D facility was made on a form provided by DEP in accordance with Rule 62- 701.900(3), Florida Administrative Code. The application to use a general permit was sealed by a professional engineer. The legal description of the property in question is described in the application. It is located in Newberry, Alachua County, Florida. The site location for the proposed C&D facility is one and one-eighth mile south of Southwest 46th Avenue on the east side of County Road 337 in Newberry, Florida. Documentation has been provided which identifies the legal authorization to use the property as a C&D facility. The C&D facility has a planned active life of 50 years. It is intended that the sand that is excavated will be replaced by C&D debris at a similar grade. The mailing address and telephone number of the C&D owner and operator is identified. Watson is the owner/operator. There are 158 acres within the proposed site. Approximately 143 acres would be used in the C&D operation by mining sand as a prelude to recontouring the site by placing the C&D debris. It is intended to excavate tan sand and silty sand to a depth of 20-30 feet. Although Watson anticipates excavating sand to a depth of 30 feet, bore hole data reveals the existence of sand below that depth. Watson does not intend to excavate below 62 feet mean sea level (MSL). In any event, it is not the intention to excavate below the interface of the sand and underlying sandy clays. Once the sand has been excavated, it is anticipated that the bottom of the C&D disposal area will be approximately 15 feet above the piezometric water table associated with the Floridan Aquifer, according to the applicant. The proposed site is located in rolling terrain, whose elevations range from approximately 80 feet MSL to 100 feet MSL. To support the use of a general permit, Watson has provided a site plan with a scale not greater than 200 feet to the inch, which identifies the project location, with proposed disposal areas, total acreage of the site and of the proposed disposal area, and other relevant features that exist on or within 500 feet of the site. The property boundaries are identified. The site would be fenced. Access to the facility would be controlled by a locked gate on County Road 337. The gate would be open during daily operations. The site does not contain surface water. There being no surface water, the C&D facility does not require a surface water management permit from the Suwannee River Water Management District. The site does not present a problem with stormwater runoff. A potable well is located within 500 feet of the property boundary. However, placement of C&D debris would be offset by a 500-foot buffer from the well. Wetlands are located 2,100 feet from the southern edge of the proposed site in the eastern part of the adjacent Whitehurst parcel. Within 3,000 feet of the proposed site is an old phosphate mining pit on the Whitehurst parcel, and 6,200 feet from the proposed site is the northern-most unnamed pond associated with Watermelon Pond. The site is not susceptible to flooding at present. The sand mined at the proposed site would be used to build roads and for foundations for houses and other buildings. Clay removed from the building sites to make room for the sand would be placed in the C&D facility. The material that is removed from building sites and substituted by sand fill is clay with a high shrink and swell factor. That material, together with flint rocks, tree limbs and stumps, would be transported to the C&D facility by Watson's dump trucks. At present, Watson has 20 dump trucks. The dump trucks hold 20 yards each. In addition to those materials removed from Watson job sites by dump trucks, Watson has approximately 36 roll-off dumpsters which hold 20 yards each. Two Watson trucks are available to transport the roll-off dumpsters to the C&D facility. The roll-off dumpsters are placed on construction sites, not exclusively Watson's, and construction materials not used in the building process would be placed in the roll-off dumpsters for disposal at the C&D facility. Approximately 70 percent of the fill material to be placed in the C&D facility would be unsuitable soils, trees, limbs and stumps. The remaining material would be the C&D debris from construction at sites where the dumpsters have been placed. The dump trucks that hold the clay, limbs and stumps would be loaded by Watson employees, who can control what is placed in the trucks. Watson would not control what is placed in the roll-off dumpsters at other construction sites. The Watson dump trucks from job sites directly related to its activities would arrive at the C&D facility and dump their loads for compaction. Those loads would not be spotted for unsuitable fill materials. By contrast, the roll-off dumpsters would be examined at the construction site by the Watson driver. If the driver discovers excessive amounts of material not classified for C&D fill, contact would be made with the Watson office and the material taken to the Alachua County landfill for disposal. If the driver picks up the dumpster at the construction site and there are limited amounts of material not suitable for disposition at the C&D facility, the dumpster would be taken to the C&D facility. The material would be spread out, and a spotter would segregate materials that are not suitable for C&D fill. The unsuitable material would be placed in temporary containers at the disposal site and transported off-site to a permitted landfill or other appropriate facility. Some material brought to the landfill would be recycled. Woods, such as pine or hardwood would be recycled. The limbs and stumps would be placed in the pit as fill. Copper, aluminum, steel, iron, and any other metal would be recycled. The metals would be sold to a scrap-iron facility. An employee at the landfill would keep the money earned from recycling. Metal embedded in broken concrete would be used as fill. The C&D facility would be operated by two persons: one, a loader/operator who loads the dump trucks with the sand that is being excavated; the second individual, a bulldozer operator who pushes the dump truck loads of clay, limbs, and stumps into the fill area and spreads them. He would also spot the roll-off dumpsters and segregate the fill material from unsuitable material. The sorted construction material to be used as fill would be pushed into the working face of the pit, where the tree limbs, stumps and clay would have also been placed. It is anticipated that six to ten roll-off dumpsters with C&D material would be brought to the C&D facility on a daily basis. The amount of unsuitable material that must be sorted from the dumpsters would vary with the individual loads. Watson operates an existing C&D facility in Alachua County, Florida. The proposed C&D facility would be similar in its operation. Based upon the experience in the existing facility, there is no indication that the proposed C&D facility could not be adequately operated by two employees, taking into account the need to segregate unsuitable material before filling. The spotter would receive verbal training concerning his duties. The training provided the spotter is on-site training. He would be reminded once a week of the need to do an adequate job of looking for unsuitable materials. At present, Alachua County inspects the existing C&D facility on a weekly basis and reminds the spotter at that facility what is appropriate for placement and what is not. The expectation is that the same function would be performed at the proposed facility. If sinkholes are encountered in excavating the sand, the equipment operator would contact the Watson office. In turn, Watson would contact its consulting engineer to address the problem, to include placing a plug or cap to repair the breach caused by the sinkhole. In the event that limerock is encountered in the excavation, a clay cap will be placed to prohibit leachate from flowing into the ground water. Areas where limerock is located at higher elevations and not covered by clay present the greatest risk for sinkhole formation. The period between excavation and fill will be approximately two years, leaving the site exposed at the level of excavation before fill is replaced. When the site is closed, the front-end loader operator and bulldozer operator will spread 24 inches of soil as a cap and grade the site in preparation for planting of pine trees. The soil material would be constituted as six inches of top soil suitable for planting pine trees. The remaining 18 inches would contain clay with high shrink/swell properties. The planting of pine trees would be done through a contract forester. The equipment operated at the facility would employ approved muffler systems. Odor generated by the facility is not anticipated to be a problem, in that household garbage, if found, would only be temporarily maintained, pending placement in an appropriate landfill. The site will be examined on a weekly basis to remove blown "litter". Proper provision is made for maintenance of slopes and compaction of fill material as it is placed. Through the application process noticing DEP that Watson intends to use a general permit to operate its C&D facility, DEP has been informed of the location of the proposed site. DEP would have permission to inspect the site during normal business hours. In response to Rule 62-701.420, Florida Administrative Code, Watson conducted a geotechnical investigation and prepared a report to support the application for a general permit. In support of the application Kenneth J. Hill, P.E. investigated the subsurface conditions at the proposed site through drilling activities. The drilling was done at the site and adjacent to the site. In May, 1995, Douglas L. Smith, Ph.D., P.G., conducted an electrical resistivity study (ER) at the site to investigate the subsurface conditions. Thomas H. Patton, Ph.D., P.G. and Charles Swallows, P.E. assisted in the investigation of the subsurface conditions at the site. Ralph E. Eng, P.E., signed and sealed the application for general permit for the proposed C&D facility. In rendering a report following his investigation of the subsurface conditions, Mr. Hill signed and sealed the report and supporting documentation. Likewise, Dr. Smith signed and sealed the report and supporting documentation associated with the ER study, together with Anthony F. Randazzo, Ph.D., P.G. The contribution by Dr. Patton and Mr. Swallows to the geotechnical investigation did not include signing and sealing a report and documentation. Nonetheless, Dr. Patton and Mr. Swallows, when testifying concerning the permit request, as with other professional witnesses, were found qualified to offer testimony consistent with their professional credentials and factual knowledge. 