The Issue The issue to be determined in this proceeding is whether Angelo's Aggregate Materials, LTD ("Angelo's") is entitled to permits from the Department of Environmental Protection ("Department") to construct and operate a Class I landfill in Pasco County.
Findings Of Fact The Parties The Department is the state agency with the power and duty under chapter 403, Florida Statutes, to review and take action on applications for permits to construct and operate solid waste management facilities, including landfills. Angelo's is a Florida limited partnership authorized to conduct business under the name Angelo's Recycled Materials. Angelo's filed the permit applications which are the subject of this proceeding. Angelo's owns the property on which the proposed landfill would be constructed and operated. Crystal Springs Preserve is a Florida corporation that owns approximately 525 acres in Pasco County, Florida on which is located Crystal Springs, a second magnitude spring that flows into the Hillsborough River. The property is about 10 miles south of Angelo's proposed landfill site. Crystal Springs Preserve's primary business activities are selling spring water for bottling for human consumption and operating an environmental education center that focuses on Crystal Springs and the Hillsborough River. Crystal Springs Preserve hosts approximately 50,000 visitors annually at the environmental education center. Crystal Springs Preserve holds a water use permit which authorizes it to withdraw up to 756,893 gallons of water per day (annual average) from Crystal Springs for production of bottled water. The water is transported about three miles to a water bottling facility operated by Nestlé. Nestlé is a private corporation engaged in the business of bottling and selling spring water. Nestlé purchases spring water from Crystal Springs Preserve. Nestlé's "Zephyrhills Spring Water" brand is composed of approximately 90 percent Crystal Springs water and 10 percent Madison Blue Spring water. The only water treatment applied by Nestlé is filtering the water to remove gross contaminants and passing the water through ultraviolet light or ozone to kill any potential bacteria before bottling. Nestlé has established "norms" for its spring water and would not be able to use the water from Crystal Springs if its chemical composition varied significantly from the norms. WRB is a Florida corporation that owns 1,866 acres in Pasco County known as Boarshead Ranch. Boarshead Ranch is adjacent to the east and south of Angelo’s property and is approximately 3,000 feet from the proposed landfill at its closest point. Boarshead Ranch is currently being used for agricultural, recreational, residential, and conservation purposes, including wildlife management. Nearly all of Boarshead Ranch is subject to a conservation easement held by the Southwest Florida Water Management District (SWFWMD). The conservation easement allows WRB to continue agricultural operations. Numerous agricultural water wells are located on Boarshead Ranch. WRB holds a water use permit which authorizes the withdrawal of 820,000 gallons per day (gpd) (annual average) for a number of uses, including production of agricultural products, animal drinking water, and personal use. The City of Zephyrhills is located in Pasco County and is a municipal corporation. Zephyrhills' water service area encompasses Zephyrhills and portions of Pasco County. Zephyrhills owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Zephyrhills holds a water use permit which authorizes nine potable water supply wells with a combined withdrawal of 2.9 million gallons per day ("mgd") (annual average). Zephyrhills has two new production wells located about two miles southeast of the proposed landfill. The City of Tampa owns and operates the David L. Tippin Water Treatment Plant, the Hillsborough River dam, and the City of Tampa reservoir on the Hillsborough River. Flows from Crystal Springs make up a substantial amount of the water in the Hillsborough River, especially during drought conditions when the spring flow accounts for about 50 percent of the flow. The City of Tampa holds a water use permit which authorizes the withdrawal 82 mgd (annual average). The City of Tampa owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Carl Roth, Marvin Hall, and Louis Potenziano own property in Pasco County near the proposed landfill site. Roth's property is 3.5 miles west of the proposed landfill site; Hall's property is located approximately one mile southwest of the site; and Potenziano's property is 1.6 miles to the south/southeast of the site. Roth, Hall, and Potenziano have water wells on their properties. The record does not establish that John Floyd owns property in the area. Floyd and Associates, Inc., owns about 55 acres in the area and holds a water use permit authorizing the withdrawal of water for agricultural uses. The Stipulated Agreement On March 1, 2010, Angelo's filed with DOAH a "Stipulated Agreement" signed by all parties. The Stipulated Agreement states in relevant part: Angelo's shall provide a final design, revised complete permit application and site investigation (referred to jointly as "Revised Submittal") to DEP with copies to all Parties and DEP shall make a completeness determination prior to this proceeding being set for a new final hearing date. * * * Angelo's shall not revise its permit application or supporting information beyond the Revised Submittal prior to or during the final hearing except in response to issues raised by DEP. It appears that the Aligned Parties did not remember the Stipulated Agreement until the commencement of the final hearing. They did not object before then to any of the evidence which Angelo's had prepared or intended to prepare for hearing on the basis that it violated the terms of the Stipulated Agreement. At the commencement of the hearing, Nestlé argued that the Stipulated Agreement barred Angelo's from revising its application or presenting new support for its project at the final hearing. The Stipulated Agreement is unusual and the necessity for Angelo's to make any concessions to the Aligned Parties in order to obtain their agreement to an abeyance was not explained. Allowing an applicant time to amend a permit application is usually good cause for an abeyance. The Stipulated Agreement allowed Angelo's to continue to respond to issues raised by the Department. Angelo's contends that all of the evidence it presented at the final hearing qualifies as a response to issues raised by the Department. The Proposed Landfill Angelo's applied to construct and operate a Class I landfill with associated buildings and leachate holding tanks. Application No. 22913-001-SC/01 corresponds to the construction permit application and Application No. 22913-001-SO/01 corresponds to the operation permit application. A Class I landfill is a landfill authorized to receive Class I waste, which is solid waste from households and businesses. Class I waste does not include hazardous waste, yard waste, or construction and demolition debris. See Fla. Admin. Code R. 62-701.200(13) and (14). The proposed landfill would be approximately 30 acres in size. It is part of a 1,020-acre parcel owned by Angelo's that is west of County Road 35 and south of Enterprise Road in Pasco County. The site is currently leased for cattle grazing and hay and sod production. There are also spray fields, orange groves, and a pond on the 1,020-acre parcel. Angelo's would construct the landfill by first clearing the 30-acre site. It would then excavate and fill to create the design subgrade or floor of the landfill with slopes required for the liner system. The subgrade would be compacted with a vibratory roller. After the subgrade compaction, the grouting plan would be implemented. The grouting plan calls for grouting 39 subsurface locations on the site that have voids, loose soils, or other unstable characteristics. A liner system would be installed after the grouting is completed and the subgrade is finished. From the bottom upward, the liner system would begin with a 12-inch layer of clay, over which a reinforcement geotextile would be installed, followed by another 12-inch layer of clay. This reinforcement geotextile is in addition to the double liner system required by Department rule. Its purpose is to maintain the integrity of the liner system in the event that a sinkhole occurs beneath the landfill. Installed above the reinforcement geotextile and clay layer would be a 60-millimeter high-density polyethylene ("HDPE") geomembrane, followed by a HDPE drainage net. These last two components comprise the secondary leachate collection system. Above the HDPE drainage net would be the primary leachate collection system, consisting of another 60-millimeter HDPE geomembrane and HDPE drainage net, followed by a geotextile, then a 12-inch sand layer for drainage, and an additional 12-inch sand layer for protection against puncture of the HDPE liner. A 48-inch layer of selected waste, free of items that could puncture the liner, would be the first waste placed over the primary leachate collection system. "Leachate" is "liquid that has passed through or merged from solid waste and may contain soluble, suspended, or miscible materials." See Fla. Admin. Code R. 62-701.200(66). Leachate would be collected through a system of perforated pipes that empty into a sloping trench with a leachate collection pipe. The leachate collection pipe would run down the center of the landfill to the lowest point where a pump would send the collected leachate through a force main 0.25 miles to storage tanks. Five above-ground storage tanks would be installed on a concrete pad with capacity to store 90,000 gallons of leachate. The stored leachate would be periodically transported to an offsite location, such as a wastewater treatment facility, for disposal. Sinkholes and Karst The terms "sinkhole" and "sinkhole activity" are not defined by Department rule, but the statutory definitions in chapter 627, a chapter dealing with insurance coverage for homes and other buildings, are generally consistent with the scientific meanings of these terms. The term "sinkhole" is defined in section 627.706(2)(h) as: a landform created by subsidence of soil, sediment, or rock as underlying strata are dissolved by groundwater. A sinkhole forms by collapse into subterranean voids created by dissolution of limestone or dolostone or by subsidence as these strata are dissolved. The term "sinkhole activity" is defined in section 627.706(2)(i) as: settlement or systematic weakening of the earth supporting the covered building only if the settlement or systematic weakening results from contemporaneous movement or raveling of soils, sediments, or rock materials into subterranean voids created by the effect of water on a limestone or similar rock formation. Sinkholes occur throughout Florida. There have been many reported and confirmed sinkholes in Pasco County. The more common type of sinkhole that has occurred on the Brooksville Ridge is a "cover subsidence" sinkhole, which is caused by voids in the limestone and the downward movement--"raveling"--of overlying soils into the cavity. Eventually, the loss of soils in the raveling zone will propagate upward until the soils at the ground surface also move downward and a depression is formed at the surface. Cover subsidence sinkholes develop slowly and are usually small, less than ten feet in diameter. Less common are "cover collapse" sinkholes, which can form in a matter of days or hours as the result of the collapse of the "roof" of a dissolved cavity in the limestone. These sinkholes are usually large and deep. The occurrence of a sinkhole does not always mean that areas near the sinkhole are unstable. However, the occurrence of a sinkhole is reasonable cause for concern about the stability of nearby areas and a reasonable basis for the Department to require thorough geologic investigations. "Karst" refers to limestone that is undergoing dissolution and it is common in Florida. A sinkhole forms in karst. "Epikarst" is limestone that was weathered while exposed above sea level millions of years ago before being submerged again. It is generally softer and more permeable than unweathered limestone. "Paleokarst" refers to karst that is very old in geologic time. Paleosinks are old sinkhole features in the paleokarst. A paleosink may no longer be unstable because it has been filled in for thousands or millions of years. A "lineament," or a "photolineament," is a relatively straight line seen in the topography or aerial photographs of the ground surface in an area. It might be defined by soil color, sloughs, ponds, wetlands, or other land features that follow a linear path. Lineaments are sometimes, but not always, associated with subsurface fractures in the bedrock where one would expect to also find active karst, sinkholes, and relatively rapid groundwater flow. Even where there is no lineament, there can be fractures in limestone that, when extensive enough, will allow for "fractured," "preferential," or "conduit flow" of groundwater. Fractured flow can occur in a small area or may go on for miles. Springs in Florida are usually associated with fractured flow or conduit flow that allows groundwater to move through the aquifer a long distance relatively rapidly, in weeks rather than decades. Geotechnical Investigation The Department's rules require subsurface conditions to be explored and described, including soil stratigraphy, soft ground, lineaments, and unstable areas, but the rules do not require the application of any