The Issue The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.
Findings Of Fact Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately 11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells 1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.
The Issue The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system (OSDS) permit or is entitled to a variance from the permitting requirements in the below-cited statutory provision and related rules, so as to be authorized to install an OSDS on his property near the Suwannee River in Dixie County, Florida. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner owns certain real property in Dixie County, Florida in the vicinity of the town of Suwannee. The property is more particularly described as Lot 511, Suwannee Shores III. The property is located in Section 19, Township l3 South, Range 12 East, in Dixie County. The lot is approximately 50 feet by 100 feet in size and was purchased in 1985. The Petitioner made application for an OSDS permit on March 8, 1990 for the property. The residence which the proposed system would serve consists of a heated or cooled area of approximately 24 by 34 feet. The Petitioner had an elevation of the property at the proposed installation site performed by a registered land surveyor at the behest of the Department, when he learned from the Department representative that such would be required before a permit could be granted. The Department also required the Petitioner to furnish evidence of whether the property was above or below the ten-year flood elevation. Accordingly, Petitioner's exhibit 1 establishes a benchmark elevation of 4.1 feet above main sea level (MSL) for the property and installation site. The ten-year flood elevation for the property in question is 17 feet above MSL. This is established by a report prepared by the Suwannee River Water Management District and admitted into evidence without objection, based upon records maintained by the Water Management District which contain data from the Federal Emergency Management Administration (FEMA). That data shows that for the river mile of the Suwannee River where the property is located, which is river mile 3, that the ten-year flood elevation is 17 feet above MSL. Thus, the property in question is located within the ten-year flood elevation of the Suwannee River. It is not, however, located within the regulatory floodway of the Suwannee River. Thus, the Petitioner has not established that the property is above the ten-year flood elevation for the Suwannee River. Nor have they established that a sufficient differential exists between the bottom of the proposed location of the drain field trenches and the wet season water table. In fact, Respondent's composite exhibit 1 and the testimony of Mr. Fross establishes that the wet season water table is only approximately 3 inches beneath the surface of the existing grade of the lot. The water table existing at the time of the site evaluation by Mr. Fross was only 36 inches below existing grade which would not allow sufficient differential between the bottom of the drain field trench and the water table, because less than 24 inches would separate the two planes. The results of Mr. Fross's site evaluation do show that the proper "slight limited" soils exist at the site down to a depth of 36 inches, at least where the water table existed at the time of the evaluation. It was also established that the property has a potable water supply from a central water system for the town of Suwannee and, therefore, the various set back distance related to the distance the proposed septic tank and drain field have to be separated from a potable water well or wells would not apply. These last two factors showing compliance with the portions of the rule which dictates the type of soils which must be present for such a system to be installed and the protection for potable water supplies, are insufficient to justify grant of the permit, however. The fact remains that the property is some 12.9 feet beneath the ten-year flood elevation and that it is not possible, starting from the existing grade to install a septic tank and drain field system at sufficient elevation above the water table at the present time, or the wet season water table, so that an appropriate distance for effluent to be treated in appropriate slight limited soil will exist. Finally, the Petitioner did not establish any reasonable alternatives to treatment of the effluent from the residence to be placed on the lot and thus did not establish that a means can be found to prevent the effluent from the OSDS from adversely impacting the public health or the surface or ground waters involved at the disposal site. Thus, it has not been established that any type of OSDS sought to be installed upon the lot in question would be an immaterial deviation from the permitting requirements in the statute and rules cited below. The Petitioner did not formerly apply for a variance from the permitting statute and rules. This is because the Department advised him that availing himself of the informal variance procedure would be futile because the Governor's Executive Order 90-14, entered on January 17, 1990, in the view of the Department, took away the Department's discretion to entertain variance applications and to consider whether to grant them for properties lying beneath the ten-year flood elevation of the Suwannee River. That Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation be prohibited, by its adoption, by reference, of the Suwannee River Task Force recommendations. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner definitely will undergo a hardship if a permit or variance is not granted because of the money expended to purchase the lot, which will be largely unusable without the ability to establish a residence on it by installing an OSDS. It has not been proven by the Petitioner that no reasonable alternatives exist to the installation of a conventional OSDS subterranean- type system on the lot. Thus, one element of the variance criteria cited below has not been met nor has it been established that the installation of an OSDS would not have an adverse impact on public health and would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of the Petitioner's entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof. It particularly has not been established that a grant of an OSDS permit or variance for such a system to be installed in this lot would not be a substantial deviation from the permitting requirements enumerated below. This is particularly true because the property is such a great distance beneath the ten-year flood elevation. In summary, in addition to the findings in the last above paragraph, it has not been established that a sufficient distance between the water table elevations and the bottom of the proposed drain field trench location will exist so as to comply with the permitting requirements in this regard so as to justify the grant of an OSDS permit nor has it been shown that the property is above the ten-year flood elevation for purposes of that permitting requirement and Rule 10D-6.47(6), Florida Administrative Code.