1/ A foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the fill material revealed that the weight of the construction debris was approximately 70 pounds per cubic foot, whereas the weight of the existing sand to be excavated is approximately 100 pounds per cubic foot. Thus, the placement of fill material following excavation would impose less stress on the subsurface than before. No significant settlement of the fill materials is expected to occur, resulting from its weight. The nature and fate of leachate promoted by the placement of fill at the site, in an environmental susceptible to bio-chemical and physical influences in transport through the subsurface, has the potential to adversely impact ground water. Those impacts could possibly cause violations of water- quality standards, ground-water standards, and drinking-water standards. These issues are considered based upon facts associated with the imperatives which must be properly addressed through the geotechnical investigation. That process anticipates gaining an understanding of subsurface conditions, to include the soil stratigraphy and ground-water table conditions. The ground-water table conditions involves estimations of the average and maximum high ground-water table. The geotechnical investigation should also explore the possibility of and address the existence of any sinkholes on the site. No specific testimony was given concerning the degree to which leachate, when present in the ground water at the Floridan Aquifer, might promote water-quality violations. Leachate properties and constituents were described in general terms of water-quality considerations, for example, hardness, nitrates, nitrites, alkalinity, presence of ammonia, chlorides, iron manganese, phenols, barium, arsenic, cadmium, lead, mercury, zinc, TDS and sulfates, urea formaldehyde, plaster, creosote, glues, and mastic hardeners. The evidence presented concerning the parameters for water quality did include a reference to barium, ranging from .5UG/L to 8UG/L in basically similar circumstances. The fill material can influence the natural PH by creating acidic conditions causing the PH to fall from a neutral 7.0 to 5.5 to 6.5. The process that takes place over time with the fill material also releases gases, such as methane, hydrogensulphide, and carbon dioxide. Rainwater falling on the ground's surface forms the basis for transporting the leachate through the subsurface. Only the Floridan Aquifer is potentially at risk, there being no surface water bodies or surficial aquifer at the site. Taking into account rainfall disposition by evapotranspiration, storm- water runoff, and subsurface infiltration, without certainty as to the amounts in those processes, it can be said that a significant amount of rainfall is available through infiltration to recharge the Floridan Aquifer and to transport leachate promoted by the fill. This is borne out by the absence of surface water bodies and a surficial aquifer on the site. To gain basic information concerning the subsurface conditions, Watson had 14 standard penetration test borings conducted by Mr. Hill and his firm. Those borings were advanced to depths of 35-72 feet. Additionally, three auger borings were performed to a depth of 40-50 feet. The auger borings were at sites A-1, A-2, and A-3, performed on April 17, 1993. In July of 1993, standard penetration test borings were performed at sites B-1, B-2, B-3, and B-4. In April of 1994, standard penetration test borings were performed at sites B-5, B-6, B-7, and B-8. In September of 1994, standard penetration test borings were performed at sites B-9, B-10, B-11, B-12, B-13, and B-14. The borings that were performed at the proposed site were at B-2, B-5, B-6, B-9, B-10, and B-14, for a total of six borings. The other borings were performed on the adjacent parcel. The borings at the proposed site were widely dispersed over the 143 acres contemplated for excavation and fill. The borings on the adjacent parcel, referred to as the Whitehurst parcel, were widely dispersed over 475 acres. Logs of the soil borings were prepared depicting the findings in the subsurface. The soil stratigraphy found in the borings was varied with sand, clayey sand, sandy clay and limerock present in some but not all borings. The sands that have been described are Aeolian. The sands are remnants of an ancient coastal dune system. Soil permeability tests were conducted on a limited basis at boring B- 9 at a 25-foot sample depth. The tan and orange clayey sand described had a co- efficient for permeability of 1x10-6. That sample and others described were obtained through a split-spoon. At B-12, at 35 feet, tan and orange clayey sand was found with a co-efficient for permeability of 2.6x10-8. At B-13, at 30 feet, tan and orange clayey sand was found and tested as 2.0x10-8 for the co- efficient for permeability. At B-14, at 30 feet, tan and orange sandy clay was found with a co-efficient for permeability of 9.6x10-9. In describing the soils, sieve analysis was not performed to more precisely classify the sediments encountered. This description of the strata is by appearance and texture. The clayey sand and sandy clay found in the borings retard discharge of the leachate to the ground water in the Floridan Aquifer based upon the permeability in those soils. Generally stated, the tan sands described have a co-efficient for permeability of 10-1 to 10-4. These sands are highly permeable, presenting an easy opportunity to convey the leachate contained in the infiltrating rainwater. Anomalous findings concerning soil permeability are shown at B-4, an off-site location, which portrays only sand in the boring. Also, B-9, which was drilled four to five feet east of a known sinkhole at the site is noteworthy in that the boring log describes tan and orange sandy clay, with trace limerock below 30 feet. This is in contrast to the field notation by the driller of the "p" for push and drilling rod "free fall" from 38 feet BLS to 42.5 feet BLS before encountering limerock, connoting a possible cavity in the 38-foot BLS to 42.5-foot BLS region. The karst feature that is located in the area where boring B-9 was conducted will be surveyed and marked with fence posts prior to excavation. No excavation will be conducted within 200 feet of that site. In addition to the phenomenon at the B-9 boring area, sinkholes at the surface were observed one-half to three-quarters of a mile northeast of the site. Sinkholes can occur when the placement of fill changes the hydraulics and loading in a karst environment. Finally, at B-6, limerock was encountered above the 46.9 feet MSL regional piezometric surface of the Floridan Aquifer. That limerock is considered part of the aquifer system. The head pressure at that location was not sufficient to force the ground water from the Floridan Aquifer. The more typical experience was as shown in B-5, where the surface of the limerock was lower than the regional piezometric surface. In B-5, ground water was not encountered until the clayey layer was breached and water rose in the drill hole. On occasions, such as the experience in B-5, there was an indication that Artesian conditions existed at those places. At the locations where the Artesian conditions were experienced, the Floridan Aquifer is confined. At B-6, where the limestone rises higher than the regional piezometric surface, the Floridan Aquifer is not confined. The bore hole at B-2 was terminated before breaching the clayey layer, and ground water was not encountered. Watson's consultant Hill considered that the ground-water table was found within the Floridan Aquifer at the site whose regional potentiometric surface was 46.9 MSL. He perceived that the findings showed ground water at 45 feet MSL constituting the average for the site. Watson estimated that the "seasonal high" ground-water table at the site was 48 feet MSL. The term "seasonal high" is equated to maximum high. Watson claims that the fluctuation in the ground-water table would be only a few feet. This would mean that the 45 feet MSL from bore hole data would represent not only the average across the site but the average value at the site at any point in time during the year. Watson makes this assertion notwithstanding that the borings were made over two years during different seasons. The basis for the estimate of maximum high ground-water table is not evident. In Dr. Patton's remarks in the application, there is a reference to the fact that the lowest encountered elevation for the Floridan Aquifer was 45 feet MSL and the highest was 55 feet MSL, making the average 50 feet MSL. This runs contrary to the remarks by Hill in which Hill said the elevation in the region was 46.9, the elevation detected was 45, and that the seasonal high would be 48. The only borings that were made in which the log reflects the MSL elevation and the boring depth are borings that were conducted in April 1994. On that date, the boring depth at which ground water was encountered varied from 37-43 feet and the MSL depth varied from 39-47 feet. If only the information for B-5 and B-6 on the site proper is used, those two data points associated with the borings on April 1994 reveal ground water at an excavation depth of 37 feet and between 45-47 feet MSL, respectively. Overall, without reference to MSL, the depths at which the ground water was encountered in the borings varied from 19-44 feet, if encountered. Although it is not shown in the boring log what the relationship is to MSL, at B-9, water was found at a drilling depth of 38 feet; at B-10, at a depth of 36 and one-half feet; at B-2, no water had been encountered at a drilling depth of 50 feet; at B-14, no water had been encountered at a drilling depth of 