Findings Of Fact The Board of County Commissioners of Monroe County is responsible for maintaining a solid waste management program for the unincorporated areas of the county. The portion of the Florida Keys known as the "lower keys" between Pigeon Key on the north and Key West on the south is such an area. Prior to July 1, 1977, solid waste from this area was dumped at a site located on Middle Torch Key. Until approximately two years prior to the hearing, the Middle Torch Key dump site had been operated by private companies. The private companies apparently could not operate the site profitably under rules and regulations promulgated by the Department, and the County took over operation of the site. The site served as the solid waste dump for the lower keys until July 1, 1977. The Department had issued a temporary operating permit for the site, and open burning was permitted. The temporary permit expired on July 1, 1977. The Middle Torch Key dump site was never operated in full compliance with the Department's rules. The temporary operating permit was issued for the apparent purpose of allowing the County an opportunity to develop a system that could be operated accordance with the Department's rules. The County purchased a site on Cudjoe Key in the lower keys with the intention of utilizing it as a sanitary landfill. The instant proceeding is the culmination of the County's effort to obtain a permit to operate the Cudjoe Key site. The County has been utilizing the Cudjoe Key Site as a sanitary landfill since July 1, 1977. The Petitioners are homeowners in a residential subdivision which is located between three fourths of a mile and one mile from the proposed landfill site on Cudjoe Key. They object to operation of a sanitary landfill in such close proximity to their homes. In order to meet its obligation to maintain a solid waste disposal system, and in order to comply with DER regulations, the County needed to locate a landfill site in the area of the lower keys. The County lacks resources to truck solid waste from the lower keys to any sites in the upper keys, or on the mainland. Tie Cudjoe Key site was chosen for a sanitary landfill for two reasons. First, it was relatively isolated and had been used as a dump before. Secondly, it was for sale, and the County could afford to purchase it. The Cudjoe Key landfill site is not visible from any highway or from any residences or businesses. The site adjoins other public property, and is next to electric company property. The average height of the site is seven to eight feet above sea level. The site is located in close proximity to a borrow pit, and fill is thus obtainable at a fairly inexpensive rate. The County's plan of operation basically is to place solid waste on the site, and to cover it with six inches of landfill at the end of each working day. The site, if used in this manner, would have a useful life of approximately three years. If incineration techniques are eventually permitted, the life expectancy of the site would be increased to approximately twenty years. It does not appear that there is any ideal site for a sanitary landfill in the lower keys. There is very little dry land available that has not been previously developed. It appears that the best present alternative for solid waste disposal for the lower keys would be a joint venture with the City of Key West to desalinate salt water through incinerating activities at a site on Stock Island located just south of Key West. Neither the City of Key West, nor the unincorporated areas of the lower keys produce sufficient solid waste alone to make such a project feasible. Thus far a solution of this sort has not been politically feasible. Aside from this possibility, it appears that the proposed Cudjoe Key site is the best location for a sanitary landfill in the lower keys. The site on Middle Torch Key, which was previously operated as a dump would not comply with the Department's rules. The site is under water at high tide. In order to develop the site so that it would comply with the Department's regulation, a very large expenditure would be required. A copy of the County's completed application to the Department was received in evidence at the hearing as Department's Composite Exhibit 1. The application is complete, and contains the material required under Rule 17-7.05,, Florida Administrative Code. No competent evidence was presented at the hearing from which it could be concluded that the proposed Cudjoe Key landfill site does not comply with statutory requirements, or with the requirements set out in the Department's rules and regulations. Considerable evidence was offered from which it could be concluded that the site has not been operated in full compliance with the Department's regulations since July 1, 1977. Clearly the County has been operating the site since that date without a permit issued by the Department. It is apparent that the Department has not sought to take action against the County due to the pendency of this action. Pictures offered at the hearing, and observations made at the view of the site demonstrate that the required daily cover of solid waste has not been applied at the site. These violations could, and should if they continue, result in enforcement action being taken by the Department. The violations, and anticipated violations cannot, however, constitute grounds for denying a permit to operate a sanitary landfill site which complies with the pertinent statutes and rules and regulations.
Findings Of Fact The proposed site consists of some 311 acres bounded on the South by Alligator Alley (SR 84) and is approximately 6 1/2 miles East of SR 858. The existing solid waste disposal facility at the airport is exceeding the capacity of the area to absorb any additional solid waste. An approved federal grant for expansion and improvement of the Naples airport is contingent upon the cessation of further solid waste disposal at this site. The original deadline for discontinuing use of the airport disposal site of June 30, 1975 has been extended to allow the processing of the instant application. Of the numerous sites considered the one proposed herein was considered by local, state, and federal agencies to be the best overall. The proposed site meets the requirements of, and has been approved by the USDA Soil Conservation Service, the Department of Environmental Regulations, and various state health organization. The plans and specifications which have been submitted by the county and approved by the various agencies concerned called for an excavation of the site to a depth of approximately 3 feet, with the solid waste after compaction being placed in the ground and each layer thereafter placed on top and covered on a daily basis with soil. A perimeter canal will be constructed around the site to divert surface water from outside the site to prevent flooding the area. Interior canals will be installed to provide for collection of the leachate, as well as water falling on the site. The project includes construction of leachate sump ponds on the site, which will be coated to preclude the leachate from percolating into the surrounding area. An all weather access road will be provided to the site, and the only vehicles permitted on the site will be those controlled by the county and city, which would include their contractor for hauling waste. The routes for these vehicles would be such that they would not pass' over the Golden Gate Boulevard, which goes through the community of Golden Gate. At the hearing little new evidence was submitted. Intervenor appeared to take the position that its opposition to the project was based upon the fact that: (1) The site proposed could flood; (2) An impermeable barrier should be installed in all cells to preclude harmful materials from permeating the soil; and (3) Leachate from the cells could enter into the ground water table. Testimony with respect to these objections revealed: (1) The pumping system proposed is adequate to handle any flooding that may reasonably be anticipated; (2) The site is not located on a watershed that could go to a public water supply; (3) The site is some 5 or 6 miles from the nearest public water supply and not so located that surface water from the site could flow to a public water supply; (4) No place in Collier County meets the 5 foot separation provision between water table and place where waste could be dumped; The safeguards provided by the proposed plan qualifies this site for waiver of provision (4) above; (5) If an impermeable barrier was installed beneath the cells it would be ineffective in preventing surface water contamination in the event the site is flooded; (6) In the event the proposed system proves inadequate to control flooding, modifications in the then existing system could be made that would control this problem; and (7) Use of impermeable barrier below cells is but one design method to meet requirements of the various regulatory agencies.
The Issue Whether WACOC has given reasonable assurance that the landfill it proposes to build would comply with applicable requirements of Chapter 403, Florida Statutes (1987), and rules promulgated thereunder?
Findings Of Fact A mile east of the intersection of U.S. Highway 90 and State Road 393, south of Dorcas in eastern Okaloosa County, WACOC has assembled some 1,760 acres on U.S. Highway 90 --- only 160 acres shy of three square miles. WACOC proposes to use as much of the land as possible for the disposal of solid waste, and "would like to use the proposed landfill as a regional landfill." Prehearing Stipulation, p.8. (T.68) The company does not own all the land outright but, with the conveyance of a parcel on the morning the final hearing began (T.77), WACOC had obtained (an encumbered) fee interest in the 55 acres on which it proposes to put Phase I, "a hole-in-the-ground landfill which can come into contact with the groundwater table," (T.737) and the subject of the pending application. WACOC has a "whole lot of option money out there," (T.86) although none of WACOC's stockholders has previous experience in the landfill business. Private Enterprise Chris Cadenhead owns stock individually and "is 100 percent owner of SRD, Incorporated" (T.93), itself an owner of WACOC stock. Serving with Chris Cadenhead and Larry Anchors on WACOC's board of directors, at the time of the hearing, was James Ward, formerly a legislator and chairman of the House Natural Resources Committee. (T.48) Like Mr. Anchors, Mr. Ward originally owned 24% of WACOC's stock. The only shareholder who testified at the hearing was Arthur Frederick Schneider. Before he succeeded Mr. Cadenhead as president of WACOC, Mr. Schneider had had a distinguished career as a naval officer, and later tried his hand at farming, but this venture ended in bankruptcy. "SRD has been funding this thing." (T.86) Where SRD, Inc. obtained more than three-quarters of a million dollars is not clear from the record. As far as the evidence showed, Chris Cadenhead's father, Rhett, had no interest in WACOC, although he did appear on behalf of the company at a county commission meeting in June of 1987. Larry Anchors, a WACOC shareholder and formerly an Okaloosa County Commissioner, contributed $35,000 a few days after the Okaloosa County Commission awarded the waste disposal contract. (T.87) Nothing has been paid the company under the agreement WACOC entered into with Okaloosa County on June 18, 1987, Citizens' Exhibit No. 1, which was reduced to writing on or before July 10, 1987. WACOC's Exhibit No. 1, App. 1. Under the contract, WACOC undertakes to move solid waste from transfer points in the southern part of the county and