particular geologic testing technique. An applicant's testing program is primarily a function of the professional judgment of the applicant’s geologist in cooperation with Department staff. The amount of geological testing done by Angelo's during its initial testing was similar to what was done for recent landfill applications. Angelo's conducted additional testing to respond to Department concerns and to prepare for the final hearing in this case, making the total amount of testing at Angelo's proposed site more extensive than is usual for a proposed landfill. The geologic investigation conducted by Angelo's experts to determine subsurface features, including any sinkholes, employed several technologies. Split Spoon Penetrometer Test (SPT) or SPT borings were drilled with a drill rig that advances a split spoon sampler into the ground with a 140 pound hammer. The hammer is dropped 30 inches and the number of blows required to drive the sampler each successive 12 inches is referred to as the "N" value and indicates soil strength and density. The higher the N value, the denser the soil. When the material is so dense the drill rod cannot (essentially) be hammered deeper, the N value is shown as "R," which stands for "refusal." SPT Bore logs also note any observed "weight of hammer," "weight of rod," or "loss of circulation." These terms describe areas where the drilling encounters very soft material or voids. Weight of rod, for example, means the weight of the drilling rod, by itself, with no hammer blow, was enough to cause the rod to fall deeper through the soil or rock. Cone Penetrometer Test ("CPT") borings were also conducted. CPT borings are relatively shallow, performed with a hand-held rod and special tip that the operator pushes into the ground. The CPT equipment continuously measures and records tip resistance and sleeve resistance as the rod moves downward through soils. It is helpful in some applications, but is less precise in determining soil type, strength, and compressibility than SPT borings and cannot be used to explore deep zones. Ground penetrating radar ("GPR") studies were used. GPR equipment transmits pulses of radio frequency waves into the ground. The manner in which the radio waves are reflected indicates the types of soil and rock encountered. It can also detect cavities and other features that would suggest karst activity. When the GPR identifies geologic features of interest, they can be further investigated with SPT borings. Another investigative tool used by Angelo's was Multiple Electrode Resistivity ("MER"). MER uses a grid of wires and electrodes and the equipment interprets the resistivity of electrical signals transmitted through the subsurface. MER data can be displayed in a two dimensional or three dimensional format, depending on the software program that is used to process the data. Like GPR, MER is useful for indentifying geologic features of interest that can be further explored with SPT borings. However, GPR generally has good resolution only near the ground surface, while MER has good resolution to a depth of 100 feet. The Regional Geology The proposed site is in a geologic transition zone on the eastern flank of a regional, geological feature known as the Brooksville Ridge. It is a transition zone for both the Suwannee Limestone and Hawthorn Group. The Brooksville Ridge was formed when it was part of the coastline. In its geologic past, the Brooksville Ridge experienced sea level changes, weathering, erosion of sediments, and beach reworking. The general layering of geologic features on the Brooksville Ridge, from the top down, begins with topsoil and a layer of sand. Under the sand layer is the Hawthorn Group, an older geologic layer consisting of a heterogeneous mix of limestone, clays, and sands which generally range in depth from slightly under 60 feet to 80 feet or more. It was formed by river and wind erosion, flushing, and re-deposition in a beach dune environment. Below the Hawthorn Group is the Suwannee Limestone Formation, which is present throughout eastern Pasco County. The upper surface of the Suwannee Limestone Formation is undulating, due to a gradual chemical weathering of its upper surface, representing a "paleokarst environment." Underlying the Suwannee Limestone Formation is the Ocala Limestone Formation. It extends throughout most of Florida. It is composed of nearly pure limestone and is considered the Floridan Aquifer. It extends across the site’s subsurface. Angelo's used the Florida Geologic Survey's data base to determine there are six sinkholes within five miles of the proposed landfill. A seventh sinkhole, not in the data base, is the 15- foot sinkhole at the Angelo's Enterprise Road Facility landfill, a Class III landfill (yard waste and construction and demolition debris) about a mile northwest of the proposed site. Angelo's contends that the sinkhole at its Class III landfill was "induced" during construction of the facility by the diversion of stormwater runoff to an area where overburden had been removed. The average diameter of the seven sinkholes is 11.9 feet. The Geology of the Proposed Site Rule 62-701.410(2)(c) requires a geotechnical site investigation and report, which shall: Explore and describe subsurface conditions including soil stratigraphy and ground water table conditions; Explore and address the presence of muck, previously filled areas, soft ground, lineaments, and sinkholes; Evaluate and address fault areas, seismic impact zones, and unstable areas as described in 40 C.F.R. 258.13, 258.14 and 258.15; Include estimates of the average and maximum high ground water table across the site; and Include a foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the landfill. It may include geotechnical measures necessary to modify the foundation to accommodate the imposed loads and stresses. The foundation shall be analyzed for short-term, end of construction, and long-term stability and settlement conditions. Considering the existing or proposed subgrade conditions and the landfill geometry, analysis shall include: Foundation bearing capacity; Subgrade settlements, both total and differential; and Subgrade slope stability. Angelo's conducted a geotechnical site investigation, but it was not adequate, as discussed below and in sections I. and J. The proposed landfill site is geologically complex, having features that are discontinuous horizontally and vertically. The site has karst features or areas where the limestone has dissolved. There is a clay layer in some areas, but it is not continuous and its depth and thickness vary. There are deposits of hard and soft sands at various depths. There are pinnacles of limestone surrounded by softer materials. Photographs from a quarry called the Vulcan Mine, located on the western flank of the Brooksville Ridge, show exposed features in the top 20 to 30 feet of the Suwannee Limestone in the region. The features at the Vulcan Mine are roughly similar to features at the Angelo's site. There are a number of shallow depressions on the surface of the ground on the Angelo's site. The origin and significance of these depressions was a matter of dispute. The Aligned Parties believe they represent sinkhole activity, but the evidence presented did not rise to the level of proof. However, Angelo's did not prove they were unassociated with geotechnical issues that could affect the proposed landfill. Angelo's offered no reasonable explanation for the depressions. Determining the exact cause of the depressions may not be possible even with more extensive investigation, but it was Angelo's responsibility as the permit applicant, pursuant to rule 62-701.410(2)(c), to make a greater effort to account for them. Angelo's initial permit application identified two intersecting lineaments on Angelo's property, based on aligned lowlands, enclosed valleys, and ponds. Angelo's contends the lineaments do not reflect an unstable subsurface or fractured limestone. The Aligned Parties contend that the lineaments are regional features and reflect fractures in the bedrock. They also contend that the onsite pond, which is located along the lineament, is an old sinkhole. The Aligned Parties did not prove the proposed landfill site is above an area of fractured bedrock, but the evidence presented by Angelo's was incomplete and insufficient to show there are no fractures. The limestone on the site was not adequately investigated for voids and fractures. Angelo's did not refute the possibility that the lineaments reflect a significant subsurface feature that could affect both site stability and groundwater movement. The Regional and Local Hydrogeology Rule 62-701.410(1) requires a hydrogeological investigation and site report, which shall: Define the landfill site geology and hydrology and its relationship to the local and regional hydrogeologic patterns including: Direction and rate of ground water and surface water flow, including seasonal variations; Background quality of ground water and surface water; Any on site hydraulic connections between aquifers; For all confining layers, semi-confining layers, and all aquifers below the landfill site that may be affected by the landfill, the porosity or effective porosity, horizontal and vertical permeabilities, and the depth to and lithology of the layers and aquifers; and Topography, soil types and characteristics, and surface water drainage systems of the site and surrounding the site. Include an inventory of all the public and private water wells within a one-mile radius of the proposed landfill site. The inventory shall include, where available: The approximate elevation of the top of the well casing and the depth of each well; The name of the owner, the age and usage of each well, and the estimated daily pumpage; and The stratigraphic unit screened, well construction technique, and static water levels of each well. Identify and locate any existing contaminated areas on the landfill site. Include a map showing the locations of all potable wells within 500 feet of the waste storage and disposal areas to demonstrate compliance with paragraph 62- 701.300(2)(b), F.A.C. Angelo's conducted a hydrogeological investigation, but it was not adequate, as discussed below. Angelo's and the Aligned Parties disputed the hydrogeological characteristics of the proposed landfill site and region. The principal disputes related to the direction and velocity of groundwater flow. Angelo's contends that groundwater flows from the landfill site to the west, making the proposed landfill site part of the Withlacoochee River groundwater basin. The Aligned Parties contend that groundwater flows south toward Crystal Springs and, therefore, the site is within the "springshed" of Crystal Springs. A United States Geological Survey map of the Crystal Springs springshed shows Angelo's proposed landfill site within the springshed. A springshed study done for SWFWMD also indicates the site is within the Crystal Springs springshed, but the District has not always been consistent in its statements about the groundwater basin boundaries in this area. A water chemistry analysis of the groundwater in the area of Angelo's proposed landfill indicates that the site is an area of higher recharge and within the Crystal Springs springshed. The springshed boundary can shift, depending on rainfall. Angelo's hydrogeological evidence was not sufficient to refute the reasonable possibility that the proposed landfill site is within the Crystal Springs springshed. Therefore, the Department's determination whether Angelo's has provided reasonable assurances must account for the threat of contamination to Crystal Springs and the other public and private water supply sources to the south. There are no creeks or streams and only a few lakes in the area between Crystal Springs and the Angelo's site. The absence of surface runoff features indicates it is an area of high recharge to the groundwater. Crystal Springs is in an area of conduit flow. The hydrologic investigation conducted by Angelo's was not thorough enough to characterize surficial aquifer flow and flow between aquifers. The preponderance of the evidence shows more groundwater recharge to the Floridan Aquifer in the area than estimated by Angelo's. Angelo's hydrogeological investigation was inadequate to refute the possibility of fractured flow or rapid groundwater movement at the proposed landfill site. Angelo's contends there is a continuous clay confining layer that would prevent contamination from moving into deep zones, but the preponderance of the evidence shows discontinuity in the clay and large variations in thickness and depth. The landfill's impermeable liner will impede water movement downward from the landfill, but groundwater will still recharge from outside the landfill to carry any contaminants deeper. If fractured flow or conduit flow extends south from the proposed landfill site, any leachate released into the groundwater beneath the landfill could travel rapidly toward the water supply sources of the City of Zephyrhills, Crystal Springs, Nestlé, and the City of Tampa. Whether the Proposed Landfill is in an Unstable Area Rule 62-701.200(2)(a) prohibits the storage or disposal of solid waste "[i]n an area where geological formations or other subsurface features will not provide support for the solid waste." However, the Department has adopted by reference a federal regulation, 40 C.F.R. 258.15, which allows a landfill to be constructed in a geologically unstable area if the permit applicant can demonstrate that engineering measures are incorporated into the design to ensure