Recommendation It is, accordingly, RECOMMENDED: That a Final Order be entered denying the application of Marvin H. Osteen, Jr. for an OSDS permit. DONE and ENTERED this 19th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3115 Respondent's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: Marvin H. Osteen, Jr. Post Office Box 89 Suwannee, FL 32521 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
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
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit or the grant of a variance from the rule by which that permit application was denied so as to be authorized to install an on-site sewage disposal system (septic tank system) for his property near the Suwannee River in Dixie County, Florida within the purview of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Desmond Harbroe, owns real property in Dixie County, Florida consisting of a lot described as lot 28 of Riverbend Estates. The lot in Riverbend Estates is located at "Hinton's Landing" on the west bank of the Suwannee River. The lot itself is located approximately 1500 feet west of the shoreline of the Suwannee River on a connected canal. The canal is characterized by high banks at the location of the lot and the lot is one of the highest lots in the subdivision, with overstory vegetation consisting of large pines and live oaks. The lot is gently sloping and characterized by well- drained soil consisting of sand down to a depth of 72 inches (a "slight limited" soil). The lot is approximately one and one quarter acres in size and was purchased May 29, 1976. The Petitioner contemplates constructing a single family residence on the lot and it does not presently contain an OSDS. The proposed residence would consist of a two bedroom dwelling with a heated or cooled area of approximately 1200 square feet. A dwelling of this size and type is equated in the standards in the Department's rules with production of 450 gallons per days (GPD) of sewage flow. Although no specific evidence of expected sewage is of record, there is no dispute regarding that figure. Herbert H. Raker is a registered land surveyor located at Box 626, Cross City, Florida 32628. Mr. Raker surveyed the subject lot and established a benchmark elevation of 13.72 feet above main sea level (MSL). That benchmark is six inches above the actual ground or grade level at the location of the benchmark. The site of the proposed installation itself is at an elevation of 13.22 feet above MSL. The ten-year flood elevation for the subject property is 15 feet above MSL. That elevation was established through data supplied by the Suwannee River Water Management District to the Petitioner and submitted to the Department in the application process. That information and the document upon which it is predicated is hearsay, but was not objected to at hearing and, in any event, constitutes an exception to the hearsay rule in the category of government records, compilations and reports for purposes of Section 90.803(8), Florida Statutes, and is, thus, admissable and accepted by the Hearing Officer. The subject property purchased by the Petitioner was for building a single family residence as described above. On December 12, 1989 the Petitioner received a letter from the Suwannee River Water Management District advising that there was no objection by the District to filling the lot in order to bring the surface grade level of that property to a sufficient height so as to comport with the "two year flood" elevation. The critical elevation in relation to the rules at issue however is the ten-year flood elevation. This advice from the Water Management District does not address the issue of filling the lot to bring it up to a level so that the bottom of the subject drain fill proposed would be above the ten-year flood elevation and thus comport with the rules at issue. In this connection, the property is located within the ten year flood plain based upon the evidence establishing that flood plain level to be at IS feet above MSL. The property is also located within the "regulatory floodway" of the Suwannee River. This is a geographical area closer in proximity to the actual free flowing portion of the river than is the boundary of the ten-year flood elevation demarcated area. The rule cited below provides that mounded systems requiring a placement of fill material, or construction above grade, will not be authorized in the regulatory floodway unless there is certification by registered engineers that the placement of fill or the structure placed would not increase the water surface elevation of the "base flood". That certification must be substantiated by data and the method of calculation used by the engineer must be provided. Here there is only a two and one half foot difference between the grade level of the property involved at the site of the proposed installation and the 15 foot ten-year flood elevation. Thus, as Mr. Harbroe indicates, given the overall size of his lot, it would be possible to fill the property to the proper grade level so that the bottom of the drain field trenches, when installed in the resulting mound, would be above the ten- year flood elevation. The Petitioner however supplied no detailed information about how such an alternative system might be installed and operate and, most particularly, did not supply the requisite engineering certification and information which might show that the installation of such a mounded system would not raise the level of the base flood. This might have been done, for instance, by establishing that a sufficient volume of fill could be removed from his property, elsewhere, to build the requisite mound and thereby not alter the surface elevation of the base flood. Such evidence is lacking in this proceeding however and cannot therefore serve as a basis for a grant of the permit, by means of illustrating an alternative system or approach for treating the sewage effluent which will comport with the rules. Pursuant to the authority of the statutes cited in the conclusions of law below and in related rules, lots platted before 1972 are accorded special consideration in determining whether to grant septic tank system permits (or variances). The Petitioner, however, did not adduce evidence of whether the subdivision known by the name "Riverbend Estates" of which his lot 28 is a part, is a platted subdivision at all, and did not establish that even if it is that it was platted and recorded before 1972. Thus no evidence has been adduced which will justify the special consideration provided for in the authority cited below. The grant of variances from the permitting rules involve the demonstration of hardship as a basic consideration. Hardship involves a demonstration that there is no reasonable means by which an on-site disposal system can be installed which will comply with the permitting rules, that is, impossibility of compliance is the bellwether for demonstration of hardship. It is also provided in the variance statute and rules cited below that the hardship may not be intentionally caused by the action of the applicant for the permit or variance himself. The Petitioner, having the burden of proof here, did not adduce direct evidence to establish that any hardship preventing compliance with the permitting rules was not intentionally caused by the Petitioner. However, the overall tenor of the Petitioner's testimony establishes inferentially, without doubt, that the hardship involving the Petitioner's impossibility of compliance with the permitting rules, given the presently prevailing grade level of his lot and installation site, was caused merely by his purchase of the property. He took no action involving that purchase to place himself in a position where he intentionally could claim a hardship situation and a justification of variance from the permitting rules and thus render himself legally capable of installing the subject system. He merely purchased the lot in good faith with, the intention of using it for a single family dwelling and did not intend by that mere act to place himself in a position to claim a hardship situation and thus circumvent the permitting rules. The similar use of the nearby lots in the subdivision for single family dwellings and which he was aware already had permitted septic tank type on-site disposal systems in place and operating led him to believe he could install a similar system. He was thus an innocent purchaser and did not intentionally create a hardship situation to thereby avoid compliance with permitting rules. In fact, however, the Petitioner has not truly established that he is in a hardship situation, that is, that he can not possibly comply with the permitting rules. This is because, by his own admission, he has sufficient land area on his lot to permit the "mounding" of an on-site disposal system. If this were accomplished it is quite likely that he could comply with the permitting rules and not require a variance, based upon a showing of hardship. The problem with this approach is that the Petitioner's proof fails because he did not adduce the requisite engineering certification and testimony justifying the grant of a permit based upon the building of the lot and mounding of the system. If this were accomplished in the future, it is quite likely that a permit could be granted for this lot. In a like vein, in terms of the variance issue portion of this