deposit them in the landfill it proposes for a per ton "tip fee of $17.70 (Present value as of 6/16/87)," WACOC's Exhibit No. 1, App. 1, p. 13 (emphasis in original), which is to be "adjusted automatically upward or downward to reflect the change in Consumer Price Index." Id. The County guarantees WACOC 275 tons per day and pledges to "exercise its best efforts to insure that all the Solid Waste generated within the County will be delivered to one of the designated transfer stations or the landfill," WACOC's Exhibit No. 1, App. 1, p. 8, for the next thirty years. At present, the County generates "including the municipality . . . about 525-550 tons a day." (T. 61) The County agrees to cooperate "to obtain financing of the real property and equipment necessary [for WACOC] to perform . . . by a proposed bond issue." WACOC's Exhibit No. 1, App. 1, p. 14. To this end, the county commission adopted a resolution authorizing issuance of industrial revenue bonds in accordance with Chapter 159, Florida Statutes, in an amount not to exceed $8,000,000. Alternatively, and perhaps more in keeping with current tax law, "it's going to one of the larger financial institutions like Merrill Lynch Pierce Fenner & Smith or someone like that and actually a bond issue through them, non-industrial," (T.74) or so WACOC intends. Phase I Designed to receive Okaloosa County's solid waste for five years, Phase I is to occupy a site on the eastern slope of a small hill between the east and west branches of Mare Creek, which converge in Fawn Lake, north of the property on which WACOC has options. Water flows out of Fawn Lake into a no longer bifurcated Mare Creek (which was dammed to create the lake), and ultimately into the Shoal River, more than 3,000 feet from the site. By rule, DER has designated Shoal River outstanding Florida waters. Fawn Lake and Mare Creek are Class III surface waters. The Phase I site is "zoned for agricultural uses, which was determined by the Okaloosa County attorney to be appropriate for a landfill." Prehearing Stipulation, p. 7, No. 5. "The county attorney's determination has not been ratified by the County Commissioners." Id. Site Geology "Subsurface conditions have obviously a tremendous effect on the design of the landfill." (T.592) "[A] site's geological and hydrological characteristics are relevant to its potential for contamination." Prehearing Stipulation, p.7, No.4. Throughout the 1760-acre site, beneath a thin topsoil and root mat layer, the site soils consist of clean loose sands to an average depth of about 8 feet below ground surface. . . . From a depth of about 8 feet to 18 feet, a layer of dense orange clayey medium to fine sand (with some coarse sand and fine gravel) covers most of the proposed landfill site. . . . Beneath the clayey sand unit are loose and dense . . . sands . . . . WACOC's Exhibit No. 1, Appendix B. The clayey sand unit occurring underneath the loose, Pliocene sands on the surface is part of the Citronelle formation, which "characteristically changes abruptly over very short distances." (TB. 29) The Citronelle consists "principally of quartz sand, with numerous beds, stringers and lenses of clay and gravel." CCE's Exhibit No. 21, p. 33. "The soils on the site standing alo[ne] would not be sufficient for a liner." I.T. 559 WACOC's expert reported an "average vertical hydraulic conductivity for [the upper Citronelle of] . . . 6.2 x 10-7 cm/sec (1.7 x 10-3 feet/day)." Laboratory tests on soil samples, taken more than eight and less than 18 feet below the surface of the site proposed for Phase I, demonstrated the variability of the sands making up the upper portion of the Citronelle formation on site. The percent finer than the U.S. No. 200 mesh sieve (silt and clay size fraction) . . . ranges between 17.5% to 41.7% . . . . "Vertical hydraulic conductivities for . . . [deeper] sands [on which waste disposal cell liners are to be laid] range from approximately 2.7 x 10-5 cm/sec to 5.8 x 10-4 cm/sec (0.08 to 1.62 feet/day)." Id. The variability of fines contents among samples reflects variability in hydraulic conductivity in the upper Citronelle, as well. This variability explains why an average permeability or vertical conductivity figure for the clayey sands in the upper Citronelle is of limited use in predicting how quickly rainwater will move through it, if these sands are used to cap the landfill after its completion, as proposed. Samples taken from eleven borings made throughout the entire 1,760-acre site were the basis for the applicant's average vertical hydraulic conductivity number. Only one of the borings was done on the Phase I site itself. If a ten-foot thick, continuous layer of clayey sands with a vertical conductivity of 6.2 x 10-7 centimeters per second occurred eight feet beneath the surface, the overlying Pliocene sands would hold a water table year round, given the high rainfall in the area. In fact, the applicants' consultants reported a water table on the Phase I site 21 to 30 feet down, beneath or within, but not above, the clayey sands in the upper Citronelle, in February of 1988. (T.595) The higher water tables observed in October of 1988 were also below the loose surficial sands. This demonstrates a vertical hydraulic conductivity for the upper Citronelle beneath the site proposed for Phase I well above the reported average. A borrow pit, off site but nearby, illustrates the fallacy of relying on average conductivity values to predict the movement of water. At the upper end of the excavation, a seep emerges from the sand to form a stream that flows 40 or 50 feet across red clayey materials resembling those on site, then sinks, disappearing into the earth. Even the value assigned to a particular split spoon sample may be a misleading average. B.T.126-7. Preliminary Plans Drawn In Phase I, WACOC proposes to excavate three different areas or cells for solid waste disposal "to approximately 20 feet below natural grade." (T.116) Accepting information they were furnished, the design engineers made the important (T.172) but erroneous assumption that the water table on site fluctuates only within a range "from five to fifteen feet" (T.132) below that. The plan is to fill each cell with solid waste and covering layers of various soils to a height 90 feet above existing grade. Trees growing within the 300- foot green belt planned for the perimeter of the 1,760-acre site would shield the landfill from the view of motorists on U.S. Highway 90. Separated from each other by berms, cells 1 (520' x 520') and 2 (520' x 650') would abut each other south of cell 3 (480' x 1170'), with another set of berms circumscribing all three cells. The bottom of each cell is to have a gradual V-shape, sloping "approximately one percent in the longitudinal direction and two percent in the traverse direction[s]," (T.116) toward the centerline. The plans call for compaction of the soils, once excavation has been accomplished, and for "root pickers" to remove rocks, roots and any other sharp objects. The plans do not contemplate the use of sieves. WACOC proposes to line these pits by covering the naturally occurring, compacted soils with a 1.5 millimeter (60 mil) layer of high density polyethylene, a plastic which has been manufactured for use in land fill liners at least since 1982. (T.401) The purpose of lining landfills is to contain contaminated water that would otherwise escape into the environment. Rain percolating through solid waste, together with moisture already in the solid waste at the time it is deposited in the landfill, leaches chemicals from the waste, producing a toxic solution called leachate. Products of industry make their way into household garbage and the municipal waste stream. About two percent of waste that reaches municipal sanitary landfills consists of materials which, if generated industrially in quantity could not lawfully be disposed of, except as hazardous waste. Scientists have "found municipal waste landfill leachates that were as toxic as those from Love Canal." (IT.696) Gundle Liner WACOC has decided to obtain a liner which meets minimum requirements of the National Sanitation Foundation Standard Number 54, Flexible Membrane Liners, November, 1983, from Gundle Lining Systems, Inc. (Gundle). "All Gundle materials are available in 22 1/2' widths with no factory seams " WACOC's Exhibit No. 7. Gundle's own employees would unroll the plastic, position it using "tack welding" to form a continuous sheet, join the strips with extrusion welds, inspect the seams visually, perform destructive "shear and peel tests . . . by random selection no less than the [to be] agreed [but unspecified at hearing] frequency . . . . [and conduct v]acuum testing [which] follows no specific standard." WACOC's Exhibit No. 7, Enclosure 6. (T.403, 411- 2) As a condition of the permit (No. 26), DER would require that an independent third party, a registered professional engineer, participate in quality assurance. High density polyethylene's "chemical resistance and durability. . . . enable[ Gundle] . . . to offer a 20-year warranty . . . for both the product and installation." (T.404) Gundle's liability under the warranty depends on how many years remain under warranty and "shall in no event exceed the amount of the sale price." (IT.434) The warranty excludes "any liability for consequential damages arising from the loss of . . . product owing to the failure of the material or installation," id.; CCE's Exhibit No. 3, and any liability whatsoever in the event of acts of God, including floods, and "excessive pressure or stress from any source." CCE's Exhibit No. 3; (IT.432). While the material may well outlast the warranty, perhaps by decades, in "geological time," it will inevitably fail. In the short term, too, the integrity of liners like that proposed is highly problematic. Past problems have included "mechanical damage . . . of one form or another such as with the bulldozer, or if somebody drops something." (IT.429) Here, before the first lift of solid waste (which would not include construction or demolition debris) is placed, four feet of sand (stockpiled during excavation) would be piled on top of the disposal cell liner. A bulldozer's gash might not go unnoticed, but small holes along seams can be missed, despite rigorous quality control measures. At the Ocean County landfill in New Jersey, "there was more liquid . . . than would have been true from the calculated moisture vapor transmission data," (IT.427) but Gundle's chemist testified this might have been "condensation on the soils on the back side of the liner." Id. Leachate Collection Embedded within the sand layer, in the crotch of the V, six-inch, perforated, schedule 80 PVC pipe, wrapped in filter cloth, is designed to collect leachate. The top of the pipe is to be eight inches above the liner, according to the leachate underdrain detail on sheet 15 of WACOC's Exhibit No. One pipe running the length of cell 3 and another running through cells 1 and 2 would move leachate to the leachate trunk line, another (intact) PVC pipe which would, in turn, empty into a paved flume in the leachate collection pond. The pond has been sized to contain the amount of leachate WACOC's consultants originally predicted a 25 year return 24-hour storm would generate, together with the rainfall such an event would deposit in the leachate collection pond, and still leave a foot of freeboard. "You have room below that major storm elevation that holds 60 to 70,000 cubic feet of leachate." I.T. 127. Except for the flume, the leachate pond is to be lined, like the disposal cells, with high density polyethylene. In the leachate collection pond, only 18 inches of