The Issue The issue in this case is whether the Florida Department of Environmental Protection (agency or DEP) should issue renewal permit No. SO36-26769E to Waste Management, Inc., of Florida (WMI) for the operation of an existing Class I landfill, the Gulf Coast Sanitary Landfill (GCSL) in Lee County, Florida. In the prehearing stipulation, Petitioners specifically dispute whether WMI has provided reasonable assurances: (1) regarding control of off-site odors emanating from the landfill, (2) that it has an approved closure plan, and (3) that leachate from the landfill will not pollute the air and water.
Findings Of Fact The Parties The applicant, WMI, provides waste management services in the state of Florida. These activities include the hauling, transfer, and recycling of solid waste, as well as the construction and operation of landfills. WMI operates GCSL, the facility that is the subject of the permit application, in Lee County, Florida. WCI is a Delaware limited partnership engaged in the business of developing multiple use communities in Southwest Florida. It owns or holds options to purchase lands adjacent to or near GCSL. WCI is also the developer of a planned unit development known as Gateway, which includes residential and commercial properties in close proximity to the landfill. George Sanders owns, personally or as trustee, lands adjacent to or near GCSL. Lee County is a political subdivision of the state with statutory responsibility to plan for and provide efficient, environmentally acceptable solid waste management. Lee County has contracted with WMI to provide solid waste disposal services to citizens of Lee County at GCSL. DEP is the agency of the state with statutory responsibility to regulate and permit landfills such as GCSL. As stipulated, the Petitioners and Intervenor have standing in this proceeding. The Landfill Facility The GCSL is a Class I landfill located at 11990 State Road 82, East, in Lee County, Florida, east of Interstate I-75. The landfill is in a remote, undeveloped area and has been in operation for over 20 years. The Gateway development is south of the landfill. The GCSL includes three parcels of land that have been used for the disposal of solid waste. Parcel 1 and Parcel 2, each about 40 acres, are unlined Class I landfills that have been closed and no longer receive any solid waste. Neither liners nor leachate collection were required when these parcels were constructed and operated. Parcel 3 is a lined Class I landfill that is approximately 80 acres in size. Approximately 50 acres of Parcel 3 are closed and have received final cover. Approximately 30 acres still are used for the disposal of solid waste. Parcel 3 was constructed in phases. In 1984, the Department issued a permit authorizing the construction of the "east hill" and "west hill"--i.e., two separate disposal areas in Parcel 3 where solid waste was placed above grade. In 1989, the Department issued a permit authorizing the construction of the "valley fill"--i.e., a disposal area where solid waste was used to fill in the valley between the east hill and the west hill. Parcel 3 now consists of a single mound of solid waste. As each phase of Parcel 3 was developed, liners and leachate collection systems were installed in Parcel 3 before the commencement of solid waste disposal operations. The liners and leachate collection systems met or exceeded all of the applicable regulatory requirements that were in effect at the time when the waste disposal areas were permitted. Parcel 3 is a well-designed, well-constructed, and well-operated landfill. William Krumbholz is in charge of landfill compliance and enforcement at DEP's district in Ft. Myers. He reports that the GCSL has an "exceptional operation record," and the GCSL is the "best operated Class I landfill" in the district. The GCSL currently is subject to a DEP operation permit (DEP file number S036-180572), as modified. On March 21, 1995, WMI filed an application for a renewal of its operation permit. On or about September 25, 1996, DEP issued its notice of intent to issue the permit to WMI. If issued, the permit would allow WMI to operate the GCSL for an additional five years. See Rule 62-701.330(2), Florida Administrative Code. The landfill is not yet at design capacity and is not expected to reach that capacity during the next five years. WMI desires to renew the operation permit for the GCSL because WMI wishes to continue to provide solid waste management services to Lee County, consistent with WMI's contractual agreement to do so. WMI also wishes to continue operating the GCSL in order to construct Parcel 3 to its final design grades for closure. The design grades will maximize the site's ability to shed stormwater and thus minimize the production of leachate. Continuing to build Parcel 3 to its design grades is environmentally preferable to closing Parcel 3 at this time in its present configuration. Prior to 1994, the GCSL received approximately 1000 tons of municipal solid waste each day. Approximately 90 per cent of the solid waste was household garbage and about 10 per cent was construction and demolition (C&D) debris. The GCSL did not receive industrial waste. The composition of the waste stream changed in August 1994, when Lee County began to operate a waste-to-energy facility. All of the household garbage generated in the incorporated and unincorporated areas of Lee County is taken to the Lee County waste-to-energy facility, where it is burned, and the ash residue is taken to the GCSL. Currently, the GCSL receives only about 450 tons per day of solid waste, which consists of 65-70 per cent ash residue from the waste-to-energy facility, 30-35 per cent C&D debris, and approximately 2-5 per cent municipal solid waste. DEP would allow WMI to accept more solid waste at the GCSL. However, Lee County has the contractual right with WMI to dictate the types of materials deposited in the GCSL, and it is the county's intent to use the waste-to-energy facility, not the GCSL, for the disposal of putrescible wastes. Lee County is contractually obligated to send all of the county's municipal solid waste to the county's waste-to-energy facility, and the county has a financial incentive to do so. Lee County will send municipal solid waste to the GCSL only if an emergency occurs, but even then the county will try to limit the duration and extent of the County's use of the GCSL. Objectionable Odors Objectionable odors at a landfill typically are related to the facility's operating practices (e.g., the size of the working face) and the presence of putrescible, organic materials that degrade and produce gases when they come in contact with water. In this case, the GCSL's operating practices minimize odors. The majority of the waste now received at the GCSL is ash residue, which contains little or no organic material and thus produces little or no odor. In addition, because the GCSL is a "particularly dry landfill," any putrescible waste is not likely to degrade and cause odors. There have been no violations of the DEP odor rules at the GCSL since 1991 and only two instances, in 1987 and 1991, when off-site odors were verified by DEP's inspector. WCI filed odor complaints in 1995, but the complaints were investigated by DEP and the county and found to be invalid. Petitioners presented no evidence of present or anticipated future odor problems at the GCSL. To the contrary, the DEP inspectors and other witnesses established that there are no objectionable odors at the property boundary of the GCSL. WMI's Approved Closure Plan WMI has a closure plan for the GCSL that was approved by DEP when DEP issued the existing operation permit. In the current application WMI asked DEP for authorization to close the remaining portions of Parcel 3 in the same manner that WMI used when closing the other areas at the GCSL. If WMI's request is not granted, WMI may be required to close Parcel 3 with a geomembrane cover or "cap," in accordance with DEP's new requirements for final closure plans. Although DEP's landfill engineer recommends approval of WMI's request for authorization to use an alternate cover material, no proposed agency action has been taken on that request, and DEP will provide notice and a new point of entry for affected persons when the agency decides whether to grant WMI's request. It is, therefore, inappropriate to address the merits of WMI's "alternate procedure" request in this hearing. As provided in Rule 62-701.310(3), Florida Administrative Code, the agency's decision is action subject to a separate Section 120.57, Florida Statutes, proceeding. WMI's closure plan for the GCSL has little significance in this proceeding. The closure plan is used to calculate the cost of closure, which in turn is used to determine whether WMI has the financial resources to pay the cost of closing the landfill. As part of its approved closure plan, WMI previously demonstrated that it has the financial ability to pay the cost of closing the landfill. WMI could be required to spend an additional $1,000,000 to close the GCSL if WMI's request for approval of the alternate procedure is denied by DEP, but it is undisputed that WMI has the ability to pay this additional cost for closure. WMI must submit a revised closure plan at the time when WMI is prepared to close Parcel 3. DEP then will determine again whether the closure plan for Parcel 3 is adequate and in compliance with the DEP standards in effect at the time. (See paragraphs 38-42, "Specific Conditions," appended to the Intent to Issue, WMI Exhibit 4) Leachate Generation Rate at the GCSL While evaluating WMI's request for approval of an alternate closure plan, DEP noted that the amount of leachate collected in Parcel 3 (i.e., approximately 900,000 gallons per year) is relatively low when compared to the amount of leachate generated at other landfills. DEP was concerned that the low leachate collection rate may indicate a problem in the leachate collection system, so DEP requested WMI to evaluate the leachate generation rate at the GCSL in more detail. WMI subsequently presented additional information to DEP. Leachate is defined by DEP as the liquid that has passed through or emerged from solid waste. Rule 62-701.200(50), Florida Administrative Code. Leachate is generated when rainwater falls on the landfill, sinks in, and percolates through the garbage. One of the primary factors reducing leachate at the GCSL is the use of ash as cover material. The ash, which contains lime, undergoes a reaction and "sets up like mortar." It is extremely hard, cannot be penetrated easily, and has a very low permeability. The permeability of the ash is in the same range as the permeability of the barrier layer that is used in a final cover material. The ash "sets up so well" that the surface water runoff is much greater than with a normal cover material. There is an additional, significant reason why Parcel 3 of the GCSL has a low leachate generation rate. Approximately 50 acres of Parcel 3 already have been closed with a final cover which is designed to shed rainwater and thus minimize the production of leachate. Since most or all of the remaining 30 acres of Parcel 3 have been covered with ash, virtually all of Parcel 3 is covered with low permeability materials that minimize leachate generation. Leachate in Parcel 3 also is minimized because WMI employs good operational practices to limit its generation. WMI uses a small working face and stormwater berms to reduce the size of the area where rainwater may infiltrate. WMI maintains aggressively graded slopes that quickly direct stormwater away from the working face and off of the landfill. WMI's "close-as- you-go" strategy means that the waste at the GCSL is covered before it becomes saturated with rainwater. Specific conditions in the Intent to Issue require that these practices continue. After DEP requested WMI to evaluate the leachate generation rate in Parcel 3, WMI hired a firm to clean the inside of all of the pipes in the leachate collection system in Parcel A television video camera was used to visually inspect the inside of all of the pipes. This work confirmed that "at least 99.9 per cent" of the leachate collection pipes are clean and functional. WMI promptly repaired the leachate collection pipes in two small areas where there was blockage due to a crushed riser and a valve that was left closed. It is highly unlikely that leachate is mounding up inside the landfill or overtopping the perimeter berm that surrounds Parcel 3. The leachate levels inside Parcel 3 generally are and historically have been less than two feet. The leachate levels at the GCSL do not threaten the liner's integrity. The pipes are working, and no seepage has been observed through the side slopes. WMI verified that the liner and leachate collection systems in Parcel 3 were constructed properly and in accordance with the DEP-approved design. Construction Quality Assurance reports were prepared by professional engineers when the liner systems were installed in Parcel 3. In these reports, the engineers certified that each section of the liner was installed, inspected, and tested appropriately to ensure that there are no holes in the liner. Where necessary due to failed tests, the reports reflect that repairs were made before any waste was deposited. The HELP Model In response to DEP's questions about the leachate generation rate at the GCSL, WMI's staff attempted to calculate the rate by using a computer program referred to as the HELP model. WMI initially ran the model with default input values which produced a predicted rate of 7.5 million gallons per year (MGY). WMI questioned the validity of the model results, but submitted the results to DEP because it was the best data then available. Given the discrepancy between the model results and the actual field data, WMI hired a nationally recognized consulting firm, Post, Buckley, Shuh, and Jernigan (Post Buckley), to perform a more refined analysis using the HELP model. The HELP model is used to calculate water balances at landfills. The model calculates the amount of water that will move across, into, and through landfills under different conditions. The model is a useful tool for comparing the performance of two alternate landfill designs, but it has limited value when used to predict the actual performance of an operating landfill. The model can be run with default values or with site- specific information. However, the model is designed to be conservative and overpredict the actual leachate generated. In its application of the model, Post Buckley adjusted several input parameters to reflect the actual conditions at the GCSL. Most significantly, Post Buckley adjusted the input parameters for the moisture content of the waste in the GCSL and for the U.S. Soil Conservation Service's (SCS) Curve Number. These adjustments were "reasonable and well-considered." The HELP model assumes that the solid waste in the landfill is at field capacity--i.e., saturated with rainwater. However, it is well established that the solid waste in landfills is not saturated. At the GCSL, the ash cover material and WMI's "close-as-you-go" practices would reduce the likelihood that the waste would be saturated. Indeed, Post Buckley's on-site inspections revealed that the GCSL is a "particularly dry landfill." The users' manual for the HELP model indicates that the Curve Number should be adjusted in certain cases to account for increased stormwater runoff that will occur during short duration, high intensity storms. The default value is used in areas where the rainfall occurs over a 24-hour period. In this case, Post Buckley concluded that the SCS Curve Number should be adjusted because the GCSL receives about 54 inches of rainfall annually during approximately 90 short duration, high intensity storms. Accordingly, Post Buckley adjusted the model's input parameters to increase runoff by 23 per cent of precipitation. Post Buckley's adjustment to the Curve Number and runoff value is consistent with the findings contained in a report by Benson and Pliska, which in the opinion of WMI's expert is the best study performed to-date on the calibration of the HELP model and which is similar or equivalent to the Peyton and Shroeder calibration relied on by Petitioner's expert. Post Buckley ran the HELP model with three different sets of conditions. In one run, Post Buckley adjusted the input parameter for the moisture content of the waste and calculated an leachate generation rate of 100,000 gallons per year. In the second run, Post Buckley adjusted the Curve Number and calculated a rate of 1.3 MGY. In the third run, Post Buckley adjusted both the Curve Number and the moisture content and calculated a rate of zero gallons per year. Given Post Buckley's landfill experience and its knowledge about the operational practices at the GCSL, the ash used as cover material, the climatological conditions in southwest Florida, and the limitations of the HELP model, Post Buckley concluded that 1.3 MGY is a reasonable estimate or approximation of the actual leachate generation rule for Parcel 3 of the GCSL. The leachate generation rate for the GCSL also has been evaluated by other witnesses. Mr. Joe Fluet calculated that approximately 960,000 gallons to 1,030,000 gallons of leachate are generated annually in Parcel 3. Mr. Fluet is a nationally recognized landfill expert who was selected by DEP to serve as the chairman of a technical advisory group that helped DEP develop the current DEP landfill rules. Mr. Fluet's conclusion is consistent with the leachate collection data for the GCSL, the Post Buckley analysis, the measurements of leachate in the sumps at the landfill, and his own personal observations of the landfill and WMI's operational practices. It is unlikely that leachate generation in Parcel 3 is as high as 2.0 MGY. This rate would produce about three feet of leachate on the liner. WMI's field data show that the "head" (depth) of leachate over the liner in Parcel 3 generally is less than two feet. By comparison, Post Buckley's estimated rate of 1.3 MGY would produce about 1.8 to 2.5 feet of leachate over the liner, which is more consistent with WMI's field data. Petitioners also attempted to calculate leachate generation for Parcel 3 by running the HELP model. Using default values, Petitioners calculated a rate of approximately 7 MGY. Petitioners also ran the model after adjusting several input parameters. Among other things, Petitioners decreased the slope from 20 per cent to 4 per cent, and Petitioners increased runoff by 30 per cent, as compared to the default value. With these adjustments, Petitioners calculated a rate of 4.2 MGY. The various experts' calculations with the HELP model produced leachate generation rates of 0 to 7.5 MGY. The magnitude of the range reflects the limitations of the model and underscores the need for sound professional judgment when adjusting the input parameters. In this case, the most persuasive and credible testimony was presented by Mr. Bonaparte, a recognized landfill expert who is assisting EPA with its efforts to calibrate the HELP model, and Mr. Fluet. Consistent with their testimony, the greater weight of the evidence indicates that the leachate generation rate for Parcel 3 of the GCSL is most likely to range between 960,000 gallons and 1.3 MGY. The Petitioners' calculated range of 4.2 to 7.0 MGY is not credible. Even the low end of Petitioners' range is more than twice as much (2.0 MGY) estimated by any other witness. In addition, Petitioners' entire range of calculated leachate generation rates is inconsistent with the other evidence of record, as described below. Petitioners' leachate generation calculations were prepared by Marcus Pugh, who has not visited the GCSL nor performed any site specific field work concerning the GCSL. Mr. Pugh had never used the HELP model before to predict the generation rate of an operating landfill, but rather has used it as others commonly do, to size and design facilities. Although Mr. Pugh initially criticized Post Buckley's calculation of the slopes at the GCSL, he subsequently conceded that the HELP model results obtained by Post Buckley are independent of slopes. Missing Leachate? Based on their HELP model calculations that Parcel 3 actually is generating 4.2 to 7.0 MGY of leachate and since WMI is collecting 900,000 gallons per year, Petitioners speculate that there is "unaccounted for" or "missing" leachate (i.e., 3.3 to 6.1 MGY), which must be leaking through the GCSL's liner or seeping out of the sides of the GCSL, or both. Petitioners' allegations, however, are not supported by the evidence of record, which favors a finding that the facility is simply not generating the vast amounts of leachate predicted by Petitioners. The liner and leachate collection systems under Parcel 3 were "state-of-the-art" and in full compliance with all of the applicable DEP rules at the time of their installation. These systems were installed properly, in accordance with standard quality assurance procedures, as certified by a professional engineer. Mr. Bill Krumbholz, the DEP inspector, personally witnessed the installation of portions of the liner. Mr. Fluet also was personally involved with the certification for the landfill. Even the Petitioners' witness, Mr. Pugh, conceded that he had no concerns about or disagreements with the certifications for Parcel 3. Thus, there is no reason to believe that the liner or leachate collection systems were damaged at the time when they were installed. Petitioners theorize that the liner in the GCSL may have been damaged after it was installed, but Mr. Pugh readily admits that this contention is based on "pure speculation" based on the notion that a minimum wage laborer on heavy equipment might damage the liner. Petitioners presented no direct or credible evidence to support their contention. After the completion of