proceeding, it has not been demonstrated by the Petitioner that no reasonable alternative exists for the treatment of the sewage involved nor has it been demonstrated that the discharge from the Petitioner's proposed sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. In this last regard, it although soil conditions prevailing at the proposed installation site and water table elevations beneath the surface of the property are appropriate as that relates to the requisite interval of "slight limited" soil between the bottom of drain field absorption beds and the water table elevation, the fact remains that these trenches or beds are beneath the ten-year flood elevation and thus pose the potential to degrade ground or surface testers. Thus the other requisite elements for establishment of entitlement to a variance from the permitting rules have not been made out by the Petitioner's proof. In fact, the Petitioner's proof establishes that a reasonable alternative may indeed exist for the treatment of the sewage involved with mounding of the system, since his grade elevation is only approximately 2.5 feet below the relevant flood elevation and unrefuted evidence shows that he has sufficient area on his lot to permit the mounding of the system with the requisite adjacent "buffer area". This constitutes a reasonable alternative which may comply with the permitting rules. Unfortunately, however, Petitioner's proof did not include the requisite engineering information and certification so that a recommendation for grant of the permit in the regulatory floodway can be made at this time. Having been denied his permit application on December 19, 1989 the Petitioner on March 5, 1989 applied for the subject variance referenced above. On April l9, 1990 the Petitioner was advised by the Respondent that it was useless to proceed with a variance application and that a formal administrative hearing should be sought before Division of Administrative Hearings instead. This is because of Executive Order 90-14 entered by the Governor, which incorporated the "Suwannee River Task Force" recommendation in evidence and, specifically, "recommendation #36." That portion of the report in effect recommended that on-site sewage disposal systems within the ten year flood plain area should be prohibited. The Department interpreted the effect of that executive order, incorporating the recommended prohibition from the task force report, to mean that such variances absolutely could not be granted by the Department, hence, its recommendation to the Petitioner and others similarly situated, that they should immediately seek a formal administrative hearing on the question, rather than expend time and expense pursuing the Department's internal variance procedure. The Department has thus in this in similar cases interpreted that executive order to create, and effect, a conclusive presumption that variances can not be granted in any case in which the installation site for the on- site sewage disposal system is at or beneath the ten-year flood elevation. In effect, therefore, it declines to exercise any discretion when confronted with variance request related to lots or property where the installation site for the proposed system occurs beneath the ten-year flood elevation.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered denying the Petitioner's application for an on-site sewage disposal permit and denying a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above. DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administration Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4170 Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted but not directly material to resolution of the issues presented for adjudication. Petitioner's Proposed Findings of Fact: (None submitted) COPIES FURNISHED: Desmond Harbroe 4550 N.W. 43rd Street Ft. Lauderdale, FL 33319 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
Findings Of Fact Respondent, Textron Petroleum Products Company, Inc., has applied for a construction permit to construct a sanitary landfill in Sections 3 and 10, Township 1 North, Range 2 East, Leon County, Florida. The proposed site consists of ninety (90) acres and is approximately 2,000 feet from U.S Highway 90 at Its closest point to that highway. The application is in proper form and contains all information required by the Department of Environmental Regulation. towns and areas to be served by the application are the City," of Tallahassee and Leon County. The facility is designed to serve a population of 135,000 people. Although evidence was presented for the purpose of showing that the City of Tallahassee and Leon County, as governmental entities, do not intend to use the proposed sanitary landfill as an "official" landfill site for those governmental bodies, this evidence did not establish that the area to be served and the population to be served by the proposed sanitary landfill is other than that stated above. The applicant, Textron Petroleum Products Company, Inc. does not have a franchise from any county, municipality or other governmental agency with regard to solid waste resource recovery and management responsibilities. The applicant, Textron Petroleum Products Company, Inc., had not, at the time of hearing, posted a performance bond or other approved security with the agency within whose jurisdiction the proposed site is located. The "owner" as that term is used in Section 17-4.21(1)(d), F.A.C., is the applicant, Textron Petroleum Products Company, Inc. The unrebutted evidence presented,at hearing established that the applicant has a net worth of $1 million and is financially responsible. The evidence presented did not establish any violation of the State Resource Recovery And Management Program set out in Part II, Chatper 17-7, F.A.C. There is a public supply well located in the Homestead Ridge area. This system serves 38 or more customers at an averave rate of about 200,000 gallons per month. The well is located more than 2,700 feet from the site boundary of the proposed sanitary landfill. As found by the Northwest Florida Water Management District, even if the consumption of that well system were increased to 2.16 million gallons of water per month, the drawdown at a radius of 2,000 feet would be 0.13 feet. Therefore, it was concluded that the cone of influence of the public water supply does not extend under the proposed sanitary landfill site. As a condition for issuance of a construction permit the Department of Environmental Regulation proposes the requirement of a monitoring system of wells which would include a deep well located between the proposed site and the Homestead Ridge public supply, the purpose of which would be to detect the potential intrusion of leachate or other contaminants into the public water supply from the sanitary landfill. It is improbable that the proposed sanitary landfill will produce any significant quantity of leachate. However, the application proposes that if monitoring indicates that lechate control is needed, a well point system will be installed in the completed cells and underground pipe drains installed in the new cells. It further provides that, dependent upon the quantities involved, the leachate.will be transported to the City of Tallahassee Sewage Treatment Facilities for disposal or it will be treated on-site by transporting the leachate to the settling pond which will at that time be equipped with suitable aeration and chlorination equipment for treatment of the leachate. The proposed design of the sanitary landfill provides that all final discharge from the sedimentatlon pond will conform to the water quality standards set out in Chapter 17-3, F.A.C, even though this may require the constrjction of treatment equipment by the applicant. The application, at pages 12 and 14,.provides for the equipment to be used on-site in the operation of the proposed sanitary landfill as well as for the method of providing adequate site supervision. No evidence was presented showing these provisions to be other than adequate. The evidence presented did not establish that the utilization of U.S. Highway 90 by vehicles transporting waste to the proposed sanitary landfill would create any unusual 0rincreased traffic and safety hazard. The application, at page 3, proposed the installation of electronic signalization equipment to alleviate any hazard which might be created by traffic using the proposed site. No evidence was presented showing this proposal to be inadequate. According to a letter to Mr. James Barrineau, Leon County Department of Pollution Control, from Mr. Mark Stamps, Assistant Zoning Director, Tallahassee Leon County Planning Department, the proposed site is currently zoned Agricultural 2. The letter further states that an Agricultural 2 zoning allows a sanitary landfill as a permitted use. A small portion of the proposed sanitary landfill site is open to public view from,U.S. Highway 90 which is a major thoroughfare. It was estimated by a witness that the distance to the proposed site from that section of U.s. Highway 90 from which the site was open to public view was one (1) mile. An examination of the plot plan of.the proposed site contained in the application shows that at the closest point, the site boundary is approximately 2,000 feet from U.5 Highway 90. The site is screened from public view from most places on Highway 90 by the existing topography and ground cover.