sand would overlie the synthetic liner. From time to time, leachate would be pumped from the pond into tank trucks for removal to the Garnier wastewater treatment plant, which has a capacity of 6,500,000 gallons per day. Garnier is specifically permitted to receive only domestic wastewater, but the permit does not forbid industrial wastewater, and the plant now accepts leachate from the Wright landfill. DER has not classified landfill leachate either as domestic or as industrial wastewater. Before accepting it for treatment, the plant might require pretreatment of the leachate, whether on account of its anticipated acidity or for other reasons. If leachate causes sludge from Garnier to exceed standards for heavy metals, the sludge can be deposited in a Class 1 landfill like the one proposed here. WACOC has not yet entered into a contract with Garnier's operator for treatment of leachate. Not until leachate is removed from the leachate collection pond are pumps to be employed. Leachate would have to accumulate on the waste disposal cell liners and enter a pipe, in order to leave the cells. The design specifies perforations along the whole length of leachate collection pipe, around the bottom of the pipe. If the pipes clogged west of the cell walls, leachate could flow through sand and reenter the pipe further downslope. Outside the waste disposal cells, manholes have been planned, to afford access for cleaning the pipes out. The applicant did not demonstrate with calculations that gravity would induce flow through the pipes at a rate sufficient to remove leachate deeper than 12 inches. In the leachate collection pond, which is to be roughly 200 by 500 feet, leachate might attain a depth of several feet, before being pumped into a tank truck. The pond sides are to be lined with high density polyethylene to a height nine feet above the pond bottom. As far as the evidence showed, the depth of leachate in the pond would never fall below 18 inches anywhere on the pond bottom, once leachate began filling the leachate collection pond. Only if leachate were extracted from the sand covering the liner could the leachate head in the pond fall below one foot. The plan is for tank truck operators to place their hoses on "a concrete flume on top of that sand." I.T. 127. Stormwater Management Berms encircling the solid waste disposal cells, together with a series of ditches and culverts, are intended to direct stormwater away from the solid waste to a retention pond for temporary storage and treatment, before discharge offsite. To the extent stormwater which would otherwise flow into solid waste disposal cells can be diverted elsewhere, the volume of leachate can be diminished. The berms also serve to prevent rain falling on solid waste from reaching the stormwater retention pond, or polluting stormwater that does. Lined with relatively impermeable soils, the stormwater retention pond, "a football field wide and two and a half football fields long," (T.201) is designed to be big enough to hold the runoff from a 100 year return storm, leaving two feet of freeboard. In practice, some stormwater would percolate into the ground through unlined ditch bottoms, never reaching the pond. Stormwater that did reach the pond would either evaporate or drain through sidedrains, which are to consist of perforated six-inch PVC pipe, encased in gravel and covered with permeable sand excavated on site. Lining most of the pond's perimeter, this sand would filter water seeping through it from the pond into the side drains. After collecting in an outfall pipe, water draining from the pond would travel 300 or 400 feet, before discharging above grade, near the east branch of Mare Creek. If, as would be likely, sea gull droppings regularly end up in the stormwater retention pond, phosphorous and nitrogen levels in the east branch of Mare Creek and downstream would increase in time. Other Measures Decomposing solid waste produces methane gas. When cell I is completed, vents are to be installed to direct methane gas into the atmosphere above the center of the cell. I.T.140; WACOC's Exhibit No. 1, p.23 and No.9, p.15. "[T]he wind will disperse any gas within the site." I.T.191,221. If sufficient quantities were generated, a gas collection system would be installed. I.T.140. 31 Spotters will try to divert hazardous or infectious waste, and should succeed in the event a hauler tries to dispose of an accurately labelled 55- gallon drum of a hazardous liquid or red-bagged waste from a hospital, but small quantities of gasoline, paint, paint thinners, cleaning fluids and other hazardous materials cannot practically be diverted. At the end of every working day, solid waste is to be covered with a six inch layer of soils from the site. Fences are planned downwind from the working face to collect windblown debris. Closure A landfill is a long-term proposition. Pollutants still leak from Roman landfills dating to 400 A.D. Contemporary landfills and their regulators recognize the importance of capping landfills to minimize infiltration by rainwater (and so production of leachate.) Even though the plans may be revised later, DER requires applicants for landfill construction permits to make plans for closure, before a construction permit is issued. Landfill operators must also make annual contributions to a trust fund to be used to close the landfill and to bear post-closure expenses, which include trucking leachate and monitoring groundwater. WACOC has already established the trust fund and deposited $100. As a condition of operating the landfill over the five years it proposes, WACOC must deposit one fifth of estimated closure and post-closure costs in the trust fund 60 days before beginning to fill, and another fifth annually (30 days after the anniversary date of the initial payment). The cost estimates are subject to revision annually. (I.T. 384, 843-4) Before closing a landfill, the operator must obtain a closure permit. The trust fund is not expected to absorb the costs of cleaning up polluted groundwater, if that should prove necessary. Local governments, which operate many landfills themselves, sometimes step in when problems with privately run landfills develop. ...A leak develops or something that would cost millions of dollars to address it and you don't have the insurance, you're out of business instantly. ...[WACOC's ability] to address a catastrophic situation that could develop with this is limited to how much capital they have. * * * ...[I]f you don't have some insurance, even if its $500,000 deductible,...if the problem occurs, you're gone. And if you don't have the capital to handle it, it will fall back in the taxpayer's lap which is typically what happens... . (II.T. 70-71) As WACOC's proposed finding of fact No. 12 concedes, WACOC's "liabilities are considerably in excess of its assets." Landfill operators are under no obligation to contract for environmental liability insurance, which is not readily available, in any event. WACOC proposes to cap Phase I with clayey sands excavated on site. The clay required to cap Phase I amounts to "ten acres of the surface by four feet deep, or one acre 41 feet deep." (II.T. 36) WACOC proposes to spread this quantity over all three cells, covering them with an 18-inch clayey sand blanket. On top of that, WACOC would place 18 inches of surficial sand and, finally, six inches of topsoil. The sands are readily available on site, but there is no topsoil to speak of. The clayey sand WACOC proposes to use as a foundation for the cap is too permeable to constitute an effective barrier. (B.T. 149,158), but WACOC could mix it with clay from off site or some other agent to render it less conductive of rainwater. The present plans do not call for mixing, however. High Density Polyethylene WACOC is proposing the synthetic liner underneath waste disposal cells and the leachate collection pond not as one component of a composite liner, (T.158) but as "the state of the art," (T.153) in and of itself. But "flaws in liners are a common occurrence." (IT. 698) After a liner has been laid down and covered with sand, "inadvertent cuts and nicks of unexplained origin" (IT.699) can and do occur. However conscientious, laborers hired as "root pickers" may miss an occasional rock. The plans only call for removal of objects larger than a quarter inch. High density polyethylene is a plastic. If laid over stone or other protuberances, "the plastic will flow away from that pressure point and eventually you will have a hole in the plastic." Id. An investigator examining 60 mil high density polyethylene used as landfill liner "found six pin-holes per acre, mostly associated with the seams, [an] average of 9.4 cuts [per acre] of unexplained origin, [and] 110 [perforations attributable to] rock protu[bera]nces per acre." (IT.705) In an EPA sponsored study, a liner manufacturer installed and third parties "did a careful job of inspecting," id., twelve "rather small" (IT.706) waste disposal cells. Eight of the twelve leaked. Even if holes did not let leachate escape, several carcinogenic, teratogenic, and mutagenic organic constituents of municipal waste leachate dissolve in liners like the one WACOC proposes, "diffuse through and are released on the other side." (IT.699) High density polyethylene is practically impervious to water: water vapor can move through it only at a rate of 1 x 10- 13 centimeters per second. But certain hydrophobic substances, including chlorinated hydrocarbons such as trichloroethylene and vinyl chloride, move readily through high density polyethylene, itself a "very hydrophobic material." (T.807) William T. Cooper, a chemistry professor who participated in developing DER's drinking water standards, appearing in this case as a witness for the objectors, testified: [O]ne of the major problems in doing this work [concerning organic pollutants in groundwater] is establishing . . . standards. In other words, we had to pollute water in a well defined way so that our machines would tell us there was a certain amount of pollution in the water. . . . . . . [W]e started using [p]olyethylene tubes into which we would put several different organic molecules for the very reason that these molecules diffuse so readily through the [p]olyethylene tubes that we could control the rate in which we were contaminating water for laboratory purposes. (IT.806) In order to calibrate their instruments, the scientists who developed drinking water standards for Florida relied on polyethylene containers' ability to transmit organic pollutants in solution inside a container to the water outside at a steady, predictable rate. Chemists think of polyethylene "as a condensed liquid . . . . [because] it has the ability to absorb molecules." (T.807) Water and polyethylene do not mix, however, just as oil and water do not; they are said to be immiscible and to form separate phases. When a third substance is dissolved in either of two immiscibles occurring together, the additive's molecules move between the two phases until equilibrium is reached. The concentration in one phase will differ from the concentration in the other, and both concentrations will depend on the amount of the additive introduced (until saturation), but the ratio of the two concentrations (the "distribution ratio" or "partition coefficient") will always be the same, at equilibrium. A chemist in Gundle's employ testified that any "organic solvents in the leachate . . . would tend to float on the aqueous phase." (T.406) But some hydrophobic organics, including trichloroethylene, are denser than water and would not float. (IT.831) Mr. Cadwallader, Gundle's chemist, conceded that organic materials