construction and the commencement of operations large scale breaches of a landfill liner are not a common or even occasional occurrence. As part of its standard management practices, WMI places a four-to six-foot thick "fluff" layer of select household garbage over any new landfill liner system. The fluff layer is used to protect the liner and ensure that the liner is not accidentally damaged. This WMI policy was followed when the liners were installed in Parcel 3 of the GCSL. As a result, there is no reason to believe that the liner in Parcel 3 was damaged after installation. There is no circumstantial evidence to support Petitioners' claims. Since 1976, WMI has monitored the water quality at the GCSL in accordance with a DEP-approved ground water monitoring plan, which is designed to detect any significant leakage from the landfill. No groundwater quality violations have been recorded at the GCSL. However, if one were to assume that Petitioners' theory is correct, then one also would have to assume that over the last five years approximately 16.5 to 30.5 million gallons of leachate have leaked through the liner in Parcel 3 and entered the adjacent groundwater, but somehow have evaded detection in the monitoring wells. Respondents' witness Mr. Fluet calculated that a maximum of 56,000 gallons per year of leachate might possibly leak through the liner system in Parcel 3. His calculation conservatively assumed that there may be as many as ten 0.1 cm2 holes in each acre of the liner in Parcel 3. Petitioners have offered no credible theory that would produce a leakage rate of several million gallons per year. To create a leakage rate of even one million gallons per year, there would have to be at least ten and perhaps dozens of large holes in the liner. Each of the holes would need to be 10-feet long and several inches wide. However, large holes or breaches in a liner system normally are identified and repaired during the installation and quality assurance process. There is no evidence of poor quality assurance or poor operational practices at the GCSL to support Petitioners' speculation. WMI witness, Rudolph Bonaparte, has never encountered a situation where there was evidence of the kinds of "major flaws" that would be necessary to generate the leakage rates hypothesized by Petitioners. Mr. Fluet also was unable to identify any plausible scenario that would support Petitioners' theory. Petitioners' witness, Mr. Pugh, conceded that he has never worked on a lined landfill where 4-to 7-MGY of leachate leaked through the liner. Petitioners questioned whether settlement would affect the liner or leachate collection systems in Parcel 3. Since ash is denser than MSW, the disposal of ash in the GCSL may affect the settlement of the subsurface soils to some extent, but there will be no shearing or failure of the liner due to any differential settlement. The amount of differential settlement that may occur would be extremely small. Settlement could create a 1000 gallon "puddle" of leachate in the valley fill portion of Parcel 3, or the slope in some portions of the leachate collection system may flatten, but these are relatively minor impacts. Conversely, increased settlement in the base of Parcel 3 would help improve the overall drainage of the east hill and the west hill areas. Petitioners contend that the "unaccounted for" leachate may be escaping from the GCSL through side slope seepage, but this theory is not supported by any direct or credible evidence. It was undisputed that any significant amount of side slope seepage from a landfill is readily apparent. Leachate seeps typically "look ugly and smell bad." When seeps occur, the soil is discolored, the vegetation is killed, and there is sheering, gullying, rilling, and other signs of erosion. There has been no side slope seepage from Parcel 3, as established by numerous site visits and personal observations of the DEP staff, county representatives, and other witnesses. Petitioners' witnesses have not observed any side slope seepage at the GCSL. Although Petitioners noted that there are discolored areas on Parcel 3, those are the areas where WMI recently excavated into the sides of the GCSL to complete the repairs to the leachate collection system. The leachate would have to mound up inside the landfill before there would be the amount of seepage predicted by Petitioners. This mounding would create tremendous head pressure in the cleanout pipes. However, no such pressure has been found in the cleanout pipes at the GCSL. Petitioners suggest that leachate may be seeping from the toe of Parcel 3 into the drainage ditch that leads to the stormwater retention pond. Again, the evidence does not support this hypothesis. The liner in Parcel 3 goes over the top of a berm which is built completely around the perimeter of Parcel 3. The berm and the liner rise 3 feet above the base of the leachate collection system. Leachate could not seep from the toe of Parcel 3 unless the leachate level rose above the functioning leachate collection pipes, avoided being drained away by the leachate collection system, and then flowed uphill over the berm. Even if the leachate went up and over the berm, the leachate would enter the ditch from the top of the berm, where it would be readily visible to site inspectors as side slope seepage. No such seepage has been observed at the GCSL, even when people were looking for it. Ground Water Monitoring at GCSL There are three aquifers underlying the GCSL: (a) the surficial water table aquifer; (b) a sandstone aquifer; and (c) the Hawthorne formation. Each of the aquifers is separated by a low-permeability, confining layer of varying thickness. The confining layer below the surficial water table aquifer is between 40 and 80 feet in thickness. Based on field data and reports of other scientists, including Petitioner's expert, Thomas Missimer, hydrogeologist Martin Sara derived a vertical flow rate of approximately 0.1 feet per year. At this rate, ground water would take approximately 40 to 50 years to move vertically downward through the confining layer. Petitioners contend that the GCSL is affecting the surficial water table aquifer. The surficial water table aquifer contains fresh water and is used extensively as a source of potable water in Lee County, but not in the area of the GCSL. Ground water samples collected from the surficial water table aquifer on Petitioners' property had average total dissolved solids (TDS) concentrations of approximately 500 mg/l. Similar TDS values have been reported for the surficial water table aquifer in the area surrounding the GCSL. In general, the regional groundwater flow in the vicinity of the GCSL is to the northwest. There is a northwesterly flow from WCI's property onto the GCSL that is consistent year after year and during all seasons. Extensive historical monitoring data for the site confirm that the ground- water flow under the GCSL also primarily is to the northwest, but with some likely localized flow to the west, at least during special events such as landfill dewatering in 1982. The only significant exception to this trend occurs in the area of the stormwater retention pond, where the groundwater usually flows radially outward in all directions. Groundwater monitoring began at the GCSL in 1976, when the facility opened. The groundwater monitoring system at the GCSL has complied with or exceeded the DEP requirements at all times since 1976. Currently there are seven groundwater monitoring wells, each approximately 30-feet deep, in the surficial water table aquifer at the GCSL. These wells surround the perimeter of the GCSL. At the final hearing, Lee County attempted to address concerns about the groundwater monitoring program for the GCSL by agreeing to pay for the redevelopment and installation of additional groundwater monitoring wells. Lee County and WMI stipulated that two existing groundwater monitoring wells (wells 14-S and 18-S) will be redeveloped and a new ground water monitoring well will be installed in the surficial aquifer between existing wells 20-S and 21-S. The two redeveloped wells and the new well will be sampled on a semiannual basis for chloride and the field parameters of pH, specific conductivity, field turbidity, and temperature for the life of the permit. The monitoring may be discontinued if the GCSL closes. The monitoring well network at the GCSL is adequate to monitor the type of area-wide plume that might originate from the GCSL. The evidence demonstrates that any holes in the liner in Parcel 3 are likely to be small and spread widely across the entire site. Although the plume from a single hole may be narrow and elongated, the plume from the entire landfill would be approximately 2400-feet wide. Under most if not all plausible scenarios, leachate leaking out of the liner beneath Parcel 3 will move with the regional groundwater flow toward the monitoring wells located along the western and northern perimeters of Parcel 3. Potential leakage from Parcel 3 will be pushed toward these monitoring wells by the regional groundwater flow and the radial flow from the retention pond. DEP has concluded and the evidence confirms that WMI's groundwater monitoring plan, as modified by Lee County's stipulation, is protective of the environment and satisfies all applicable DEP requirements. Under the facts of this case, it is not necessary to add any additional monitoring wells or otherwise modify the groundwater monitoring plan, except as stipulated by Lee County. It was undisputed that the leachate generated at the GCSL is and always has been "very weak" in comparison to the leachate from other landfills. The leachate contains relatively few contaminants and has low contaminant concentrations. The GCSL's leachate has few volatile or hazardous constituents. It also was undisputed that there have been no violations of DEP groundwater standards detected in any of the groundwater monitoring wells at the GCSL. There have been one- time exceedances or anomalies, but such events do not constitute a violation of the DEP standards. Chloride In the Ground Water Chloride is present in the GCSL's leachate. Over the last ten years, the average chloride concentration in the leachate has been 1021 parts per million (ppm), and the highest concentration has been 2070 ppm. The Department has no primary (i.e., health-based) groundwater quality standard for chloride. The only groundwater quality standard for chloride is a secondary standard of 250 ppm. Secondary standards are intended to address concerns about odor, taste, and aesthetics. If chloride concentrations become too high in drinking water, people simply stop drinking the water before there are any health implications, because the water is too salty. WMI evaluated Petitioners' claim that chloride leaking from Parcel 3 may affect the water quality on Petitioners' property. First, WMI performed a mass balance calculation and concluded that the maximum rate of leakage from Parcel 3 would increase the chloride concentrations beneath the landfill by only 7 to 14 ppm. WMI then used a dispersion model and determined that the maximum leakage rate would increase the chloride concentrations in the groundwater only 3.5 ppm at a distance of 100 feet from the landfill. This increase in chloride could not be distinguished from the existing background concentrations in the groundwater. WMI also analyzed the groundwater data to determine whether the GCSL is causing an increase in the chloride concentration measured in monitoring well 21-S. WMI plotted the data on trilinear diagrams, consistent with techniques that have been commonly used by hydrogeologists for many years. The trilinear diagrams clearly show that the increased levels of chloride in monitoring well 21-S are not caused by the leachate from the GCSL. The trilinear diagrams do not identify the source of the chloride found in monitoring well 21-S. However, it appears that the chloride originated from a source of "brackish" water. There are several potential sources of the chloride in well 21-S. In the past, there was an irrigation well on WCI's property that pumped water with high chloride concentrations and created a large plume of chloride-enriched groundwater on WCI's property. Historic groundwater monitoring data indicate that the chloride plume was approximately 6000-feet wide and flowing towards the GCSL. This large plume may have reached the GCSL and affected the water quality in well 21-S. There also were irrigation wells located on the site of the GCSL that may have contributed to the chloride concentrations in well 21-S. Historic water quality data indicate that these irrigation wells produced elevated chloride concentrations in the groundwater at the GCSL. Petitioners' Stormwater Data On May 12, 1997, Petitioners collected samples of the water in the stormwater retention pond at the GCSL. Petitioners also collected a sample of the water in a concrete culvert that carries stormwater runoff from Parcel 3 to the retention pond. The samples were collected during a severe rainstorm when it was "raining cats and dogs." Based on these samples, Petitioners speculate that the "unaccounted for" leachate is entering the stormwater retention pond via a perimeter drainage ditch and the concrete culvert. This speculation is not supported by the evidence. Leachate generated in the GCSL has an ammonia-nitrogen concentration in the range of 700 to 800 ppm. The stormwater collected from the culvert pipe had an ammonia-nitrogen concentration of 1.7 ppm. The disparity between these two values belies the possibility that the stormwater in the ditch contains leachate from the GCSL. Although Petitioners contend that ammonia-nitrogen in the leachate could be oxidized while flowing in the ditch, it would be virtually impossible for the oxidation of stormwater in the ditch to reduce ammonia-nitrogen levels from 700 or 800 to 1.7 ppm. WMI's extensive experience with leachate has demonstrated that it is "very difficult" to treat and reduce the ammonia-nitrogen levels in the leachate through volatization and aeration. The water collected by Petitioners in the culvert had a chloride concentration of 2900 ppm, which significantly exceeds the highest chloride level ever found in the GCSL's leachate (2070 ppm). The pH in Petitioners' sample (8.87) also was notably higher than the pH found in the landfill's leachate (e.g., 7.20 in WCI Exhibit 14). The disparity between the values found in Petitioners' sample and the values found in the landfill's leachate suggests that the Petitioners' sample is not representative of leachate from Parcel 3. Stormwater flowing over the ash residue on the top of Parcel 3 is the most probable source of the elevated chloride and high pH found in Petitioners' sample. The ash at the GCSL has elevated chloride concentrations. It also has high pH, due to the addition of lime at the waste-to-energy facility. Both WMI's witness, Mr. DeBattista, and Petitioner's witness, Dr. Missimer, saw stormwater washing over the ash and entering the stormwater conveyance system that led to the culvert where Petitioners' sample was collected while Petitioners were at the GCSL collecting samples. Petitioners noted that the water in the stormwater ditch was discolored. However, Petitioners' photograph of the site (WCI Ex. 10) reveals that the water in the ditch is the same color as the mulch (compost) that is stockpiled on Parcel 3 and used for intermediate cover. During Petitioners' site visit, stormwater was flowing over the mulch on Parcel 3 before entering the stormwater ditch. Dr. Missimer conceded that the color of the water in the ditch could be caused in part by the mulch and stormwater runoff. Dr. Missimer raised a number of other issues about the GCSL. He claimed that the sediments in the stormwater retention pond have elevated metals concentrations, but he does not contend that the metals concentrations in the sediments violate any applicable DEP standard. He also does not contend that the metals are leaving the site. Dr. Missimer noted that there was "foam" in a stormwater ditch. However, Petitioners presented no competent evidence about the source of the foam or its chemical composition. Finally, Dr. Missimer heard gas escaping from a cleanout pipe at a different location on the landfill, but there were no odors associated with it. There is no evidence to demonstrate that gas in the riser pipes is a cause for concern. In response to Petitioners' chloride data, WMI is taking steps to manage its stormwater better. WMI has placed intermediate cover over 10 acres of exposed ash, thus reducing the potential for the rainwater to come in contact with the ash and convey chloride into the stormwater management system. WMI also is determining whether it should remove a culvert that served as a conduit for the runoff from Parcel 3 to the retention pond. It was undisputed that the GCSL is an "existing installation," as that term is defined by DEP. Parcels 1 and 2 of the GCSL were unlined and were reasonably expected to release contaminants into the ground water on or before July 1, 1982. The GCSL has operated consistently with the applicable DEP statutes and rules relating to groundwater discharges in effect during the time of its operation. Since the GCSL is an existing installation, WMI is entitled to a zone of discharge that extends to WMI's property boundary. The groundwater within the zone of discharge is not required to meet the DEP water quality standards. Modifications to Conditions of Draft Permit and Summary of Findings In addition to the modification to the ground water monitoring plan described in paragraph 59 above, WMI has requested and DEP has agreed to make minor changes to the language in Specific Conditions 10, 19, 32, 38, and 45(e) of the draft permit. These changes relate respectively to gas monitoring, daily cover, acceptance of C & D debris, data to support the alternate procedure request for final cover, and the zone of discharge. These modifications are reasonable, supported by the evidence, and consistent with DEP rules. Moreover, WMI has provided reasonable assurance of compliance with all applicable DEP rules for continued operation of the GCSL. As amply demonstrated in this proceeding, highly competent professionals can disagree. Petitioners' witness Dr. Missimer, has had years of experience in studying the hydrogeology of Lee County and the area of the landfill and Gateway. His data collected during the development of Regional Impact Studies for Gateway have been relied on by DEP and others. His conclusions, however, regarding enormous amounts of leachate escaping the landfill are simply not supported by the results of years of monitoring the landfill's operations. With continued monitoring, the applicant should be permitted to continue to operate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of Environmental Protection enter a Final Order approving Waste Management, Inc., of Florida's application for a permit renewal to continue to operate the Gulf Coast Sanitary Landfill, subject to the parties' stipulation regarding additional groundwater monitoring wells and subject to the revisions to the draft permit that are described herein. DONE AND ENTERED this 17th day of September, 1997, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1997. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire Michael P. Petrovich, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 Neale Montgomery, Esquire Pavese Garner Haverfield Dalton Harrison & Jensen Post Office Box 1507 Fort Myers, Florida 33902-1507 David S. Dee, Esquire John T. LaVia, III, Esquire Landers & Parsons, P.A. 310 West College Avenue Tallahassee, Florida 32301 David M. Owen, Esquire Lee County Assistant Attorney Post Office Box 398 Fort Myers, Florida 33902 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Voluntary Dismissal filed by the Petitioner. A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-056 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 23-4 day of March, 2010. U.S. Mail: The Honorable D.R. Alexander Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Melvin Wolfe, Esq. Town of Medley 7777 N.W. 72nd Avenue Medley, Florida 33166 Jeffrey S. Bass, Esq. Shubin & Bass, P.A. 46 S.W. First Street, 3rd Floor Miami, Florida 33131 Hand Delivery: Richard Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Paula Ford Agency Clerk Douglas M. Halsey, Esq. White & Case, LLP Wachovia Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131 Barbara J. Riesberg, Esq. 1000 Brickell Avenue, Suite 200 Miami, Florida 33131
The Issue The issues considered at final hearing were those issues set out in Petitioners' Amended Petition For A Formal Hearing. At the conclusion of the final hearing the parties were given an opportunity to file a proposed recommended order and memorandum in support thereof. Such memorandum and proposed recommended order was received by the Hearing Officer from the Department of Environmental Regulation on November 10, 1976, from Leon County on November 12, 1976, and from the Citizens' Committee to Preserve Lake Lafayette on November 15, 1976. Having fully considered the matters presented herein, the Hearing Officer enters the following:
Findings Of Fact Respondent, Leon County, Florida, has applied for a construction permit to construct a sanitary landfill in Sections 4 and 5, Township 1 South, Range 2 East, Leon County, Florida. The proposed site consists of 79.9 acres off of U.S. Highway 27 South. The application is in proper form and contains all information required by the Department of Environmental Regulation. The area to be served by the proposed sanitary landfill is Leon County, Florida, with a projected average population of 155,200. The responsible operating authority as set forth in the application is Leon County. The evidence presented did not establish that the proposed sanitary landfill will attract high concentrations of rodents, insects, or birds which would do serious damage to the land and crops surrounding the site or which would adversely affect the health and welfare of the residents near the site. The application proposes a program for the extermination of any rats discovered on site and further proposes that the working faces of the landfill area will be kept as small as possible with all exposed waste materials covered as frequently as practical to minimize the problem of flies and insects during hot, humid periods. Evidence was presented indicating that construction of the proposed sanitary landfill site could adversely affect surrounding property value. However, the evidence was not sufficient to conclusively establish the extent of this affect nor the time at which it would occur or for which it would endure. As designed the proposed sanitary landfill would not cause any solid waste to be disposed of by being placed in or within 200 feet of any natural or artificial body of water or on the watershed of any surface water supply. Lake Lafayette is hydraulically connected to the Floridan Aquifer. The proposed sanitary landfill site is located at least 500 feet from the flood prone area of Lake Lafayette and 1,000 feet from Lake Lafayette proper. As designed the proposed sanitary landfill will not cause any solid waste to be disposed of by being placed in a sink hole or in the immediate area thereof. Solid waste will be disposed of by being placed in a trench and covered over with successive lifts similarly covered. There are no active sink holes on or in the immediate area of, the proposed sanitary landfill site. Three ponds exist in the immediate vicinity of the site, one of which is to be used for surface water runoff. These ponds were probably formed by past sink hole activity but from the site topography and water elevations it appears that the ponds are now stable and are probably not hydraulically connected with the Floridan Aquifer. No limestone or gravel pits exist on site. The entire proposed site is well above the +50' MSL contour line below which are found flood prone areas in the vicinity of the site. The water table of the site is more than 5 feet below normal ground surface. As designed the proposed sanitary landfill will not require the disposal of solid waste in an area immediately adjacent to or within the cone of influence of a public water supply. As designed the proposed sanitary landfill will not require the disposal of solid waste within 200 feet of any habitation or place of business served by a public water supply system or within 1,000 feet of any habitation or place of business served by an individual potable shallow water supply well with the following exceptions. There are three wells located on the property which would be owned by Leon County that may be within 1,000 feet of the disposal site for solid waste. Of these three wells one has been abandoned and will be sealed. A second is located south of the proposed site at an existing house and will be used as a source of non-potable water and for monitoring the potable aquifer. The third well is located on the northwest portion of the county property and will be maintained as a standby source of potable water. There are two other wells located on the property to be owned by Leon County which are more than 1,000 feet from the proposed disposal site for solid waste and could be used to monitor the Floridan Aquifer. There is a well which serves a private residence and farm located plus or minus 1,200 feet west of the proposed site for the disposal of solid waste. No solid waste shall be disposed of in any area open to public view from any major thoroughfare. The proposed site in not on any public highway, road, alley or the right-of-way thereof. The Lake Lafayette drainage basin is approximately six miles long elongated in a west-northwest, east-southeast direction. The width varies between one-quarter to one-half mile. The western end of the basin contains many sink holes which probably have open connections to the underlying bedrock. The eastern end of the basin, near the proposed landfill site, is swampy and contains many cypress trees. The Lake Lafayette drainage basin appears to be an area of recharge to the Floridan Aquifer. The proposed sanitary landfill site is not located in the Lake Lafayette drainage basin. The engineering firm of Ardaman & Associates, Inc., conducted a subsurface investigation of the hydrologic and soil conditions at the site of the proposed sanitary landfill. As part of their investigation they performed ten soil borings and installed seven deep ground water monitoring wells. The results of the investigation of Ardaman & Associates, Inc., indicates a low probability of sink hole occurrence. In the course of their investigation, Ardaman & Associates, Inc., discovered a depression in the ground water level at Test Hole No. 9. The significance of this ground water low is that it may be a localized area of recharge. However, as shown by the testimony of the engineers who conducted the investigation for Ardaman & Associates, Inc., as well as by the report of their investigation, this depression creates no realistic danger with regard to the introduction of pollutants into the aquifer or ground water supply, so long as no putrescible wastes are placed within a distance of 1,000 feet of Test Hole No. 9. The hydro-geologist testifying on behalf of the Petitioners stated that he believed the radius of influence of the depression at Test Hole No. 9 may actually be less than 1,000 feet and that maintaining 1,000 feet distance from Test Hole No. 9 is a conservative distance. As designed, the proposed sanitary landfill will not dispose of any solid waste or other putrescible waste within 1,000 feet of Test Hole No. 9. The soils found on the proposed sanitary landfill site are of low permeability and suitable for a sanitary landfill. The low permeability of the soils will limit both the lateral and vertical seepage of leachate. The vertical flow of potential leachate to the Floridan Aquifer has been estimated at a rate of 1.0 to 1.5 feet per year. The lateral flow rate of such leachate through the soils overlying the bedrock in the Lafayette drainage basin has been estimated at the rate of 2 feet per year. As has been noted above, the proposed sanitary landfill site is located approximately 1,000 feet from Lake Lafayette, and 500 feet from the +50' MSL contour line which has been used to describe the perimeter of the flood prone area of the Lake Lafayette drainage basin. At the estimated flow rate it would therefore take several hundred years for any leachate produced by the sanitary landfill to reach the Lake Lafayette drainage basin. The Floridan Aquifer underlies all of Leon County at depths of 100 to 500 feet. As designed the proposed sanitary landfill will have test wells constructed throughout the site to provide a means of detecting any lateral migration of contaminants from the landfill operation should such occur. Periodic samples will be taken from these test wells and analyzed. The monitoring wells will be set up in such a manner that regardless of the direction of flow of subsurface water they will pick up and detect any pollutants that may be passing from the landfill. Some of these test wells will be placed in close proximity to the proposed sanitary landfill site to give early warning of the existence of any leachate flow. If there is any problem with the flow of leachate from the proposed site it will be detected easily within the first five years of operation. Since it would take several hundred years to reach the Lake Lafayette drainage basin at the estimated flow rates this should provide adequate warning and reaction time for the alleviation of any potential pollution problem. A significant flow of leachate is not expected. The existing pond which will receive the surface runoff from the sanitary landfill site is likely of sink hole origin but after a reasonable investigation it appears that the pond is now stable and not hydraulically connected to the Floridan Aquifer. It is estimated that the pond can contain at least a 25 year storm rainfall though there might be some flooding from the pond in a 100 year storm rainfall. As designed, no significant amount of leachate, if any, will reach the surface water runoff retention pond. Petitioners' hydro-geologist did not state that the site is unsuitable for a sanitary landfill. Rather he testified that on the information he had reviewed, which information was that available to the Department of Environmental Regulation, it was his opinion that the Department of Environmental Regulation lacks sufficient information to determine if the proposed site is suitable from a water quality standpoint. Based upon all the testimony and evidence it appears as a matter of fact that the information available to the Department of Environmental Regulation is reasonably sufficient to determine the suitability of the proposed site. There has been no showing of a necessity for alining the proposed trenches which will receive the solid waste. The Planning Director for the Tallahassee-Leon County Planning Department, in a letter to the Department of Environmental Regulation stated that the use of the proposed site for landfill purposes is not inconsistent with the land use plan. He further stated his concern for traffic on U.S. Highway 27, the possible adverse aesthetic impact which he felt could be minimized and his concern that Lake Lafayette be protected from landfill leachate through engineering design. In their Amended Petition Petitioners raised the question of the present zoning of the proposed site. No evidence was presented by Petitioners to show that the site is not properly zoned. Based upon the testimony and evidence presented there appears little possibility that the proposed sanitary landfill will pollute or seriously damage Lake Lafayette, the Floridan Aquifer or any other source of public or private water supply. The proposed sanitary landfill as designed is not likely to cause any significant water pollution or to degrade water quality below those standards set by the Department of Environmental Regulation. None of the prohibitions set out in Section 17-7.04, F.A.C, exist so as to require the denial of the application for a construction permit for a sanitary landfill by Respondent, Leon County. The sanitary landfill criteria set out in Section 17-7.05, F.A.C., have been met by Respondent, Leon County.
The Issue The issue to be determined in this case is whether a site certification should be issued to Hillsborough County for the construction and operation of a fourth municipal waste combustor unit (“Unit No. 4”) at Hillsborough County’s Resource Recovery Facility, in accordance with the provisions of the Florida Electrical Power Plant Siting Act.
Findings Of Fact The Applicant The Applicant, Hillsborough County, is a political subdivision of the State of Florida. The County owns the existing Facility and will own the proposed Project. The Facility was designed, built, and is operated by a private company pursuant to a long-term contract with the County. It is anticipated that a private company will design, construct, and operate the Project for the County. Hillsborough County’s Existing Solid Waste System The County has adopted a solid waste Comprehensive Master Plan (the “Master Plan”) in conjunction with the Cities of Tampa, Temple Terrace, and Plant City. The Master Plan provides for state-of-the-art technology and innovative approaches to recycling, waste reduction, and waste disposal. In accordance with the Master Plan, the County has developed: (a) an aggressive recycling program that significantly reduces the quantity of materials requiring disposal; (b) a resource recovery facility for waste reduction and energy recovery from those materials that are not recycled; and (c) a landfill for the disposal of ash and by-pass waste (i.e., materials that are not recycled or processed in the Facility). Hillsborough County and the three cities have used a cooperative, regional approach to solid waste management issues, while providing environmentally protective, cost-efficient programs for local residents. Despite the County’s comprehensive recycling program, the amount of solid waste generated in the County has increased each year since the Facility began operation, primarily due to population growth. The amount of solid waste generated in the County now significantly exceeds the Facility’s design capacity. Consequently, large quantities of solid waste currently are being diverted from the Facility to the County landfill. In 2005, the Board of County Commissioners decided to expand the Facility, consistent with the County’s long-standing Master Plan, rather than dispose of ever-increasing amounts of solid waste in a landfill. The Board’s decision was based on a thorough evaluation of the County’s solid waste disposal options. For these reasons, on November 21, 2005, the County filed an application with DEP for the construction and operation of Unit No. 4. The Site The Facility is located next to Falkenburg Road in an unincorporated area in the County. The Facility is southeast of the City of Tampa, west of Interstate 75 (“I-75"), and north of the Crosstown Expressway and State Road 60. The Facility was built on a 50.4-acre site (“Site”), which is in the southern portion of a 353-acre tract of land owned by Hillsborough County. The Surrounding Area The Facility is surrounded by a variety of governmental and industrial land uses. The Facility is bounded: on the south by the County’s Falkenburg Road Wastewater Treatment Plant and a railroad track that is owned by the CSX railroad company; on the west by a 230 kilovolt transmission line corridor and easement owned by Tampa Electric Company (“TECO”); on the north by vacant improved pasture land, the Falkenburg Road Jail, the Hillsborough County Department of Animal Services, and the Hillsborough County Sheriff’s Office (District 2); and on the east by Falkenburg Road and vacant land. The Facility is compatible with the adjacent and surrounding land uses. The nearest residential area is approximately 1 mile away from the Facility. It is located on the opposite (east) side of I-75. Zoning and Land Use In 1984, the Siting Board determined that the Site and Facility were consistent and in compliance with the applicable land use plans and zoning ordinances. The Siting Board’s determination was based on the County’s plans for the construction and operation of four MWC units at the Facility. The Site is currently zoned “Planned Development”, and is designated “Public/Quasi-Public” under the County’s comprehensive land use plan, specifically to allow the Facility and the Project to be built and operated on the Site. The Existing Facility The Facility currently has three MWC units. Each MWC unit has a nominal design capacity of 400 tons per day (“tpd”) of municipal solid waste (440 tpd when burning a reference fuel with a higher heating value of 4500 British thermal units (“Btu”) per pound). The three MWC units are located inside a fully enclosed building, which also contains the air pollution control systems for the MWC units, the “tipping floor,” the refuse storage pit, and a turbine generator. The Facility also includes an ash management building, cooling tower, stack, stormwater management ponds, water treatment system, transformer yard, electrical transmission lines, and ancillary equipment and facilities. Municipal solid waste (e.g., household and commercial garbage) is delivered to the Site in trucks, which drive inside the refuse storage building to the tipping floor, where the trucks dump the MSW into the refuse storage pit. Two overhead cranes mix the waste in the refuse storage pit and then load the waste into the charging hoppers that feed the three MWC units. The combustion of the municipal solid waste produces heat, which is used to produce steam. The steam is used in a turbine generator to produce approximately 29.5 megawatts (“MW”) of electricity. The Project The Project involves the construction and operation of a fourth MWC unit at the Facility. The new unit will be substantially the same as the three existing MWC units, but larger. The new unit will be designed to process approximately 600 tpd of municipal solid waste (660 tpd @ 5000 Btu/lb). A new turbine generator also will be installed, which will increase the Facility’s electrical generating capacity by approximately 18 MW, thus increasing the Facility’s total net generating capacity to approximately 47 MW. In addition, the Facility’s cooling tower will be expanded, the refuse and ash management buildings will be expanded, two lime silos and a carbon silo will be installed, a new settling basin will be installed, and other related improvements will be made. Construction of Unit No. 4 The Facility was designed and built to accommodate the addition of a fourth MWC unit, thus making the construction of Unit No. 4 relatively simple, without disrupting large areas of the Site. Unit No. 4 will be located adjacent to the three existing MWC units. The construction of the other Facility improvements also will occur adjacent to the existing components of the Facility. Only about 0.3 acres of the Site will be converted from open space to a building or similar use. Construction of Unit No. 4 will occur in previously disturbed upland areas on the Site that are already used for industrial operations. Construction of Unit No. 4 will not affect any wetlands or environmentally sensitive areas. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by Unit No. 4. No new pipelines or other linear facilities will need to be built for the Project. The construction of Unit No. 4 will not expand the Facility beyond the boundaries of the Site that was certified by the Siting Board in 1984. Operation of Unit No. 4 The basic operation of the Facility will not change when Unit No. 4 becomes operational. Municipal solid waste will be processed at the Facility in the same way it is currently processed. The Facility has operated since 1987 and has an excellent track record for compliance with all applicable regulations, including regulations concerning noise, dust, and odors. All of the activities involving solid waste and ash occur inside enclosed buildings. The tipping floor and refuse storage pit are maintained under negative air pressure, thus ensuring that dust and odors are controlled within the building. Since the operations at the Facility will remain the same after Unit No. 4 becomes operational, no problems are anticipated in the future due to noise, dust, or odors. The Facility’s basic water supply and management system will remain the same after Unit No. 4 becomes operational. Treated wastewater from the County’s co-located Falkenburg Road Wastewater Treatment Plant (“WWTP”) will be provided via an existing pipeline to satisfy the Facility’s need for cooling water. Potable water will be provided to the Facility via an existing pipeline from the City of Tampa’s water supply plant. The Facility does not use groundwater or surface water for any of its operations. The Facility will not discharge any industrial or domestic wastewater to any surface water or groundwater. Most of the Facility’s wastewater will be recycled and reused in the Facility. Any excess wastewater will be discharged to the Falkenburg Road WWTP. Stormwater runoff from the Project will be collected and treated in the existing system of swales and ponds on the Site. The County will modify two existing outfall weirs to provide improved treatment of stormwater and to ensure compliance with water quality standards. A traffic analysis was performed to evaluate the potential traffic impacts associated with the operation of the Facility, after the Project is completed. The analysis demonstrated the Facility will not have any significant impacts on the surrounding roadway network, even when Unit No. 4 is operational. Air Quality Regulations The County must comply with federal and state New Source Performance Standards (“NSPS”) and Best Available Control Technology (“BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. The County also must comply with Ambient Air Quality Standards (“AAQS”) and Prevention of Significant Deterioration (“PSD”) standards, which establish criteria for the protection of ambient air quality. Best Available Control Technology BACT is a pollutant-specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. As part of the BACT determination, all available and feasible pollution control technologies being used worldwide are evaluated. The Department performed a BACT determination for the Project. As part of its BACT analyses, DEP determined that (a) a flue gas recirculation system and a selective non-catalytic reduction system (“SNCR”) will control NOx; (b) a spray dryer with lime injection will control MWC acid gas; (c) an activated carbon injection system (“ACI”) will control MWC organic compounds; (d) a fabric filter baghouse will control particulate matter and MWC metals; and (e) proper facility design and operating methods will control other pollutants. These air pollution control technologies (except flue gas recirculation) and methods are currently used in the three existing MWC units and they have performed extremely well. Unit No. 4 will have better, more modern, and more sophisticated versions of these air pollution control systems, plus a flue gas recirculation system. In its analysis of the Project, DEP determined the emission limits for the Project that represent BACT. All of the emission limits determined by DEP for Unit No. 4 are as low as or lower than the emission limits established in 2006 by the U.S. Environmental Protection Agency (“EPA”) in the NSPS (40 CFR 60, Subpart Eb) for new MWC units. The NSPS are based on the use of Maximum Achievable Control Technology (“MACT”). Unit