that the integrity of the landfill’s structural components "will not be disrupted." The parties presented evidence on many disputed issues of fact at the final hearing, but most of the case involved two ultimate questions: whether the proposed landfill site is unstable and, if so, whether Angelo's has proposed measures that would eliminate the unstable conditions and make the site suitable for a landfill. as: An "unstable area" is defined in 40 C.F.R. § 258.15 A location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terrains. There is overwhelming evidence that the proposed landfill site is an unstable area. A considerable amount of evidence presented by Angelo's supports this finding. For example, Angelo's experts agreed there are loose soils, evidence of raveling, and sinkhole activity. These conditions make the site susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from the proposed landfill. The Department's landfill permitting staff requested a sinkhole risk assessment from the Florida Geologic Survey ("FGS"). The State Geologist and Director of the FGS, Dr. Jonathan Arthur, believes the potential for sinkhole formation at the proposed site is moderately high to high. That potential is consistent with the characterization of the area as unstable. Whether the Proposed Engineering Measures Are Adequate Because the site is unstable, Angelo’s must demonstrate that engineering measures have been incorporated into the landfill's design to ensure that the integrity of its structural components will not be disrupted. See 40 C.F.R. § 258.15(a). The engineering measures proposed by Angelo's are discussed below. Because it was found that Angelo's hydrogeological and geotechnical investigations were not sufficient to characterize all potentially unstable features of the subsurface, it was not demonstrated that the proposed engineering measures would overcome the instability and make the site suitable for a landfill. Roller Compaction Angelo's would use roller compaction on the graded floor of the landfill to compact the soils to a depth of about five feet and eliminate any voids within that depth. The Aligned Parties did not contradict Angelo's evidence that its proposed roller compaction will be done in a manner exceeding what the Department usually requires as far as roller force and the number of roller "passes." However, roller compaction will not affect deep voids. Liner System In order to ensure that the landfill’s liner system components will not be disrupted in the event of a sinkhole, Angelo’s proposes to include the reinforcement geotextile discussed above. The Department previously approved the use of geotextile reinforcement, combined with grouting, to demonstrate site stability for the Hernando County Northwest Landfill, which had a comparable risk of sinkhole formation according to the Department. The reinforcement geotextile can span a 15-foot diameter sinkhole without failure. As found above, the average diameter of the seven sinkholes within five miles of the proposed landfill is 11.9 feet. Angelo's proved that the proposed liner system meets all applicable criteria, except the requirement of rule 62- 701.400(3)(a) that the liner be installed upon a geologically stable base. Grouting Plan Angelo's grouting plan would be implemented to fill voids and stabilize areas of loose or weak material. The grouting plan was first designed to grout all locations where there was a Weight of Hammer, Weight of Rod, Loss of Circulation, or loose sands, as indicated by a low blow count. Angelo's revised the grout plan to include several more areas of concern identified later, for a total of 39 locations. Each grout location would have seven grout points, one in the center and six others equally-spaced on a ten-foot radius from the center. If more than ten cubic yards of grout is needed, additional grout points further outward would be injected until the void or loose soils are filled or stabilized. Although Angelo's proposes to grout every boring of concern, that still ties the integrity of the grouting plan to the thoroughness of the borings. The geologic evidence indicates that there are unstable areas which the grouting plan does not address. The Aligned Parties' MER analysis was persuasive in identifying potential areas of instability that were omitted from Angelo's investigation and from its grouting plan. There are other unstable areas existing on the site that should be grouted or otherwise engineered to provide support for the landfill. The grouting plan does not provide reasonable assurance that the integrity of the structural components of the landfill will not be disturbed. Other Issues Raised by the Aligned Parties The Aligned Parties raise a number of other issues, some of which begin with the assumption that the site is unstable and a large sinkhole would form at the landfill. This sometimes mixes issues inappropriately. It has been found that Angelo's did not provide reasonable assurance that the site will support the proposed landfill, but other project elements must be reviewed on their own merits where possible, assuming the site was engineered for stability. Leachate Collection System There is a single leachate collection trench in the center of the two landfill cells, which makes the landfill operate much like a single cell. The two halves of the cell slope toward the center, so that leachate will drain to the leachate collection trench, and the entire landfill slopes to the west, so that the trench will drain to a sump from which the leachate is pumped to storage tanks. At full capacity, the landfill will generate about 40,000 gallons of leachate per day. Careful cutting and grading of the earth is necessary to create the slopes that are essential to the proper functioning of the project’s leachate collection system. Settlement analyses are necessary to assure that the slopes are maintained. Rule 62-701.410(2)(e) requires a foundation analysis which must include a study of "subgrade settlements, both total and differential." "Total settlement" refers to the overall settlement of a landfill after construction and the loading of solid waste. "Differential settlement" compares settlement at two different points. Angelo's did not meet its burden to provide reasonable assurance on this point. The settlement analysis conducted by Angelo's was amended two or three times during the course of the final hearing to account for computational errors and other issues raised by the Aligned Parties. The analysis never came completely into focus. The final analysis was not signed and sealed by a professional engineer. The settlement analysis is dependent on the geologic analysis, which is inadequate. Without adequate settlement and geologic analyses, it cannot be determined that leachate collection would meet applicable criteria. Storage Tanks The Aligned Parties contend that the leachate storage tanks cannot be supported by the site. Because it was found that Angelo's geologic investigation was not adequate to identify all unstable areas, it is also found that Angelo's failed to provide reasonable assurance that the site would support the leachate storage tanks. In all other respects, the Aligned Parties failed to refute Angelo's demonstration that the storage tanks would meet applicable criteria. Groundwater Monitoring Plan The Aligned Parties contend that there is an insufficient number of monitor wells proposed by Angelo's to detect a leak from the landfill and the wells are too shallow. Because it was found that Angelo's did not adequately characterize the geology and hydrology of the proposed landfill site, the monitoring plan does not provide reasonable assurance of compliance with applicable criteria. Cell Design The Aligned Parties contend that the "mega-cell" design proposed by Angelo's provides less flexibility to respond to and isolate landfill problems than other landfill designs with smaller cells, and the mega-cell design could generate more leakage. No evidence was presented to show whether Angelo's design was one that had been approved or rejected in the past by the Department. Although it is not the best landfill design, the Aligned Parties did not show that the proposed design violates any permitting criteria. Operation and Closure The evidence presented by the Aligned Parties in support of their issues regarding the operation of the proposed landfill, such as noise, odor, and traffic, was not sufficient to refute Angelo's evidence of compliance with applicable criteria, with one exception: Angelo's has not provided an adequate contingency plan to show how it would respond to a sinkhole or other incident that required the landfill to be shut down and repaired. Assuming the site was engineered to support the landfill, there is nothing about the Closure Plan that the Aligned Parties showed does not meet applicable criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny Angelo's Permit Application Nos. 22913-001-SC/01 and 22913- 002-SO/01. DONE AND ENTERED this 28th day of June, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2013. COPIES FURNISHED: Carl Roth, Qualified Representative 8031 Island Drive Port Richey, Florida 34668-6220 Christopher M. Kise, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 Wayne E. Flowers, Esquire Lewis, Longman and Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32202-4931 Janice M. McLean, Esquire City of Tampa 7th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 Joseph A. Poblick, Esquire City of Zephyrhills 5335 8th Street Zephyrhills, Florida 33542-4312 Doug Manson, Esquire William Bilenky, Esquire Brian A. Bolves, Esquire Manson Bolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 Jacob D. Varn, Esquire Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler, White, Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32302-1547 David Smolker, Esquire Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A. Suite 200 500 East Kennedy Boulevard Tampa, Florida 33602-4936 Stanley Warden, Esquire Christopher Dale McGuire, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, 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 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
The Issue The issue is whether Respondents should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a solid waste management facility without a permit and disposing of solid waste in an area subject to periodic or frequent flooding.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background DDD is a corporation registered to do business in the State of Florida. Its president and sole director is William H. Stanton, Jr. The corporation is engaged in the business of "mobil recycling activities" (reduction recycling services for customers). Mr. Stanton owns a two-acre tract of property located in Section 26, Township 28S, Range 24B, on the northwest corner of Mustang Road and Longhorn Drive, Lakeland, Florida. The property is zoned for heavy industrial uses and was formerly used in some form of phosphate mining operations. The Department is the agency charged with the duty of administering and enforcing the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder. Based upon a complaint made by a Polk County Health Department employee, on October 8, 2001, a Department enforcement coordinator, Steven G. Morgan, inspected Mr. Stanton's property and observed that Respondents had filled and compacted an approximate 150 foot by 300 foot area of the site with 3 to 5 feet of "wallboard type material," which consisted of "both ground up and large pieces of wallboard." In the middle of the filled area was an additional pile of the same material around 20 to 25 feet high. Petitioner's Exhibits A, D, and E are photographs which provide an accurate representation of the site on the date of the inspection. Based on a visual inspection, but without having the benefit of his own laboratory analysis,2 Mr. Morgan concluded that the material was a solid waste made up of discarded industrial products. Under Department rules, the deposit of solid waste on such a site requires a waste facility management permit from the Department. A check of Department records indicated that Respondents do not hold a permit to operate a solid waste management facility. (DDD does hold a valid air pollution permit for grinding concrete.) During his inspection, Mr. Morgan also observed that the land adjacent to the filled area was wet, had a lower elevation than the compacted area, and contained small pockets of standing water. This was confirmed by photographs received in evidence as Petitioner's Exhibits D and E. A DDD employee who was present on the site during the inspection indicated that approximately 900 truck loads of the material had been transported to the site from Plant City after Mr. Stanton had "lost" a lease on the property on which the material had previously been placed. This was confirmed by Mr. Stanton who arrived at the site shortly after the inspection began, and who indicated that he intended to use the compacted wallboard as a sub-base (or foundation) for a wallboard recycling facility. A second site inspection by Mr. Morgan conducted on February 5, 2002, confirmed that the conditions (regarding the piles of fill material but not the standing water) at the site were unchanged from those found on October 8, 2001. On that visit, Mr. Morgan observed the site from his automobile but did not walk the property. Two other site visits were made, one on June 19, 2002, by other Department personnel. Except for a photograph (Petitioner's Exhibit C) dated June 19, 2002, which indicates the piles of