are soluble in water "to a point of saturation, which typically is not very high . . . ." (T.425) The leachate's nonaqueous phase would occur to some extent, perhaps entirely, within the polyethylene liner. In this connection, the objectors' chemists' opinion, which Dr. Brown also shared, has been credited. For the same reasons Mr. Cadwallader "agree[d] that a liner would gain weight when it is immersed in a pure organic solution," (T423) the liner would swell, as a variety of organic pollutants diffused into it from the leachate. Such swelling has been reported in low density polyethylene. WACOC's Exhibit No. 18. With groundwater in contact with the outside of the liner, the organic pollutants with which the liner was swollen would diffuse into the groundwater, until groundwater touching the liner acquired organic pollutants in the same concentrations in which they occurred in the aqueous phase of the leachate standing on the liner. It is even possible that concentrations of certain hydrophobic organics would be higher outside the liner than inside. (IT.818) If indeed a nonaqueous phase floated on top of the leachate, it would serve to replenish the aqueous phase, as hydrophobic organics diffused into the liner to replace those diffusing out of the liner into the groundwater or soils on the other side. (IT.831) Site Hydrogeology Groundwater flow "mirrors the topography of the site." WACOC's Exhibit No. 1, Appendix B, p.6. On the Phase I site, it flows to the north and the northeast, toward the east branch of Mare Creek. At monitoring well 1, the flow is "about a 45-degree angle down and to the east northeast." B.T.119. Lining the disposal cells and the leachate collection pond with high density polyethylene would curtail recharge (and evapotranspiration) under the cells and the pond. The plan is to line the stormwater retention pond with the same clayey sands that fail to hold a water table. B.T.175 Percolation from stormwater ditches or, despite its lining, even from the retention pond might cause slight mounding of the groundwater under those structures. But construction of Phase I would not appreciably alter the general direction of the groundwater flow. To the extent mounding occurs beneath the stormwater retention pond, groundwater table elevations under proposed cell 3 would be higher than they otherwise would have been. Elsewhere, the cell liners should have the effect of lowering groundwater elevations below what they would otherwise have been, ignoring infiltration from stormwater ditches. Any changes may be very slight, since groundwater from recharge areas upslope apparently flows under the site. In February of 1988, piezometers were used to measure water table elevations on the Phase I site. Distance between elevations proposed for liners and the February 1988 water table varied, but were no less than nine feet at any point measured. Based on the February 1988 measurements, the design engineers assumed an unsaturated zone 25 to 30 feet thick. But, on October 11, 1988, the second day of hearing, the same piezometers (B.T. 19) disclosed much higher water table elevations. Near the creek, the water table had risen only 4.92 feet higher than it had been in February, but in the wells closest to cell 1, the October water table exceeded the February elevations by 11.33 and 11.41 feet. (B.T. 40) On October 11, 1988, the water table was "above the bottom of the liner of the proposed landfill in cell two, portions of cell two, a lot of it, portions of cell one and a corner of cell three," (B.T. 44) with "about two feet of water above the proposed liner in the corner of cell two." Id. The levels may have been considerably higher in September. Since periodic measurements have not been taken over the requisite year or two, the seasonal high water table on the Phase I site has not been determined. The height of the groundwater table depends on how quickly rainwater percolates down to the water table to replace groundwater lost to evapotranspirtation or subterranean flow offsite. Groundwater under the Phase I site discharges into the east branch of Mare Creek. The timing as well as the amount of rainfall figure in, because once the soils are saturated, rain runs off instead of infiltrating. Still monthly rainfall is a good indicator of how much water has percolated down to recharge an aquifer. No records of rainfall on the site itself exist, but statistics from sites not far away show that extraordinarily high rainfall in September of 1988 contributed to the groundwater elevations measured on October 11, 1988. At one or more wells on site, the water table dropped another foot between October 18 and October 26, 1988. CCE's Exhibit No. 36. Rainfall data suggest that in most years, "the actual peak high for a water table probably would be towards the end of August." (B.T. 95) At present, the surficial aquifer beneath the proposed landfill site contains potable water. People living in the area draw water from the surficial aquifer for drinking water purposes, in one case from a well only some 30 feet deep. The nearest well to Phase I is 3,000 feet away, on the other side of the east branch of Mare Creek. The surficial aquifer goes all the way down to the Alum Bluff group, 75 feet below ground. Saltwater intrusion threatens in southern Okaloosa County. By 1995, if its growth continues at the present rate, the City of Destin will require another, supplementary water supply. Plans to tap the Floridan in northern Okaloosa County include well fields in the Eglin Air Force Base area and north of Freeport. But the Floridan "won't supply all the future projected needs." (II.T. 16) Desalinization is expensive. Eventually Okaloosa County is "going to have to look further toward the use of surficial water," (II.T. 13) as a public water supply. Leachate Characteristics Leachate from municipal landfills has high biological oxygen demand, high salt content, and significant concentrations of metals and organics. (I.T. 699) Cleaning solvents, oil-based paint, furniture polish, spot removers, xylene, toluene and benzene are among common constituents of municipal waste. Lisa Stewart, who picks up garbage in northern Okaloosa County four days a week, has noticed "containers containing a substance" (II.T.137) bearing such labels as naphtha, methylene chloride, toluol, burnt motor oil, insecticides, fungicides, trichloroethane, oxalic acid, xylol, petroleum distillates, polyglycol ether, plasticizers, sulfuric acid, methanol, ethanol and sodium hydroxide. Scientists have found every chemical DER lists on its "primary or secondary water quality standard numeric list" (I.T. 697) in municipal leachate, as well as "about 20 chemicals that are known to [b]e carcinogenic, mutagenic or teratogenic which are not on that list." Id. At least some of this latter group can be anticipated at the proposed landfill, if it is built. The organic materials degrade only slowly; they have half-lives ranging from 20 to 50 years. (I.T. 698) Biochemical oxygen demand accounts for most of the stench to be expected from leachate standing in the leachate collection pond. The "combination . . . of hazardous waste from small quantity generators and from households we would expect to be somewhere in the range of five to 10,000 tons per year." (T.T.148) In order to predict the amount of leachate to expect, experts on both sides resorted to a mathematical model, known acronymically as HELP, for "Hydrological Evaluation Landfill Program." (T.689) These experts made assumptions about annual rainfall, the permeability of the cap materials which, after their initial excavation and stockpiling are destined to do double duty as a final cover for the landfill, and other factors, in order to calculate the amount of leachate likely to accumulate above the liner. WACOC's consultants calculated a head of 2.4 inches, assuming annual rainfall of 68 inches, and an unrealistically low permeability for the clayey sands under the Phase I site which are to be used for capping the Phase I cells as they attain their design heights of 90 feet above grade. Using WACOC's average vertical conductivity figure for the clayey sands of 6.2 X 10-7, without changing any other assumptions WACOC made in running the HELP model, yields a leachate head of 8.5 inches. Even if it were appropriate to use an average, this figure is low, because the permeability of materials recompacted in a laboratory is ordinarily ten times less than when the same material is compacted in the field. Here compaction "in the field" would occur on top of a mound of garbage. "[T]he system will be spongy." (I.T. 752) The HELP model makes no allowance for cracks in the cap, which are bound to occur, if WACOC closes the landfill as it proposes. As garbage degrades, it settles and sinks. This would cause shear planes or faults in the clayey sand cap, which cannot readily be detected, buried beneath sand, topsoil and vegetation. Estimating conservatively, "we could be dealing with twice as much water as we're calculating from the HELP model due simply to cracks in the facility." (I.T. 692) During those periods when the groundwater table is above the bottom of the disposal cell liners, groundwater infiltration through such imperfections as exist in submerged portions of the liners will increase leachate volume. Ignoring groundwater intrusion, cell 1 alone should produce 5,000 gallons a day of leachate the first year after closure. (I.T. 510-1). The applicant's own revised HELP model calculations put the leachate head at more than eight inches in a year in which rainfall on the site exceeded the annual average at Crestview by only eight percent (68 inches vs. 63 inches). A foot or more of head annually can be expected, taking into account cracks in the clay cap. Water Quality Monitoring WACOC's groundwater monitoring plan calls for a single well south and upgradient of the Phase I site to monitor "background" groundwater conditions, and a series of monitoring wells east and north of the site designed to detect any groundwater contamination the landfill may cause. WACOC's Exhibit No. 9, Sheet 11. Four of these downgradient wells would be placed by the eastern perimeter of the zone of discharge to measure compliance with DER's numeric water quality standards at that edge of the zone. Four other wells are planned within the zone of discharge. In addition, surface waters are to be monitored at seven points, five on the east branch of Mare Creek and two on the west branch, but none further south than the berm separating cell three from cells one and two. WACOC's own employees would take samples, arrange for their analysis and report the results to DER. Among the specified parameters are iron and chloride. As far as the record reveals, testing for sodium in addition would not make for earlier or more reliable leak detection. CCE's Exhibit No. 20. The suggestion that groundwater be tested for calcium assumed montmorillonite in the clayey sands, which the evidence did not show to be present. I.T. 988. According to a DER chemist, however, groundwater samples near landfills should be tested for volatile organic compounds (VOCs) by EPA method 601/602. Since VOCs always appear to be present in landfill leachate and they can be detected in the subparts per billion (ppb) range, the test is a particularly sensitive indicator for the presence of organics in landfill leachate. (CCE's Exhibit No. 20, p.2.) Also among the specified parameters is fecal coliform, which makes any other routine testing for bacteria superfluous. Given the economic consequences for WACOC if a leak is discovered, it might be well to require WACOC to contract with an independent