No. 4 will be subject to the lowest NOx emission limits imposed on any MWC unit in the United States. The Facility will use an array of continuous emissions monitors to help ensure that the Facility is continuously in compliance with the DEP’s emission limits. Indeed, Unit No. 4 will be the first MWC unit in the United States to be equipped with a continuous emissions monitor for mercury. Protection of Ambient Air Quality The EPA has adopted “primary” and “secondary” National Ambient Air Quality Standards ("NAAQS"). The primary NAAQS were promulgated to protect the health of the general public, including the most susceptible groups (e.g., children, the elderly, and those with respiratory ailments), with an adequate margin of safety. The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility, and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (“FAAQS”) that are more stringent than EPA’s NAAQS. The County analyzed the Project’s potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project’s impacts by a wide margin. These analyses demonstrate that the maximum impacts from Unit No. 4 will be less than one percent of the amount allowed by the ambient air quality standards. The maximum impact from the Facility (i.e., all four units) will be less than 2.5 percent of the amount allowed by the FAAQS and NAAQS. For these reasons, the emissions from Unit No. 4 and the Facility are not expected to cause adverse impacts on human health or the environment. The maximum impacts of Unit No. 4 and the Facility, when operating under worst case conditions, will be immeasurably small and will be indistinguishable from ambient background conditions. Human Health and Ecological Risk Assessments The County performed a human health and ecological impact assessment of the risks associated with the Facility’s airborne emissions. The County’s risk assessment evaluated the impacts of the entire Facility, with all four MWC units in operation. The risk assessment was designed to over-estimate the potential impacts of the Facility. The County’s risk assessment was conducted in compliance with current EPA guidance. The risk assessment considered hypothetical human receptors (e.g., infants, children, and adults) that were engaged in different types of behavior (e.g., a typical resident; a beef farmer; a subsistence fisherman) and were exposed through multiple pathways (e.g., inhalation; ingestion of soil; ingestion of local produce, beef, and/or fish) to chronic long term impacts from the Facility. The risk assessment also considered the Facility’s potential impacts on sensitive environmental receptors, including aquatic life (benthic dwelling aquatic organisms), wood storks, and river otters. The County’s risk assessment demonstrates that the potential risks associated with the Facility’s emissions will not exceed, and in most cases will be much less than, the risks that are deemed acceptable by the EPA and DEP for the protection of human health and the environment. The County’s assessment is consistent with the findings in environmental monitoring studies, epidemiological studies, and risk assessments that have been performed for other modern waste-to-energy ("WTE") facilities in the United States. The County’s findings also are consistent with the determinations made by the EPA, which has concluded that WTE facilities equipped with modern pollution control systems are a “clean, reliable, renewable source of energy.” The evidence presented by the County in this case demonstrates that the Facility is not likely to have any adverse effect on human health or the environment, even when all four MWC units are operational, if the Facility is built and operated in compliance with the Conditions of Certification. Potential Impacts on Water Quality The Facility’s emissions of nitrogen oxides (i.e., NOx) will not cause or contribute to violations of any water quality standards in any surface waterbody. Environmental Benefits of the Project The addition of Unit No. 4 will provide significant environmental benefits to the County. Unit No. 4 will reduce the volume of processible solid waste by approximately 90 percent. By reducing the volume of processible waste, Unit No. 4 and the Facility will greatly extend the useful life of the County’s landfill, thus postponing the need to build a new landfill. The Facility also will convert putrescible waste into a relatively inert ash, which poses less threat to groundwater resources. The Project will also provide environmental benefits to the State of Florida. For example, the Facility will produce electricity from discarded materials. In this manner, Unit No. 4 will reduce the need to use fossil fuels to generate electricity at traditional power plants. Unit No. 4 will eliminate the need to use approximately 4 million barrels of oil and thus will save approximately $200 million in oil purchases over the next 20 years. Socioeconomic Benefits of the Project The local economy and labor market will benefit from approximately $100 million that the County will spend to construct the Project. A significant amount of construction supplies, goods, and services are anticipated to be purchased from local businesses. The Project will provide jobs for construction workers. The daily workforce is expected to average between 25 and 75 people over a period of approximately 21 months. The addition of Unit No. 4 will also provide approximately 8 new permanent jobs at the Facility. WTE Criteria in Section 403.7061 Section 403.7061, Florida Statutes, establishes several criteria that must be satisfied before an existing waste-to-energy facility may be expanded. The County has provided reasonable assurance that the Project will satisfy all of the standards and criteria in Section 403.7061, Florida Statutes. Among other things, the County has demonstrated that the County’s waste reduction rate has consistently exceeded the State’s 30 percent recycling goal. Consistency With Land Use Plans and Zoning Ordinances As required by Section 403.508(2), Florida Statutes, the County demonstrated that the Site is consistent and in compliance with the Hillsborough County comprehensive land use plan and Hillsborough County’s applicable zoning ordinances. Compliance with Environmental Standards The Department has concluded and the evidence demonstrates that the County has provided reasonable assurance the Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air quality, water consumption, stormwater, and wetlands. The County has used all reasonable and available methods to minimize the impacts associated with the construction and operation of the Facility. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional, or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare, with a wide margin of safety. Agency Positions Concerning Certification of the Project On May 4, 2006, the PSC issued a report concluding that the Project was exempt from the PSC’s need determination process, pursuant to Section 377.709(6), Florida Statutes. The DEP, DOT, and SWFWMD recommend certification of the Project, subject to the Conditions of Certification. The other agencies involved in this proceeding did not object to the certification of the Project. The County has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Public Notice of the Certification Hearing On December 19, 2005, the County published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Tampa Tribune, which is a newspaper of general circulation published in Hillsborough County, Florida. On May 25, 2006, the County published notice of the Certification Hearing in the Tampa Tribune. On December 23 and December 30, 2005, the Department electronically published “Notice of Filing of Application for Power Plant Certification.” On May 26, 2006, the Department electronically published notice of the Certification Hearing. The public notices for the Certification Hearing satisfy the informational and other requirements set forth in Section 403.5115, Florida Statutes, and Florida Administrative Code Rules 62-17.280 and 62-17.281(4).
Conclusions For Petitioner Hillsborough County (the “County”) David S. Dee, Esquire Young van Assenderp, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301-1720 For the Florida Department of Environmental Protection (“Department” or “DEP”) Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-300
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a site certification for the construction and operation of Unit No. 4 at the Hillsborough County Resource Recovery Facility, in accordance with the Conditions of Certification contained in DEP Exhibit 2. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006.
The Issue The issue to be determined in this proceeding is whether Angelo's Aggregate Materials, LTD ("Angelo's") is entitled to permits from the Department of Environmental Protection ("Department") to construct and operate a Class I landfill in Pasco County.
Findings Of Fact The Parties The Department is the state agency with the power and duty under chapter 403, Florida Statutes, to review and take action on applications for permits to construct and operate solid waste management facilities, including landfills. Angelo's is a Florida limited partnership authorized to conduct business under the name Angelo's Recycled Materials. Angelo's filed the permit applications which are the subject of this proceeding. Angelo's owns the property on which the proposed landfill would be constructed and operated. Crystal Springs Preserve is a Florida corporation that owns approximately 525 acres in Pasco County, Florida on which is located Crystal Springs, a second magnitude spring that flows into the Hillsborough River. The property is about 10 miles south of Angelo's proposed landfill site. Crystal Springs Preserve's primary business activities are selling spring water for bottling for human consumption and operating an environmental education center that focuses on Crystal Springs and the Hillsborough River. Crystal Springs Preserve hosts approximately 50,000 visitors annually at the environmental education center. Crystal Springs Preserve holds a water use permit which authorizes it to withdraw up to 756,893 gallons of water per day (annual average) from Crystal Springs for production of bottled water. The water is transported about three miles to a water bottling facility operated by Nestlé. Nestlé is a private corporation engaged in the business of bottling and selling spring water. Nestlé purchases spring water from Crystal Springs Preserve. Nestlé's "Zephyrhills Spring Water" brand is composed of approximately 90 percent Crystal Springs water and 10 percent Madison Blue Spring water. The only water treatment applied by Nestlé is filtering the water to remove gross contaminants and passing the water through ultraviolet light or ozone to kill any potential bacteria before bottling. Nestlé has established "norms" for its spring water and would not be able to use the water from Crystal Springs if its chemical composition varied significantly from the norms. WRB is a Florida corporation that owns 1,866 acres in Pasco County known as Boarshead Ranch. Boarshead Ranch is adjacent to the east and south of Angelo’s property and is approximately 3,000 feet from the proposed landfill at its closest point. Boarshead Ranch is currently being used for agricultural, recreational, residential, and conservation purposes, including wildlife management. Nearly all of Boarshead Ranch is subject to a conservation easement held by the Southwest Florida Water Management District (SWFWMD). The conservation easement allows WRB to continue agricultural operations. Numerous agricultural water wells are located on Boarshead Ranch. WRB holds a water use permit which authorizes the withdrawal of 820,000 gallons per day (gpd) (annual average) for a number of uses, including production of agricultural products, animal drinking water, and personal use. The City of Zephyrhills is located in Pasco County and is a municipal corporation. Zephyrhills' water service area encompasses Zephyrhills and portions of Pasco County. Zephyrhills owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Zephyrhills holds a water use permit which authorizes nine potable water supply wells with a combined withdrawal of 2.9 million gallons per day ("mgd") (annual average). Zephyrhills has two new production wells located about two miles southeast of the proposed landfill. The City of Tampa owns and operates the David L. Tippin Water Treatment Plant, the Hillsborough River dam, and the City of Tampa reservoir on the Hillsborough River. Flows from Crystal Springs make up a substantial amount of the water in the Hillsborough River, especially during drought conditions when the spring flow accounts for about 50 percent of the flow. The City of Tampa holds a water use permit which authorizes the withdrawal 82 mgd (annual average). The City of Tampa owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Carl Roth, Marvin Hall, and Louis Potenziano own property in Pasco County near the proposed landfill site. Roth's property is 3.5 miles west of the proposed landfill site; Hall's property is located approximately one mile southwest of the site; and Potenziano's property is 1.6 miles to the south/southeast of the site. Roth, Hall, and Potenziano have water wells on their properties. The record does not establish that John Floyd owns property in the area. Floyd and Associates, Inc., owns about 55 acres in the area and holds a water use permit authorizing the withdrawal of water for agricultural uses. The Stipulated Agreement On March 1, 2010, Angelo's filed with DOAH a "Stipulated Agreement" signed by all parties. The Stipulated Agreement states in relevant part: Angelo's shall provide a final design, revised complete permit application and site investigation (referred to jointly as "Revised Submittal") to DEP with copies to all Parties and DEP shall make a completeness determination prior to this proceeding being set for a new final hearing date. * * * Angelo's shall not revise its permit application or supporting information beyond the Revised Submittal prior to or during the final hearing except in response to issues raised by DEP. It appears that the Aligned Parties did not remember the Stipulated Agreement until the commencement of the final hearing. They did not object before then to any of the evidence which Angelo's had prepared or intended to prepare for hearing on the basis that it violated the terms of the Stipulated Agreement. At the commencement of the hearing, Nestlé argued that the Stipulated Agreement barred Angelo's from revising its application or presenting new support for its project at the final hearing. The Stipulated Agreement is unusual and the necessity for Angelo's to make any concessions to the Aligned Parties in order to obtain their agreement to an abeyance was not explained. Allowing an applicant time to amend a permit application is usually good cause for an abeyance. The Stipulated Agreement allowed Angelo's to continue to respond to issues raised by the Department. Angelo's contends that all of the evidence it presented at the final hearing qualifies as a response to issues raised by the Department. The Proposed Landfill Angelo's applied to construct and operate a Class I landfill with associated buildings and leachate holding tanks. Application No. 22913-001-SC/01 corresponds to the construction permit application and Application No. 22913-001-SO/01 corresponds to the operation permit application. A Class I landfill is a landfill authorized to receive Class I waste, which is solid waste from households and businesses. Class I waste does not include hazardous waste, yard waste, or construction and demolition debris. See Fla. Admin. Code R. 62-701.200(13) and (14). The proposed landfill would be approximately 30 acres in size. It is part of a 1,020-acre parcel owned by Angelo's that is west of County Road 35 and south of Enterprise Road in Pasco County. The site is currently leased for cattle grazing and hay and sod production. There are also spray fields, orange groves, and a pond on the 1,020-acre parcel. Angelo's would construct the landfill by first clearing the 30-acre site. It would then excavate and fill to create the design subgrade or floor of the landfill with slopes required for the liner system. The subgrade would be compacted with a vibratory roller. After the subgrade compaction, the grouting plan would be implemented. The grouting plan calls for grouting 39 subsurface locations on the site that have voids, loose soils, or other unstable characteristics. A liner system would be installed after the grouting is completed and the subgrade is finished. From the bottom upward, the liner system would begin with a 12-inch layer of clay, over which a reinforcement geotextile would be installed, followed by another 12-inch layer of clay. This reinforcement geotextile is in addition to the double liner system required by Department rule. Its purpose is to maintain the integrity of the liner system in the event that a sinkhole occurs beneath the landfill. Installed above the reinforcement geotextile and clay layer would be a 60-millimeter high-density polyethylene ("HDPE") geomembrane, followed by a HDPE drainage net. These last two components comprise the secondary leachate collection system. Above the HDPE drainage net would be the primary leachate collection system, consisting of another 60-millimeter HDPE geomembrane and HDPE drainage net, followed by a geotextile, then a 12-inch sand layer for drainage, and an additional 12-inch sand layer for protection against puncture of the HDPE liner. A 48-inch layer of selected waste, free of items that could puncture the liner, would be the first waste placed over the primary leachate collection system. "Leachate" is "liquid that has passed through or merged from solid waste and may contain soluble, suspended, or miscible materials." See Fla. Admin. Code R. 62-701.200(66). Leachate would be collected through a system of perforated pipes that empty into a sloping trench with a leachate collection pipe. The leachate collection pipe would run down the center of the landfill to the lowest point where a pump would send the collected leachate through a force main 0.25 miles to storage tanks. Five above-ground storage tanks would be installed on a concrete pad with capacity to store 90,000 gallons of leachate. The stored leachate would be periodically transported to an offsite location, such as a wastewater treatment facility, for disposal. Sinkholes and Karst The terms "sinkhole" and "sinkhole activity" are not defined by Department rule, but the statutory definitions in chapter 627, a chapter dealing with insurance coverage for homes and other buildings, are generally consistent with the scientific meanings of these terms. The term "sinkhole" is defined in section 627.706(2)(h) as: a landform created by subsidence of soil, sediment, or rock as underlying strata are dissolved by groundwater. A sinkhole forms by collapse into subterranean voids created by dissolution of limestone or dolostone or by subsidence as these strata are dissolved. The term "sinkhole activity" is defined in section 627.706(2)(i) as: settlement or systematic weakening of the earth supporting the covered building only if the settlement or systematic weakening results from contemporaneous movement or raveling of soils, sediments, or rock materials into subterranean voids created by the effect of water on a limestone or similar rock formation. Sinkholes occur throughout Florida. There have been many reported and confirmed sinkholes in Pasco County. The more common type of sinkhole that has occurred on the Brooksville Ridge is a "cover subsidence" sinkhole, which is caused by voids in the limestone and the downward movement--"raveling"--of overlying soils into the cavity. Eventually, the loss of soils in the raveling zone will propagate upward until the soils at the ground surface also move downward and a depression is formed at the surface. Cover subsidence sinkholes develop slowly and are usually small, less than ten feet in diameter. Less common are "cover collapse" sinkholes, which can form in a matter of days or hours as the result of the collapse of the "roof" of a dissolved cavity in the limestone. These sinkholes are usually large and deep. The occurrence of a sinkhole does not always mean that areas near the sinkhole are unstable. However, the occurrence of a sinkhole is reasonable cause for concern about the stability of nearby areas and a reasonable basis for the Department to require thorough geologic investigations. "Karst" refers to limestone that is undergoing dissolution and it is common in Florida. A sinkhole forms in karst. "Epikarst" is limestone that was weathered while exposed above sea level millions of years ago before being submerged again. It is generally softer and more permeable than unweathered limestone. "Paleokarst" refers to karst that is very old in geologic time. Paleosinks are old sinkhole features in the paleokarst. A paleosink may no longer be unstable because it has been filled in for thousands or millions of years. A "lineament," or a "photolineament," is a relatively straight line seen in the topography or aerial photographs of the ground surface in an area. It might be defined by soil color, sloughs, ponds, wetlands, or other land features that follow a linear path. Lineaments are sometimes, but not always, associated with subsurface fractures in the bedrock where one would expect to also find active karst, sinkholes, and relatively rapid groundwater flow. Even where there is no lineament, there can be fractures in limestone that, when extensive enough, will allow for "fractured," "preferential," or "conduit flow" of groundwater. Fractured flow can occur in a small area or may go on for miles. Springs in Florida are usually associated with fractured flow or