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
Findings Of Fact The Petitioner, Southeast Hillsborough Civic Association, Inc. (SEHCA), is a corporate entity. The majority of its members reside in southeast Hillsborough County in the vicinity of the proposed landfill site. The Respondent, Department of Environmental Regulation (DER), is a state agency charged with regulating the construction and operation of sanitary landfills pursuant to Chapter 403, Florida Statutes, and Chapters 17-3, 17-4, 17-7, 17-9 and 17-25.04(5), Florida Administrative Code. The Respondent, Hillsborough County, Florida, is a political subdivision of the State of Florida. It is a local government entity which serves the areas within its geographical boundaries with traditional types of government services designed to promote and protect the public health, safety and welfare, including the collection and disposal of solid waste. Hillsborough County currently disposes of its solid waste at the Hillsborough Heights Landfill. The Hillsborough Heights Landfill is, however, nearing capacity, and the County is under a mandate, pursuant to a stipulation and settlement agreement executed with DER, to close the Hillsborough Heights Landfill by October 31, 1984. Accordingly, Hillsborough County must put in train the initial phases of construction of a new sanitary landfill in early 1984, once an appropriate site in terms of environmental considerations and other considerations is approved and the appropriate construction and operating permits issued. In August 1981, with a view toward the upcoming necessity to obtain a new sanitary landfill site, Hillsborough County hired the consulting and engineering firm of Camp, Dresser and McKee (CDM) to assist Hillsborough County in studying, identifying, evaluating, and ultimately selecting a new sanitary landfill site. CDM is an engineering consulting firm employing a team of engineers that specialize in the technical aspects of solid waste disposal and management and related landfill design and construction. Ardaman and Associates, Inc. (Ardaman), is an engineering and geotechnical consulting firm with extensive experience in geotechnical investigation and engineering pertinent to the construction of solid waste disposal facilities in Florida and elsewhere in the world. It employs engineers specializing in those functions. CDM and Ardaman, as well as certain Hillsborough County employees, conducted a detailed investigation of the subject site, collecting numerous soil samples and installing 22 monitoring or inspection wells. A multitude of analyses and tests were performed on the soil and water samples taken with the resulting information being used to prepare the designs for the landfill and concomitant data incorporated in the permit applications sub judice. On February 28, 1983, Hillsborough County filed an application for DER permits to construct and operate a solid waste resource recovery and management facility, as well as accompanying permit applications for the dredge and fill activities and storm water discharge facilities involved. After an extensive review process by DER in conjunction with the Hillsborough County Environmental Protection Commission (HCEPC) as well as the Southwest Florida Water Management District (SWFWMD), and after further responses and information in response to DER inquiry were filed by the permit applicant, DER gave notice of its intent to issue the permits to Hillsborough County for the proposed landfill, storm water drainage system, and related dredge and fill activity. The Petitioner, SEHCA, timely requested an administrative hearing concerning its opposition to the issuance of these permits. The proposed landfill will serve all the unincorporated portions of Hillsborough County, as well as the cities of Tampa, Temple Terrace, and Plant City. The current population of the County is approximately 650,000. The population of the County is expected to grow to 950,000 by the year 2000, and 1,375,000 by the year 2020. The landfill is expected to provide for the waste disposal needs of the County for a minimum of 34 to a maximum of 40 years and is proposed to be the County's only landfill until approximately the year 2020. The proposed landfill would occupy approximately 175 acres out of a total of 1,100 acres at the proposed site, such that there is land available at the site that can be used for landfill purposes after the ultimate completion of the landfill at issue herein. Hillsborough County must presently dispose of approximately 2,000 tons of solid waste per day, or approximately 650,000 tons per year. By the year 2015, the County will be required to dispose of in excess of a million tons of solid waste per year. The proposed landfill would receive only nonhazardous, solid waste. It would not accept hazardous or toxic waste, infectious material, hospital waste, liquid waste, septic tank or sewer plant sludges, or similar toxic or hazardous material. The material placed in the landfill would consist of only domestic waste, debris from demolition, construction debris, and other nonhazardous items. In 1987, Hillsborough County and the City of Tampa will both have resource recovery incineration facilities in operation. These facilities will burn approximately 85 percent of the solid waste generated in Hillsborough County and the City of Tampa, with concomitant energy generation. After these resource recovery facilities are placed in operation, the proposed landfill would receive mostly ash from the resource recovery incineration process, as well as some nonburnable waste such as construction debris and demolition debris, and any solid waste which may be generated by the various cities and County which exceeds the capacity of the resource recovery incineration facilities. Thus, since the resource recovery facilities will reduce the volume of the County's solid waste to ash, that volume entering the landfill will be reduced by as much as 90 percent by 1987 or shortly thereafter. The Site The landfill site is in a remote area of southeast Hillsborough County approximately 25 miles from downtown Tampa. The site is two miles northwest of the community of "Picnic," which lies at the intersection of County Road 39 and County Road 672. The nearest paved county road is approximately a half-mile from the site. The site contains approximately 1,100 acres of land within the boundaries. The remainder of the property in excess of the 175 acres used for the proposed landfill will be used for buffer zones, borrow areas, and ancillary facilities as well as land which could be used for an additional landfill facility in the remote future. Hillsborough County also has acquired land to be used as a buffer zone on the southeast corner of the site and land which will be used for the access road to the landfill from County Road 672. The site is located in a large phospate mine, which was started in 1945 and abandoned since 1965. The site is surrounded by a buffer zone consisting of citrus groves, woods, rangeland, and other phosphate mining areas. The orange groves and trees on the southern side of the property create an effective visual barrier between the site and the nearest public road. The closest residence is in excess of 1,000 feet from the site boundary and at a greater distance from the actual landfill site, which lies some distance inside the site boundary. The two closest homes, lying slightly over 1,000 feet and approximately 1,500 feet from the subject property boundaries, both use deep wells in the Floridan Aquifer for potable