material were still intact and had not been removed, the results of those inspections are not of record. Shortly after the initial inspection, the Department's Tampa District Office issued a warning letter to Mr. Stanton describing Mr. Morgan's observations and outlining the potential violations. The letter also invited Mr. Stanton to resolve the matter informally and to present a corrective action plan to mitigate the site. When the matter could not be resolved informally, the Department issued its Notice on October 10, 2002, alleging that Respondents had operated a solid waste facility without a permit and had deposited solid waste in an area prone to flooding. Even though the matter was not informally resolved, Mr. Stanton has cooperated with the Department in good faith throughout the regulatory process. The Material on the Site Invoices received in evidence reflect that the source of the deposited material was James Hardie Building Products in Plant City, Florida, and that the material was described on the invoices as "Dry Waste Material," Wet Waste Material," and "Foreign Material." James Hardie Building Products manufactures HardieBoard, which is a one-half to one-inch thick concrete formulated product used in the construction of homes and other buildings, and HardiePipe, which is used in road and bridge construction, culverts, storm sewers, and concrete pipes. The material being deposited was material used in the manufacture of HardieBoard. Mr. Stanton's long-range plans are to grind up, or recycle, the material (after all necessary permits, if any, are obtained) and then sell it to other persons, including cement manufacturing plants in the area, who will then use it for a variety of purposes, including subbase and base material, cement and concrete re-additive, and cement production. HardieBoard (as well as HardiePipe) is a variable mixture of Portland cement, water, fine silica sand, less than 10 percent cellulose (a non-toxic organic material commonly added to such products as ice cream, shampoo, baby diapers, and rayon clothing), and less than 10 percent of inert materials. The cellulose fibers are added to the concrete to avoid cracking and shrinkage and to reduce the weight of the product. Unlike concrete used for driveways and the like, HardiBoard does not have any large aggregate. Disposal of Solid Waste and Clean Debris Florida Administrative Code Rule 62-701.300(1)(a) prohibits the storing, processing, or disposing of solid waste except at a permitted solid waste management facility. In addition, no solid waste may be stored or disposed of "[i]n an area subject to frequent and periodic flooding unless flood protection measures are in place[,]" or "[i]n any natural or artificial body of water including ground water." Fla. Admin. Code R. 62-701.300(2)(d) and (e). These requirements form the basis for the charges in the Notice. Florida Administrative Code Rule 62-701.200(113) defines solid waste in relevant part as "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations." Section 403.707(2)(f), Florida Statutes (2003), provides, however, that a permit is not required for "[t]he use of clean debris as fill material in any area." See also Fla. Admin. Code R. 62-701.220(2)(f). "Clean debris" is defined in Florida Administrative Code Rule 62-701.200(15) as: any solid waste which is virtually inert, which is not a pollution threat to ground water or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes brick, glass, ceramics, and uncontaminated concrete including embedded pipe or steel. The term "virtually inert" is not defined by statute or rule. However, the parties agree that in order for a material to be "virtually inert," it must have no potential for leaking contaminants into the groundwater. In addition, if a deposited material releases contaminants into the groundwater thereby posing a threat to human health, it is considered a "threat to [groundwater]" within the meaning of the rule. The rule also provides that the material must not be a fire hazard. Finally, if a material decomposes over time after being used as fill, and releases contaminants into the groundwater, it is not "likely to retain its physical and chemical structure under expected conditions of disposal or use." Therefore, if a material has no potential for leaking contaminants into the groundwater, is not a threat to groundwater, is not a fire hazard, and is not likely to decompose over time, it constitutes clean debris and is exempt from the waste management facility permitting requirements. As noted above, Florida Administrative Code Rule 62- 701.200(15) identifies four materials that are considered to be clean debris: brick, glass, ceramics, and uncontaminated concrete. If a waste product is classified as uncontaminated concrete, it constitutes clean debris and may be used as fill without a permit from the Department. Further, clean debris may be deposited in an area subject to frequent or periodic flooding so long as flood protection measures are taken, or in a natural or artificial body of water so long as other appropriate permits (such as an Environmental Resource Permit) are obtained. Here, the central issue is whether the material deposited on Mr. Stanton's property is solid waste or clean debris. This issue turns on whether the material is virtually inert, is not a pollution threat to groundwater or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Assuming these criteria are satisfied, the material is exempt from Department permitting requirements for solid wastes. On this issue, the Department contends that the material is not virtually inert and is unlikely to retain its physical and chemical structure. Conversely, Respondents assert that the material is clean debris and falls within the category of uncontaminated concrete. Is the Deposited Material Clean Debris? In determining whether a material is virtually inert, or is a pollution threat to ground or surface waters, two extraction procedures have been sanctioned by the United States Environmental Protection Agency to assist in the measurement of the amount of contaminants that will leak from a material: the Toxicity Characteristic Leaching Procedure (TCLP) and the Synthetic Precipitation Leaching Procedure (SPLP). Under both procedures, the material being tested is ground up into small sand-size particles, mixed with an extraction fluid, and tumbled for 18 hours in a rotary agitator while the liquid solution extracts various metals that are found in the solids. The extracted liquid solution is then filtered and analyzed to determine the concentration of metals actually leached from the solids. Under state water drinking standards found in Table 1 of Florida Administrative Code Chapter 62-550, the maximum contaminant levels for chromium and barium (stated in milligrams per liter (mg/L)) are 0.1 mg/L and 2 mg/L, respectively. In reaching its conclusion that the fill material is a solid waste, the Department relied principally on certain tests of the material run by various laboratories between 1998 and 2000, which showed that the amount of chromium and barium leaking out of the product exceeded the State drinking water standards. See Petitioner's Exhibits K, L, M, and O. However, in every one of those tests, the laboratories used the TCLP, rather than the SPLC, which produced a worst case scenario. For the reasons stated below, the TCLP is not the appropriate procedure to be used for this purpose. The TCLP is the more aggressive of the two procedures, uses a much harsher solution than the SPLC, and generally leaches higher concentrations of metals. However, its principal purpose is to determine whether a material should be classified as a hazardous waste based on its leaching properties or characteristics. Using it to predict whether a material will leach into ground water is inappropriate because it will "leach things out in the laboratory that will never leach in the field." This is because it does not mimic conditions in the field and is "just not supposed to be used for this purpose." Therefore, TCLP leachate values should not be applied to drinking water standards. Conversely, the SPLC uses a less harsh solution during the preparation process, evaluates the potential for leaching metals into ground and surface waters, and is designed to provide a more realistic assessment of metal mobility under actual field conditions. In other words, the SPLC simulates what would happen if the sample were exposed to groundwater and rain to determine if under those conditions metals might leach into the water system below. Therefore, the SPLC is the more appropriate procedure to use here to determine whether the HardieBoard material will leach certain metals into the groundwater at levels that exceed State drinking water standards. Even various Department guidance documents provide that the SPLC (rather than the TCLP) should be used to determine if a material will leach metals into the ground water. See Respondents' Exhibits M, N, and O. Respondents' witness Foster collected three samples of HardieBoard deposited by Respondents at another site and submitted them to PPB Environmental Laboratories, Inc., in Gainesville, Florida, for a clinical analysis using the SPLC test. Those results, which have been accepted as being reliable,3 indicate that none of the leachate concentrations for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver exceed (or even approach) the drinking water standards. Therefore, the material is virtually inert, and the groundwater quality will not be adversely impacted by use of this material as fill. The parties agree that the material is not a fire hazard. Prior to depositing the material, Mr. Stanton used a commercial waste reduction machine (a Smorcazy Bandit Beast 3680 Horizontal Trough Grinder) to grind or pulverize some of the material into fine particles. As noted earlier, a small amount of cellulose fibers are added to the product during the manufacturing process. The Department contends that after the grinding process occurs, these fibers will separate from the remaining fine particles and dissolve into the ground water. Because of this separation, the Department asserts that the material does not retain its physical or chemical structure after being deposited onto the property. Although cellulose fibers are added to the product during its preparation to strengthen the material (and have been added by cement manufacturers since the 1920s), they are distributed throughout the matrix in the material. This means that the fibers become "part and parcel of the mixture" and will not deteriorate, fall out, or leach out of the material even after routine grinding processes, such as that done by Respondents. As such, the cellulose is not biodegradable, and there is no concern that the cellulose will dissolve into the groundwater. Indeed, HardiePipe, which is used in the construction of culverts, storm sewers, and drainage pipes and has essentially the same constituents as HardieBoard, was approved by the Florida Department of Transportation in 2001 for use on State road and bridge projects. Therefore, it is found that the fill material will retain its physical and chemical structure after being deposited onto the ground. Expert testimony by Dr. McClellan established that the material meets the general definition of concrete, and because it is uncontaminated, it should properly be classified as uncontaminated concrete. As such, the material is clean debris and is not subject to the Department's solid waste management permitting requirements. Finally, the Department points out that the compressive strength (measured in pounds per square inch (PSI)) is much greater for concrete used in driveways than for HardiBoard (2500 PSI versus 20 to 30 PSI), and therefore Hardiboard is not a true concrete product. While the PSI values are indeed substantially different, the load bearing ratio or compressive strength of the material does not determine whether a material falls within the generic category of concrete. Water Issues As noted above, if a material is classified as clean debris, it may be deposited into an area prone to flooding or in a natural or artificial body of water, including groundwater (subject, of course, to other unrelated requirements or safeguards). There is no evidence that the filling occurred in a "natural or artificial water body," or directly into the groundwater. In addition, the evidence demonstrates that in October 2001, the ground next to the filled area had small pockets of standing water measuring no more than a few inches deep. However, when the inspection was made, and the photographs taken, Polk County was experiencing rather heavy rainfall, presumably due to the El Nino phenomenon. Whether these conditions (pockets of standing water) exist on the property only during the rainy season is not of record. Further, prior to the filling, Mr. Stanton contacted both the Southwest Florida Water Management District and the United States Geodetic Survey and he asserted, without contradiction, that neither agency indicated that his property was prone to flooding. In any event, even assuming that the area is subject to "frequent and periodic flooding," the permit requirements or other necessary safeguards, if any, associated with filling clean debris in such an area are not the subject of this proceeding. Investigative Costs A Department representative spent 66 hours investigating this matter for the Department. At a then-hourly rate of $18.54, this totals $1,223.64 in investigative costs. The reasonableness of this amount was not disputed by Respondents.