35 feet; at B-1, water was encountered at a level of 44 feet; at B-3, water had not been encountered at the concluding depth of 50 feet; at B-4, water had not been encountered at the concluding depth of 50 feet; at B-11, water was encountered at a drilling depth of 31 and one-half feet; at B-12, water was encountered at a drilling depth of 19 feet; at B-13, water was encountered at a drilling depth of 21 and one-half feet. Where elevations were measured for the water table in the bore holes, the holes were left open until the drillings had been concluded. Then the measurements were made. In this project, the consultant did not equilibrate the ground-water table by the traditional method of leaving a piezometer in the bore hole to maintain its integrity for a day before making the measurement. Watson has not provided sufficient information and explanation to determine a proper estimate of the average and maximum high ground-water table across the site. Returning to the ER investigation, it involved 39 soundings, which is roughly equivalent to drilling bore holes. The sounding profiles were determined through Wenner-Array Sounding and Lee-Directional Equipment. This technique involves the passing of an electrical current underground and measuring its resistance to flow. The expectation is that earth materials, for example, clay, sand, limestone, and cavities will resist the flow of electrical current differently. Substantially greater contrast in the degree of resistance, anomalies, is used to identify and locate earth materials, as well as the presence and shape of cavities. The sounding measurements reveal two- dimensional detail below the surface at progressively-greater depths. Lee- Directional measurements determine the direction of higher or lower resistivity along the survey line. While in the field, electrodes are placed in the ground at equal distances from one another. After a measurement, this distance is increased in an orderly fashion. The greater distance between the electrodes, the greater the depth of penetration. The ER equipment's electrical current has the capacity to penetrate through clay and into lower features in the subsurface. Subsurface from depths five to 100 feet were examined in this study. Within the 39 groundings surveyed, various soils were encountered. Generally, a thick cover of unconsolidated sand was found overlying clayey sand, with a clay layer varying in thickness and limestone found in some soundings, but not others. Where limestone was detected, it was at deeper levels in the southwestern part of the site. Because ER cannot distinguish between clayey sand and sandy clay, the area where those soils are found is referred to in the report as a thinner clayey sand layer. Also, in some places the upper surface of limestone has suffered weathering or deterioration and may appear as the lower part of the clay unit in terms of its electrical properties. The general portrayal in the ER study concerning the soil stratigraphy, wherein reference is made to dry sand up to 30 feet in thickness overlying a thinner clayey sand layer, approximately 10 feet in thickness, overlying a relatively thick clay layer from 10-60 feet and then limestone, does not coincide with the complexity in the stratigraphy found in the soil borings. In the ER study, at stations 8 and 10, voids were encountered. The nature of those voids is unexplained by this investigative process. At station 8, the void was found at approximately 100 feet deep. At station 10, the voids were at 50 feet and 100 feet deep. At station 14, anomalous findings were explained as the placement of fill and organic material during land-clearing operations. The suggestion in the written report, which summarizes the findings in the ER investigation, that a water table was encountered at approximately 40 feet deep, coinciding with the top of the clay layer, is contrary to the findings in the soil borings. To the extent that finding is intended to suggest that there is a perched water table or surficial aquifer above the clay layer, that view is contrary to other evidence adduced at hearing and is rejected. Like the soil borings, the ER soundings examined very discreet areas, but revealed less discreet information. This investigative process is not designed by itself to resolve disputes concerning the character of the subsurface, taking into account statutory and rule requirements for issuing a general permit. To portray the subsurface conditions, in June 1995, Petitioners undertook another basic study by employing ground-penetrating radar (GPR) to reveal the subsurface conditions. Again, GPR, like ER, affords limited insight into the conditions in the subsurface. More precise information than is revealed in the results from the GPR study would be needed to understand the subsurface conditions. GPR is comprised of several pieces of equipment that are connected with cables and a power source. This equipment is mobile. It uses a transmitter and receiver antenna that essentially glides along the ground surface. A signal is emitted through the transmitter. It perpetrates into the ground. It is reflected off materials of different electrical properties back to the receiving antenna and charted. The record that is made is continuous. Unlike ER, GPR is capable of detecting small anomalies in the subsurface. In employing the equipment in this investigation, Petitioners' consultant was looking for either stratigraphic or water-table reflectors and anomalous conditions. The experience at this site was comparable to the experience at other sites in gaining an understanding of how geologic materials are deposited. The GPR investigation covered approximately 10 percent of the site. Four lines were traversed east to west. Two lines were traversed north to south, and two other lines were traversed on a diagonal. GPR will not significantly penetrate clay. Its ability to penetrate is dependent in some measure upon the nature of the clay unit encountered. However, GPR reveals contrasts in the conductivity of clay, when compared to the overlying sand. The greater the contrast, the greater the reflection event. In this connection, the presence of moisture can slow or prohibit the electromagnetic energy generated by GPR. The GPR study revealed a substantial number of subsurface anomalies that might be indicative of possible access for leachate generated by the placement of fill to enter the Floridan Aquifer. These anomalies might represent sand columns and cover subsidence sinkholes. Any sinkholes on the site would be expected to be "cover subsidence"- type sinkholes. Those sinkholes occur through a process in which overlying strata slowly subsides into the sub-adjacent karst feature, rather than suddenly collapsing. Sinkholes develop rarely, but pose more risk of development in areas where sinkholes have occurred previously. Sinkholes are not always seen at the land surface. Sinkholes can present a risk to ground water in the aquifer in view of solution cavities found in the limestone which is part of the aquifer, thus allowing leachate to flow through the cavities into the ground water. Some anomalies found in the GPR study were more significant. One that was observed in the third traverse was 100 feet wide by 80-90 feet deep. There is an indication that this area might be filled with sands, creating a more ready access to the lower subsurface than would be expected with other soils. Another anomaly discovered was 200-300 feet long and 400-500 feet wide, approximately 50 feet below the surface. Overall subsurface conditions are not readily understood. Watson, through its consultant, suggests that the site is part of the Newberry Sand Hills region of the Brooksville Ridge system. As such, karst activity has proceeded in a slower manner than other places in Alachua County, with no presently active karst conditions. In opposition, Petitioners assert that the site is part of the Brooksville Ridge System, which is an internally-drained area of karst-dominated highly fractured terrain, according to its consultants. If Petitioners are correct, those circumstances lead to solutioning of the limestone and are not indicative of area of continuous impermeable clay layers found at the site as part of the Hawthorne formation that Watson's consultant surmises. The exact nature of the site concerning factors that must be considered in this permit application have not been adequately resolved in this record. While it is sufficiently evident that the Floridan Aquifer is not confined, it is unclear whether the circumstances at the site present unacceptable risks to the ground water, in view of existing subsurface conditions. From the record, the proper manner to resolve the issue would be to perform more soil borings on the site proper to identify the subsurface conditions concerning soil stratigraphy and ground-water location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Watson the use of a general permit to operate the proposed C&D facility. DONE AND ENTERED this 7th day of August, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1996.
The Issue Whether Respondent’s use of explosives in connection with construction materials mining activities caused damages to Petitioners’ home, and, if so, the amount of damages to which Petitioners are entitled.