conduit flow that allows groundwater to move through the aquifer a long distance relatively rapidly, in weeks rather than decades. Geotechnical Investigation The Department's rules require subsurface conditions to be explored and described, including soil stratigraphy, soft ground, lineaments, and unstable areas, but the rules do not require the application of any particular geologic testing technique. An applicant's testing program is primarily a function of the professional judgment of the applicant’s geologist in cooperation with Department staff. The amount of geological testing done by Angelo's during its initial testing was similar to what was done for recent landfill applications. Angelo's conducted additional testing to respond to Department concerns and to prepare for the final hearing in this case, making the total amount of testing at Angelo's proposed site more extensive than is usual for a proposed landfill. The geologic investigation conducted by Angelo's experts to determine subsurface features, including any sinkholes, employed several technologies. Split Spoon Penetrometer Test (SPT) or SPT borings were drilled with a drill rig that advances a split spoon sampler into the ground with a 140 pound hammer. The hammer is dropped 30 inches and the number of blows required to drive the sampler each successive 12 inches is referred to as the "N" value and indicates soil strength and density. The higher the N value, the denser the soil. When the material is so dense the drill rod cannot (essentially) be hammered deeper, the N value is shown as "R," which stands for "refusal." SPT Bore logs also note any observed "weight of hammer," "weight of rod," or "loss of circulation." These terms describe areas where the drilling encounters very soft material or voids. Weight of rod, for example, means the weight of the drilling rod, by itself, with no hammer blow, was enough to cause the rod to fall deeper through the soil or rock. Cone Penetrometer Test ("CPT") borings were also conducted. CPT borings are relatively shallow, performed with a hand-held rod and special tip that the operator pushes into the ground. The CPT equipment continuously measures and records tip resistance and sleeve resistance as the rod moves downward through soils. It is helpful in some applications, but is less precise in determining soil type, strength, and compressibility than SPT borings and cannot be used to explore deep zones. Ground penetrating radar ("GPR") studies were used. GPR equipment transmits pulses of radio frequency waves into the ground. The manner in which the radio waves are reflected indicates the types of soil and rock encountered. It can also detect cavities and other features that would suggest karst activity. When the GPR identifies geologic features of interest, they can be further investigated with SPT borings. Another investigative tool used by Angelo's was Multiple Electrode Resistivity ("MER"). MER uses a grid of wires and electrodes and the equipment interprets the resistivity of electrical signals transmitted through the subsurface. MER data can be displayed in a two dimensional or three dimensional format, depending on the software program that is used to process the data. Like GPR, MER is useful for indentifying geologic features of interest that can be further explored with SPT borings. However, GPR generally has good resolution only near the ground surface, while MER has good resolution to a depth of 100 feet. The Regional Geology The proposed site is in a geologic transition zone on the eastern flank of a regional, geological feature known as the Brooksville Ridge. It is a transition zone for both the Suwannee Limestone and Hawthorn Group. The Brooksville Ridge was formed when it was part of the coastline. In its geologic past, the Brooksville Ridge experienced sea level changes, weathering, erosion of sediments, and beach reworking. The general layering of geologic features on the Brooksville Ridge, from the top down, begins with topsoil and a layer of sand. Under the sand layer is the Hawthorn Group, an older geologic layer consisting of a heterogeneous mix of limestone, clays, and sands which generally range in depth from slightly under 60 feet to 80 feet or more. It was formed by river and wind erosion, flushing, and re-deposition in a beach dune environment. Below the Hawthorn Group is the Suwannee Limestone Formation, which is present throughout eastern Pasco County. The upper surface of the Suwannee Limestone Formation is undulating, due to a gradual chemical weathering of its upper surface, representing a "paleokarst environment." Underlying the Suwannee Limestone Formation is the Ocala Limestone Formation. It extends throughout most of Florida. It is composed of nearly pure limestone and is considered the Floridan Aquifer. It extends across the site’s subsurface. Angelo's used the Florida Geologic Survey's data base to determine there are six sinkholes within five miles of the proposed landfill. A seventh sinkhole, not in the data base, is the 15- foot sinkhole at the Angelo's Enterprise Road Facility landfill, a Class III landfill (yard waste and construction and demolition debris) about a mile northwest of the proposed site. Angelo's contends that the sinkhole at its Class III landfill was "induced" during construction of the facility by the diversion of stormwater runoff to an area where overburden had been removed. The average diameter of the seven sinkholes is 11.9 feet. The Geology of the Proposed Site Rule 62-701.410(2)(c) requires a geotechnical site investigation and report, which shall: Explore and describe subsurface conditions including soil stratigraphy and ground water table conditions; Explore and address the presence of muck, previously filled areas, soft ground, lineaments, and sinkholes; Evaluate and address fault areas, seismic impact zones, and unstable areas as described in 40 C.F.R. 258.13, 258.14 and 258.15; Include estimates of the average and maximum high ground water table across the site; and Include a foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the landfill. It may include geotechnical measures necessary to modify the foundation to accommodate the imposed loads and stresses. The foundation shall be analyzed for short-term, end of construction, and long-term stability and settlement conditions. Considering the existing or proposed subgrade conditions and the landfill geometry, analysis shall include: Foundation bearing capacity; Subgrade settlements, both total and differential; and Subgrade slope stability. Angelo's conducted a geotechnical site investigation, but it was not adequate, as discussed below and in sections I. and J. The proposed landfill site is geologically complex, having features that are discontinuous horizontally and vertically. The site has karst features or areas where the limestone has dissolved. There is a clay layer in some areas, but it is not continuous and its depth and thickness vary. There are deposits of hard and soft sands at various depths. There are pinnacles of limestone surrounded by softer materials. Photographs from a quarry called the Vulcan Mine, located on the western flank of the Brooksville Ridge, show exposed features in the top 20 to 30 feet of the Suwannee Limestone in the region. The features at the Vulcan Mine are roughly similar to features at the Angelo's site. There are a number of shallow depressions on the surface of the ground on the Angelo's site. The origin and significance of these depressions was a matter of dispute. The Aligned Parties believe they represent sinkhole activity, but the evidence presented did not rise to the level of proof. However, Angelo's did not prove they were unassociated with geotechnical issues that could affect the proposed landfill. Angelo's offered no reasonable explanation for the depressions. Determining the exact cause of the depressions may not be possible even with more extensive investigation, but it was Angelo's responsibility as the permit applicant, pursuant to rule 62-701.410(2)(c), to make a greater effort to account for them. Angelo's initial permit application identified two intersecting lineaments on Angelo's property, based on aligned lowlands, enclosed valleys, and ponds. Angelo's contends the lineaments do not reflect an unstable subsurface or fractured limestone. The Aligned Parties contend that the lineaments are regional features and reflect fractures in the bedrock. They also contend that the onsite pond, which is located along the lineament, is an old sinkhole. The Aligned Parties did not prove the proposed landfill site is above an area of fractured bedrock, but the evidence presented by Angelo's was incomplete and insufficient to show there are no fractures. The limestone on the site was not adequately investigated for voids and fractures. Angelo's did not refute the possibility that the lineaments reflect a significant subsurface feature that could affect both site stability and groundwater movement. The Regional and Local Hydrogeology Rule 62-701.410(1) requires a hydrogeological investigation and site report, which shall: Define the landfill site geology and hydrology and its relationship to the local and regional hydrogeologic patterns including: Direction and rate of ground water and surface water flow, including seasonal variations; Background quality of ground water and surface water; Any on site hydraulic connections between aquifers; For all confining layers, semi-confining layers, and all aquifers below the landfill site that may be affected by the landfill, the porosity or effective porosity, horizontal and vertical permeabilities, and the depth to and lithology of the layers and aquifers; and Topography, soil types and characteristics, and surface water drainage systems of the site and surrounding the site. Include an inventory of all the public and private water wells within a one-mile radius of the proposed landfill site. The inventory shall include, where available: The approximate elevation of the top of the well casing and the depth of each well; The name of the owner, the age and usage of each well, and the estimated daily pumpage; and The stratigraphic unit screened, well construction technique, and static water levels of each well. Identify and locate any existing contaminated areas on the landfill site. Include a map showing the locations of all potable wells within 500 feet of the waste storage and disposal areas to demonstrate compliance with paragraph 62- 701.300(2)(b), F.A.C. Angelo's conducted a hydrogeological investigation, but it was not adequate, as discussed below. Angelo's and the Aligned Parties disputed the hydrogeological characteristics of the proposed landfill site and region. The principal disputes related to the direction and velocity of groundwater flow. Angelo's contends that groundwater flows from the landfill site to the west, making the proposed landfill site part of the Withlacoochee River groundwater basin. The Aligned Parties contend that groundwater flows south toward Crystal Springs and, therefore, the site is within the "springshed" of Crystal Springs. A United States Geological Survey map of the Crystal Springs springshed shows Angelo's proposed landfill site within the springshed. A springshed study done for SWFWMD also indicates the site is within the Crystal Springs springshed, but the District has not always been consistent in its statements about the groundwater basin boundaries in this area. A water chemistry analysis of the groundwater in the area of Angelo's proposed landfill indicates that the site is an area of higher recharge and within the Crystal Springs springshed. The springshed boundary can shift, depending on rainfall. Angelo's hydrogeological evidence was not sufficient to refute the reasonable possibility that the proposed landfill site is within the Crystal Springs springshed. Therefore, the Department's determination whether Angelo's has provided reasonable assurances must account for the threat of contamination to Crystal Springs and the other public and private water supply sources to the south. There are no creeks or streams and only a few lakes in the area between Crystal Springs and the Angelo's site. The absence of surface runoff features indicates it is an area of high recharge to the groundwater. Crystal Springs is in an area of conduit flow. The hydrologic investigation conducted by Angelo's was not thorough enough to characterize surficial aquifer flow and flow between aquifers. The preponderance of the evidence shows more groundwater recharge to the Floridan Aquifer in the area than estimated by Angelo's. Angelo's hydrogeological investigation was inadequate to refute the possibility of fractured flow or rapid groundwater movement at the proposed landfill site. Angelo's contends there is a continuous clay confining layer that would prevent contamination from moving into deep zones, but the preponderance of the evidence shows discontinuity in the clay and large variations in thickness and depth. The landfill's impermeable liner will impede water movement downward from the landfill, but groundwater will still recharge from outside the landfill to carry any contaminants deeper. If fractured flow or conduit flow extends south from the proposed landfill site, any leachate released into the groundwater beneath the landfill could travel rapidly toward the water supply sources of the City of Zephyrhills, Crystal Springs, Nestlé, and the City of Tampa. Whether the Proposed Landfill is in an Unstable Area Rule 62-701.200(2)(a) prohibits the storage or disposal of solid waste "[i]n an area where geological formations or other subsurface features will not provide support for the solid waste." However, the Department has adopted by reference a federal regulation, 40 C.F.R. 258.15, which allows a landfill to be constructed in a geologically unstable area if the permit applicant can demonstrate that engineering measures are incorporated into the design to ensure that the integrity of the landfill’s structural components "will not be disrupted." The parties presented evidence on many disputed issues of fact at the final hearing, but most of the case involved two ultimate questions: whether the proposed landfill site is unstable and, if so, whether Angelo's has proposed measures that would eliminate the unstable conditions and make the site suitable for a landfill. as: An "unstable area" is defined in 40 C.F.R. § 258.15 A location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terrains. There is overwhelming evidence that the proposed landfill site is an unstable area. A considerable amount of evidence presented by Angelo's supports this finding. For example, Angelo's experts agreed there are loose soils, evidence of raveling, and sinkhole activity. These conditions make the site susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from the proposed landfill. The Department's landfill permitting staff requested a sinkhole risk assessment from the Florida Geologic Survey ("FGS"). The State Geologist and Director of the FGS, Dr. Jonathan Arthur, believes the potential for sinkhole formation at the proposed site is moderately high to high. That potential is consistent with the characterization of the area as unstable. Whether the Proposed Engineering Measures Are Adequate Because the site is unstable, Angelo’s must demonstrate that engineering measures have been incorporated into the landfill's design to ensure that the integrity of its structural components will not be disrupted. See 40 C.F.R. § 258.15(a). The engineering measures proposed by Angelo's are discussed below. Because it was found that Angelo's hydrogeological and geotechnical investigations were not sufficient to characterize all potentially unstable features of the subsurface, it was not demonstrated that the proposed engineering measures would overcome the instability and make the site suitable for a landfill. Roller Compaction Angelo's would use roller compaction on the graded floor of the landfill to compact the soils to a depth of about five feet and eliminate any voids within that depth. The Aligned Parties did not contradict Angelo's evidence that its proposed roller compaction will be done in a manner exceeding what the Department usually requires as far as roller force and the number of roller "passes." However, roller compaction will not affect deep voids. Liner System In order to ensure that the landfill’s liner system components will not be disrupted in the event of a sinkhole, Angelo’s proposes to include the reinforcement geotextile discussed above. The Department previously approved the use of geotextile reinforcement, combined with grouting, to demonstrate site stability for the Hernando County Northwest Landfill, which had a comparable risk of sinkhole formation according to the Department. The reinforcement geotextile can span a 15-foot diameter sinkhole without failure. As found above, the average diameter of the seven sinkholes within five miles of the proposed landfill is 11.9 feet. Angelo's proved that the proposed liner system meets all applicable criteria, except the requirement of rule 62- 701.400(3)(a) that the liner be installed upon a geologically stable base. Grouting Plan Angelo's grouting plan would be implemented to fill voids and stabilize areas of loose or weak material. The grouting plan was first designed to grout all locations where there was a Weight of Hammer, Weight of Rod, Loss of Circulation, or loose sands, as indicated by a low blow count. Angelo's revised the grout plan to include several more areas of concern identified later, for a total of 39 locations. Each grout location would have seven grout points, one in the center and six others equally-spaced on a ten-foot radius from the center. If more than ten cubic yards of grout is needed, additional grout points further outward would be injected until the void or loose soils are filled or stabilized. Although Angelo's proposes to grout every boring of concern, that still ties the integrity of the grouting plan to the thoroughness of the borings. The geologic evidence indicates that there are unstable areas which the grouting plan does not address. The Aligned Parties' MER analysis was persuasive in identifying potential areas of instability that were omitted from Angelo's investigation and from its grouting plan. There are other unstable areas existing on the site that should be grouted or otherwise engineered to provide support for the landfill. The grouting plan does not provide reasonable assurance that the integrity of the structural components of the landfill will not be disturbed. Other Issues Raised by the Aligned Parties The Aligned Parties raise a number of other issues, some of which begin with the assumption that the site is unstable and a large sinkhole would form at the landfill. This sometimes mixes issues inappropriately. It has been found that Angelo's did not provide reasonable assurance that the site will support the proposed landfill, but other project elements must be reviewed on their own merits where possible, assuming the site was engineered for stability. Leachate Collection System There is a single leachate collection trench in the center of the two landfill cells, which makes the landfill operate much like a single cell. The two halves of the cell slope toward the center, so that leachate will drain to the leachate collection trench, and the entire landfill slopes to the west, so that the trench will drain to a sump from which the leachate is pumped to storage tanks. At full capacity, the landfill will generate about 40,000 gallons of leachate per day. Careful cutting and grading of the earth is necessary to create the slopes that are essential to the proper functioning of the project’s leachate collection system. Settlement analyses are necessary to assure that the slopes are maintained. Rule 62-701.410(2)(e) requires a foundation analysis which must include a study of "subgrade settlements, both total and differential." "Total settlement" refers to the overall settlement of a landfill after construction and the loading of solid waste. "Differential settlement" compares settlement at two different points. Angelo's did not meet its burden to provide reasonable assurance on this point. The settlement analysis conducted by Angelo's was amended two or three times during the course of the final hearing to account for computational errors and other issues raised by the Aligned Parties. The analysis never came completely into focus. The final analysis was not signed and sealed by a professional engineer. The settlement analysis is dependent on the geologic analysis, which is inadequate. Without adequate settlement and geologic analyses, it cannot be determined that leachate collection would meet applicable criteria. Storage Tanks The Aligned Parties contend that the leachate storage tanks cannot be supported by the site. Because it was found that Angelo's geologic investigation was not adequate to identify all unstable areas, it is also found that Angelo's failed to provide reasonable assurance that the site would support the leachate storage tanks. In all other respects, the Aligned Parties failed to refute Angelo's demonstration that the storage tanks would meet applicable criteria. Groundwater Monitoring Plan The Aligned Parties contend that there is an insufficient number of monitor wells proposed by Angelo's to detect a leak from the landfill and the wells are too shallow. Because it was found that Angelo's did not adequately characterize the geology and hydrology of the proposed landfill site, the monitoring plan does not provide reasonable assurance of compliance with applicable criteria. Cell Design The Aligned Parties contend that the "mega-cell" design proposed by Angelo's provides less flexibility to respond to and isolate landfill problems than other landfill designs with smaller cells, and the mega-cell design could generate more leakage. No evidence was presented to show whether Angelo's design was one that had been approved or rejected in the past by the Department. Although it is not the best landfill design, the Aligned Parties did not show that the proposed design violates any permitting criteria. Operation and Closure The evidence presented by the Aligned Parties in support of their issues regarding the operation of the proposed landfill, such as noise, odor, and traffic, was not sufficient to refute Angelo's evidence of compliance with applicable criteria, with one exception: Angelo's has not provided an adequate contingency plan to show how it would respond to a sinkhole or other incident that required the landfill to be shut down and repaired. Assuming the site was engineered to support the landfill, there is nothing about the Closure Plan that the Aligned Parties showed does not meet applicable criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny Angelo's Permit Application Nos. 22913-001-SC/01 and 22913- 002-SO/01. DONE AND ENTERED this 28th day of June, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2013. COPIES FURNISHED: Carl Roth, Qualified Representative 8031 Island Drive Port Richey, Florida 34668-6220 Christopher M. Kise, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 Wayne E. Flowers, Esquire Lewis, Longman and Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32202-4931 Janice M. McLean, Esquire City of Tampa 7th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 Joseph A. Poblick, Esquire City of Zephyrhills 5335 8th Street Zephyrhills, Florida 33542-4312 Doug Manson, Esquire William Bilenky, Esquire Brian A. Bolves, Esquire Manson Bolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 Jacob D. Varn, Esquire Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler, White, Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32302-1547 David Smolker, Esquire Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A. Suite 200 500 East Kennedy Boulevard Tampa, Florida 33602-4936 Stanley Warden, Esquire Christopher Dale McGuire, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues remaining in this case are: (1) whether New River Solid Waste Association (NRSWA) requested that its permitted bioreactor landfill system be included as part of its application for renewal of its operating permit for the New River Regional Landfill in Union County, Florida; (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1); and (3) whether the prevailing party is entitled to an award of attorney fees and costs under Section 403.412(2)(f). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact NRSWA is comprised of Union, Baker, and Bradford Counties and was formed to share the costs associated with solid waste disposal. NRSWA owns and operates the New River Regional Landfill in Union County. The landfill was initially permitted in 1990 and was expanded and the original permit renewed in 1995 for an additional five years, expiring on November 6, 2000. The landfill now has a permit for disposal of Class I waste in three cells, with a fourth under design; it also has a permit for disposal of Class III waste and a permit for a waste tire collection center. Cells 1 and 2 were retired, and in July 1999 NRSWA applied to modify its operating permit (Permit No. SC63-271982) to allow construction and operation of a bioreactor landfill system on retired cells 1 and 2. On June 26, 2000, DEP gave notice of its intent to issue NRSWA a permit modification to construct and operate the bioreactor system. On July 11, 2000, Petitioner, Paul Still, timely filed a Petition for Administrative Hearing to challenge DEP's proposed agency action. On August 15, 2000, DEP referred the matter to DOAH, which gave it DOAH Case No. 00-3448 and assigned an ALJ. On August 28, 2000, NRSWA filed a Motion to Dismiss the Petition for Administrative Hearing for lack of standing. On September 8, 2000, NRSWA applied to DEP for renewal of Permit No. SC63-271982 for continued operation of its landfill. The renewal application requested that all landfill permits be consolidated into the renewal permit as a single operating permit. However, at the time Case No. 00-3448 on the bioreactor modification application remained pending, and the renewal application did not specify the bioreactor modification as part of the renewal application. Frank Darabi, NRSWA's professional engineer, signed a transmittal letter on September 7, 2000; arranged for delivery of the application to DEP's Northeast District office in Jacksonville, Florida; and thought it was delivered and left there after-hours on September 7, 2000. But NRSWA did not prove that the renewal application was submitted to DEP before September 8, 2000, when it was filed-stamped. The renewal application was submitted on DEP FORM 62- 701.900(1). The application was signed on the behalf of NRSWA by Darrell O'Neal, its Executive Director. By this signature on the form, O'Neal swore that all statements in the application were true, correct, and complete and agreed on behalf of NRSWA to comply with applicable statutes and DEP rules. The application was also signed, sealed and dated by Frank Darabi, as professional engineer. Darabi's signature certified that all engineering features in the application were "designed/examined by me and found to conform to engineering principals [sic] applicable to such facilities." On September 18, 2000, the ALJ in Case No. 00-3448 entered an Order Granting Motion to Dismiss with Leave to Amend. The ALJ held that the allegations in the Petition for Administrative Hearing failed to demonstrate that the Petitioner "ha[d] sustained, or [wa]s in the immediate danger of sustaining some direct injury as a result of the proposed agency action." The ALJ granted Petitioner leave to amend as to standing. On September 26, 2000, Petitioner filed an Amended Petition for Administrative Hearing in Case No. 00-3448, which included new allegations in an attempt to address the question of Petitioner's standing. On October 5, 2000, NRSWA filed a Motion to Dismiss the Amended Petition for Administrative Hearing. NRSWA asserted that the Amended Petition for Administrative Hearing failed to sufficiently allege Petitioner's standing. On October 6, 2000, DEP issued a Request for Additional Information (RAI) as to the renewal application. The RAI did not ask for any information concerning the pending bioreactor modification application. On October 20, 2000, the ALJ in Case No. 00-3448 granted NRSWA's motion to dismiss Petitioner's amended petition in that case, finding that the amended petition "ha[d] set forth no new allegations sufficient for a presumption of standing to initiate and sustain these proceedings." On November 3, 2000, NRSWA submitted its response to DEP's RAI, which included the statement: Please note the permit modification application for the bioreactor construction and operation, DEP File Number 0013500-004-SC, is currently under review by Department. It is understood that the previously submitted bioreactor information is to be incorporated in the renewed permit. This statement was included after Darabi asked DEP and was told that it would be appropriate to include information about the pending bioreactor modification application in the response to RAI although not asked for in the RAI. NRSWA's response to RAI was signed by Darabi, with a copy to O'Neal. Darabi's signature did not make representations or certifications like those provided for in DEP FORM 62- 701.900(1). However, Darabi had been NRSWA's professional engineer since its inception, had signed numerous application submissions on behalf of NRSWA over the years, and clearly had authorization to submit the response to RAI. DEP entered its Final Order dismissing Case No. 00-3448 on December 4, 2000. On December 12, 2000, DEP issued Permit Number 001-3500004-SC to NRSWA for the bioreactor modification. This permit provided in pertinent part: This modification shall remain in effect as long as the underlying permit, SC63-271982, is in effect. The underlying permit will remain in effect until final agency action is taken on the renewal application of that permit . . . . Petitioner did not appeal the Final Order in Case No. 00-3448. Following review of the additional information submitted by NRSWA on its renewal application, DEP deemed the permit application complete as of November 3, 2000. Additional information was submitted in January 2001, including a request submitted on January 11 that the bioreactor modification part of the renewal permit address specific conditions omitted from the modification permit issued on December 12, 2000. On February 15, 2001, DEP gave notice of intent to renew NRSWA's permit for continued operation of its landfill. DEP's draft permit incorporated specific conditions addressing the construction and operation of the bioreactor system, as well as all other permitted landfill activities. The evidence is clear that, since November 3, 2000, NRSWA consistently has taken the position that the bioreactor system modification was included in its renewal application. Alleged Improper Purpose The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of NRSWA's permit renewal applications. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why NRSWA's permit renewal application, with bioreactor landfill system in cells 1 and 2, should not be granted. Petitioner failed in his attempts in large part because several issues he wanted to litigate were outside the scope of a permit renewal application and because he had no expert testimony on issues he was allowed to raise. At that point, Petitioner announced he was dropping all issues but one. The sole remaining issue after Petitioner's announcement might be viewed as a procedural technicality bordering on being frivolous. But it arose out of the complex (as DEP described it, "muddled") procedural history. Under these circumstances, it is not found that Petitioner's continued litigation of his sole remaining issue was frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) dismissing the verified Petition for Administrative Hearing; (2) granting NRSWA's application to renew Permit No. SC63-271982, as set forth in the draft permit--i.e., for merger and continued operation of all existing landfill operations, including NRSWA's Class III waste disposal permit, its permit for a waste tire collection center, and its permit for the bioreactor landfill system on cells 1 and 2; and (3) denying NRSWA's request for attorney fees and costs from Petitioner under Section 120.595(1) and Section 403.312(2)(f). Jurisdiction is reserved to enter a final order on NRSWA's Motion for Attorney Fees and Costs under Section 120.569(2)(e), to the extent that it has been preserved. DONE AND ENTERED this 7th day of August, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Paul Still Route 4 Box 1297H Starke, Florida 32091 Jonathan F. Wershow, Esquire Post Office Box 1260 Gainesville, Florida 32602 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact On November 16, 1983, Lamar Advertising Company submitted it's applications for permits for outdoor advertising signs to be located on the north side of Interstate Highway 10 in Escambia County Florida, 4.8 miles west of the intersection of I-10 and U.S. Highway 90A facing east, and the other to be located on the west side of I-10, 5.08 miles west of its intersection and U. S. 90A facing east. By letter dated November 28, 1983, the Department rejected these applications, stating: In unpermitable zoning. No commercial business visible. Escambia County, Florida, owns the land where the proposed signs would be located. This parcel contains approximately from the Perdido River, the state bounds almost to County Road 99 on the east, with frontage of I-10 for a distance of approximately one mile * Station is located on the south side of I-10 opposite center of this parcel. In January of 1981, the construction of a sanitary landfill this property, known as the Perdido Landfill. permanent buildings located there, one of which house which includes computer equipment and two commercial scales. Another houses p* equipment. Another is used for employee loc* of supplies. Another is the main office. all office facilities and a major garage automotive and heavy equipment. sanitary landfill is used for disposal of solid waste through escavation and burial. Excavation removes soil which is later used to cover waste placed into the hole created by the NOTE: Page 2 of the Recommended Order on file with DOAH has missing or unreadable text and is therefore not available in this ACCESS document. excavation. When a filling operation has been completed in a particular area, there will be built up heights exceeding the existing grade by as much as 50 feet. Before the landfill activity began, the parcel in question was rolling landscape, mostly in pasture land with some timber. It sloped to the west to the Perdido River. It also sloped from north to south towards the north edge of Interstate 10. Escambia County has approximately thirty pieces of equipment on the Perdido Landfill. This equipment consists of two landfill compactors, two bulldozers, three self-elevating scrapers, a frontend loader, a number of dump trucks, a road grader, a hydraulic backhoe, three tractor trailer rigs, a rented dragline, and numerous cars and pickup trucks. Normally there are five pieces of this equipment in operation on any given day. In addition to the equipment operated by Escambia County, approximately 500 vehicles per day visit the landfill to dump solid waste Monday through Friday, of which about 300 are commercial and 200 are private vehicles. On Saturday approximately 800 to 1,000 vehicles visit the landfill to dump waste. These dumping operations on the Perdido Landfill are taking place about 800 to 1,000 feet from the north right-of-way of I-10. In addition, the County has leased 10 acres on the north boundary of this property to a private company which operates a treatment facility for the processing of septic waste material to produce fertilizer. This facility is located between 2,000 and 3,000 feet from the south boundary of the County property. The County has constructed and maintains an earth barrier approximately 100 feet wide along the south boundary of this property on I-10 to hide the landfill operation from traffic on the interstate. This earth barrier also places the private septic waste facility beyond the line of sight from the interstate. In addition, there are trees and other natural growth along the south boundary of the County property which obscures the site from view. Photographs admitted into evidence show that the activities taking place on the landfill are not clearly visible to traffic moving on I-10. None of the vehicles can be seen except the top portion or boom of a crane. The area is hidden by trees and by the earth barrier except for one or two small openings which reveal the crane's boom. A motorist traveling east on I-10 can see through these openings for approximately one second, and traveling west for only a couple of seconds. Nevertheless, some portion of the equipment being used on the landfill property is visible from the interstate. Most of the area of Escambia County outside of the City of Pensacola is not zoned. There are some areas in the vicinity of the University of West Florida in the northwestern part of the county and on Perdido Key in the southwestern part of the county that are zoned. The area in which the Perdido Landfill is located is not zoned. The Petitioner presented the former County Attorney for Escambia County who testified that the activities conducted at the landfill are compatible with an industrial zoning classification. No further evidence on this point was presented by the Petitioner. The Department presented the Administrator Director for zoning and inspection in Okaloosa County, Florida, who testified that there are four sanitary landfills in Okaloosa County, two located on federal land and two located on county property. Okaloosa County is located about 39 miles east of Escambia County, and the four landfills there are operated and maintained by the County. Okaloosa County has county-wide zoning, and sanitary landfills are classified as public service facilities in agricultural areas predominantly. Under the existing Okaloosa County ordinance,, a landfill would be classified as Agricultural or Agricultural Restricted, regardless of the type of landfill it is. The Department also presented a letter from the Land Use Administrator of the Tallahassee-Leon County Planning Department which indicates that Leon County considers sanitary landfills as "resource development activities" which are permitted as a restricted use only in agricultural zoned areas. This hearsay evidence is not of sufficient quality to support a finding of fact, but it corroborates the evidence presented by the Okaloosa County zoning director, and was admitted for this purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying the application of Lamar Advertising Company for permits to erect two signs on the north side of I-10 in Escambia County, at points 4.80 miles and 5.08 miles west of U.S. 90A, facing east. THIS Recommended Order entered this 8th day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1984. COPIES FURNISHED: ROBERT P. GAINES, ESQUIRE P. O. BOX 12950 PENSACOLA, FLORIDA 32576 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301-8064
Findings Of Fact Solite is a light weight aggregate mining and manufacturing facility located in Clay County, Florida. The mining operation extracts clay from quarries on site. That clay is then stored on site for use in the manufacturing. The Solite facility began its operations in Clay County in 1959. To convert the clay into a product, it is introduced into a rotary light weight aggregate kiln. There it is heated to a temperature of 1,900 to 2,100 degrees Fahrenheit. Once the raw feed has been subjected to the heat in the rotary kiln, it becomes light weight aggregate, a product that is used in the construction industry. Before being introduced into the kiln the raw feed clay is stored in a covered shed. When the kiln is operating clay is taken from the shed by front end loader and transported to a pug mill. The clay exits the pug mill onto a conveyor which has a weigh scale. From there, the raw feed clay is introduced into the kiln, at what is referred to as the cold end of the kiln. When a kiln is in operation the clay rolls from the cold end of the kiln through the other end during which transport the raw clay is heated. The clay is discharged from the kiln into a product cooler. From the product cooler it is transferred by a front end loader to a crushing, screening and storage area. Solite has three (3) kilns at the facility. They are kilns 1, 1A and 5. The kilns at the Solite facility are eight to nine feet in diameter and 130 to 160 feet long. When the kilns are in operation, they rotate at a speed of one to two revolutions per minute in producing the product. The fuel sources for heating the kilns on site are constituted of coal, number (2) fuel oil, propane or liquid burnable material (LBM). The LBM fuel source contains a variety of combustible waste materials. Among those waste materials are certain hazardous wastes. In 1973 Solite began to burn material which is now classified as hazardous waste. The combustion process that occurs in manufacturing the light weight aggregate creates gases that run countercurrent to the raw clay feed. The combustion gases are discharged at the same end of the kiln in which the raw clay had been introduced. In managing the hazardous waste used at the facility, Solite has installed two systems to treat the combustion gases before those gases are released into the atmosphere. Kiln No. 5 employs baghouse technology for air pollution control, a treatment system consisting of two compartments with approximately 960 bags. By contrast, the air pollution control devises for kilns 1 and 1A are individual wet scrubber systems for each kiln. As stated, the proposed permit would allow Solite to add an additional baghouse. Under this arrangement two of the existing kilns could be used simultaneously, with the existing baghouse No. 5 and the proposed baghouse No. 1 serving as air pollution control devices. The existing baghouse associated with kiln 5 has a lime injection system as part of the air pollution control system. The proposed permit contemplates a lime injection system as part of the air pollution control to be employed with the additional baghouse. The wet scrubbers associated with kilns 1 and 1A are designed to control particulate matter in emissions. The scrubbers are not designed to respond to other pollutants. To that end the wet scrubber with kiln 1A could meet applicable standards for particulate matter. The wet scrubber for kiln 1 could possibly meet the applicable standard for particulate matter if more spray nozzles were added to the scrubber. The present inability for kiln 1 to meet the applicable standard for particulate matter control is not significant because Solite may only operate kiln 1 or 1A separately. The water that is employed in the wet scrubbers becomes hazardous waste once it has been utilized in the attempt to respond to the pollutants in the air emissions generated by the respective kiln. In the past that water containing hazardous waste was introduced into a settling pond. Solite may no longer discharge that water into the settling pond in accordance with a regulatory decision that is not the subject for consideration in this case. Solite has made no other arrangements for disposing of the waste water. The proposed permit in this case would allow Solite to use the existing scrubbers to control emissions from kilns 1 and 1A in the instance where fuels were used in the manufacturing that were other than LBM with