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
Findings Of Fact As a part of its solid waste disposal program, the City of Naples operates a yard trash compost site adjacent to the Gordon River within the city limits. A fifteen (15) acre site has been leased from a private owner, and the lease requires that the City operate the site in compliance with permitting requirements. The site is intended to received only horticultural yard trash. The City picks up such trash in trucks, and delivers it to the site. Cells, or ditches, have been excavated at the site to a depth of approximately six (6) feet. The trash is deposited into the cells. The cells are excavated to a depth below the ground water level, so the trash is placed directly into the ground water. Although only horticultural yard trash is intended to be disposed of at the site, and although the City attempts to enforce this intention, household garbage including food waste frequently finds its way into the cells. The City has been utilizing this site in this manner for approximately fifteen (15) years, and for at least the past ten (10) years has operated under all required local and state permits. The City is presently operating the site in accordance with a permit issued by the Department of Environmental Regulation on December 31, 1976. The permit expires on January 1, 1980. Sometime in February, 1979, the Department first gave notice to the City that the yard trash compost site was not being operated in conformity with all applicable rules and regulations. Specifically the Department advised the City that the site violated the provisions of Rule 17-7.04(2)(a), Florida Administrative Code, because solid waste was deposited within 200 feet of a natural water body (the Gordon River) and Rule 17-7.04(2)(f), because solid waste was deposited in an area where the water table was less than five (5) feet below the normal ground surface. Rule 17-7.04(2)(f) was modified during the course of this variance application proceeding. The rule now requires that solid waste not be deposited directly into the ground water. The City's site neither conformed with the rule in effect in February, 1979, nor with the present modified rule. The Department and the City agreed that the City could continue to operate the site pending the completion of this proceeding, and, until all present cell excavations are filled. Yard trash compost sites such as that operated by the City do not involve as profound a threat to water quality as do more generalized solid waste disposal sites. Nonetheless placing of large quantities of yard trash at or in water bodies will cause infusion of large quantities of nutrients into the water body. The composting or breaking down of yard trash can take place under either aerobic or anaerobic conditions. Aerobic decomposition takes place where vegetation is exposed to oxygen. Anaerobic decomposition takes place where there is no oxygen. If vegetation is covered by water or soil it will not have oxygen. The materials will only partially decompose through a process called fermentation. Such material, when not fully decomposed, cannot be fully compacted nor reduced in volume as would happen with aerobic decomposition. The system utilized by the City of Naples therefore will result in a springy texture to the area. When decomposition takes place above ground, and vegetation is exposed to oxygen, the Vegetation can break down into its primary elements, resulting in a humus material which can be utilized to condition soil, and which will become part of the soil and stabilize the soil. The City's method of disposal introduces very concentrated amounts of organic substances into the ground water. There is thus a large increase in nitrogen and phosphates in the ground water. Placing such large quantities of organic material into the ground water effectively pollutes the ground water. There is a shallow water aquifer below the surface level at the trash compost site. Below this aquifer is a layer of sand, marl and rock which is not highly permeable. Below this layer lies a second aquifer which is an important source of drinking water in the area. Trash at the compost site under the City's present system is deposited directly into the upper aquifer. This water flows either into the Gordon River adjacent to the site, or more slowly permeates down into the lower aquifer. Placing the organic materials into the ground water thus constitutes a serious source of pollution either to the Gordon River, or to the lower aquifer, or to both. Certainly it serves to profoundly degrade the water quality of the ground water. The City has operated two (2) test wells adjacent to the site for the past eighteen (18) months. Results of samples taken from these test sites are inconclusive, and do not reveal that the City's disposal system has caused any pollution whatsoever. This does not mean, however, that no adverse impact could have been detected, or that none has taken place. The City's test wells were not placed so that they would intercept the flow of ground water from the site. Even if they had been so placed, testing has taken place only every six (6) months, and not in a manner so that any viable conclusions can be reached. The Department has recently installed test wells, and although data from them is not complete, it does reveal a definite flow of pollutants from the site to the test wells. Although the flow of ground water will serve to dilute the pollutants to some degree, it is inevitable that the ground water supply itself will be degraded, and that eventually either the waters of the Gordon River or of the lower aquifer will also be adversely affected. Under its present system the City estimates that it will be able to utilize the compost site for eight more years. The City has contended that operating the site as an above ground compost site would effectively cut in half the time period over which the site could be utilized and would increase the cost of maintaining the site by requiring additional equipment, and eventually requiring additional equipment for the transporting of yard trash to a remote site. These contentions are not supported by the evidence. In the first place the City could save money in operating the site as an above ground composting site because it would not be necessary to make excavations. Furthermore, above ground composting of the materials would result in usable compost which could be sold as land fill. This could constitute a source of revenue, and also open the site for additional usage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered granting the variance application filed by the City of Naples with respect to its request to be relieved from the requirements of Rule 17-7.04(2)(a), with conditions imposed as set out in the Department's notice dated June 21, 1979 (DER Exhibit 4). That a final order be entered denying the exemption request filed by the City of Naples with respect to the requirements of Rule 17-7.04(2)(f). RECOMMENDED this 28th day of November, 1979, in Tallahassee, Florida. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David W. Rynders City Attorney City of Naples 735 8th Street South Naples, Florida 33940 Ray Allen Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner's present solid waste-disposal system consists of the operation of six sanitary landfill sites. These sites are being operated in accordance with temporary permits issued by the Respondent. Four of the sites are not adequate sanitary landfill sites. Two of the sites, which are known as the "Sims Farm" and "Ephesus" sites can be developed into acceptable landfill sites. Petitioner has not developed any comprehensive plan designed to comply with the Florida Resource Recovery and Management Act, and the rules of the Respondent respecting solid waste disposal systems. When its present temporary permits expire the Petitioner intends basically to continue operating the Sims Farm and Ephesus landfill sites, and to' locate at least two other acceptable sanitary landfill sites. Petitioner intends to comply with all of the Respondent's regulations, but it contends that it cannot comply with the regulation which requires that the landfills be covered every working day. Petitioner proposes to cover the landfills twice weekly rather than daily. Lafayette County is a large county in terms of area, but is very small in population, having less than 3,500 residents. Residents of the county are engaged primarily in agriculture. The county does not have a broad tax base. Estimated revenues for the 1977 fiscal year are $113,340. Thirty thousand dollars has been designated from the county's budget to operate a solid waste disposal system. The clerk of the County Commission is in charge of the county's present solid waste disposal system. The county does not have a full time employee designated to operate the system. The clerk of the County Commission has many duties other than operating the solid waste disposal system. Residents of the county are satisfied with the present system. Prior to the opening of the present sanitary landfill sites there was considerable dumping on private property, on highway right-of-ways, or in the river slough. The amount of waste deposited in the county's present landfills is very small in relation to counties with a higher or more concentrated population. There is very little industrial or commercial waste, and a smaller percentage of putrescible materials than would be found in more urban counties. Although there is a county ordinance prohibiting it, dead animals are occasionally deposited in the landfill sites and burning of trash does occur. Chemical agricultural waste is also deposited in the landfills. Lafayette County has utilized temporary permits to operate its present landfill sites. The permits require the submission of periodic reports. The county has not submitted these reports as required by the permits. Counties surrounding Lafayette County have had varying experiences in reaching full compliance with the Florida Resource Recovery and Management Act, and the rules of the Respondent dealing with solid waste disposal systems. In Taylor County, a county with a population of approximately 14,500, approximately $120,000 was invested in equipment. Daily cover of sanitary landfills, including the dumping of green boxes utilized in Taylor County cost $6,512.42 in January, 1976, and $7,159.85 in January, 1977. Compliance with the statutes and regulations necessitated an increase in the county's tax rate. Compliance is being achieved in Gilchrist County, a small agricultural county at very low cost utilizing a single sanitary landfill site system. Compliance has been achieved in Dixie County, a small agricultural county through use of a green box system. Very little research has been performed by Lafayette County to determine how compliance could be achieved most inexpensively. Daily cover of sanitary landfill sites is desirable. Daily cover is the most effective means of preventing open burning in landfill sites, leachate of solid waste, flies and rodents. Daily cover does not totally alleviate these conditions, but it is the most effective means of combating them. Daily cover is much more necessary in areas where there are large amounts of solid wastes than it is in areas with small amounts. Daily cover is also more necessary in areas where there is a large proportion of putrescible versus non-putrescible materials than it is in areas with a smaller percentage. In order to comply with the Respondent's regulations when its present temporary permits expire, the Petitioner will need to purchase a tractor or bulldozer in order to provide a cover at the landfill sites. If daily cover is required, the county will need to hire a full-time individual to perform the cover. If twice weekly cover is permitted the county will be able to operate its system without the necessity of employing an additional person. Twice weekly cover would reduce the operating costs of the county's system by reducing fuel and maintenance costs of vehicles. In view of the fact that no detailed examination has been made of the cost of full compliance, it is not possible to determine from the facts presented whether it is practicable for the Petitioner to comply with the regulations, or whether the expense or cost of measures which the Petitioner must take in order to comply are so great that they should be spread over a considerable period of time. The most that can be determined is that daily cover would be more expensive than twice weekly cover, and that twice weekly cover would not have any profoundly negative environmental effects in Lafayette County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered denying the Petitioner's application for variance. RECOMMENDED this 18th day of March, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle E. Montgomery Building Tallahassee, Florida 32301 Conrad C. Bishop, Jr., Esquire Weed & Bishop P. O. Box 1090 Perry, Florida 32347 Mr. Jay Landers, Secretary Department of Environmental Regulation 2562 Executive Center Circle E. Montgomery Building Tallahassee, Florida 32304