Findings Of Fact The Parties Petitioners reside in a single-family, one-story home located at 14699 Southwest 47th Street, Miramar, Broward County, Florida 33027. Petitioners are the third owners of the home, which was built in 1981. Petitioners have resided in the home since 1998. The home is approximately 3,000 square feet “under air,” and is composed of concrete block with stucco finishes, a shallow slab-on-grade foundation system, wood-framed interior walls, and ceramic tile flooring. Respondent engages in construction materials mining activities in Miami-Dade County, Florida. Specifically, Respondent utilizes explosives to procure construction materials (i.e., limestone) from quarries that are located in northwest Miami-Dade County, Florida. Respondent’s Blasting Activities The subject quarries are located within various geographic areas identified by different sections. Of particular relevance to the instant matter are sections 7, 6, and 4/5. Section 7 is approximately 2.6 or 2.7 miles from Petitioners’ home. Section 6 is approximately 2.3 or 2.4 miles from Petitioners’ home. Section 4/5 is approximately 1.6 miles from Petitioners’ home. Each of the sections have been utilized as a discrete location where blasting activities occur in order for Respondent to obtain construction materials. Section 7 was in operation from the mid-1990s through the end of 2015. Currently, no blasting activities occur in section 7. Section 6 was in operation from 2000 through 2015. Currently, no blasting activities occur in section 6. Section 4/5 began blasting operations in the first quarter of 2015 and halted in the fourth quarter while excavation was done. Blasting in section 4/5 resumed in January 2016. To monitor the impact of its blasting activities, Respondent utilizes the firm GeoSonics, Inc. (“GeoSonics”). GeoSonics has performed vibration measurement, evaluation, and reporting to Respondent since 1986. Jeffrey A. Straw is a seismologist with 39 years of experience and is employed by GeoSonics. As a seismologist, Mr. Straw is responsible for monitoring the impacts of vibration from Respondent’s blasting activities and analyzing their effects on structures. GeoSonics placed seismographs to monitor the impact of Respondent’s blasting activities. Peak particle velocity (“PPV”) is the speed at which a particle of ground oscillates as the vibration wave moves through the ground. The seismographs are used to determine if Respondent’s blasting activities are within the PPV limit of 0.5 inch per second established by the state of Florida. The seismographs must be located within one mile of each blast location to record the PPV resulting from the blasting activities. The seismographs are monitored and evaluated to ensure that their readings are accurate. The seismograph readings are evaluated by GeoSonics, which provides reports on the readings to Respondent and to the state fire marshall. Each seismograph undergoes testing to ensure that the instrument is working properly and providing effective and accurate readings. Every time a seismograph provides a reading concerning a blast, it sends a calibration pulse, which indicates whether the seismograph is working properly. Each seismograph instrument has an accompanying certification demonstrating that the instrument has successfully undergone testing and is working in accordance with the industry standards and specifications. There are six seismographs located within the vicinity of Petitioners’ home. The further the distance from the blasting location, the lower the blasting intensity. Each seismograph is located closer to the blasting location than Petitioners’ home. Thus, the PPV measured by the seismographs are greater than what the blasting intensity would be at Petitioners’ home. At no time have any of Respondent’s blasting activities reached or exceeded the 0.5 PPV limit. Petitioners Failed to Prove that Respondent’s Blasting Activities Caused Damages to Their Home In the instant case, Petitioners assert that Respondent’s quarrying activities caused damages to their home. Petitioners’ alleged damages center on “cracks” that exist throughout the home--specifically, cracks throughout the tile flooring inside the home; cracks on the cement flooring of the garage; cracks in the interior and exterior walls and ceilings; cracks in the semi-circular, stamp-concrete driveway and patio; and cracks around the surface of the windows. It is clear that cracks exist in Petitioners’ home. However, the issue to be determined in this case is whether the cracks were caused by Respondent’s blasting activities. They were not. In support of Petitioners’ position, Mrs. Alfaro presented at hearing a home inspection report. The inspection was conducted on April 18, 2016, and was not performed by a general contractor or structural engineer. Although the inspector identified various cracks based on his visual observations, the inspector specifically excluded any opinion regarding the cause of any need for repairs. Petitioners were specifically advised to obtain an opinion from a general contractor or structural engineer as to the cause of the damages. Mrs. Alfaro is an electrical contractor. She is not a licensed general contractor or structural engineer. At hearing, Mrs. Alfaro conceded that she does not have experience as a general contractor or seismologist. She has not had any training in seismology or blasting activities. Mrs. Alfaro’s testimony at hearing regarding the purported cause of the cracks is not credited and is unpersuasive. At hearing, Mrs. Alfaro presented the testimony of Barbara Hagan. Ms. Hagan resides in Country Club, Miami-Dade County, Florida, and is retired. She serves as the president of a civic association and secretary and treasurer of her homeowner’s association. She is not a general contractor, engineer, or seismologist. She has no experience in the use of explosives. She has never visited Petitioners’ home. At hearing, Ms. Hagan conceded that she has no opinion regarding the cause of any of the damages in Petitioners’ home. Mrs. Alfaro also presented the testimony of Paul Ingelmo. Mr. Ingelmo is a structural engineer who performed a visual inspection of Petitioners’ residence. Mr. Ingelmo did not review or analyze PPV data relevant to the blasts complained of by Petitioners. Mr. Ingelmo has no training or experience as to the appropriate threshold with respect to blasting activities and PPV. He is not familiar with how a wave behaves from a blast versus a seismic event. Mr. Ingelmo is not familiar with how PPV is measured or calculated. Importantly, Mr. Ingelmo could not give an opinion on whether the damages to Petitioners’ home were caused by Respondent’s blasting activities. In fact, Mr. Ingelmo conceded that the damages could have been caused by any number of unspecified factors. Finally, Mrs. Alfaro presented the testimony of Ismailia Rashid. Ms. Rashid is a general and roofing contractor. Ms. Rashid visited Petitioners’ home, conducted a visual inspection, and observed cracks on the patio, interior floors, and driveway. Ms. Rashid is not familiar with PPV or ground vibration. She has never been in a home where she was present and there was blasting. Importantly, Ms. Rashid did not offer an opinion on whether the damages to Petitioners’ home were caused by Respondent’s blasting activities. In sum, Petitioners failed to prove by a preponderance of the evidence that the damages to their home were caused by Respondent’s blasting activities. Rather, the preponderance of the evidence presented at hearing demonstrates that the damages to Petitioners’ home were not caused by Respondent’s blasting activities. In reaching this conclusion, the undersigned credits and finds persuasive the testimony of Respondent’s witnesses: Jeffrey A. Straw, David L. Teasdale, and Michael Schraeger. Mr. Straw visited Petitioners’ home twice: in April 2006 and January 2016. At those visits, Mr. Straw accompanied Michael Schraeger, a licensed general contractor with Diversified Services, Inc. On both occasions, Mr. Straw brought a camera and notepad with him to catalog the defects identified by Petitioners. Mr. Straw took extensive and comprehensive photographs detailing the cracks throughout Petitioners’ home and driveway. Mr. Straw testified that 90 percent of the alleged defects he observed in 2016 were items that he also observed in some format in 2006.1/ Mr. Teasdale is a civil structural engineer with Haag Engineering and serves as vice president of engineering and principal field engineer. Mr. Teasdale’s specialty focuses on the extent of damage to structures due to ground vibrations, explosions, and earthquakes. He is a licensed engineer in the state of Florida and 34 other states and has been a licensed engineer since 1988. He is extensively familiar with seismographs and has extensive experience installing and using them. Mr. Teasdale was accepted by the undersigned as an expert in structural behavior from ground motion and normal service loads, the influence of construction practices and environmental conditions on building features, soils and hardscape, the causes and conditions documented at the Petitioners’ residence, and lot features including the suitability of existing safe blasting standards in the state of Florida. Mr. Teasdale testified that there are substantial differences between an earthquake and quarry blasting. Mr. Teasdale explained that the fundamental difference between an earthquake and a quarry blasting is the amount of energy being released by the activity. Quarry blasting is a localized source event. An earthquake involves a fault line, which can extend for many miles and become mobilized. There is a direct correlation between the length of a fault line ripped versus the magnitude of an earthquake. Mr. Teasdale also explained that the measurement for quarry blasting, unlike the Richter Scale used for earthquakes, is a direct measurement; meaning that a PPV of 1.0 is twice the impact of a PPV of 0.5. Mr. Teasdale testified that for blasting to cause damage to a structure, distortion must occur. Distortion occurs where the foundation of a structure is accelerated laterally and causes the upper-part of the building to lag in response, which causes the building to shift back-and-forth and mimic a parallelogram shape. He explained that when distortion occurs, cracks will emanate from the corner of the walls and that those cracks will be mirrored on the opposite walls (inside and outside the structure). Mr. Teasdale explained that there was no damage to the foundation of Petitioners’ home, and the foundation and floor of a home would not experience distortion at 0.5 PPV or below because those limits are too low to produce the energy necessary to cause a structure to become mobilized. According to Mr. Teasdale, Petitioners’ home exhibited a variety of horizontal and vertical cracks and separations in the finishes, which are typical of environmental stresses in those materials. Mr. Teasdale also testified that distortion causes diagonal cracks, while thermal environmental stresses cause cracks vertically and horizontally. He explained that cracks caused by environmental conditions do not correlate on the inside