water. There are only 17 to 20 residences within a mile of the property boundary. Most of these homes are located south of the landfill site along County Road 672. A few additional residences are located a mile or more from the site east along Counts Road 39. The character of the land within several miles of the site is essentially rural, with no large residential subdivisions or commercial development within several miles of the site. The County zoning at the site is "A" and "AA," and is such that a government-owned and operated landfill will be permitted in both of these zoning districts. Landfill Design The design of the landfill includes three major components: a clay liner; a permanent leachate collection system; and a storm water drainage system. The landfill will be built on an unmined clay settling area which was constructed and filled with clay during the former mining operation on the site. Starting in 1945, clay from the phosphate mine was pumped into the settling area together with water obtained by the mining operation from deep wells in the Floridan Aquifer. It was pumped into the clay settling area in a liquid or semi-liquid state and allowed to consolidate and solidify. The clay will provide an appropriate liner for the bottom of the landfill. The site investigation by Ardaman reveals that the clay has a very low permeability (10- 8, or .00000001 cm. per second). The landfill and solid waste deposited therein will be placed only in areas with a minimum thickness of clay liner of at least four feet. The clay liner ranges in thickness at the precise landfill site from a minimum of four feet, up to 21 feet. In comparison, many landfills of acceptable design have a liner of 18 inches to two feet thick. By limiting the landfill to areas where the clay is a minimum of four feet in thickness, the liner's depth and continuity across the landfill is assured in terms of providing protection for groundwater resources from landfill leachate percolation. The clay will prevent leachate (water percolating through the landfill which picks up suspended or dissolved pollutants from the solid waste) from moving out of the landfill. Due to the clay's extremely low permeability there is an insignificant likelihood of any leachate ever escaping through the clay liner. As the construction of the landfill progresses, the clay will settle and further consolidate under the weight of the refuse. The clay will then in effect form a large bowl that will collect leachate. To insure the structural stability of the clay underlying the landfill, the landfill will be built in several phases. A planned sequence of "loading" operations will be carried out to allow the clay to settle in a carefully controlled manner. Ardaman's calculations in evidence establish that the sequence of loading operations will have a large safety factor in that the structural strength of the clay will be greater than necessary to support the weight of the proposed landfill. As the clay consolidates, the water in the clay will be squeezed out, and approximately one-half of the groundwater in the clay at the present time will migrate upward into the leachate collection system. The other 50 percent or so of the water content of the clay will migrate in a downward direction into the surficial groundwater aquifer over a period of the entire 40-year estimated life of the landfill. Since water will be flowing upward from the clay into the leachate collection system, it was undisputed that leachate will not be able to flow downward into the clay during the active life of the landfill because of the positive, upward hydraulic head developed (aside from the impermeable nature of the clay). The leachate will thus be somewhat diluted by the groundwater migrating upward from the clay liner. The leachate will be automatically pumped out of a collection sump as long as the landfill operation is going on and after it is completed. Once the landfilling operations are completed, the landfill will be covered with a clay or "synthetic cap" to prevent any water from entering the landfill and forming leachate in the future after the landfill operation is phased out. Should any leachate enter the clay liner, the clay would act as a filter and partial treatment medium for any liquid that moves through it. For example, clay will remove heavy metals from the leachate such that the fluid emerging ultimately from the bottom of the clay liner would be filtered and partially treated. Thus, the clay liner has very low permeability, is continuous and homogenous, and provides long-term protection for ground and surface waters by preventing any leachate from escaping from the landfill itself. Leachate Collection System A permanent leachate collection system will be used in the operation of the landfill. The system is designed to collect and remove all leachate resulting from percolation of rainfall through the refuse in the landfill before it can percolate to groundwater or move in a lateral direction so as to enter the ground or surface waters of the state. The leachate collection system is based on conservative design assumptions, in that it is designed to collect and remove all water moving up from the clay as the clay liner consolidates, as well as water which has moved downward through the landfill. The water will move into the leachate collection system for the entire 40-year life of the landfill and beyond, but the design parameters for the leachate collection system were based upon the conservative assumption that all the water from the clay-settling area would migrate upward into the leachate collection system during the first ten years of landfill operations. Thus, the calculations upon which the leachate collection system design was predicated included this intentionally inflated prediction about the amount of leachate that will be generated and handled by the system. The amount of leachate actually produced will be substantially less than the amount predicted and the leachate collection system was shown to be based on sound engineering principles. The leachate collection system will be constructed by placing from three to eight feet of sand over the clay liner of the landfill. Trenches two feet wide by two feet deep will then be dug at 200-foot intervals and filled with drainfield rock averaging 1 1/2 inches in diameter. The trenches thus serve as conduits to collect leachate percolating downward through the landfill refuse and drain it to a central sump where the leachate will be pumped out by automatic pumps which operate when the leachate level in the sump reaches a certain height. Backup pumping capacity is provided to avoid overflow of leachate out of the sump and out of the side of the landfill in the event of mechanical breakdown. No leachate is expected to be generated for approximately the first three years of landfill operation since the refuse will act in the nature of a sponge to soak up and retain water entering the landfill for approximately that period of time. Once leachate is produced and collected in the sump, however, it will be pumped into active areas of landfill for recirculation through the landfill. Recirculating leachate was established to be an acceptable form of pretreatment or partial treatment for leachate. Recirculation by percolating leachate back through the refuse in the landfill evaporates some water and causes some of the pollutants to be absorbed by the refuse and soil in the landfill, reducing the total amount of leachate produced which must be removed from the landfill site. In the instant