third party to monitor, in the event the landfill is built. Since groundwater flow on site has a vertical as well as a horizontal component, monitoring requires appropriate placement not only of wells, but also of screens. One approach is to cluster wells so that a succession of screens covers the entire thickness of the aquifer. Monitoring well screens should not exceed 15 feet in length, in order to avoid dilution that might render contaminants indetectable. CCE's Exhibit No. 2. But a hydrogeologist with sufficient information could place screens within transmissive zones through which groundwater flowing underneath the disposal cells or the leachate pond is likely to move. B.T. 136 With respect at least to leachate constituents that do not diffuse through liners, monitoring groundwater to detect pollution is more difficult if a landfill is lined than if it is not, because contaminant plumes are larger if they emanate from larger sources. CCE's Exhibit No. 19. Unless monitoring wells were sunk at ten-foot intervals east and north of where leachate is to collect, it would be easy to miss the plume from a small leak, which might be destined to become a large leak. But even the objectors' experts do not "consider that very practical financially." (B.T. 135) Groundwater Pollution Both through imperfections in the synthetic liner and, as regards hydrophobic organic pollutants with low molecular weights, by diffusion directly through even flawless portions of the liner, pollutants in the leachate will escape into the environment, if WACOC builds the landfill it has proposed for Phase I. As far as can be told from the evidence, the groundwater table would never reach the bottom of the leachate collection pond, so that adsorption and diffusion in soils underneath the pond would attenuate the effect of any leakage there, before it could enter the groundwater. But the soils on site have very low adsorption capacity and very low biological activity. I.T.719 Leachate leaving unlined, northwest Florida landfills five feet above the water table have caused serious pollution problems. The evidence showed that the groundwater table would rise above portions of the lined bottoms of all three waste disposal cells, on which leachate will also be standing. This may occur infrequently, would not necessarily happen every year, and would last for only a few weeks and days at a time, but it was the condition that obtained at the time of the hearing, two months later than seasonal high groundwater should normally occur. When it does happen, "it's entirely possible the leachate will be the same concentration as the groundwater in contact with the bottom of the liner." I.T. 701. In any case, carcinogenic, mutagenic or teratogenic agents (I.T. 697), including up to 20 for which DER has not established numeric limits, would occur in the leachate, and some would enter the groundwater, violating the DER "free from" requirement. I.T. 777. Precise concentrations have not been forecast but, at least at times, over the course of the landfill's existence, the leachate would contain certain mutagenic substances for which no safe lower limit has been established. Nor did the evidence give reasonable assurance that violations of DER's numeric standards pertaining to the trichloroethylenes, the tetrachloroethylenes and vinyl chloride would be unlikely outside the zone of discharge. I.T. 771,781-2. It depends in part on the volume or rate at which leachate or these constituents leak. B.T. 94. The evidence showed they will leak at some rate, even where there are no flaws in the liner. In a test involving higher concentrations of trichlorethylene and other organics than are anticipated here, experimenters observed a "flow rate . . . on the order of 125 gallons per acre per day from concentrated organics." I.T. 702. In 27 acres of plastic, flaws are to be expected. Good intentions notwithstanding, the evidence showed holes in the synthetic liner should be anticipated, and taken into account in designing a landfill. The rate at which leachate will leak through these imperfections depends on their number, shape and size; and, as to each, the depth of the leachate above it and the permeability of the medium below it. A circular hole with a diameter of one- sixteenth of an inch will discharge liquid, standing on top of it a foot deep, at the rate of 70 gallons a day, into air, gravel or porous sand. The rate for a similar hole with a diameter of one-eighth of an inch is 192 gallons per day. In the event of a leak above or near an area like the one into which the seep sank in the borrow pit, the soil would not slow the rate of leakage. (I.T. 718) Otherwise, for a given leachate head, the conductivity of the soil (if unsaturated) would determine the leakage rate. "[T]here will be less depth higher up the liner." I.T.760. But where the liner is lowest and the leachate deepest, the liner will lie over the loose sands that occur beneath the clayey sands. Rating tests demonstrated considerable variability in the hydraulic conductivity of all of the sands tested. Piezometer readings on October 18 and 26, 1988, showed how they transmit water as a unit. In eight days the water table (which is only at atmospheric pressure) fell a foot. The clayey sands would not prevent leachate's leaving the waste disposal cells and entering the groundwater, although in some places (where the leachate has less depth), they would slow the rate of leakage. "We could get tens of thousands of gallons [annually] leaking out of a 27-acre site which this is through holes." (I.T. 707) With groundwater in contact with portions of the liners, the leakage rate there would depend on the relative elevations of the groundwater table and the leachate standing on the liners. If the groundwater table were higher, upward pressure might push groundwater into the disposal cells, disminishing or even preventing leachate leakage until the water table fell below the height of the surface of the leachate. But, when that happened, direct discharge of undiluted leachate can be expected, directly to the groundwater, as long as groundwater abutted a flaw in the liner. DER's rules do not apply the numeric standards underneath or within 100 feet of waste disposal cells, which the rules denominate a "zone of discharge." Whether numeric standards are violated at the edge of the zone of discharge depends not only on the leakage rate, but also on where the leak occurs, on the velocity of the groundwater, and on pollutant concentrations in the leachate. Calculations taking all these factors into account have not been done for WACOC's Phase I. But credible expert testimony predicted such violations would eventually occur outside the zone of discharge. I.T.771. Synthetic liners like the one WACOC proposes are usually placed on top of three feet of highly impermeable, mineralogically suitable clay. "A clay liner...will retain organics to a greater extent than a synthetic liner." I.T. 823. Using it as proposed here, where it would come into direct contact with groundwater, does not give reasonable assurance that groundwater pollution will not occur.
Recommendation It is, accordingly, RECOMMENDED: That DER deny WACOC's application for a permit to construct a class I landfill in Okaloosa County. DONE AND ENTERED this 14th day of April, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of April, 1989. APPENDIX DER's proposed findings of fact Nos. 1, 7, 11, 12, 14, 15, 17, 18, 21, 22 except for the last sentence, which is rejected, 23, 24, 25, 32 except for the last sentence, which is rejected, 38, 45, 46, 48, 49 except for the last sentence, which is rejected, 50, 52, 54, 56 except for the last sentence, which is rejected, 57, 58, 59, 60, 62 except for the sentence "DER has no rule prohibiting contact of the liner with ground water," 63, 65, 66 except for the second clause which is rejected, 67, 69, 72, 73, 78, 79, 80, 81, 83 and 85 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 2, the intent to issue is dated April 1, 1988. With respect to DER's proposed finding of fact No. 3, financial feasibility was not demonstrated but is not material under the rules. With respect to DER's proposed findings of fact Nos. 4, 5 and 6, closure cost estimates assume the suitability of the clayey sands on site as a cap, which the weight of the evidence did not establish to be the case. With respect to DER's proposed finding of fact No. 8, the use of a high density polyethylene membrane, without more, to keep hydrophobic organic materials out of abutting groundwater is not proven technology, as far as the evidence showed. With respect to DER's proposed finding of fact No. 9, the rules do not require environmental liability insurance. DER's proposed findings of fact Nos. 10, 19, 20, 26, 35, 37, 44, 55, 61, 71, 74, 75, 77, 82, 86 and 87 are rejected as unsupported by the weight of the evidence, without comment. With respect to DER's proposed finding of fact No. 13, the fact that a synthetic liner separates solid waste from the groundwater does not make it permissible to deposit solid waste in groundwater. While the October readings did not prove that groundwater would rise above the sand in which the leachate will collect to touch the solid waste itself, September's rainfall, the rate at which the water table dropped between October 18 and 26, 1988, and the probability of defects in the liner showed that this was a realistic possibility. With respect to DER's proposed finding of fact No. 16, two percent of the materials disposed of in municipal sanitary landfills are hazardous in a chemical, if not legal, sense. With respect to DER's proposed finding of fact No. 27, the "state of the art" use of high density polyethylene liners is as one component of a composite liner, or even as part of a double liner system, at a hydrogeologically suitable location. This material works well for some purposes and not at all for others. With respect to DER's proposed finding of fact No. 28, there was no showing that any other Florida landfill has been placed so as to come into contact with the groundwater table, or that a synthetic liner has ever been used for a landfill without clay; synthetically lined landfills have only recently been installed in Florida, and detection of leaks from lined landfills is difficult. With respect to DER's proposed finding of fact No. 29, since uncontaminated water is not a pollutant, it is not a permeant of concern. With respect to DER's proposed finding of fact No. 30, the evidence showed that under ideal, test conditions, 8 of 12 liners leaked. Under actual field conditions leaks exceeded 100 per acre. The weight of the evidence makes it unreasonable to conclude that 27 acres of plastic can be laid down in Okaloosa County without any flaws. With respect to DER's proposed finding of fact No. 31, the rate of 192 gallons per day assumed gravel or porous sand which offers essentially the same resistance as air; there is no sandy clay anywhere on site, as far as the evidence showed; more than 18 feet below the surface, where most of the liner is to be laid, there are not even clayey sands, according to WACOC's own expert; the sands that do occur there include loose sands with a permeability greater than 4.9 X 10-4; and include numerous gravel beds; the .00022 gallons per day calculation assumes a hole a quarter as large (half the radius of Dr. Brown's) and ignores horizontal hydraulic conductivity. The fact that the water table dropped a foot in about a week demonstrates that the soils cannot be counted on to contain the leachate underneath flaws in the liner. With respect to DER's proposed findings of fact Nos. 33 and 34, Haxo's