and outside, while cracks caused by distortion do correlate on the inside and outside. He emphasized that the absence of corresponding cracks on the inside and outside of the structure generally precludes blasting as the cause of damages. Mr. Teasdale explained that from the moment the concrete is cast, it begins to shrink and develop cracks. Mr. Teasdale further explained that stucco, which is essentially the same material as concrete, is also prone to cracks due to normal environmental conditions. Mr. Teasdale testified that at the level in which Respondent has blasted below 0.5 PPV, it is impossible for Respondent’s blasting to have caused damages to Petitioners’ home. Based on his review and analysis of Petitioners’ home, Mr. Teasdale concluded that he would exclude blasting to a reasonable degree of scientific certainty as the cause of damages to Petitioners’ home. Mr. Schraeger is a general contractor and building inspector. He is self-employed through his company Diversified Services, Inc., and serves as the owner/operator. Mr. Schraeger has approximately 30 years of experience in commercial and residential construction. He has been licensed as a general contractor for 22 years and specializes in repairs, remodeling, and renovations of commercial and residential structures. He has 20 years of experience performing inspections of buildings relating to determination of material, construction failure, and defects. Mr. Schraeger was accepted by the undersigned as an expert in construction practices and environmental effects on materials and structures. Mr. Schraeger inspected Petitioners’ home in 2006 and 2016. He testified that 90 to 95 percent of the alleged defects he observed in Petitioners’ home in 2016 existed when he inspected the home in 2006. Mr. Schraeger testified that the cracks that he observed on the tile floor inside Petitioners’ home are very typical in a South Florida home because concrete typically cracks within all concrete structures. These types of cracks can be caused by poor installation of the tile or shrinkage of the monolithic slab over time. There was no evidence of foundation damage.2/ Mr. Schraeger further testified that in his professional opinion, some of the cracks in Petitioners’ home are the result of poor construction practices. For example, he explained that most of the cracks in the interior of Petitioners’ home are due to poor construction practices because of the use of an inappropriate method for finishing the joints in the drywall. During his 2016 inspection, Mr. Schraeger observed tape on some of the joints, which either had no joint compound under them, or the tape was applied after the compound started to dry, causing a bond failure. Some of the cracks generating from the corners of openings appeared to be from improperly secured corner bead. During his 2016 inspection, Mr. Schraeger also observed a crack in the master bedroom approximately eight feet in length, which appeared to be a joint in the drywall. This was apparent to Mr. Schraeger because the crack was visible on both sides of the joint tape, which had failed. According to Mr. Schraeger, the cause of this failure was moisture from a roof leak. Staining due to moisture on the ceiling in the area and a repair of the roof above this area indicated a previous leak. Notably, other areas of the home indicated roof leaks, including stains on the ceiling of the office area and staining around the skylight in the hallway. Mr. Schraeger further testified that the patio tile and driveway lack sufficient control joints, thereby making the stamped-concrete driveway and patio prone to crack. Mr. Schraeger also identified issues of poor maintenance by Petitioners. For example, he noted that the caulking around the windows was brittle and almost nonexistent. At hearing, Mrs. Alfaro acknowledged that in the 17 years she has owned the home, the windows have never been re-caulked. According to Mr. Schraeger, several cracks were observed on the stucco exterior walls of the home. With the exception of a severe crack on the wing wall on the rear of the patio, all of the cracks in the exterior walls of the home were attributed to common aesthetic cracks caused by the lack of control joints, dissimilar materials, bond failure, and improper maintenance. The crack on the wing wall of the patio, which ran along the bottom of a large tie beam, was attributable to poor construction methods.
The Issue The issues in this case are whether Respondent, Nemi, Inc., should pay a $500.00 administrative fine for maintaining an unpermitted stationary installation that is reasonably expected to be a source of water pollution (Count I); whether it should pay an administrative fine of $9,500.00 for failing to submit a completed Site Assessment Report (SAR) within 270 days of discovery of the discharge of chemical solvents (Count II); whether it should pay investigative costs and expenses in the amount of $1,500.00 incurred by Respondent, Department of Environmental Protection (Department) (Count III); and whether it should take corrective action, as described in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice of Violation) issued on January 23, 2009.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is a for-profit corporation registered to do business in the State. Respondent's president and registered agent is Neil Schuberg, who represented the corporation at hearing. Respondent is the owner of a 1.1-acre parcel of real property located at 6801 Northwest 17th Avenue, Fort Lauderdale, Florida. The property is situated in what is known as the Gateway Industrial Center just south of the City of Pompano Beach and midway between the Florida Turnpike and Interstate 95. The parcel is rectangular shaped and is approximately 90 feet wide by 180 feet long. The property is further identified by the Broward County Property Appraiser as Parcel Identification Number 494209050040. A one-story warehouse and parking lot are located on the property, which is currently leased by Respondent to a testing laboratory. The evidence shows that for at least since 1981 David R. Ligh owned the property until his death. After he died, his widow, Elsie M. Ligh, sold the property in 1994 to Clayton John Pierce subject to a mortgage in the amount of $167,640.00. Mr. Pierce began operating a business on the premises known as Combined Roof Services, Inc. In 1995, Mr. Pierce decided to sell the property. A potential buyer, S & S Propeller Company, retained the services of Buck Eco-Logic, Inc., an environmental consulting firm, to prepare an environmental site assessment for the purpose of "determining the suitability of property for ownership by [S & S Propeller Company]." When it first inspected the site in July 1995, Buck Eco-Logic, Inc., discovered three thirty-five gallon drums and a twenty-gallon black plastic tub, all labeled "hazardous waste" and reflecting that they had contained tetrachloroethene (also known as perchloroethylene) waste. This is a chemical solvent that is typically used by dry cleaning establishments. The labels carried the name and "EPA ID number" of Family Dry Cleaners located at 6804 Stirling Road, Davie, Florida, an address which appears to be around ten to twelve miles south of the subject property. The three drums were lying on their sides on the northern end of an asphalt parking area beneath overgrown Brazilian pepper trees and were empty; the empty twenty-gallon tub was located inside the building on the property. Soil borings on the property performed by Buck Eco- Logic, Inc., revealed concentrations of tetrachloroethene at 10,613 parts per billion, which exceed allowable standards. Tetrachloroethene and its breakdown products are a solid waste, as defined by Florida Administrative Code Rule 62-701.200(113). A Phase I Environmental Site Assessment (Phase I ESA) dated August 13, 1995, was prepared by the consulting firm and sets forth in detail the results of its inspection. See Department Exhibit 2. The sale was never consummated. Later that year, Mr. Pierce engaged the same consulting firm to perform a Phase II Environmental Site Assessment of the property. That assessment revealed concentrations in groundwater ranging from 8,840 parts per billion to 173,000 parts per billion of tetrachloroethene, which exceed the State Clean Soil Criteria and State Maximum Contaminant Levels. The report, issued on October 13, 1995, was received in evidence as Department Exhibit 3. On October 30, 1995, a Mr. Pivnick, an attorney with the firm of Dombroff & Gilmore, P.A., which represented Mr. Pierce, notified the Department by letter that the empty drums and tub had been discovered on the property. The letter also attached a copy of the Phase I ESA. Mr. Pivnick was instructed by the Department to contact the local police department to report the incident as well as the state warning system for reporting discharges to the environment. Also, the Department contacted other local agencies and the United States Environmental Protection Agency (EPA). In October 1995, Mr. Pierce vacated the premises and ceased operating Combined Roof Services, Inc. In January 1996, he began leasing the property to Sun Valley Industries, also a roofing repair business, until that firm vacated the premises in December 1997. With the use of grant monies, the Department engaged the services of International Technology Corporation to prepare a Preliminary Investigation Report (PIR) for the property. That report was issued on February 13, 1997. See Department Exhibit The PIR recommended that additional monitoring of the site (through shallow monitoring wells, soil samples, groundwater samples, and groundwater flow direction) be made to quantify the presence of chlorinated solvents. Again with the use of grant monies, in 1997 the Department engaged the services of Post, Buckley, Schuh & Jernigan, Inc., to prepare a Site Inspection Report (Report) for the subject property. The Report was issued in March 1998. See Department Exhibit 5. Excessive tetrachloroethene, Cis-1, 2- dichloroethene, and trichloroethylene were detected in ground water samples, while tetrachloroethene was detected in all seven soil samples. On April 2, 1998, Ms. Ligh assigned the mortgage on the property to Nemi, Inc., for