situation, any excess liquid leachate will be pumped out of the sumps, stored in storage tanks and periodically removed and trucked to a county wastewater treatment facility for treatment. Wastewater treatment plants of the secondary treatment mode are capable of adequately treating landfill leachate. The County, however, expressed a willingness to construct a treatment plant at the landfill site for specifically treating leachate from the landfill as an alternative to trucking leachate to a nearby county wastewater treatment plant should this method be more efficacious in preventing landfill leachate causing a deleterious effect on surface waters of the state, either at the landfill site or as a component of effluent from a nonspecifically designed wastewater treatment plant. Storm Water Drainage System In addition to the actual construction permit application for the landfill itself, the county has submitted an application for construction and operation of a storm water drainage system to be used in conjunction with the landfill operation. The DER performance standards for storm water drainage systems are contained in Rule 17-25.04(5), Florida Administrative Code. In effect, such a storm water system must drain and filter runoff from the first one inch of rainfall which falls on a given area within 72 hours. This rule presumes that such a capacity provides reasonable assurances that all applicable DER water quality standards will thus be met. In point of fact, it was established that primary pollutants carried by storm water runoff are flushed from the surface of land and in effect "bound up" in the first one-half inch of rainfall. The proposed storm water system to be used in conjunction with the landfill will meet this performance standard. It was undisputed that the storm water system will indeed collect, detain, and filter the runoff from the first inch of rainfall within 72 hours at the site. The system can handle and filter larger amounts of rainfall and, indeed, when initially installed, the system will filter runoff from the first inch of rainfall occurring within 24 to 36 hours. The storm water drainage system is designed to keep storm water completely separate and physically apart from the landfill itself and thus to prevent leachate from entering the storm water drainage system and vice versa. Rainwater falling on the active landfill itself will move through the landfill vertically, percolate through the refuse and soil, and be collected as leachate in the leachate collection system, with subsequent treatment. Rainfall falling on the surrounding portions of the landfill site will not contact refuse, but, rather, will flow laterally into the storm water drainage system basins, where it will be filtered to remove silt, sediment, and other degradatory materials. Thus, the water entering the storm water system will be rainwater, together with any sediments or other materials nicked up during the course of its drainage over soil and land, with no contact with refuse or related pollutants. The filter medium in the storm water basins will consist of clean sand. The basins will consist of berm walls and at least two feet of clean sand in the bottom as the filter medium. The approximately six basins and drainage swales will serve as a filtration-treatment mode, as well as retention ponds, as a method of storm water treatment. A drainage swale will be used to filter storm water runoff from the access road. This method of storm water filtration and treatment has been shown to be acceptable on other landfills similarly designed and to be the most effective method of filtration and treatment of storm water related to such a landfill operation. The storm water system will thus reduce the potential for pollution in the streams near the site which will receive the filtered storm water after it is ultimately discharged from the basins and retention ponds and swales. Presently, the sand, sediment, clay, and other materials on the site are washed into the streams by storms. After the landfill is constructed and operating, the storm water flowing off the sites will also be filtered and treated in accordance with DER standards. Particulate matter in the storm water runoff will be collected in the basins. Periodic monitoring of the effectiveness of the storm water treatment basins and swales should be performed to ensure the filter medium continues to function effectively as opposed to becoming clogged with silt deposits with resultant overflow of unfiltered storm water over the tops of the basin berms. Water Quality Hillsborough County has conducted a ground and surface water monitoring program to evaluate the existing water quality at the site. This was done through the installation of monitoring wells and concomitant sampling of the water in those wells for water quality parameters in accordance with DER rules. The ground and surface water at the site will be regularly monitored throughout the life of the landfill through the use of monitor wells and other means. Parenthetically, it should be noted that the DER rules require a minimum of three monitor wells to be installed at Class I landfills such as this. Hillsborough County has installed nine monitor wells and performed evaluation and testing of water quality of water samples collected from all nine of those wells. That monitoring program included tests for "indicators," that is, substances that would reveal whether a need for further testing existed. Such tests were performed both at the groundwater monitoring well sites, as well as surface water sampling locations over the entire landfill site. The tests indicated elevated concentrations of total organic carbon in the groundwater. Steve Boyes, an employee of DER, was tendered and accepted as an expert on water quality at phosphate mine sites. He established that the total organic carbon concentrations found in certain groundwater samples came from naturally occurring organic material in the groundwater. Test data supported that conclusion. The wells with elevated levels of total organic carbon collected water from an area in the soil which contained roots and other decomposing organic matter. The organic carbon concentration noted in certain groundwater monitoring wells is a naturally occurring instance. There is no DER water quality standard extant in the rules for total organic carbon. It was not demonstrated to have any deleterious effect on human health, and the installation and operation of the landfill was not shown to cause or enhance any deleterious effect on surface or ground waters of the state (or its citizens) which might be occasioned by the elevated carbon concentrations in groundwater at portions of the site. The phosphate mine which formerly operated at the subject site was known as the Boyette Washer Mine. Initially, in the first years of its operation, it used what is called a "single stage washing process" to separate the phosphate from clay. In this process, the clay, sand, and phosphate were separated simply by hydraulic means, that is, being washed with water from deep wells in the Florida Aquifer. The clay and water was then pumped into a clay- settling area. No chemicals were used for separation of the phosphate in this process. The clay-settling area in which the clay and process water was pumped is now the subject landfill site, the clay being naturally consolidated over time and which will be further consolidated in the construction process of the landfill into the "clay liner." After several years (approximately in 1955), the mine operators built