results were consistent with their conclusions but explicitly not the only basis for them. Gundle's chemist conceded that hydrophobic organic materials diffuse through high density polyethylene. His opinion that an accumulation in the soils on the other side would equalize concentrations and stop further diffusion did not take into account groundwater abutting the liner, and flushing the soils. The liner absorbs materials; but adsorption does not take place there. Transportation and dispersion need not be known as to "free froms." On page I.T. 777, Dr. Brown testified that diffusion would cause violations of DER's regulations, and this testimony has been credited. With respect to DER's proposed finding of fact No. 36, the swelling of the liner with organic materials is evidence of the diffusion which would result in organic materials' entering the groundwater. With respect to DER's proposed findings of fact Nos. 39 and 41, one inch of leachate in all three cells amounts to 2.25 acre feet, which is more than a "little." Calculations have not been done. With respect to DER's proposed findings of fact Nos. 40 and 42, no allowance was made for cracks in the cap material (which cannot be seen under the vegetation, topsoil and drainage sand layer.) With respect to DER's proposed finding of fact No. 43, a much greater leachate head than within the waste disposal cells may occur depending on where the marker is placed, but hydrophobic organics diffusing through the liner and absorbing in the soils would not be flushed out by groundwater. Except for the last sentence, this proposed finding of fact reflects the weight of the evidence. With respect to DER's proposed finding of fact No. 47, some water will evaporate. With respect to DER's proposed finding of fact No. 51, monitoring wells 8 and 9 are both more than 100 feet from waste disposal areas. The evidence did not show that the monitoring wells "can be expected to detect any contamination." With respect to DER's proposed finding of fact No. 53, DER's experience also suggested testing for volatile organic chemicals. With respect to DER's proposed finding of fact No. 64, the rate of decline also suggests that the water table was as higher elevations than those measured. An applicant must give reasonable assurance that pollution in violation of DER rules will not occur under foreseeable, recurring conditions, including during those times the liner is submerged. With respect to DER's proposed finding of fact No. 65, the proposed finding is adopted, as regards physical tears. With respect to DER's proposed finding of fact No. 68, the proposed finding is adopted, except for leakage through the liner, sometimes directly to groundwater. With respect to DER's proposed finding of fact No. 76, clayey sands were not reported below 18 feet. The difficulty with the groundwater monitoring plan is not the soil characterization, but the number of wells. Because synthetic liners leak, clay mineralogy is important to know. No clay is proposed here, however. With respect to DER's proposed finding of fact No. 84, effective odor control would also entail emptying the leachate pond regularly. WACOC's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 17, 19, 23, 24, 25, 26, 27, 31, 32, 33, 34, 35, 36, 37, 38, 42, 43, 45 50, 58, 61, 64, 66, 70, 71, 72, 75, the first sentence of No. 76, Nos. 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 90, 92, 93, 94, 96, 97, 99, 100, 101, 102, 103, 104, 105, and the first sentence of 113 have been adopted in substance, insofar as material. With respect to WACOC's proposed finding of fact No. 11, the current tonnage figures appear in the application but their accuracy has not been established by competent evidence. With respect to WACOC's proposed finding of fact No. 12, projected profits depend on various problematic assumptions. With respect to WACOC's proposed finding of fact No. 16, the initial payment was $100. With respect to WACOC's proposed finding of fact No. 18, the cost estimate's reasonableness depends largely on what it would cost to obtain suitable material for a cap, which is not clear. With respect to WACOC's proposed finding of fact No. 20, Scott had independent knowledge of the availability and cost of clay. With respect to WACOC's proposed finding of fact No. 21, the proposed finding accurately reflects the evidence, with the qualification that the layer of dense orange clayey medium to fine sand also contains some coarse sand and fine gravel. With respect to WACOC's proposed finding of fact No. 22, the water table will be below the liner most, but not all, of the time. With respect to WACOC's proposed finding of fact No. 28, see the discussion of DER's proposed finding of fact No. 13. WACOC's proposed findings of fact Nos. 29, 59, 63 and 78 are rejected as contrary to the weight of the evidence, without comment. With respect to WACOC's proposed finding of fact No. 30, hazardous materials will end up in the landfill. With respect to WACOC's proposed finding of fact No. 39, the liner's permeability depends on the permeant. Although it is almost impervious to water, hydrophobic organics move readily through. Clay is a much better liner for those materials. With respect to WACOC's proposed finding of fact No. 40, the Gundle liner by itself is not the state of the art in Florida or anywhere else for municipal sanitary landfills. Proposed conclusions of law are addressed elsewhere. With respect to WACOC's proposed finding of fact No. 41, in the puncture test, the liner withstood a probe exerting 270 ponds of pressure. With respect to WACOC's proposed finding of fact No. 44, there are no clayey sands at the depth proposed for the deeper portions of the waste disposal cell liners, as WACOC's proposed findings of fact Nos. 21 and 27, taken together reflect. With respect to WACOC's proposed finding of fact No. 46, as the manufacturer's representative said, "these liners are a part of the quote unquote state of the art requirement for lined hazardous waste facilities." I.T. 404 (emphasis supplied). The other part is three feet of clay, not sand, underneath. With respect to WACOC's proposed finding of fact No. 47, it depends on the hazardous waste facility. A DER chemist, Mr. Watts, recommended monitoring groundwater near a municipal landfill for volatile organic chemicals. While most municipal garbage is not toxic, leachate from municipal waste is toxic. With respect to WACOC's proposed finding of fact No. 48, the testimony was that the groundwater pollution at Wright landfill was "most likely" from unlined cells. No lined landfill in DER's Northwest District has been built below the groundwater table as far as the evidence showed. With respect to WACOC's proposed finding of fact No. 49, While municipal leachate constituents should not corrode the liner, many can diffuse through it. With respect to WACOC's proposed finding of fact No. 50, some two percent of the waste stream will still be hazardous materials. With respect to WACOC's proposed finding of fact No. 51, some organic materials will sink, rather than float. The sand within which the leachate will accumulate will not extract or absorb organic constituents of the leachate, as far as the evidence showed. With respect to WACOC's proposed finding of fact No. 52, removal is first to the leachate collection pond, also lined with high density polytheylene. With respect to WACOC's proposed finding of fact No. 53, it is wholly improbable that 27 acres of plastic will be installed "without physical flaws." Leakage could exceed 10,000 gallons a year. With respect to WACOC's proposed finding of fact No. 54, not all organic materials diffuse though high density polyethylene. Dr. Haxo's views on WACOC's proposal are not a matter of record. The 448-page EPA Study discusses containment techniques. With respect to WACOC's proposed finding of fact No. 55, the Haxo studies are pertinent although they do not purport to replicate a landfill precisely. In some studies he used concentrations of a single organic that were comparable to the concentrations of organics as a whole in municipal leachate. With respect to WACOC's proposed finding of fact No. 56, direct discharge of leachate into the groundwater, even in small quantities could violate the "free from" standards as could diffusion into the groundwater of carcinogenic, teratogenic or mutagenic, hydrophobic organic materials. With respect to WACOC's proposed finding of fact No. 57, CCE's experts' views about synthetic liners coincided in important respects with those of Gundle's chemist. There is no clayey layer where much of the waste disposal cells' liners are supposed to go. Given the certainty of leakage directly to the groundwater, it is the applicant's burden to do quantative analysis. With respect to WACOC's proposed finding of fact No. 60, there are no data for the site itself. The available data are incomplete. With respect to WACOC's proposed finding of fact No. 62, the February water level is likely to be more common than the October water level. The weight of the evidence did not establish that "under normal conditions the water level should fluctuate no more than five feet." With respect to WACOC's proposed finding of fact No. 64, the proposed finding reflects the evidence except for the final sentence. *** With respect to WACOC's proposed findings of fact Nos. 67, 68 and 69, it is inappropriate to schedule pumpout times at this stage. But it is appropriate to consider above average annual rainfall. Annual leachate production differs from the amount of head at any one time. With respect to WACOC's proposed finding of fact No. 73, the design engineer suggested Roto-Rooter. With respect to WACOC's proposed finding of fact No. 74, intersection should not occur. With respect to WACOC's proposed finding of fact No. 77, municipal landfills are not viewed as hazardous waste generators under federal law. With respect to WACOC's proposed finding of fact No. 82, the second sentence was not proven. With respect to WACOC's proposed finding of fact No. 84, there may be some infiltration. With respect to WACOC's proposed finding of fact No. 89, it would be very expensive to place enough monitoring wells to assure detection of any leaks. Placement of screens should be less of a problem than sinking enough wells. With respect to WACOC's proposed finding of fact No. 91, the Watts memo's suggestion of testing for volatile organic chemicals should give additional assurance. With respect to WACOC's proposed finding of fact No. 95, two percent of the waste stream can be anticipated to consist of hazardous materials. With respect to WACOC's proposed findings of fact Nos. 106, 107, 108 and 109, the proposed clayey sand materials used in the thickness proposed would not create the barrier claimed. Modifications not proposed in the application are possible. With respect to WACOC's proposed findings of fact Nos. 110, 111 and 112, WACOC has not given reasonable assurance that pollution of the groundwater in violation of DER water quality standards would not occur; or that no more than a foot of leachate would stand on the liner. COPIES FURNISHED: Herbert H. Huelsman Anna M. Huelsman 608 Ironwood Drive Fort Walton, FL 32548 Debra Swim, Esquire 1323 Diamond Street Tallahassee, Florida 32301 Bruce A. McDonald, Esquire Post Office Box 887 Mary Esther, Florida 32569 William L. Hyde, Esquire Roberts, Baggett, Laface & Richard Post Office Drawer 1838 Tallahassee, Florida 32302 Chris McGuire, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue Should Respondent be fined $500.00 for initiating repairs to an on-site sewage treatment and disposal system before obtaining a permit?