around $100,000.00. Mr. Schuberg explained that he was able to purchase it at a discount because Mr. Pierce had ceased making payments on the mortgage and had warned Ms. Ligh that if she foreclosed on the mortgage, she would be responsible for cleanup costs on the property exceeding a million dollars. While Mr. Schuberg acknowledged that he was aware of a contamination problem on the property, he says the mortgage was purchased as an investment, and he never thought he would actually acquire the property because he believed Mr. Pierce would continue to make the mortgage payments. After failing to make payments on the mortgage, on September 21, 1999, Mr. Pierce executed a Warranty Deed in Lieu of Foreclosure in favor of Nemi, Inc. Based on conversations with Mr. Pierce at that time, Mr. Schuberg says he was under the impression that the spill was much smaller than it actually was, and that it would be cleaned up by the Department. At hearing, Mr. Schuberg characterized Mr. Pierce as "a hustler and a liar." After Mr. Pivnick's report of contamination was received, the Department, along with the Broward County Department of Natural Resource Protection, initiated an investigation (probably in late 1995 or early 1996) in an attempt to verify the source of the contamination. Because Family Dry Cleaners "was on the top of [its] list," the Department first sought to determine whether that firm had actually deposited the drums and tub on the subject property. It learned that in 1994, or a year before the contamination was reported to the Department, Family Dry Cleaners had been evicted by its landlord, Lincoln Park. According to the Department, this "led to a dead- end" as far as Family Dry Cleaners was concerned. However, that business had been replaced by another tenant, Liberty Dry Cleaners. The Department then attempted to ascertain whether Lincoln Park or the new tenant might have been responsible for transporting the drums and tub to the subject property and dumping the waste. However, the Department was unable to confirm that either of the two had done so. Photographs of the drums and tub were made by Buck Eco- Logic, Inc., when it conducted an assessment in July 1995. Because the empty drums and tub were later removed from the site by unknown persons, the Department was only able to review the photographs when it conducted its investigation. Photographs of the drums indicated that they were larger than the twenty-gallon drums normally used by a dry cleaning establishment, and the labels on the drums were not perforated or dot matrix, which are more typical of those used by dry cleaners. For this reason, and because the empty tub was found inside the building on the property, the Department attempted to determine if Mr. Pierce had purchased the contaminants for use in his operations; it was not able to confirm this fact. The Department also contacted local law enforcement officials to see whether a criminal investigation could be launched. As noted above, however, the drums and tub had been removed by unknown persons while Mr. Pierce still had possession of the property and there was no forensic evidence for law enforcement officials to examine. The result of the investigation was that the Department was unable to determine who deposited the drums on the site or the exact location where the contents were first dumped. Although Respondent contended that the Department could have easily determined who removed the empty drums and tub from the subject property by examining the manifests of the carriers who engage in that type of business, the Department investigator did not attempt to do this since the yellow pages in the telephone directory reflected at least six pages of transporters in this type of business. Further, there is no evidence that a commercial transporter was even involved. For all of these reasons, the Department looked to the current owner of the property, Respondent, as the entity responsible for site rehabilitation since there were, and still are, contaminants leaching into the groundwater and aquifer system. Specifically, as of 2007, or twelve years after the discharge occurred, the groundwater on Respondent's property was still contaminated with tetrachloroethene, trichloroethylene, and cis-1, 2-dichloroethene exceeding the Department's groundwater standards. Also, the same contaminants exceeded the Department's soil cleanup target levels based on ground water criteria. Because rainfall and surface water continue to come into contact with the contaminated soil, and there is no liner or impervious cap in place, the installation is reasonably expected to be a source of water pollution. On September 12, 2001, the Department sent a letter by certified mail to Respondent advising that contamination was present on the property, that there were "possible violations of law for which you may be responsible," and that a Preliminary Contamination Assessment (PCA) must be filed within sixty days from the date of the letter. See Department Exhibit 6. Although a meeting of the parties was held on October 4, 2001, a PCA was never filed. 16. On April 27, 2006, March 12, 2007, and July 3, 2007, the Department issued Warning Letters to Respondent advising that an enforcement action would be initiated unless Respondent provided a SAR within a time certain. See Department Exhibits 7, 8, and 9. (The record is silent as to why no formal activity occurred between October 2001 and April 2006.) Exhibit 8 reflects that on November 21, 2006, "analysis results of sampling of one monitoring well were received by the Department." A meeting was later conducted by the parties on January 16, 2007, at which time Respondent agreed to "draft a suitable letter of [its] intentions with regard to conducting the required assessment and send it to the Department on or before January 31, 2007." There is no record of such a letter being sent. In August 2007, Respondent contracted with Florida Environmental Engineering, Inc., to perform a "limited site assessment report." In March 2008, that firm submitted to the Department a Preliminary Site Assessment Report (PSAR) See Department Exhibit 10. For this service, Respondent paid around $16,000.00. On March 21, 2008, the Department advised Respondent by letter that the PSAR was incomplete and that further information should be provided by April 30, 2008. See Department Exhibit 11. An Addendum to the PSAR was provided on May 5, 2008. See Department Exhibit 12. This report cost Respondent an additional $3,000.00. The PSAR indicated that contaminants (dichloroethene and trichloroethylene) in the water and soil on the property exceeded Department groundwater and soil cleanup target standards and levels. The report concluded, however, that "the discharge to the site is from an offsite source" (west of the property) and that "the property owner is no longer a responsible party." On August 27 and then again on October 22, 2008, the Department issued letters to Respondent advising that "there is not enough data to support the assumption that the discharge is offsite and the contamination is from an offsite source located west of the property." The Department reached this conclusion because, among other reasons, "[t]he contamination does not seem to be delineated towards the northern and southern portions of the site," "[t]here are no horizontal delineation wells to [the] north," the "iso contour maps provided appear to show the vertical delineation of the contamination but not horizontal delineation [of the plume]," "additional monitoring points need to be [added]," and "the onsite monitoring well, MW-2, shows a very high concentration of Perchloroethylene (PCE) at 81,000 ug/L [microgram per liter] and other contaminants, while the MW-1 does not exhibit groundwater contamination to that extent." See Department Exhibits 14 and 15. In plainer language, Respondent's report was deficient in that all contamination sources were not identified; it failed to delineate the horizontal and vertical extent of soil and groundwater contamination; and it failed to recommend a remedial action to clean up the contamination. The two letters advised that the site assessment was incomplete and that additional information described in the letters must be submitted by November 14, 2008. To date, Respondent has failed to submit the required information. According to Mr. Schuberg, to perform a study that would supply the additional information requested by the Department would cost him around $100,000.00, an amount he is unwilling to pay. More than 270 days has expired since a discharge was discovered on Respondent's property, and it has failed to submit a complete SAR, as described in Florida Administrative Code Rule 62-780.600(8). See also Table A, Fla. Admin. Code R. Ch. 62-780, which prescribes the specific time frame (within 270 days after the discharge is discovered) for submitting this report. The Department has incurred expenses in the amount of $1,500.00 while investigating this matter. See Department Exhibit 17. This amount is not disputed. As corrective action, the Department requests that within ninety days of the effective date of this Final Order, Respondent submit a complete SAR which addresses the deficiencies specified in the Department's August 27, 2008, letter. See Department Exhibit 14. To complete the SAR, additional soil and groundwater samples need to be collected to determine the vertical and horizontal extent of contamination, all source areas must be identified, and a remedial action must be developed to abate the contamination. Finally, the contaminated soil must be removed from the property so that it will no longer discharge into the groundwater. The Notice of Violation requests that upon approval of the SAR, Respondent "shall commence and complete in a timely fashion all further tasks" required by Florida Administrative Code Rule Chapter 62-780. These corrective actions are reasonable and are hereby approved. In calculating the penalty, Respondent has assessed a $500.00 administrative penalty for Respondent maintaining a stationary installation that is reasonably expected to be a source of water pollution without a permit. This is based upon a violation of Section 403.121(5), Florida Statutes, which makes it