a first-stage flotation plant which used caustic soda, tall oil (fatty acids), and fuel oil to separate the fine clay materials from the phosphate. Tom Holland, a witness for the Petitioner, worked as the mine supervisor for a substantial number of years. He established that most of the clay discharge in the clay-settling area came from the washer process as opposed to the flotation process. The clay-settling area was almost full of clay before the flotation plant began operation. Dr. Garlanger is a former professor at the Massachusetts Institute of Technology and was tendered and accepted as an expert witness on clay waste disposal. He presented a study of water quality data collected from six phosphate mines using the same treatment processes. Clay samples were taken out of these similar or typical phosphate mines for purposes of comparison to the water-clay characteristics of landfill sites. For purposes of that study, the water was squeezed from clay taken from those six representative clay-settling areas. The data from those sites showed that normally the water embodied in the clay meets the Department's primary and secondary drinking water standards. At the proposed landfill site, the water squeezed from clay samples taken from the bottom of the clay-settling area would be the same or better quality than those from other mine locations, since only clay and water were pumped into the settling area for several years before any flotation process was begun at the mine. During that time the only substances going into the bottom of the clay- settling area were clay and drinking water obtained from deep wells in the Florida Aquifer, the primary source of potable drinking water for this portion of the state. Thus, any water migrating downward from the bottom of the clay- settling area, or clay liner, would be uncontaminated water which meets drinking water standards, inasmuch as the high impermeability of the clay liner would prevent pollutants migrating from above in the form of landfill leachate. It would be a better quality than the water collected at the six other mine sites because the samples collected from those clay-settling areas were collected at the top and thus contained the process water from the flotation plants at those mines. Even so, those samples still met DER's primary and secondary drinking water standards. Data collected from this landfill site confirms these findings. Hillsborough County performed water quality analyses for "priority pollutants" on water samples taken from a number of locations around the site. These analyses were designed to identify any pollutant which might have been deposited at the site in the mines' process water, including benzine and kerosene compounds. Hundreds of analyses were performed, and all of the priority pollutant tests were negative. There are no priority pollutants such as benzine or kerosene in the groundwater at the landfill site. The results of this detailed investigation, in evidence, establish that the quality of water in the clay at the site, if squeezed out of the bottom of the clay liner in the present clay-settling area of the old mine, will not contribute to any water quality violations of pertinent rules. To ensure this result, the County has agreed to regularly monitor and test the ground and surface water at the site throughout the life of the landfill. The Petitioner presented no contrary water quality data. Two lay witnesses living near the site have fished in the mine-cut lakes near the landfill site, but which are not involved in the landfill construction and operation. These witnesses have noted a kerosene-like flavor in fish consumed which were caught from these "mine-cut lakes." The cause of that peculiar taste in the fish was not demonstrated, and no evidence was presented to establish that the taste was caused by water from the clay-settling area, which is the only part of the former phosphate mine site involved in this proceeding. Radioactivity In the course of performance of the water quality analyses referred to above, the radioactivity in the groundwater at the site was evaluated. Levels of radium 226 in the filtered water sample were within DER standards. There were, however, elevated levels of gross alpha radiation in two of the test wells. Dr. Emmett Bolch, a professor of radiation-related studies at the University of Florida, and Dr. John Garlanger established that the elevated levels of gross alpha radiation are caused by naturally occurring deposits of radioactive minerals in the "leach zones" on top of the "Bone Valley formation" lying beneath the landfill site. The leach zone is the weathered, fissured surface of this Bone Valley formation, which was weathered during exposure to the atmosphere and elements at remote geologic times. Radioactive minerals were then deposited by alluvial action in the fissured surface, and at later geologic times, the leach zone of the Bone Valley phosphate-bearing formation was covered with sand, silt, and other materials. The Petitioner's expert witness agreed that gross alpha radiation in the groundwater was a naturally occurring phenomenon. Excessive levels of gross alpha radiation do not typically occur in clay-settling areas such as the one where the landfill would be built. Dr. Bolch has substantial experience with the study of radiation levels at phosphate mines throughout Florida. The radiation level in water contained in clay- settling areas is normally well within the applicable Department standards, but, in any event, the radioactive material in clay-settling areas is primarily bound up in the particles and sediment. Once water moves through the ground in clay- settling areas, these radioactive particles are filtered out, thus no significant level of radioactivity could leave the clay-settling area in the groundwater. Although unfiltered samples containing radioactive sediment and particles may demonstrate elevated radioactivity, filtered water samples from clay-settling areas routinely meet DER standards for radiation. These filtered samples of water are more representative of typical drinking water which citizens would obtain from the surficial aquifer, to the extent that they use shallow wells. This thesis by Drs. Bolch and Garlanger is factually established by the water quality data obtained at the instant site. Test Hole 28, one of the County's monitor wells, is located hydrologically down-gradient from the clay- settling area. Water flows from the clay-settling area and passes through Test Hole 28. The water quality in Test Hole 28 is representative of the water quality in the clay-settling area. Nonetheless, the filtered sample collected from Test Hole 28 on October 14, 1983, contained 11.6 pci/liter of gross alpha radiation [see Exhibit 84(c)]. This is well within the DER standard of 15 pci/liter. Thus, the water quality tests for these sites establish that groundwater flowing out of the clay-settling area does not contain elevated levels of gross alpha radiation. On the other hand, high levels of gross alpha were found in Test Hole 22, which lies up-gradient (hydrologically upstream) from the clay-settling area. Since the water from a clay-settling area would not flow in an uphill direction, the high gross alpha content in Test Hole 22 would not have come from the clay-settling area, nor would the higher level of radiation found in that test hole leave the clay-settling area and migrate off the landfill site. It is noteworthy that Test Hole 22 is located on land that has not been mined. The higher level of radiation found in that