Findings Of Fact Respondent is engaged in the septic tank contracting business as a contractor licensed under Chapter 489, Part III, Florida Statutes. He does business as "Alpha." In association with his business Respondent provided services to residents at 224 North Orange Avenue, Orange City, Florida. This was related to a failed on-site sewage treatment and disposal system at that residence. To assist in providing repair service to the residence in Orange City, Florida, Respondent engaged Andy Trapp. Mr. Trapp's business is to assist septic tank contractors in obtaining necessary permits to perform septic tank contracting services. Mr. Trapp's occupation includes field work involving soil testing, measurements, and completion of necessary paperwork to assist the septic tank contractor in obtaining necessary permits. As permitting agency, usually Petitioner would accept applications submitted by Mr. Trapp in relation to the application for a permit to repair on-site sewage treatment and disposal systems, in that Mr. Trapp is recognized by Petitioner as being sufficiently qualified to submit information in support of an application for permit. On March 27, 1998, Mr. Trapp submitted an application for a permit to repair the on-site sewage treatment and disposal system at the Orange City, Florida, address, to include supporting information concerning the results of soil testing. That application was accompanied by the necessary fee to obtain a permit. The application was delivered to Petitioner's Daytona Beach, Florida, office as a matter of convenience to Mr. Trapp. Mr. Trapp realized that the actual processing of the permit application would be conducted by Petitioner's Deland, Florida, office. In that connection, Mr. Trapp realized that the application that he had submitted to the Daytona Beach office would be forwarded by interoffice transmittal to the Deland office, which would cause a delay in the processing of the application. In his experience Mr. Trapp has filed applications with the Daytona Beach office to be subsequently transmitted to the New Smyrna Beach office of the Petitioner, which ordinarily can be done late on the same day that the application was presented or by the next day. James McRae is an environmental supervisor for the Volusia Health Department, Environmental Health Office in Deland, Florida. It is his office that had ultimate responsibility for considering, and if appropriate, issuing a permit allowing Respondent to conduct necessary repairs of the failed on-site sewage treatment and disposal system at the Orange City, Florida address. Mr. McRae confirmed that the permit application, as submitted by Mr. Trapp for the repairs, had been received by the Deland office on March 30, 1998. In addition, the accompanying $57.00 fee had been transferred from the Daytona Beach office to the Deland office, as was customary, the custom being that the funds in support of an application would ultimately be received in the office from which the application would be processed and a permit number assigned, as applicable. Upon receipt of the application in the Deland office, a receipt was generated. Information concerning the permit application was placed in the computer. Assessment of the application was assigned to William Vander Lugt, Environmental Specialists II, who is part of the field staff for the Petitioner's Deland office. Beyond Mr. Vander Lugt's assignment to consider the application for the permit for the Orange City, Florida project, it was expected that he would do any necessary field work involving an inspection and any necessary soil analysis. If satisfied that the site was appropriate to effect repairs to the failed on-site sewage treatment and disposal system, Mr. Vander Lugt would issue a permit subject to approval by Mr. McRae. Mr. McRae identified that the usual turn around time for issuing permits is two to three days, assuming that the permit was applied for at Petitioner's office which would be responsible for assessing the application. In this instance the permit had been applied for at another office which delayed consideration of the permit application by the Deland office. The permit was approved on April 2, 1998, within three days of its receipt by the Deland office. Before the permit was issued, Respondent, through his employees, had commenced the repairs at the Orange City, Florida, address. The commencement of repairs was verified by an on-site inspection performed by Mr. Vander Lugt, on March 31, 1998. Although the supporting information presented by Mr. Trapp was in order and the fee had been paid, and there was no indication that any other problems existed which would prohibit the repairs from being conducted, Respondent was premature in commencing the work before the permit issued, and was unjustified in that choice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be issued which imposes a $500.00 fine against Respondent for initiating a repair of an on-site sewage treatment and disposal system without first obtaining a permit to do the work. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Charlene Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael J. Jedware Post Office Box 390073 Deltona, Florida 32739-0073 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue in this case is whether the Department of Environmental Regulation (Department) should issue a solid waste construction permit to the David J. Joseph Company (Applicant) to construct lined cells at its existing Class I solid waste landfill in Tampa, Hillsborough County, Florida. It is the position of the applicant and the Department that all statutory and rule criteria for the issuance of said permit have been met, while Mr. & Mrs. David Brenner (Petitioners) contend that the application fails to meet the criteria for the issuance of this permit.
Findings Of Fact The applicant filed an application for a solid waste construction permit with the Department on May 2, 1988. This application was given permit number S029-77041. The applicant proposes to expand its existing solid waste Class I sanitary landfill located near Kingsway Road and Interstate 4, east of Tampa, Hillsborough County, Florida, through the construction of a lined addition. This entire site consists of approximately 16 acres, but the lined portion for which this permit is sought comprises about eight acres. This site was purchased by the applicant in 1978, to landfill shredder waste, or "fluff", produced at its Tampa shredder. In fact, the applicant has operated this site as a landfill since 1978, under two previous permits issued by the Department in 1978 and 1983, and approximately nine acres of the site have already been filled. The Department gave notice of its intent to grant this permit on September 23, 1988, subject to specified conditions. The Petitioners, thereafter, timely requested this administrative hearing. The applicant is engaged in the ferrous scrap business at fourteen locations throughout the United States, and provides steel mills with raw material for their use in the production of new steel. It operates a large shredding plant in Tampa, Florida, which consists primarily of an automobile shredder and related equipment. The shredder is a large crushing and grinding piece of equipment which, in approximately 20 seconds, grinds scrap autos into small chunks of scrap the size of a man's fist. A conveyor system separates the scrap produced in the shredding process into three streams. The first stream consists of steel scrap that is sold to a steel mill. Approximately 80% of automobile scrap is steel. The second stream consists of non-ferrous material, primarily aluminum, zinc, copper, brass and other non-steel items found in autos, which are then sold to dealers in that particular type of metal. The third stream is waste material, or "shredder fluff". Approximately 17% of the material in automobile scrap is fluff. Guidelines have been established by the applicant which limit the type of material which will be accepted at the shredder facility as feedstock for the shredder operation. These guidelines prohibit acceptance of lead-acid batteries, gas tanks, tires, catalytic converters, and loose mufflers and tail pipes. Automobiles which are accepted by the applicant at its Tampa plant have already been crushed at separate locations by other companies engaged in the car crushing business prior to their purchase by the applicant. In the crushing process, most automobile fluids are liberated, but oil and other fluids not liberated during the crushing process are then liberated in the shredding process, and are intermingled with all three product streams produced at the shredder mill. Shredder fluff consists largely of automotive components such as upholstery, plastic, glass, rubber, dirt, and other non-magnetic and non-ferrous materials. The applicant's shredder operation in Tampa generates approximately seven to eight tractor trailer loads of fluff per day which are deposited at their current landfill. During 1988, the fluff from approximately 200,000 autos was disposed at this site. The existing landfill is located approximately 550 feet off of the roadway, and is accessible by an entrance road leading to the main gate of the site. The landfill is completely fenced with barbed wire around its perimeter, and there is a locked gate at the access road. There is a full time manager on site. Only shredder fluff produced by the applicant's Tampa shredder is deposited at this site. The applicant delivers its waste to this landfill using its own equipment and personnel. The applicant has taken reasonable steps to insure that only authorized persons enter the landfill site, and that there will be no unauthorized dumping. In order to continue using this landfill site, the applicant proposes to construct a liner system and leachate collection system for the remaining unfilled portion of the landfill, and also to establish a stormwater management system serving the entire site. A geotechnical and foundation investigation has been performed on the site to determine the physical and chemical characteristics of site soils, and the ability of those soils to support the landfill construction. The potential for movement in foundation soils was specifically addressed. It is to be noted that the applicant has been operating a landfill at this site for ten years without any sinkhole or foundation problems. There are no active sinkholes on the site, nor was there competent substantial evidence that any sinkhole had historically existed on this site. While the site geology is complex, the soils and subsurface geology will support the proposed project. Thus, the site is suitable for construction of lined Class I landfill cells. Beneath a surficial sand layer of approximately 30 feet in depth, lies an interbedded layer of sands, clay and heavily weathered limestone lenses approximately 40 feet thick, under which lies the Floridan Aquifer. The applicant will excavate below the level of the existing pit floor to remove any limestone protrusions which could adversely affect liner integrity. A dense clay layer, graded to remove rocks and other protrusions, will be used as a secondary barrier to retard the movement of contaminants into groundwater, and to further minimize the potential impact from limestone pinnacles upon liner integrity. The primary containment system will be a liner system constructed of a thick, high density, 60 millimeter polyethylene membrane, applied to both the bottom and sides of the landfill. Below-grade portions of the landfill will be lined completely. A layer of geotextile material is placed between the synthetic liner and clay layer to act as a cushion against stresses on the liner. The liner will be constructed in 30 foot wide strips with welded seams, every inch of which is vacuum tested. Laboratory testing is also conducted on sample coupons of welded seams to insure that the seams are as strong, or stronger, than the original material, and the areas from which coupons are taken are then extrusion welded and vacuum tested. The liner system is designed to withstand stresses, and any differential settlement, that are reasonably expected to occur at this site. It will minimize the risk of leakage of leachate to the environment, as was recognized by Dr. Richard Strom, an expert in hydrogeology called by Petitioners, who stated this is an improvement in the previous unlined operations at this site, and decreases, although it does not completely eliminate, the possibility of ground water pollution. The applicant's project design includes a leachate collection system which will allow leachate generated in the landfill to flow through a 12 inch thick gravel layer, which will act as a drain in the base of the landfill. Fluids will run to low spots and will then be channeled to sumps, where leachate is collected so that it can be disposed of by pumping away from the liner system and spraying onto the active face of the landfill. Natural evapotransporation will then reduce the volume of the leachate. An approved groundwater monitoring program is currently in place, and is being operated at the applicant's existing landfill. It consists of an upgradient well in the northeast corner of the site, and three down gradient wells, one in the southwest corner, one on the west and one on the south sides of the property. These down gradient wells are adequately placed to intercept groundwater flow from the site since the predominate groundwater flow is from the northeast to southwest. These wells all monitor the Floridan Aquifer. The applicant's groundwater monitoring program is adequate and appropriate to detect any leachate or other contaminates emanating from the landfill which might pollute the groundwater, and provides reasonable assurance that water quality standards will not be violated by the landfill operations. The applicant has proposed a stormwater management system for the entire site which is designed to separate non- contact stormwater from that water which actually falls on, or comes into contact with, the waste material. All rainwater coming in contact with waste will be treated as leachate, and handled through the leachate collection system. The non-contact stormwater will be collected in a series of bermed drainage ditches around the site, and will be drained away to retention ponds for infiltration. During times of normal rainfall, there will be sufficient capacity in retention ponds to store all non- contact stormwater on site until it either evaporates or percolates into the ground. During extreme storm events, excess stormwater can be channeled off site to a nearby sinkhole for discharge. Routine monitoring will be conducted to ensure that water in the system has not been contaminated with leachate. The Department has delegated stormwater plan approval authority to the Southwest Florida Water Management District, which reviewed and approved the applicant's stormwater management system through the issuance of a permit in 1988. Noxious odors do not emanate from the existing landfill operations, although there is a slight odor similar to an auto garage service bay close to the disposal materials. This is not a sickening or noxious odor, as acknowledged even by Dr. Strom. The applicant has provided reasonable assurance that leachate sprayed on the active face of the landfill, after having been collected through the leachate collection system, will not result in, or cause, noxious odors at the landfill site. The applicant has established that this project to enlarge its existing landfill with a lined addition will not release contaminants into the underlying soils and groundwater.