unlawful to not comply with a regulatory statute's requirement. Under Section 403.121(6), Florida Statutes, the Department has also assessed a $500.00 per day penalty against Respondent for failing to file a SAR for nineteen days, for a total of $9,500.00. When added to the $500.00 previously assessed, the total administrative penalty is $10,000.00, which is the maximum allowed in this type of proceeding. See § 403.121(2)(a), Fla. Stat. Throughout this process, Mr. Schuberg has contended that the responsibility for cleanup lies with the person or entity actually responsible for placing the drums and tub on the property in 1995. He says that the evidence clearly shows that Family Dry Cleaners is the responsible party. However, the Department and local authorities were never able to confirm who actually dumped the waste on the subject property. Although Mr. Schuberg says it will take "[i]n the hundreds of thousands of dollars" to clean up the site, the evidence shows that when he purchased the mortgage in 1998 and assumed ownership in 1999, he knew the property was contaminated. Mr. Schuberg further stated that because his consultant could never get "answers" from the Department, the consultant was instructed to stop work. However, Mr. Schuberg never contacted the Department to get clarification about what was required. At hearing, Mr. Schuberg also offered a lay opinion that his consultant's report filed in March 2008 proves that in 1995 the contents of the drums and tub were dumped on an offsite asphalt road adjacent to the property, surface water runoff then carried the chemical solvents onto his property, and the empty drums and tub were left in the parking lot. The Department's expert did not agree with this supposition, and there is no expert testimony to confirm the accuracy of this theory. Respondent has also contended that the property should be cleaned up with state funds. As pointed out by a Department witness, however, one problem is that the property does not meet the definition of a dry cleaner and thus cannot qualify for funds under that program. Then, too, a state-funded cleanup is a last resort which is used only after the Department has exhausted all enforcement remedies. Also, in this era of tight budgets, the Department has a finite amount of funds to use for this purpose, and is limited to cleaning up only a few sites per year. Finally, the responsible party must first acknowledge by affidavit that it lacks the necessary resources to clean up the property before the Department "may" seek cleanup funds. Respondent has not yet filed such an affidavit or admitted liability. In terms of mitigating evidence, Mr. Schuberg conceded that he has not done "a whole lot" to address the contamination problem since acquiring the property in 1999. In 2008, he did expend around $20,000.00 in having a PSAR and Addendum prepared for the Department. In all other respects, he steadfastly refuses to spend any more money on assessments or take responsibility for the cleanup since he believes that Family Dry Cleaners is the entity responsible for site rehabilitation.
Findings Of Fact At all times material hereto, Respondent has been a registered roofing contractor in Fort Lauderdale, Florida, having been issued license no. RC 0039866. At all times material hereto, Respondent was the qualifying agent for Wayne Coatings Industries, Inc. On or about April 22, 1983, Wayne Coatings Industries, Inc., entered into a contract with Jack Jacobs on behalf of the Christopher House Condominium located in Pompano Beach, Florida, whereby Wayne Coatings Industries, Inc., agreed to reroof the entire building with a polyurethane roofing coating. The contract in the amount of $42,552 called for Wayne Coatings to clean and prepare all roof areas and parapet walls, install roof vents, apply urethane foam insulation over all roof areas up to the top of the parapet walls and then coat the entire roof area including the parapet walls and all projections. Upon completion of the work, Wayne Coatings issued to Christopher House a five-year warranty. Almost immediately after completion of the work, major leaks appeared in the urethane foam roofing system. Representatives of the Christopher House contacted Wayne Coatings almost daily, but Wayne Coatings responded rarely. On the few occasions when an employee of Wayne Coatings came to the condominium, that person would be present for a few moments and then leave. Nothing was done by Wayne Coatings to correct the leaks. A subsequent inspection revealed that the roof was not properly cleaned and prepared prior to application of the urethane foam roofing system, the parapet walls were left bare and the foam itself was applied in a grossly uneven fashion. Additionally, the subsequent coating of the foam was improperly done. The foam roofing system traps water both above and below it. Neither Wayne Coatings nor Respondent have honored the guarantee given to Christopher House Condominium.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of violating sections 489.129(1)(d) and (m), Florida Statutes, suspending Respondent's registered roofing contractor license for a period of one year, and assessing an administrative fine against Respondent in the amount of $3,000 to be paid by a date certain. DONE and RECOMMENDED this 25th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Clarence L. Pitts 1712 Southwest 9th Avenue Fort Lauderdale, Florida 33315 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Beker Phosphate Corporation should be granted a hermit to construct an industrial waste water facility pursuant to chapter 403, Florida Statutes. By application, dated April 8, 1975, Beker Phosphate Corporation (hereinafter Beker) , sought a permit to construct an industrial waste water facility in Manatee County, Florida, from the Department of Pollution Control (now and hereinafter DER) . The application was received on April 11 and, after advising Beker that the application was incomplete a meeting was held on May 9th between DER and Beker representatives with the result that Beker filed a new application dated June 11, that was received by the DER in July. Further meetings were held in the fall of 1975 and additional in formation was received as to the application. On December 16, 1975, DER secretary. Jay W. Landers, Jr., issued a Notice Of Intent To Grant A Permit With Conditions. The conditions were unspecified in the letter of intent (Exhibit 1.) Subsequently, on December 23 and December 24, 1975, Sarasota County (hereinafter Sarasota) and the Town of Longboat Key (hereinafter Longboat Key), respectively, filed petitions with the DER alleging that their substantial interests would be adversely affected by approval of the permit application and setting forth in their petitions certain disputed questions of fact for determination. After a prehearing conference, Amended Petitions were filed by those parties to clarify and expand on such questions of fact and to resolve procedural matters. Additionally, during this period, George Browning, III, of Sarasota, Florida was granted status as an intervenor.
Findings Of Fact Beker proposes to construct a phosphate rock mine and beneficiation plant on a tract of approximately 11,000 acres in a predominately agricultural and ranching area of Manatee County about 10 miles from Myakka City, Florida. The mining will be performed by two dredges. One will mine overburden and return it to the mined-out area and the other will mine phosphate rock matrix which will be pumped to the beneficiation plant. The plant will consist essentially of two circuits. The first is a washer where the matrix pumped from the dredging operation is partially cleaned of clay and fine sand, and the coarser phosphate particles "pebbles" are separated as a product. The "fines" from the washing operation consist of small phosphate rock particles, sand, and clay. This mixture will be treated in the second section of the plant by "flotation" methods to recover the small phosphate rock particles as a product. During initial operation, the sand and clay will be stored in a temporary waste material storage area, but as the mining proceeds and the dredge pits open up, the sand and clay material will be pumped back to the dredge pits so that sand, and overburden will be mixed and redeposited to reclaim the land. Approximately 8 million gallons of fresh water per day will be drawn from the Floridian aquifer to be used in the flotation circuits. From the plant the water flows in two types of streams--one containing sand suspended in water and one containing clay suspended in water. Both streams flow into a settling pond surrounded by an earthen dam where sand and clay solids settle to the bottom. The clarified water is then decanted through six spillway structures into a hydraulic recirculation ditch outside the dam and flows back to the plant for re-use. The ponds and canals that make up the hydraulic circuit are planned to have sufficient capacity to contain rainwater falling on the site and pond system during the wet season when there are heavy rainfalls (approximately from May to September). Excess water will be decanted from the hydraulic recirculation ditch through a structure into a pipe and then discharged into Wingate Creek. The settling pond will occupy approximately 225 acres and its capacity will be about 8,458 acre- feet. The pond itself can be used to act as a reservoir and water can be built up in the pond during periods of high rainfall. It will not be necessary to release the water at any particular time. It can be released at will when the effluent contains a minimum of pollutant materials (Exhibit 1). Matrix is an unconsolidated mixture of phosphate pebbles and boulders of partly phosphatized limestone, quartz and clay. The washing operation removes unwanted oversized material and fine clays. The purpose of the flotation plant is to recover fine phosphate rock that might otherwise be lost. In the flotation process, flotation reagents, including sulfuric acid, number 2 fuel oil, tall oil, sodium hydroxide, and amines are used for treatment. The wastes are then moved to the settling pond where over a period of time the "slimes", (sands and clays) will settle to the bottom forming an impervious