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Voluntary Dismissal filed by the Petitioner. A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-056 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 23-4 day of March, 2010. U.S. Mail: The Honorable D.R. Alexander Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Melvin Wolfe, Esq. Town of Medley 7777 N.W. 72nd Avenue Medley, Florida 33166 Jeffrey S. Bass, Esq. Shubin & Bass, P.A. 46 S.W. First Street, 3rd Floor Miami, Florida 33131 Hand Delivery: Richard Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Paula Ford Agency Clerk Douglas M. Halsey, Esq. White & Case, LLP Wachovia Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131 Barbara J. Riesberg, Esq. 1000 Brickell Avenue, Suite 200 Miami, Florida 33131
The Issue Whether the City of Jacksonville has provided reasonable assurances that a proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill will not cause pollution in violation of any of the provisions of Chapter 403, Florida Statutes, or the rules promulgated thereunder? Whether the City of Jacksonville proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill should be denied because of alleged violations of the City of Jacksonville's permit or Florida law?
Findings Of Fact Introduction. The City of Jacksonville North Sanitary Landfill. The City of Jacksonville (hereinafter referred to as the "City") operates two solid waste disposal facilities. One, the City of Jacksonville North Sanitary Landfill (hereinafter referred to as the "North Landfill"), is located at the intersection of New Berlin Road and Island Drive in the northern part of the City and Duval County, Florida. The North Landfill is operated pursuant to permit #SC16-12205 (hereinafter referred to as the "Permit"), issued by the Department on June 6, 1988. The Permit was issued "for operation of the City of Jacksonville North Sanitary Landfill, Phases I, II, and 111a; and of a new disposal area at the North Sanitary Landfill, Phase IIIb." The area in which the North Landfill is located is generally commercial property, with some rural and residential property: The North Landfill is bounded on the north by unimproved land owned by the City. This property stretches to Cedar Point Road. A few parcels within the property owned by the City to the north of the North Landfill are owned by others, including Mr. and Mrs. Leigh. The property to the east of the North Landfill is also unimproved property. It is owned by the St. Johns River Power Park. The St. Johns River Power Park is a power plant facility operated as a joint venture by the City, the Jacksonville Electric Authority and Florida Power and Light. The plant is located on the southern boundary of the North Landfill. The west boundary of the North Landfill is New Berlin Road. The property to the west of New Berlin Road is owned by a number of persons, including M & M Dairy. Phase IIIb of the North Landfill is located in the northeast quadrant of the landfill. The North Landfill primarily serves northern, and a part of western, Duval County. Approximately 3,000 tons of solid waste is disposed of each day in Jacksonville. Approximately 55% of the solid waste is disposed of at the North Landfill. The solid waste disposed of at the North Landfill consists primarily of mixed municipal solid waste and commercial solid waste. The North Landfill is open seven days a weeks from 5:00 a.m. to 11:00 p.m. All phases of the North Landfill are permitted to a height of 75 feet. The land on which the North Landfill is located is approximately 25 to 30 feet above sea level. Therefore, approximately 45 to 50 feet of solid waste can be disposed of at the North Landfill. All phases of the North Landfill have some remaining capacity for the disposal of additional solid waste. The Petitioners. Ms. Holzendorf's residence is approximately ten miles from the North Landfill. Her office is located approximately seven miles from the North Landfill. She does not own any real property located in the immediate vicinity of the North Landfill. Ms. Holzendorf can smell the odor from the North Landfill at her residence when the wind is blowing from the North Landfill toward her residence. Ms. Holzendorf is a Florida State Representative for District 16. District 16 includes the population of approximately one-third of Duval County, The North Landfill is located within District 16. Ms. Holzendorf has received complaints from some of her constituents about the North Landfill. Ms. Holzendorf drives by the North Landfill approximately twice a week. She has visited the site on several occasions. Robin G. and Geraldine Leigh own real property adjacent to Cedar Point Road. The land is unimproved except for a well. The Leigh's land is located north of the unimproved City property located adjacent to the northern boundary of the North Landfill. The Leighs' land is approximately three-fourths of a mile from the North Landfill. The City's Proposal. On August 3, 1988, the City filed an application with the Department for a modification of its Permit. In its application the City requested a "construction permit modification" of its Permit consisting of "extending the height of Phase IIIb of the North Landfill to a constructed elevation including final cover of no greater than 110 feet, NGVD." The City's requested modification of the Permit will provide the City with an additional six months of solid waste disposal capacity. The Department proposed to grant the City's requested modification. The Department issued a proposed Permit modification (hereinafter referred to as the "Modified Permit"). Structural Design of Phase IIIb. Leachate Control System. Waste dumped at the North Landfill is covered daily. Rain falling on the site is disposed of either as "leachate" or stormwater. Leachate is liquid which passes through, and emerges from, solid waste. Leachate on Phase IIIb of the North Landfill is collected and disposed of by a control system which was designed by George Knecht. Mr. Knecht described the leachate control system as follows: The leachate collection system consists of a two-foot drainage layer placed on top of the plastic liner. In this case the city used a plastic liner rather than a clay liner. It's HDPE, which is high-density polyethylene, and that collects the liquid and lets it flow downhill in this drainage layer to the central point, at which point the city has installed a six-inch perforated pipe which is wrapped in a filter media, which is basically a stone, a rock, which in turn is wrapped in a filter media which is porous cloth, and the purpose is that the liquid coming through the landfill gets into this drainage layer, runs downhill in the drainage layer, goes through the filter cloth, and the filter cloth keeps the sand from penetrating into the granular rock, goes through the rock and into the pipe, and then pipes are laid in a sloping downhill direction so that the fluid, once it gets in there, runs downhill. It's collected in manholes at the end of each one of these pipes. Transcript of Formal Hearing, page 49, lines 4-23. The leachate control system of Phase IIIb was properly installed and designed. Although the Petitioners raised questions concerning the manner in which the leachate control system was installed and designed, they did not offer sufficient evidence to contradict the evidence presented by the City that the system was properly installed and designed. The evidence also failed prove that the addition of 35 feet of solid waste to Phase IIIb will adversely affect the operation of the leachate control system. The addition of 35 feet of solid waste to Phase IIIb will probably ultimately have a beneficial effect on the leachate control system of Phase IIIb of the North Landfill. When Phase IIIb reaches its currently authorized height of 75 feet, the leachate depth on the liner of the control system is expected to be an average of approximately three inches. If an additional 35 feet of waste is added to Phase IIIb, the leachate depth on the liner of the control system is expected to decrease to an average of approximately two inches. The depth of leachate on the liner of the leachate control system of Phase IIIb will not exceed one foot. Specific Condition 3 of the Permit required that the City arrange for Department representatives to inspect the facility in the company of the Permittee, Engineer, and onsite operator after completion of construction activities. Cells I and II of the leachate control system of Phase IIIb were not inspected by the Department. The Department was provided with a certification from a registered professional engineer that the installation was inspected and met state requirements. The Department normally relies upon such certificates. Stormwater Disposal System. Rainwater which does not percolate through the waste, thus becoming leachate, runs off in the form of stormwater. Stormwater will consist primarily of rain which strikes the sides of the pyramid formed by the waste deposited on Phase IIIb of the North Landfill. The existing stormwater disposal system of all phases of the North Landfill consists of a series of ditches which collect stormwater and channel the stormwater to other ditches which surround the perimeter of the North Landfill. Stormwater travels through the ditches to collecting ponds located at the northeast corner of the North Landfill. Water reaching the holding ponds is treated by sunlight, oxidation and sedimentation. Ultimately, water reaching the holding ponds runs into Brown's Creek. The existing stormwater collection system of Phase IIIb is in compliance with the Department's permitting requirements. The proposed increase in height of Phase IIIb should not have any appreciable impact on the quality of stormwater eventually emptied into Brown's Creek. Phase IIIb will be capped with an impermeable cap when it is closed. The City has had a stormwater management system designed to take into account the effect of the cap on stormwater disposal. The stormwater collection system which will be