Recommendation Based upon the foregoing, it is recommended that the Department of Environmental regulation enter a Final Order approving the application of the David J. Joseph Company and issuing permit number S029-77041. DONE AND ENTERED this 21st day of June, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1989. APPENDIX (DOAH Case No. 88-6009) Rulings on the Petitioners' Proposed Findings of Fact: Rejected in Findings 1, 9-12. Rejected in Findings 10-14. Rejected in Finding 16. Rejected in Finding 16, but Adopted in part in Finding 13. Rejected in Findings 10-12. Rejected in Finding 15. Rejected in Finding 14. Rulings on the Respondents' Proposed Findings of Fact: 1. Adopted in Findings 1, 2. 2-3. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. 7-8. Adopted in Finding 1. 9-10. Adopted in Finding 7. 11. Adopted in Finding 8. 12-15. Adopted in Findings 9-11. Adopted in Finding 12. Adopted in Finding 9. Adopted in Finding 13. 19-21. Adopted in Finding 14. Adopted in Finding 15. Adopted in Findings 9 and 16. Adopted in Finding 17. COPIES FURNISHED: John W. Wilcox, Esquire Katherine Harasz, Esquire 100 South Ashley Drive Suite 1650 Tampa, FL 33602 William D. Preston, Esquire Thomas M. DeRose, Esquire 123 South Calhoun Street Tallahassee, FL 32301 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale Twatchmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 21st day of March, 2014.
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 On January 31, 1979, Respondent Okaloosa County Board of County Commissioners filed an application with the Northwest Florida District Office of Respondent Department of Environmental Regulation (DER) to construct a solid waste resource recovery and management facility near Baker, Florida at the intersection of State Road 4 and State Road 4B. The proposed facility would be a sanitary landfill approximately 36 acres in size which would receive solid waste for disposal from the municipalities of Baker, Milligan, Holt, Crestview, and Blackman. Approximately six to eight additional acres at the site were previously used by the County as a dump for household trash and garbage for a period of approximately eight years. Some of the waste was burned and the remainder was buried. (Testimony of Rogers, Long, Exhibit 1) The proposed landfill is located in a rural area primarily used for agriculture which is sparsely populated. The site is surrounded by forested lands but some recent removal of trees has opened a portion of the site to public view from State Road 4. The land at the site slopes gradually in a west- east direction, and the slope is more pronounced on county land adjoining the east border of the site for a distance of about 900 feet. At this location, several springs form the headwaters of Mill Creek which flows cast through two lakes located on about 224 acres of private property owned by Petitioners Donald C. and Mary Ann Long. Mill Creek becomes a defined water course after leaving the Long property and flows into the Yellow River which is approximately two and one-half miles from the Mill Creek headwaters. The Yellow diver flows some 10 to 20 miles into Blackwater Bay near Milton. A shallow well from which potable water 15 obtained is located on the Long property but not within 1,000 feet of the landfill site. (Testimony of Rogers, Long, Exhibits 1-2) The applicant intends to use the trench method in disposing of solid waste. Trenches will be excavated to a depth of about 15 feet, but in no case will the bottom of a trench be underlain by less than two feet of the "fine sandy loam" which occurs in a layer of varying depth beneath the overlying Lakeland sand soil. Test holes dug in the landfill site indicate that the bottom of the "fine sandy loam" layer in depths of some three to twelve feet is located about eighteen feet below the surface of the ground. The applicant intends to check at 100 foot intervals while digging trenches to insure that at least two feet of that material underlies the trench bottom. If not, sufficient additional amounts of the material will be placed in the trench and compacted to make a two-foot thick layer. There will be a distance of 50 feet between centers of trenches. The trenches will be 30 feet wide at the top and 15 feet wide at the bottom. The bottom of each trench will have a slope of less than 5 percent designed to drain the trenches and lifts of rainwater before they are filled. The upper lift will vary in depth from 5 to 7 feet depending upon the final contour desired. Wastes will be deposited either at the top or bottom of the working face of the trench and will be spread by a crawler tractor in two foot layers and then compacted. Compacted waste will be covered daily with one foot of soil and a final cover of at least two feet of sandy clay material will be obtained from a county borrow pit adjacent to the landfill and placed over trenches to prevent the movement of water into the buried solid waste. (Testimony of Rogers, Edmisten, Exhibits 1-2) The applicant plans to construct a barrier to contain the movement of leachate along the eastern border of the landfill which will be a minimum of five feet wide and as deep as necessary to "tie-in" with the existing layer of "fine sandy loam" beneath the site. The barrier is designed to prevent leachate from moving horizontally downslope toward Mill Creek. The barrier material will be compacted, but not the sides of the trenches. (Testimony of Rogers, Edmisten) The groundwaters under the site are from 55 to 65 feet below the surface of the land. Although the elevation of groundwaters normally will follow the contour of the land surface, borings at the site have not been made to the depth of the watertable. The approximation of the depth of the groundwaters was obtained from data of two monitoring wells located on county land directly east of the proposed landfill site. Twenty-four holes were dug across the site to determine the location of the "fine sandy loam" soil layer which exists below the surface. Eight additional holes were dug to obtain samples of the material for a texture analysis. In its natural state, this material has a permeability rate of about 2.5 to 5 inches per hour. After compaction, the permeability rate will be about .02 to .2 inches per hour. No permeability rate is required by pertinent DER regulations for liner material. Recent soil tests of material taken from the county borrow pit some 200 yards west of the landfill site showed a permeability rate of .004 inches to .0027 inches per hour. A recent sample taken from the bottom of an existing pit at the landfill reflected a permeability rate of .01 inch per hour. Proposed guidelines of the U.S. Environmental Protection Agency contemplate a permeability rate of only .00014 inches per hour for liner materials to restrict the rate of flow of leachate from the bottom of a landfill. The material proposed to be used by the applicant for liner material therefore will permit fairly rapid movement of leachate through the sides and bottoms of trenches, and under the eastern barrier. Further, the coarser sand underlying the "fine sandy loam" liner layer has a much higher permeability rate. As a result, an unknown amount of leachate will eventually reach the groundwater table and flow laterally downslope in an easterly direction. Leachate generation will be impeded by the vegetated, relatively impervious final top layer over the landfill, the wedge of soil located between each trench, and the eastern barrier. These measures will serve also to attenuate suspended solids in the leachate, but not organic materials and most metals. There will also be a certain amount of dilution after any leachate reaches the groundwater table. (Testimony of Rogers, Edmisten, Meister, Tomlinson, Exhibits 1-2, 5, 7) Water samples taken from in and around the area of the springs located both on county and private property to the east and from wells in the general area show that the water generally is of high quality. There is no indication that past landfill operations at the site have degraded the water quality in the vicinity of the nearby creeks, ponds and wells. (Testimony of Meister, Rogers, Long, Exhibits 1-2, 8-9) The applicant plans to control surface runoff and any consequent erosion by means of terraces, berms, and swales. However, other than notations on engineering plans of provision for a highway drainage swale, no design of such items is shown in the application. Prior erosion in the area has been satisfactorily corrected in the past by the county by the use of similar methods to those planned for the landfill site. (Testimony of Rogers, Long, Exhibit 2) The application was reviewed by DER's Southwest District permitting engineer. He found that the application and supporting documents met the statutory and regulatory criteria for the issuance of a construction permit. However, soil borings did not extend at least ten feet below the proposed excavations. (Testimony of Diltz, Exhibit 2) By letter of March 27, 1979, the Northwest District Manager of DER issued a Notice of Intent to issue a construction permit for the proposed sanitary landfill under standard and special conditions. The special conditions required construction of two approved monitoring wells east of the landfill and analysis of water samples from the wells and from a surface water sampling point in the headwaters of Mill Creek prior to issuance of an operation permit. A further condition required the applicant to submit verification that the bottoms of trenches contained at least two feet of the material specified in the application. At the hearing, DER and Okaloosa County submitted a stipulation wherein they agreed that additional monitoring wells should be placed upgradient from the site, at the downstream boundary of the first trench, at the north end of the clay barrier, and immediately east of boring number 8 prior to issuance of an operation permit. The conditions further required that well logs will be kept on all monitoring wells and reports on soils, geology and groundwater elevation he submitted to DER prior to issuance of an operating permit. Further, any identification of leachate contamination in the wells by a method to be spelled out in any operation permit will require extension of the earthen barrier west to State Road 4. Finally, a special condition required that the bottom lining material of all trenches and the barrier must be compacted prior to the issuance of an operating permit. (Exhibit 4)
Recommendation That the requested permit be issued to the Okaloosa County Board of County Commissioners as herein specified. DONE and ORDERED this 28th day of March, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Douglas H. MacLaughlin, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Wright Moulton, Esquire Post Office Box 591 Pensacola, Florida 32593 John R. Dowd, Esquire Okaloosa County Attorney Post Office Box 1964 Ft. Walton Beach, Florida 32548