layer which will seal the pond. The settling process removes more than 90 percent of the contaminants from the influent. The coarser clay particles settle first and many of the fine particles settle in a process called "flocculation" by which electrical forces bring the particles together. However, some of the particles will not flocculate and remain suspended in the water. These extremely small particles constitute the total suspended solids that remain in the effluent when it is discharged from the settling area. They probably will not settle out entirely during their course from Wingate Creek into the Myaaka River and eventually to the Gulf of Mexico. However, even if it were assumed that such materials would settle somewhere between the point of discharge and Charlotte Harbor, over the entire 20 year proposed life of the mine they would form a deposit much less than 1/10th of an inch. Although it is technically possible to treat water to the degree that it would result in distilled water, realistic concepts of treatment establish that an additional settling or "polishing" pond for the proposed facility might not improve the quality of the wastewater finally discharged in state waters to any appreciable degree. Alternative proposals for the reduction of pollutants by additional processing, such as the intentional growth of water hyacinths in settling areas or use of chemical coagulants would result in creating other waste materials and thus be counterproductive (Testimony of Bromwell; Exhibit 1). The applicant's discharge of wastewater to Wingate Creek will average approximately 3.19 million gallons per day. However, since discharge will be effected primarily during periods of excessive rainfall, actual discharges can reach a maximum of about ten million gallons per day during this period. The effluent contained in such discharge will meet the test of at least 90 percent removal of organic and inorganic wastes specified by Rule 17-3.04(1), Florida Administrative Code, when measured by the influent into the settling pond and the effluent leaving that area. This treatment, however, will not produce an effluent equivalent to that produced by the "highest quality municipal waste treatment." The highest degree of treatment that has been reached by municipalities is "advanced waste treatment" as defined in Rule 17-3.04(2)(b), Florida Administrative Code. The water quality characteristics of the effluent will meet the standards of Rule 17-3.05 as to concentrations of those pollutants reasonably anticipated to be fond in the wastewater based on samples taken where the waters are discharged into Wingate Creek (Testimony of Gilgallon, Davis, Edwards, Heinzman, Bromwell, Bartow, Wellford, Exhibit 1). In preparing the application, no consideration was given to the need of meeting treatment standards for highest quality municipal waste treatment or advanced waste treatment. Neither did the recommending official of the DER, Mr. Edwards, then Regional Administrator for the Southwest Region, consider this standard because he had been advised by the DER legal staff that Rule 17-3.04(2) did not apply to Wingate Creek since it was not a tributary to one of the bodies of water listed in subparagraph (c) of the rule 17-3.04(2). This determination was based upon Resolution No. 74-83, September 17, 1974, of the Florida Pollution Control Board that was issued after legal challenges had been made to an interpretation by the Department of Pollution Control legal staff that Rule 17-3.04(2) required advanced wastewater treatment for industrial waste discharges. The Board, in its resolution, determined that since evidence had not been taken concerning treatment standards for industrial waste discharges at the time of adoption of the effluent standards for sanitary waste contained in Rule 17-3.04(2), the advanced wastewater treatment standards in the aforesaid rule would not be enforced against industrial dischargers pending full hearings on a new Rule to clearly express the Board's intent in this regard (Testimony of Gilgallon, Edwards; Exhibit 1). Special conditions that the Southwest Region, Department of Environmental Regulation, recommends should be attached to any issuance of a construction permit, other than standard conditions and those relating to other types of permits, are as follow: Approval by DER prior to the construction of any above grade phosphatic clay storage facility other than the initial settling pond. Removal efficiencies for oil and grease shall be a minimum of 90 percent and shall not exceed 14 milligrams per liter measured in the discharge effluent. Discharge effluent to Wingate Creek shall meet the water quality standards of Chapter 17-3.05(2) at the point of discharge prior to mixing with the receiving stream. Further treatment of the discharge will be required in the event compliance with proviso (c) above cannot be achieved or significant degradation of the receiving stream occurs as determined by the DER. In addition to required routine monitoring, a detailed analysis of the untreated and treated wastewater to be conducted once on representative samples during (1) month of July and (2) month of February. Such analyses shall, as a minimum, include all the parameters listed in 17-3:05(2). Applicants shall conduct an investigation into total retention possibilities of the effluent including, but not limited to, the following areas: recharge wells retention and storage of excess water during the "wet" season with subsequent reuse during the "dry" season for process and/or irrigation purposes. A report of these investigations shall be submitted prior to submission of operation permit application The location of monitoring wells shall be down gradient from the settling pond. Detailed proposal, subject to the DER approval, regarding exact location and number of wells to adequately ascertain the impact of seepage to be submitted no later than 90 days prior to commencement of operation. Bond to be posted for damages that may result from a clay settling area dam failure. Oral and written communications from the public were received at the hearing and included the following: Announcement by the County Attorney, Manatee County, that the county did not plan to appeal the DER Notice of Intent to Grant the permit (Statement of E.N. Fay, Jr.). The Division of Recreation and Parks, Department of Natural Resources, fears that the construction of the phosphate mine up-stream from the Myaaka diver State Park poses a serious potential threat to its aquatic habitat due to the possibility of a dam failure. It also fears that pollutants from the project will tend to settle as the river waters flow through the two lakes in the park. It therefore, opposes the construction until assurance can be given that proper safeguards have been taken to prevent such problems (Testimony of Alverez). The Longboat Key Garden Club believes that the project would involve too much water consumption and also that phosphate mining should be halted until further government studies are made to assure that the safety and health of the populace and the environment will not be endangered through polluted runoff and phosphate spills (Testimony of Monroe). The Save Our Bays Association in Manatee County has collected petitions from citizens in Manatee County requesting a referendum on a ballot this November for or against phosphate mining. The Association believes that such a vote should be taken before final decision is made on the subject. Its spokesman fears that if the quality and quantity of the drinking water is disrupted, it will interfere with continued tourist trade (Testimony of Howard Greer). The Palma Sola Parks Association opposes the Beker Application until there is greater assurance of environmentally safe mining (Testimony of Blankenship) A former physical and health education director is concerned about the fact that there has not been sufficient data collected on the effect of radioactive materials in runoff and waste. She believes there should be more research in these areas and asked that the public be protected from such hazards (Testimony of Mary Kay Greer). The Manasota-88 project for environmental qualities of 1968 and 1988 believes that issuance of the permit should be withheld until health implications can be determined concerning potential hazards to the Myakka and Manatee Rivers' watersheds (Exhibit 7). A former member of the Manatee County Planning Commission that approved the Beker application prior to action by the County Commission of Manatee County is in favor of the proposed project because Beker's plan to impound water will augment the water facilities of the county (Testimony of Reasoner). The City of Bradenton believes that since it is being required to meet advanced water treatment standards of discharge for sanitary sewage, Beker Phosphate Corporation should be required to meet similar standards (Testimony of Mayor A.K. Leach). A member of the Myakka City Civic Association who is an adjacent land owner to Beker Phosphate Corporation feels that the project is necessary in order to produce jobs for individuals in that area of the county (Testimony of Mizell). The U.S. Fish and Wildlife Service is concerned that proposed construction of two dams by the applicant will destroy approximately (4) acres of mangrove areas, three acres of pasture land and about 185 acres of bottom land or hardwood habitat. It recommends an alternative method of backup levies constructed around the primary settling bases on the applicant's land to contain any spills and prevent destruction of the streams and associated wetlands (Testimony of Johnston) The Conservation Council of Manatee County believes that Beker's unique mining and reclamation plan will help the farming industry and also create necessary water reserviors and recreation areas, and therefore endorses its proposal to mine in Manatee County (Testimony of Kent, Exhibit 14). Petitions were submitted at the hearing from approximately 3,000 individuals living in Manatee and Sarasota Counties opposing the issuance of the permit because they believe that phosphate mining is dangerous to the quality and supply of the water and endangers the health of the people (Composite Exhibit 9, Testimony of Humphrey).