installed when Phase IIIb is closed will consist of ditch blocks which will separate the stormwater collection system of Phase IIIb from the other phases of the North Landfill. Stormwater from Phase IIIb will be directed to a new holding pond. Stormwater will eventually be discharged into Brown's Creek. The stormwater collection system which will be installed when Phase IIIb is closed will meet the requirements of Rule 17-25, Florida Administrative Code, and the St. Johns River Water Management District. The system will actually have a positive impact on water quality. Foundation. The earth beneath the leachate control system of Phase IIIb, because of the weight of the solid waste to be deposited above it, is expected to settle approximately twelve inches under 75 feet of solid waste. The addition of 35 feet of solid waste to Phase IIIb is expected to cause the earth beneath the leachate control system to settle an additional six inches for a total of one and one-half feet. The additional 35 feet of solid waste will not adversely affect the structural integrity or functional capacity of the leachate control system of Phase IIIb. The proposed 35 foot addition of solid waste should not affect the ability of the earth beneath Phase IIIb to support the loads and stress it will be subjected to. III Alleged Violations. Water Quality There is a marsh located to the northeast of the North Landfill. The marsh forms the headwaters of Brown's Creek. Brown's Creek flows into the St. Johns River, south of the North Landfill. Alfred Mintz, the former owner of Clapboard Creek Fish Camp, a fish camp located approximately four miles from the North Landfill, testified about a "black gooey substance" which was on the surface of Clapboard Creek and Brown's Creek. Clapboard Creek flows to the northeast and east of the North Landfill. It eventually flows into the St. Johns River. The substance came from the direction of the North Landfill. Mr. Mintz did not know what the substance was and was unable to identify the source of the substance. The evidence failed to prove what the substance was or that the North Landfill was the source of the substance. Anita James, a commercial fisher, testified about a "film" which she saw on Brown's Creek near the St. Johns River. The substance was not identified. Nor was the source of the substance identified. Ms. James' belief that the film came from the North Landfill is not sufficient to support a finding of fact that the film whatever it was, came from the North Landfill. Mr. Mintz and Ms. James also testified about dead and diseased fish, and a dead dolphin and a dead manatee which they had seen in Clapboard Creek, Brown's Creek and other waters in the vicinity. No competent substantial evidence was presented to prove that the deaths or the disease was caused by waste disposed of at the North Landfill. No evidence concerning what killed the fish, dolphin or manatee, or what caused the diseased fish, was presented. Specific Condition 13 of the Permit requires the City to monitor water at three points along the stormwater disposal system of the North Landfill. One of the three monitoring points is approximately one-tenth of a mile east of the North Landfill in Brown's Creek. During approximately ten years of monitoring of water conditions only two parameters, iron and coliform, have been found in excess of state standards. The evidence did not prove what the cause of the excess iron and coliform was. It is possible that the excesses were caused by leachate from Phases I, II and 111a, which do not have lined leachate control systems like Phase IIIb, seeping into the stormwater disposal system. Leachate from Phase IIIb does not aggravate the problem because the leachate control system of Phase IIIb is lined. The City and the Department entered into a Consent Agreement on July 14, 1989 (hereinafter referred to as the Consent Order). Pursuant to the Consent Order the City is required to update its monitoring of stormwater. Quarterly monitoring of 37 parameters will be required. Specific Condition 19 A 2) of the Modified Permit also specifies that 37 parameters are to be analyzed quarterly. Specific Condition 13 A 2 of the Permit only required analyses of 14 parameters. The requested modification of the Permit should not contribute or extend any adverse affect of the North Landfill on water quality. The Consent Order and Specific Condition 20 C of the Modified Permit require that the City analyze 35 parameters quarterly at four wells located inside the North Landfill. The City has contracted for the preparation of a groundwater monitoring plan consistent with the Consent Order and with the requirements of Rule 17-701.050, Florida Administrative Code. Based upon a review of a well inventory conducted by the City and groundwater studies, wells in the vicinity of the North Landfill, including the well on Mr. & Mrs. Leigh's property and the M & M Dairy, are not at risk of contamination. The requested modification of the Permit should not increase the risk of contamination of wells in the vicinity of the North Landfill. Violation of Height Limits. In 1988 the City filled some portions of Phases I, II and IIIa above their 75 foot limit. The City did not, however, intentionally violate the Permit height limits. The City exceeded the height limit of the Permit only because it believed that solid waste placed on the landfill in excess of 75 feet would eventually settle to less than 75 feet and that this was consistent with the Permits limits. The Department disputed the City's actions in exceeding the 75 foot limit for Phases I, II and IIIa in an administrative action separate from this proceeding. On July 14, 1989, the City and Department settled their dispute and entered into the Consent Order. Pursuant to the Consent Order, the City paid a fine of $1,800.00. The City also built a laser tower for use in measuring the height of the North Landfill and agreed to use it to make more frequent surveys of the landfill. The City was not required to immediately remove the excess height. The City has been allowed to wait until closure. Prior to closure the City can request permission from the Department to leave the excess height. In the modification of the Permit at issue in this proceeding, Specific Condition 3 specifically provides for the manner in which waste may be disposed of in Phase IIIb in an effort to avoid the problems with excessive height experienced with Phases I, II and IIIa. B. Litter. Specific Condition 17 of the Permit provides that [l]itter control devices shall be installed as necessary to prevent litter from leaving the disposal area. Litter outside of the perimeter of the North Landfill along the roads leading to the landfill comes primarily from trucks bringing waste to the North Landfill. A small amount of the litter also comes from the site itself. Although the trucks are not City trucks, the City's litter collection efforts have been extended to cover the main portions of the roads leading to the North Landfill. Litter around and on the North Landfill has been a problem. The City has taken a number of steps to control the amount of litter in and around the landfill: Waste deposited at the North Landfill is covered with six inches of soil. Although the City is not required to do so, six months before the formal hearing of these cases the City began covering the area of the landfill where waste is being deposited (hereinafter referred to as the "working surface") with six inches of dirt. The working surface is also located away from wind. Fences have been installed around the perimeter of the North Landfill. Fences are also placed around the working surface on windy days. Prior to 1989 the City patrolled the immediate vicinity around the North Landfill to collect litter which had not been covered. Collection was performed on a variable time schedule. Only three part-time employees participated in the collection patrols. Beginning in early 1989, the City expanded its litter collection patrols. The roads surrounding the North Landfill (New Berlin Road, Faye Road, Alta Road and Island Drive), are now patrolled daily by five full- time employees. The extent of the patrols prior to 1989 and since early 1989 is depicted on City exhibit 8. The inside of the perimeter of the North Landfill is patrolled for litter collection five days a week and on the weekend, as needed. The stormwater ditches are inspected on a daily basis. At the time of the formal hearing of these cases the stormwater ditches and retention ponds were being excavated. This process had been going on for approximately four to six months. The Modified Permit contains Specific Condition 13, which is essentially the same as Specific Condition 17 of the Permit. Additionally, the Modified Permit contains Specific Condition 8, which provides: The Permittee shall maintain litter controls to prevent litter from entering the collection ditches and from leaving the landfill site. In addition to litter control fences, the Permittee shall provide daily manual collection of litter entering collection ditches and leaving the site. Litter can best be controlled by compacting the waste, picking up litter regularly and using fences. The City has employed these methods of litter control. The City's efforts have been reasonable. The proposed increase in height of Phase IIIb will not adversely affect the amount of litter associated with the North Landfill or the City's litter collection efforts. The City is not required to continue to patrol the roads leading to the North Landfill which it is currently patrolling to pick up litter that is attributable to trucks bringing waste to the North Landfill. Odor. There is no dispute that there is undesirable odor associated with the disposal of solid waste. This is true of the North Landfill. There is undesirable odor associated with the North Landfill most of the time. The nature of the odor associated with landfill's generally, and the North Landfill in particular, was described at the formal hearing as follows: Q The odor that you noticed, is it to some degree all the time? A Some days it won't, but that's very rare. Usually it may be more. Some days it may be in the afternoon, it may not smell in the morning, it may be in the afternoon. Some days it may be in the morning and may not be in the afternoon. Q Could you quantify what percentage of the time? A Probably about 75 percent of the time. Q And you indicate that at times it's much stronger than at other times? A Yes. Q You mentioned odor from the landfill. This was back in time now a good way. When did you start noticing an odor from that landfill? A When did I first start noticing it? Q Yes. A The very day they started dumping. Q And that odor has persisted since then? A Not every -- not every single day, but yes. Q Some days you will have it, some days you won't? A Yes. Q How many years are we talking about since they opened approximately? A Well, we have been out there 17 years. . Q So, over that 14 or 15 years, is it fair to say that basically you have an odor, and some days it will be worse than the average odor, and some days `it will be better than the average odor? A Yes. Transcript, page 511, lines 9-15, page 514, lines 9-13, page 516, line 25, and page 517, lines 1-21. Specific Condition 16 of the Permit provides that 1[o]bjectionable odors originating from the site shall be effectively controlled during all phases of operation. The most effective method of dealing with undesirable odor associated with landfills is to cover the waste daily and minimize the contact of waste with