hazardous waste. At present kilns 1 and 1A have necessary permits for their use with the wet scrubber air pollution control devices, subject to the limitations that have been described. Under the terms set forth in the proposed permit the future use of LBM with hazardous waste in the manufacturing in kilns 1 and 1A would be only allowed when baghouse technology was employed as an air pollution control device. The baghouse air pollution control technology does not use water. Therefore it does not create a circumstance in which the treatment water contains hazardous waste. In that respect, kiln 1A ceased burning LBM with hazardous waste on December 1, 1990. That practice was concluded at kiln 1 on June 6, 1991. Kiln 5 ceased burning LBM with hazardous waste on August 19, 1991, but resumed burning LBM with hazardous waste on December 14, 1993 after the baghouse for that kiln was installed with its lime injection system. The baghouse proposed to be installed under the terms of the permit application is almost identical to the baghouse and associated equipment that were recently installed to operate with kiln 5. The baghouse and associated equipment with kiln 5 has achieved full compliance with all applicable state and federal air regulations as evidenced through compliance tests. As noted, with the baghouse at kiln 5 and the proposed baghouse for kilns 1 and 1A, the combustion gases are subject to treatment by lime. In that process the lime is introduced into the air emissions by pneumatic transfer. An alternative means for lime injection is established. That alternative would allow the lime to be introduced at the point where the fuel is fired at the kiln. Lime injection is used to control acid gases, either sulfur dioxide or hydrogen chloride. The combustion gases are also cooled by passing them through a heat exchanger that brings the temperature down from the exit temperature from the kiln temperature of 900 degrees Fahrenheit to approximately 400 degrees Fahrenheit. The cooled gases then enter the baghouse which is designed to control the particulate matter in the emissions. From there the remaining gases are discharged into the atmosphere. It takes four to five seconds for the combustion gases to go from the kiln through the heat exchanger proposed by this project. The particulate matter is in the form of dust that is collected in the baghouse. That dust is removed through a screw conveyor and pneumatically transferred to a kiln storage bin. The air involved in that pneumatic transfer is discharged through a small baghouse. The clay fines in the kilns bin are reintroduced into the pug mill, conveyed and mixed with raw clay before the clay fines are reintroduced into the manufacturing process in the kiln. The clay fines may also be transported from the kiln storage bin to the crusher and introduced into the finishing process for the product. On November 30, 1992, Solite made application for the permit at issue. Solite sought permission to modify the existing facility by constructing duct work that would connect kilns 1 and 1A to the kiln 5 baghouse, to construct and temporarily operate the additional baghouse and to connect kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter (the filter receiver associated with the crusher). The connection of kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter is to control the particulate matter that is captured in the baghouses. The existing pug mill filter receiver and clinker hopper filter presently serve kiln 5. If allowed the opportunity to construct a second baghouse, Solite contemplates using the second baghouse with kiln 1 or 1A. The arrangement contemplated by the proposed permit would allow kiln 1 or 1A to operate simultaneously with kiln 5. The bags in the proposed baghouse would be about six inches in diameter and twelve feet long. As the particulate matter in the air emissions enters the top of the baghouse it passes through these bags. That particulate or dust is collected on the surface of the bags, while the air that has gone through the filtration process exits through the stack to the baghouse and into the atmosphere. The dust that collects on the bags forms a "filter cake." Once a certain atmospheric pressure is achieved in the baghouse a predetermined jet of air is blasted down the bags blowing the filter cakes away from the bags. This allows the cakes to fall down into the bottom of the baghouse where a screw-auger moves that material to one end of the baghouse hopper. From there it is removed through an air lock and pneumatically transferred to the clay fines bin. The proposed baghouse would utilize a continuous monitor that is installed with the baghouse to measure the particulate matter concentration in the clean air section of the baghouse. Should a hole appear in one of the bags, that would cause a increase in the particulate concentration. Then a signal is generated by a broken bag detector which alerts the operator that a problem exists and the bag needs to be replaced. There are access doors into the baghouse that allow the operator to enter the baghouse to inspect the bags and replace them as needed. When the Department reviewed the permit application, it issued a notice of intent to grant a permit and a proposed permit. Petitioner's timely protested the intent to grant. Before hearing the Department issued two amendments to the proposed permit. It is the second amendment which forms the basis for proposed agency action. Solite does not oppose the terms set forth in the second amendment. Petitioners do oppose the grant of the second amended permit. By the actions which the parties have taken in this case, it would appear that they have conceded the standing for Petitioners to bring the challenge to the grant of a permit. The proposed project would not increase the capacity for the manufacture of light weight aggregate products. The amount of fuel used in that manufacturing and the hours of operation when compared to opportunities presently permitted would not be increased. The maximum rate of feed of authorized LBM that could be incinerated in kilns 1 and 1A does not increase when comparing the application to the existing permits for kilns 1 and 1A with wet scrubbers. The removal efficiencies with the proposed baghouse exceed or are equal to those with the wet scrubber systems when examining control of emissions of air pollutants that must be addressed. Clay County is an attainment area for all air pollutants. In considering the application, the Department determined this to be a construction request with a right to temporarily operate the equipment to check its performance. The Department considered the permit request to be one related to a stationary installation which will reasonably be expected to be a source of air pollution. See Section 403.087(1), Florida Statutes. In the proposed permit for baghouse No. 1 the Department intends to impose certain restrictions on emissions that were specified in the permit issued for the baghouse No. 5. The Department in its proposed permit employs a process similar to that set forth in the January 23, 1993 settlement agreement related to kiln No. 5. In determining the acceptability of the proposal the Department looked to Rule 62-730.181, Florida Administrative Code which speaks to standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities. In particular the Department utilized that rule in its terms wherein the rule incorporates by reference 40 C.F.R. Part 266, Subpart H, as it is designed to regulate hazardous waste burned in a boiler or industrial furnace. The regulations in 40 C.F.R. 266, Subpart H, are referred to as the Boiler and Industrial Furnaces regulations (BIF). The Solite kilns are industrial furnaces within the meaning as defined in 40 C.F.R. 266, Subpart H. The Department in its proposed permit would impose the terms set forth in 40 C.F.R. 266, Subpart H, related to the maximum concentrations of certain constituents in the LBM with hazardous wastes and the air emissions produced by their destruction. By imposing those requirements the Department is operating independently. It is not through this permit review administering the BIF regulations as set forth in 40 C.F.R. 266, Subpart H under authority from the United Stated Environmental Protection Agency and for the benefit of that federal regulatory agency. The Department has required that Solite address the combined emissions from metals and other air pollutants for all sources at the facility. By this requirement the Department intends to assure that those emissions do not result in ambient air concentrations that would harm or injure human health or welfare, animal, plant, or aquatic life or property. To demonstrate those assurances Solite was expected to conduct modeling of the emissions of metals and chlorine which could be emitted from the facility. That modeling was properly done. The requirement for modeling was in accordance with Section 403.161, Florida Statutes. In association with this requirement the Department referred to the BIF regulations at 40 C.F.R. 261. The proposed permit is considered in accordance with Rule 62-296.320, Florida Administrative Code, related to the control of air pollutants which cause or contribute to an objectionable odor. The requirements within the proposed permit include the necessity for Solite to establish reasonable precautions to minimize unconfined emissions of particulate matter as described in Rule 62-196.310(3), Florida Administrative Code. As stated in the proposed permit, if kiln 1 or 1A were in operation using the wet scrubbers they must conform to existing permits associated with kilns 1 and 1A, but those opportunities would only pertain to the instance in which the fuel sources are other than LBM with hazardous waste. For Solite to use wet scrubbers as pollution control devices for kilns 1 and 1A in an instance in which LBM with hazardous waste was used for fuel, the treatment efficiency for kiln 1 would have to be improved in the manner described and the treatment water that contained hazardous waste must be disposed of other than by placement in the settling pond. The existing wet scrubber systems for kilns 1 and 1A are not closed systems which continue to re-circulate the scrub water (a closed scrub water containment system). There is no proposal to install a scrubber water re-circulation system. If such a system were installed an arrangement would be necessary for periodically taking the scrubber water and disposing of that water off-site. Without a system for containing and re-circulating the scrubber water which contained hazardous waste, and periodic disposal of that scrubber water, Solite may not use kilns 1 and 1A with a scrubber when burning LBM with hazardous waste. This is true even though the Solite air emissions control device for kiln 1A using the wet scrubber does meet applicable air emissions standards and the scrubber system permitted with kiln 1 has the possibility to meet air emissions standards. Therefore, if kilns 1 or 1A were used with a baghouse this would create a net increase in air emissions when using LBM with hazardous waste as a fuel source. Such an arrangement would not exceed the theoretical air emissions associated with the wet scrubbers for kilns 1 or 1A when using LBM with hazardous waste that are presently set forth in the existing permits for those kilns. But the proposed permit recognizes the problem with the scrubber systems by limiting the use of the scrubber systems to those occasions in which LBM with hazardous waste is not used as a fuel. The proposed permit specifically prohibits the use of kiln 1 and 1A simultaneously. A baghouse or scrubber may only control the emissions from one kiln at a time in accordance with the proposed permit. The Oldover Corporation or another facility permitted to manage hazardous wastes under various provisions at 40 C.F.R. shall be the supplier of LBM with hazardous wastes. Under the terms of the proposed permit Solite is responsible for the LBM with hazardous wastes meeting all the requirements in any applicable state, federal and local regulations. The proposed permit limits the constituents in the LBM with hazardous waste. It does not allow any hazardous waste that is listed for dioxin or derived from the dioxin-listed waste. As set forth in the proposed permit, organic cyanides, sulfide, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services are not allowed to be part of the LBM. Other limitations are placed on the LBM with hazardous fuel concerning its constituents. They are set forth in proposed condition number 22 to the proposed permit. In accordance with the proposed permit, prior to submitting an application for an operating permit, which would allow LBM with hazardous waste to be burned, Solite is required to conduct testing at the facility for chlorinated dibenzo-p-dioxin and dibenzofuran, pursuant to a test plan approved by the Department. The proposed permit addresses test requirements and reports under various provisions set forth in Rule 62-297, Florida Administrative Code. The proposed permit reminds Solite that: Nothing in this permit shall exempt the permit to you from the requirements of 40 C.F.R. 761, polychlorinated bolychlorinated biophenyls, 40 C.F.R. 266, Subpart H, hazardous waste burned in boilers and industrial furnaces, and Chapter 62-730, Florida Administrative Code, hazardous waste, or any other requirements outside the purview of the Department's air regulation (Chapters 62-296 and 297, Florida Administrative Code). The permittee shall obtain such state and federal permits, when applicable, pursuant to any hazardous waste regulation (Rule 62-4.160, Florida Administrative Code). The proposed permit allows for an extension of the construction permit upon request of the Bureau of Air Regulation within the Department. The proposed permit makes it incumbent upon Solite to submit an application for an operation permit to the northeast district of the Department at least ninety (90) days prior to the expiration date of the construction permit. The proposed permit would allow kilns Nos. 1 and 1A to operate 24 hours a day, 7 days a week, 52 weeks a year, but no more than 760 hours during any calendar year, but not simultaneously. Concerning hazardous wastes in the LBM, procedures for testing those fuels to be used at the Solite facility are set forth in the waste analysis plan in the hazardous waste facility permit for the Oldover Corporation and the waste analysis plan for Solite. Oldover supplies those fuels to Solite. Under the waste analysis plan the generator of the waste material must complete a waste profile indicating the type of waste and its constituents which the generator proposes to supply to the facility. Initially Solite evaluates the waste profile to determine if the waste material meets all the necessary requirements for acceptance as a hazardous waste fuel for Solite. If the profile is acceptable, a representative sample is obtained from the waste generator. This sample is analyzed for a comprehensive set of parameters including physical characteristics, metals and organic compounds. If the representative sample indicates that the waste stream is acceptable it is approved and shipments are made to the Oldover facility adjacent to Solite. Once the waste stream has been approved by Solite and shipments are made, Oldover reviews the manifest associated with each shipment to determine the existence of any prohibitive constituents in the fuel before the fuel is accepted. Oldover tests the wastes for a limited number of parameters to determine whether or not the shipment conforms with the pre-established waste profile. If discrepancies are discovered between the waste profile and testing results the shipment may be rejected if the problems with the shipment cannot be reconciled with the anticipated waste profile. Comprehensive waste analysis are performed on an annual basis as well as at the initial point at which Solite begins to do business with a waste generator or upon the occasion when there is a significant change to the generator's waste stream. As it appears, the LBM with hazardous waste obtained from outside generators is generated off-site. Through this processes Solite has provided reasonable assurance that the use of LBM's with hazardous waste envisioned by the proposed permit will not allow the burning of hazardous waste that is listed for dioxin or derived from the dioxin-listed wastes: FO20, FO21, FO23, FO26 or FO27 as specified in 40 C.F.R. 261, Subpart H, or organic cyanides sulfites, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services. Solite has provided reasonable assurance that the LBM with hazardous waste will be properly analyzed to quantify the concentration of any constituent that may reasonably be expected to be in the waste. Those constituents will be identified and quantified, if present. This process of identification and quantification will be at levels detectable by analytical procedures prescribed in EPA method SW-846. That method is the prescribed method for analyzing hazardous LBM under the BIF rules. As a means to promote reasonable assurances that the proposed project will comply with applicable state and federal emissions standards, emissions from kiln 5 using its baghouse have been tested and the emissions at kiln 5 using the baghouse meet all applicable state and federal emission standards. Given that the proposed baghouse for kilns 1 and 1A will be very similar to the baghouse associated with kiln 5, it is to be expected that the emissions from kilns 1 and 1A using the proposed baghouse would be comparable to the experience with kiln 5 and its baghouse. Using a baghouse results in significant reductions in the emissions of particulate matter when compared to the experience with wet scrubbers. The emissions from the proposed project will not exceed emission standards for particulate matter. The use of the lime injection system with the proposed baghouse will decrease emissions of sulfur dioxide. The emissions from the proposed project will not exceed standards for sulfur dioxide. Neither the existing wet scrubber system nor the baghouse system are expected to have any significant impact on nitrogen oxide emissions. Consequently, there will be no significant change in nitrogen oxide emissions associated with the installation of the proposed baghouse. The emissions from the proposed project will not exceed emission standards for nitrogen oxides. The proposed baghouse will result in a reduction in the emissions of metals due to the increased efficiency in the removal of particulate matter. The emissions from the proposed project will not exceed emission standards for metals. The proposed baghouse will result in a reduction in mercury emissions due to increased efficiencies in the removal of mercury in particulate form. The proposed baghouse will not cause a change in the emissions of hydrogen chloride when compared to the experience with the wet scrubbers. The levels of hydrogen chloride when using the baghouse as a control device will not exceed any standards. Nor will there be emissions in excess of standards for chlorine gas. The proposed baghouse when contrasted with the experience in the use of wet scrubbers will not change the amount of emissions of organic materials. The proposed baghouse when contrasted with the wet scrubber system will result in a reduction of the emissions of dioxins and furans. The proposed project will comply with standards applicable to dioxins and furans by exclusion from the LBM and limiting the inlet temperature to the baghouse. The proposed permit prohibits the facility from accepting any dioxins bearing waste. The fuel is screened to insure that it does not contain dioxin. PCB's in excess of five parts per million are not allowed. This is a means to limit the formation of dioxins and furans from the PCB's. The maximum temperature of gases entering the baghouse is established at 450 degrees Fahrenheit and an automatic shut-off device is required if this temperature is exceeded in order to control the secondary generation of dioxins and furans. The inlet temperature to the baghouse is set at 425 degrees. The modeling that was done to examine emissions of metals and chlorine provided reasonable assurances that the ambient concentrations caused by the impact of these pollutants from this facility will be less than the Department's annual air reference concentrations, as a means to ensure that harm or injury to human health or welfare, animal, plant or aquatic life or property does not occur. Solite is required by the terms of the proposed permit to have continuous emission monitors for carbon monoxide and hydrocarbons. When the emission standard for carbon monoxide or alternatively hydrocarbons nears the exceedance level, then the automatic waste feed shut-off is activated to assure that the carbon monoxide or, alternatively, hydrocarbon emission standards are not exceeded. Kiln 5 with its associated baghouse has demonstrated a destruction and removal efficiency for regulated organic pollutants in excess of 99.99 percent. Having similar technology, the proposed permit for a baghouse can be expected to meet the 99.99 percent destruction and removal efficiency for organic pollutants. The addition of the proposed baghouse with its associated features provides reasonable assurance that the particulate matter standard of 0.08 grains per dry standard cubic foot corrected to seven percent O2 will be met. As a protection against exceeding emission standards for various pollutants the proposed permit requires that Solite continuously monitor for carbon monoxide, oxygen, baghouse inlet temperature and sulfur dioxide at levels established in the proposed permit. Furthermore, the proposed permit requires that an automatic shut-off device be installed to maintain established emissions limits for