water. The City has been covering the waste disposed of at the North Landfill on a daily basis. The City's efforts have resulted in the North Landfill being as odor free as a "well run" landfill can be. A City ordinance provides for citizen participation in controlling odors in Jacksonville. This ordinance is enforced by the City's Bio- Environmental Services Division. As part of enforcing the odor ordinance the City provides a 24-hour telephone service which citizens can call and complain about odors. Since January, 1988, the City has received 5,500 complaints--an average of 280 complaints a month. Complaints received about odor are investigated by nine inspectors employed by the City. If five or more validated complaints are received about an odor producer during a 90-day period, the City issues a citation. Since January, 1988, the City has received only three complaints about the North Landfill from citizens. No citations have been issued against the North Landfill. Specific Condition 16 of the Permit is included in the Modified Permit as Specific Condition 15. The Modified Permit also includes Specific Condition 6, which provides: The Permittee shall apply no less than 6 inches of compacted initial cover to the top and sides of each cell by the end of each working day, except on the working face which may be left uncovered if additional solid waste will be placed on the working face within 18 hours. An intermediate cover of one (1) foot of compacted earth, in addition to the six (6) inch initial cover, shall be applied within seven (7) days of cell completion if final cover or an additional lift is not to be applied within 180 days of cell completion. The Permittee shall ensure that an adequate quantity of acceptable cover material is available for use during each day of operation of the landfill. The modification of the Permit will not increase the odor associated with the North Landfill. It will, however, extend the period of time that odors emanate from the North Landfill. Access to the North Landfill and Dust. Specific Condition 20 of the Permit provides that "[d]ust free, all- weather access roads to the site and active disposal area, or alternative wet weather disposal area shall be maintained." This condition has been complied with by the City. This condition is included as Specific Condition 12 in the Modified Permit. The roads used to access the North Landfill are paved, two-lane roads. The lanes are twelve feet wide. The speed limit on the access roads is 45 m.p.h. Appropriate turn lanes are available. During December, 1988, New Berlin Road and the North Landfill were able to effectively handle 600 trucks per day, an average of 80 to 90 trucks an hour during peak hours. Normally, the North Landfill effectively handles approximately 300 garbage trucks and 100 cover-dirt trucks a day with a peak of approximately 60 trucks per hour. The unpaved right-of-way on the side of the roads leading to the North Landfill is worn and the source of dust. Dust associated with the North Landfill comes from the roads leading to the landfill. The evidence failed to prove that dust comes from within the perimeter of the North Landfill. Tire Storage. Whole tires have been stored and processed at the North Landfill. At the time of the formal hearing there were more than 1,000 tires at the landfill. The evidence failed to prove how long any specific quantity of tires had been stored at the North Landfill. The City has not allowed the disposal of any whole tires at the North Landfill since July 1, 1989. The City has been shredding tires at the North Landfill. At the time of the formal hearing the City had contracted for the shredding of all the tires which had been located at the North Landfill at the time the contract was entered into in early July, 1989. The contract in existence at the time of the formal hearing was scheduled to expire in October, 1989. The City, however, expected to enter into a follow-up contract to continue shredding tires. In February or March, 1989, the previous tire- shredder contractor walked off the job. Mosquitoes at the North Landfill are managed by the City's Bio- Environmental Services Mosquito Control Division. Spraying is only done "as needed", however. F. Hazardous Waste, Oil Recycling and Infectious Waste. The City has not established an independent hazardous waste disposal program, a used oil recycling program or a infectious waste disposal program. The City attempts to prevent disposal of hazardous waste, used oil and infectious waste through educating the public with signs posted at the North Landfill entrance and periodic inspections of waste disposed of at the North Landfill. The evidence failed to prove that hazardous waste, used oil or infectious waste is being disposed of at the North Landfill. The evidence also failed to prove that approval of the Modified Permit will cause the disposal of hazardous waste, used oil or infectious waste on Phase IIIb of the North Landfill. Specific Condition 5 of the Modified Permit prohibits the disposal of hazardous waste and infectious waste at Phase IIIb of the North Landfill. This condition also requires that the City provide a minimum of one spotter for each working fact of Phase IIIb to watch for unauthorized waste.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department approving issuance of the Modified Permit, modified by the inclusion of a Specific Condition requiring that the City continue its litter patrols as represented at the formal hearing. DONE and ENTERED this 3rd day of January, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 3rd day of January, 1990. APPENDIX Case Numbers 89-0532, 89-0569 All of the parties except the Petitioners in case number 89-0569, have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms.'s Holzendorf's Proposed Findings of Fact Proposed Finding Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 49-52. The Consent Order was entered into on July 14, 1989. The last sentence is not supported by the weight of the evidence. See 49. 80. Whether a violation of Chapter 17- 711, Florida Administrative Code, has occurred is a conclusion of law. The weight of the evidence failed to prove that there is not program for the disposal of tires. The last paragraph of this proposed finding of fact is not supported by the weight of the evidence. IV See 54-55, 61-63, 73 and 77. IV-Hazardous Waste: 86. See 87-89. The second sentence is not supported by the weight of the evidence. Argument. Not supported by the weight of the evidence. V-Used Oil Recycling Plan: 86. See 87-89. The second sentence is not supported by the weight of the evidence. 86. See 87-89. The last paragraph is not supported by the weight of the evidence. Not supported by the weight of the evidence. Not relevant to this proceeding. The Modified Permit only involves a lined portion of the North Landfill. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 2. 3 15. 4 18-19 and 26. 5 20. 6 22-23. 7 34-36. 8 26-29. 9 32-33. 10 30. 11 41-42. 12 43. 13 37-40. 14 49. 15 61-62 and 64. 16 55. 17 56 and 58. 18 74-78. 19 80 and 82-83. The City's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Contrary to testimony of Ms. Holzendorf. Statement of law. 3-4 Hereby accepted. 5 Statement of law. 6 10. 7-8 13. 9 9. 10 1-2. 11 1-2 and 7. 12 4. 13 5. 14 1. 15 6. 16-19 3. 20 14. 21 Hereby accepted. 22 7. 23 8 and 49. 24 16. 25-26 20. 27-28 Hereby accepted. 29-30 25. 31 Hereby accepted. 32-35 22. 36-43 Hereby accepted 44 35-36. 45 Hereby accepted. 46 35. 47 See 36. 48-49 Hereby accepted. 50 44. 51-52 46. 53-58 Hereby accepted. 59 47. 60 48. 61 46. 62-63 Hereby accepted. 64 27. 65-66 43. 67 31. 68 Hereby accepted. 69 33. 70 Hereby accepted. 71 33. 72 30. 73 32. 74 43. 75 30. 76-77 26. 78 42. 79 Not relevant to this proceeding. 80 45. 81-82 Hereby accepted. 83-84 44. 85-86 49-51. 87 49. 88 52. 89 Hereby accepted. 90 55-56. 91-93 56. 94 50. 95 56. 96 59. 97-100 56. 101 55. 102 Hereby accepted. 103 58. 104-112 These proposed findings of fact correctly quote testimony presented the formal hearing. at 113 61 and 64-65. 115 72. 116 66. 117 Hereby accepted. 118 67. 119 Hereby accepted. 120 69. 121 70. 122-123 70 and hereby accepted. 124 See 65. 125 65. 126-129 See 61-62. 130-131 77. 132 Hereby accepted. 133 75. 134 Not relevant to this proceeding. 135 77. 136 79. 137-139 These proposed findings of fact correctly quote testimony presented at the formal hearing. 140 80. 141 82-84. 142 84. 143 81. 144 85. 145-147 Hereby accepted. 148 Cumulative. 149 37-38. 150-152 38. 153-155 40. 156 39-40. 157-161 Hereby accepted. COPIES FURNISHED: Lacy Mahon, Jr., Esquire Mark H. Mahon, Esquire Russell L. Healey, Esquire Lacy Mahon, Jr. & Mark Mahon, P.A. 1120 Blackstone Building Jacksonville, Florida 32202 Robin G. Leigh and Geraldine Leigh 6026 Heckscher Drive Jacksonville, Florida 32226 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel D. Richardson, Esquire Dale H. Twachtmann, Secretary Robin A. Deen, Esquire Department of Environmental Office of General Counsel Regulation Environmental Law Division 2600 Blair Stone Road City of Jacksonville Tallahassee, FL 32399-2400 Towncentre, Suite 715 421 West Church Street Jacksonville, Florida 32202
The Issue The issue presented is whether the application of Respondent Robbie's Safe Harbor Marine Enterprises, Inc., for a general permit to construct and operate a solid waste transfer station should be granted.
Findings Of Fact In April 1998 Respondent Robbie's Safe Harbor Marine Enterprises, Inc., filed an application with Respondent Department of Environmental Protection, seeking a general permit to construct and operate a solid waste transfer station at the end of Shrimp Road on Stock Island in Monroe County, Florida. The application was accompanied by the required supporting documentation, including a site plan and an engineering report. The site plan submitted with the application depicted access to the transfer station by using Shrimp Road. The access road was also designated as a private road. What the site plan and remainder of the application did not reveal is that Shrimp Road, the private road providing access from the public road system to the proposed solid waste transfer station, is not owned by Robbie's. Rather, the road is owned by the adjoining property owner, Petitioner Safe Harbor Enterprises, Inc. Robbie's is the holder of an easement allowing use of Shrimp Road. Robbie's published notice of its application for a general permit to construct and operate a solid waste transfer station. As a result of that notice, the adjoining property owner, Safe Harbor Enterprises, Inc., filed the petition initiating the instant proceeding, objecting to the issuance of a general permit to Robbie's. On February 2, 1998, prior to Robbie's filing its application for a general permit to construct and operate its solid waste transfer station, Robbie's entered into a Consent Order with the Department which resolved the Department's allegations that Robbie's had been operating a solid waste transfer facility without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Robbie's Safe Harbor Marine Enterprises, Inc.'s, application for a general permit to construct and operate a solid waste transfer station. DONE AND ENTERED this 29th day of January, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1999. COPIES FURNISHED: Roger M. Bernstein, Vice-President Safe Harbor Enterprises, Inc. Post Office Box 144235 Coral Gables, Florida 33144 Tracy J. Adams, Esquire Tracy J. Adams, P.A. 617 Whitehead Street Key West, Florida 33040 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