temperature, oxygen or hydrocarbons. Such devices have been installed on the existing kiln 5 with its baghouse. Efficient combustion can be expected in kilns 1 and 1A based upon residence time for burning, turbulence, temperature and oxygen availability. The residence time for the fuels is approximately four seconds. The rotation of the kilns and movement of the clay material ensures adequate turbulence. The temperature of the kiln must be maintained at or above 1,800 degrees Fahrenheit and the fuel feed of LBM with hazardous waste is automatically shut-off if the temperature falls below 1,850 degrees. Oxygen levels are to be continuously monitored. The gas flow rates for fuel introduced into the kiln may not vary significantly. These arrangements are contained in the proposed permit. The re-introduction of clay fines or dust into the kiln to be incorporated into the product has been taken into account in establishing estimates of emissions for kilns 1 and 1A. That phenomenon has been measured in emissions for kiln 5. In using the dust Solite will not create conditions which violate standards for emissions. To support these findings all experts who testified at the hearing agreed that the proposed project will meet all applicable rules and emission standards. Solite has established reasonable assurances concerning those standards. The Solite application was sealed by a professional engineer, Dr. John Koogler, who was among those experts mentioned. The Solite facility uses an industrial furnace which is similar in design to furnaces regulated by the Environmental Protection Agency in its hazardous waste regulatory program. Nothing about the facility is extraordinary, thus requiring a more rigorous regulatory response to this facility which uses LBM with hazardous waste in kiln No. 5 and proposes to do so through the project under consideration. It was not shown that the Department must impose its "Air toxics" permitting strategy for controlling toxic emissions from stationary sources at levels which will not endanger public health in order to adequately consider the proposed project. The "Air toxics" permitting strategy is a non-rule policy. Although not specifically required by rule or standard Solite performed additional modeling concerning the emissions of organics from the facility with the advent of the use of the proposed baghouse. The modeling indicated that there would not be an exceedance of the no threat levels established in the state air toxics strategy. Similarly, although not required, Solite conducted additional modeling of dioxins emissions which indicated that there would be no significant risk posed as a result of the proposed project. Solite has qualified for interim status under the United States Environmental Protection Agency (EPA) regulations to burn hazardous waste at its facility. Solite has filed EPA required precompliance certification for all three kilns and certification of compliance for kiln 5. Solite has obtained an extension from EPA for filing their certification of compliance for kilns 1 and 1A. In addition Solite has submitted an application for hazardous facility permit to EPA and this application is currently under review by EPA. In reviewing the permit application past violations of statutes and rules were considered by the Department. This was done to determine whether Solite had provided reasonable assurances that the Department standards in application to the proposed project would be met. The Department correctly decided that Solite's past violations did not justify denial of the permit. Those violations were not severe and Solite corrected the problems. Furthermore, the proposed project would improve air pollution control to the extent that it reduces or eliminates problems that led to the previous violations.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which grants the construction permit for the air pollution source subject to the provisions set forth in the second amended proposed permit. DONE and ENTERED this 30th day of August, 1995, at Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed findings of facts by the parties: Petitioner's facts Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 12 are not requirements that must be considered in deciding to grant or deny the permit. Paragraphs 13 through 16 are contrary to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraph 18 is rejected in its suggestion that Solite has not given the necessary reasonable assurances. Paragraph 19 is subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 and 22 are rejected in the suggestion that the activities at Solite caused these problems. Paragraphs 23 through 28 are rejected in the suggestion that the emissions tests associated with the permit request are inadequate or that Solite has routinely exceeded air emissions requirements or used unacceptable LBM with hazardous waste in the past. Paragraph 29 is rejected in the suggestion that the Department has inappropriately considered the permit request. Paragraph 30 is rejected in the suggestion that the Department would allow unacceptable fuels to be burned in the kilns. Paragraphs 31 and 32 are subordinate to facts found. Paragraph 33 is rejected as not establishing a requirement for granting or denying this permit. Paragraph 34 is rejected to the extent that it suggests that the Department has failed to take into account appropriate circumstances when determining to grant or deny the permit. Paragraph 35 is rejected in the suggestion that the Solite facility has caused problems for local gardeners. Paragraphs 36 and 37 are not necessary to the resolution of the dispute. Paragraph 38 is rejected in the suggestion that Solite has not complied with applicable standards for lead. Paragraphs 39 through 43 are not necessary to the resolution of the dispute. Paragraph 44 is not relevant. Paragraphs 45 through 47 are rejected in the suggestion that the Department has not adequately considered those circumstances necessary to determine whether to grant or deny the permit. Paragraphs 48 through 49 are subordinate to facts found. Paragraphs 50 and 51 are rejected in the suggestion that these matters must be considered by the Department in deciding whether to grant or deny the permit. Paragraph 52 is subordinate to facts found. Paragraph 53 is not necessary to the resolution of the dispute. Paragraphs 54 through 57 are subordinate to facts found. Paragraph 58 is not relevant. Paragraph 59 is a conclusion of law. Paragraph 60 is rejected in the suggestion that inappropriate modeling was conducted by Solite in support of its application. Paragraph 61 is a conclusion of law. Paragraph 62 is not necessary to the resolution of the dispute. Paragraph 63 is rejected in the suggestion that the air toxics strategy should have been employed in this case. Paragraph 64 is subordinate to facts found. Paragraphs 65 through 67 are not necessary to the resolution of the dispute. Paragraph 68 is not relevant. Paragraphs 69 through 73 are rejected in the suggestion that reasonable assurances have not been given concerning compliance with applicable standards for emissions levels. Paragraph 74 is subordinate to facts found. The first sentence to Paragraph 75 is contrary to facts found. The second sentence is not a requirement for resolving the proposed permit request. Paragraphs 76 through 80 are not relevant. Paragraph 81 is subordinate to facts found. Paragraph 82 is contrary to facts found. Solite's facts: Paragraphs 1 through 5 are subordinate to facts found. The first sentence to Paragraph 6 is not necessary to the resolution of dispute. The second sentence is subordinate to facts found. Paragraphs 7 through 16 are subordinate to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 through 42 are subordinate to facts found. Paragraph 43 is contrary to facts found in its suggestion that LBM with hazardous waste may be used with the existing wet scrubbers and the lack of increase in the capacity to burn LBM with hazardous waste if the proposed permit is granted. Paragraphs 44 and 45 are subordinate to facts found. Department's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is rejected in the suggestion that kilns 1 and 1A may use LBM with hazardous waste when operating with the wet scrubber notwithstanding what the permits may say. Paragraphs 11 through 28 are subordinate to facts found. COPIES FURNISHED: Thomas K. Maurer, Esquire Foley & Lardner Post Office Box 2193 Orlando, FL 32801 Julie Hellmuth 1205 Orange Circle North Orange Park, FL 32073 Priscilla Norwood Harris Post Office Box 702 Green Cove Springs, FL 32043 Jefferson M. Braswell, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Petitioner purchased a five-acre tract of land in Section 11, Township 28 South, Range 17 East, in Hillsborough County, Florida, to use as a dump site for tree trimmings generated by its tree service business. After being advised by the Hillsborough County Environmental Protection Agency (HCEPA) that dumping on this property was illegal and a fire hazard, Petitioner applied for and obtained a permit to burn some of the trimmings that had been dumped on the property. The permit was issued to burn in the northern part of the property and burning logs were observed in the southern part of the property without an adequate firebreak. This permit was later rescinded. At the time Petitioner acquired the property it was enclosed with a barbed-wire fence with access only via an 18-foot-wide road. Brush fires in the vicinity of the property led the fire department to cut the fence so their equipment could be moved through the area when necessary. Frequent inspection by HCEPA led to citations to Petitioner for maintaining a fire hazard (no adequate fire-break around the perimeter of the property), for unauthorized dumping on the property, inadequate security, and for operating a landfill without a permit. An order to cease dumping on this site was issued by HCEPA. Petitioner sought the assistance of the fire department in constructing a firebreak around the property and on two occasions stretched a chain and later a cable across the road to bar access to unauthorized persons. Trespassers tore down the chain and cable and dumped household trash on the property. Petitioner engaged the services of an engineer to prepare its application to DER for a permit to operate a landfill. When advised that the application was incomplete, that a bond was needed, that the property was not zoned properly, and that the security was inadequate, Petitioner applied to Hillsborough County for a zoning change and contacted an insurance company about the required bond and was assured a bond would be issued when requested. Petitioner's application for a zoning change never reached the agenda of the Hillsborough County Commission and Petitioner never presented documentary evidence that the required bond would be issued upon request. Petitioner presented no evidence that anything has been done to improve the security of the property or to keep unauthorized persons out.
Findings Of Fact Bay County's application to construct a sanitary landfill comprising nearly 80 acres located at the north end of Bay County abutting Washington County near the intersection of S.R. 20 and S.R. 77 was initially submitted to the Department of Environmental Regulation (DER) in November, 1979 (Exhibit 1). The site is surrounded by 400 feet of pine woods which buffer the site from all roads and residences . There are no residences within several hundred yards of the proposed site and the nearest natural body of water is over one-fourth mile from the site. The noise generated by the operation of the landfill will be similar to the noise generated on S.R. 20 and S.R. 77 by passing vehicles. Following conferences between representatives of Bay County and DER and several revisions of the application of May 16, 1980 DER issued its notice of intent to grant the applied-for permit (Exhibit 10) and this proceeding was initiated by Petitioners. The site is located in an area of predominately "Lakeland series" sands which provides little barrier to the percolation of surface or ground waters into the Floridan Aquifer. The site is one of the highest in Bay County and the ground water table is located about 45 feet below the surface in this area. The Floridan aquifer lies some 100 feet below the proposed site and is in direct contract with the ground water table. Accordingly, contamination of the ground water by the proposed landfill would enter into the Floridan Aquifer and degrade the water quality of this aquifer. Additionally escaping leachate could contaminate and degrade the waters of the lakes in the general vicinity of the proposed site. As initially presented the application was denied by DER and recommended for denial by the other state agencies involved, viz. Florida Game and Freshwater Fish Commission and the Northwest Florida Water Management District. The reason for disapproval was that, absent some impervious surface between the aquifer and lakes in the vicinity could occur and was likely. Not only is the site located in a recharge area to the Floridan Aquifer but also in a karst area, in which the topography is marked by sinkholes resulting from the collapse of cavernous limestone under the ground. While the possibility exists that a sinkhole could develop under the proposed landfill this is no more likely than that a sinkhole will develop anywhere else in the northern half of Bay County. As finally proposed the site will be developed into cells some 400' x 500' x 28' deep which are expected to be filled in about six months, covered with a a clayey soil and vegetation replanted over the cell. To keep leachate from escaping to the lakes or aquifer the cells will be lined with a polyvinyl chloride (PVC) liner is 20 mils thick manufactured by B. F. Goodrich. If the liner functions as proposed there will be no escape of leachate and hence no degradation of the waters. Petitioners contend that reasonable assurances have not been given that the PVC liner will adequately perform this function and this was the only real issue presented at the hearing. PVC liners for landfills have been in use for only bout 10 years. However, numerous tests have been conducted and, projecting the deterioration of the PVC observed during the test period to the estimated life of the landfill, leads to an expected liner life well beyond the life of leachate production in the landfill. To give PVC the flexibility and elasticity necessary to lay it over uneven surfaces in sheets, plasticizers are added to the PVC during the manufacturing process. These plasticizers will be released from the PVC if exposed to sunlight for an extended period. However, as proposed for use here, even if the liner was exposed to sunlight for the entire six months the cell will be open, or even for one year, no significant loss of plasticizer will result. Once the cell has been closed, no further dynamic stresses will be placed on the liner. Accordingly, even if the liner lost all of its plasticizer and thereby lost its elasticity and flexibility, it would remain impervious and prevent the pasage of leachate through the liner. To protect the liner from solid waste, trash, and equipment used in the cell to compress the solid waste, the liner will be covered with two feet of sand before any solid waste is placed in the cell. Each night the solid waste dumped that day will be covered with six inches of on-site earth material to deter flies, odors, etc. The two feet of sand cover will protect the liner from puncture by solid waste or equipment. The liner will be placed on a tight slope with a sump provided near the low end of each cell from whence leachate will be pumped from the cell and treated, if necessary. Additionally, vents will be installed to exhaust gases from the cell once it is closed. Monitoring wells will be placed around the land fill to detect if leachate is escaping from the site. These wells would allow detection of escaping leachate before it could progress to the natural water bodies in the general vicinity. The three to one slope proposed for the sides of the landfill will result in some movement of free sand resting on the liner along the sides and could bare the liner. To insure there will be a minimum of two feet of soil between the fill material and the liner the cell will not be filled completely to the side of the liner to fill in the space left between the garbage and the side wall each day when the material dumped that day is covered. Hazardous wastes will not be allowed at the site. The site will be enclosed and have an attendant on duty at all times it is opened to receive solid waste. Public access will be restricted and the attendant on duty will monitor the waste dumped in the cell. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. The sand over the liner, the pumping out of the leachate and overall operation of the landfill are adequate to protect against these small amounts of hazardous materials. Bay County proposes to use an existing disposal site to dump tree and hedge trimmings and may provide a place to dump this woody trash at the proposed site other than in the cells. This will increase the capacity of the cells for solid waste and diminish the possibility of damage to the liner by woody products. The only credible evidence submitted regarding the availability of alternate sited for the proposed landfill was that other areas further south were investigated and were unacceptable because the groundwater table was above the bottom of the proposed cells. This would result in dumping solid waster directly into the water table, and is unaceptable. Petitioner's principal contention is that there has been insufficient experience with PVC liners and the tests that have been conducted were not sufficiently rigorous or extensive to provide assurances that leachate would no escape from the site and contaminate the waters of the State. Petitioners also contend that joining of sections of PVC in field, which will be necessary to cover that bottom of the cells (because a liner large enough to cover the bottom of one cell would be too large and heavy to handle), would also create unacceptable risks in the making of these "field seams". Bay County has arranged for the manufacturer of the PVC to provide personnel to supervise the "field seaming" of the sections of the PVC. These seams do not need to be wrinkle-free and no particular problem with respect to joining sections of PVC liner so as to make it watertight was shown. The tests conducted by the Environmental Protection Agency on PVC liners have been ongoing for nearly ten years. None of these tests to date show any reason to question the effectiveness of a PVC liner properly installed to provide an impermeable barrier to leachate in a sanitary landfill. Petitioners also object to the use of cover material proposed by Bay County when a cell is closed. The soil analysis submitted with the application for the cover proposed does not have a high clay content and is more permeable than would be desired. At the hearing, Bay County officials testified they would use a more impermeable soil to cover the cells. Failure to do so would increase the amount of water from rainfall that would penetrate the cell, thereby increasing the quantity of leachate to be pumped from the sump. This would increase the maintenance cost of the landfill to the point it would be uneconomical not to put a water-repellant cover on the cell when it is closed. No evidence was presented that the formation of additional leachate would increase the risk of leachate escaping from the cell.
Conclusions Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Petitioners' Exceptions, and Respondent's Response to Petitioners' Exceptions, it is, therefore: ORDERED that the Hearing Officer's Findings of Fact are adopted; his Conclusions of Law and Recommended Order, to the extent that they are consistent with this Final Order, are adopted; and ORDERED that the permit reflected in the Notice of Intent issued by the Department on May 16, 1980, be issued with the following additional conditions: The applicant shall notify the Department at least on week in advance of when the P.V.C. is to be installed and allow for on-site inspection of its installation by Department personnel. No operation permit will be issued unless the applicant has shown reasonable assurances that the P.V.C. has been properly installed and all other applicable rules of the Department and the applicable Florida Statutes have been complied with. Any operation permit issued shall be for only one cell and no permit for subsequent cells shall be approved in accordance with 2. above without a showing of proper operation for the previous cells. The final cover material for each cell shall be clay, substantially clay or other impermeable material. Any DER permits for this site shall only be valid until 24 months from the date of this order. ORDERED that the country shall submit within thirty days a plan with schedule by which this landfill site will be phased out in 24 months, which shall include selection of alternate acceptable sites or the implementation of a resource recovery program in accordance with 17-7, Part II, Florida Administrative Code. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980. JACOB D. VARN, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing "Final Order" has been furnished by United States Mail to Kenneth F. Hoffman, Esquire, Oertel and Laramore, P.A., 646 Lewis State Bank Building, Tallahassee, Florida 32302, Les W. Burke, Esquire, County Attorney, Bay County, Post Office Box 1818, Panama City, Florida 32401, and K.N. Ayers, Hearing Officer, Division of Administrative Hearings, Collins Building, Room 101, Tallahassee, Florida 32301, this 22nd day of December, 1980. DOUGLAS H. MacLAUGHLIN Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9730