well is clearly naturally-occurring, and its concentration has not been enhanced by any man-made technological process. Accordingly, it has been established that the water coming from the bottom of the clay liner will meet DER primary and secondary drinking water standards. It will not have elevated levels of radioactivity. Steve Boyes, a DER hydrologist and expert witness on groundwater impacts of the phosphate mining process, established that there is a very low, extremely remote possibility that the landfill will ever have any effect on any drinking water supply. Operation and Maintenance of Landfill Most of the refuse was brought to the landfill in a closed transfer truck from transfer stations set up by the County. The refuse will be inspected at the transfer station before it is loaded on the trucks for transportation to the landfill. At the entrance to the landfill, trucks will be weighed and inspected for chemical or hazardous wastes which cannot be placed in the landfill and then will he directed to the active "working face" of the landfill. Two full-time employee-inspectors will be on duty at the working face to visually inspect the refuse as it is placed on the landfill. The refuse will be spread across the working face and compacted in layers. At the end of the working day, at least six inches of daily cover material will be placed over the refuse. A 12-inch layer of intermediate cover material will be placed over areas not to be used again for several months. After an area of "lift" has been filled to its maximum elevation, a two-foot layer of final, permanent cover will be placed over it. All cover material is available on the site. The daily cover material will consist primarily of sand obtained from the sand tailings pile at the mine site. The sand material was established to be an appropriate daily cover material. It is readily workable and, unlike clay, can be used under adverse weather conditions, such as prolonged rainfall. A sand-clay mix would not be an adequate cover material for daily use; it is not as easily workable, especially when wet, and would create a relatively impermeable cap, which could cause methane to build up beneath it in the landfill. When a new lift or cell is built on the landfill, additional refuse is placed over the preceding daily cover. If sand is used for daily cover, any leachate in the new material can readily pass through the sand and appropriately enter the leachate collection system. If a sand-clay or all-clay mix were used, the leachate would not be able to percolate downward and would form pockets or pools at various levels in the landfill rather than flowing downward into the leachate collection system. These pools of leachate would then break out of the sides of the landfill and possibly pollute surface waters of the state by entry into the storm water system or otherwise. Routine maintenance practices at the landfill will prevent potential problems such as this from developing. Regular frequent inspections will be made around the entire landfill. Movable litter fences will be erected around the working face to retard dispersal of windblown litter. Work crews will regularly pick up any litter on access roads, which problem will largely be prevented initially through the use of covered trucks for transportation of refuse into the landfill. The storm water basin and drainage system must be regularly inspected and maintained to prevent sedimentation clogging. The most likely operational problems typically occurring at such a landfill can largely be prevented by regular inspection and routine maintenance. In this connection, the sanitary engineer's office of the county should maintain a qualified county employee in sanitary landfill operations to oversee the correct operation of the landfill, especially if operation of the landfill is performed by a private contractor or agent. Methane Gas As organic material such as discarded food, grass clippings, etc., decomposes, it produces methane gas. The ash and residue from the resource recovery facilities, once they become operational, will not produce methane gas when deposited in the landfill, since that refuse would already be burned. Since there will be limited amounts of organic solid waste going into the landfill after 1987, the potential for methane gas generation is limited. The daily cover material of sand is highly permeable and will allow methane gas generated to escape to the atmosphere in a harmless fashion. If methane gas is seen to accumulate in an adverse manner inside the landfill, the County will construct vents at appropriate locations on the landfill to allow methane to escape to the atmosphere. As established by Dr. Urone, the Petitioner's own expert on air pollution, the release of methane gas to the atmosphere will not violate any air quality standards or cause human health problems. Odor Odor at landfills is caused by decomposition of organic matter. As in the case of methane gas, the potential for odor generation will be greatly reduced after 1987 because the landfill will only receive limited quantities of unburned organic waste. Potential odor problems at landfills normally are eliminated by appropriate and regular application of the daily cover material over the refuse. If daily cover material is properly used, there will be no noticeable odor beyond the site boundary of the landfill. The applicant should be required, as a condition to a grant of the subject permits, to agree to weekly inspections by both the Hillsborough County Environmental Protection Commission and/or DER to ensure that the landfill is operated in compliance with all the permit conditions, including the condition that odor be unnoticeable beyond the site boundary. If an odor problem develops, the Department should require Hillsborough County to place additional thicknesses of cover material over the solid waste daily, as well as to require a different cover material should the sand cover material prove inappropriate. Dust Control Dust control of the site will be accomplished by water spraying which will be used on access roads, working roads within the landfill itself, and at the working face and all construction areas. The roads on the site will be paved or coated with soil cement to reduce airborne dust. Further, the size of the working face and the borrow area will be kept to a minimum to reduce the potential for airborne dust. Petitioner's expert on air pollution, Dr. Urone, acknowledged that these standard, well-known dust control practices would be sufficient to control airborne dust problems. Airborne Radiation Hillsborough County's radiation expert, Dr. Bolch, calculated the potential radiation caused by dust emissions at the site due to landfill operations. His calculations are based on a "worse case" scenario concerning dust-borne radiation emissions. Radiation from dust emissions at the landfill site will be insignificant. Currently, radon gas is released from the clay- settling area and the sand tailings pile. When the landfill is built, however, the sand and clay obtained from the sand tailings pile and clay in the clay liner will be buried at the bottom of the landfill, except for the sand deposited as daily cover at the current working face. By the burying of the other sand and clay used in the landfill beneath the landfill, the landfill itself will actually create a barrier to prevent radon gas from entering the atmosphere beyond that minute amount present in the daily cover material on an active landfill "lift." Thus, the landfill will actually somewhat reduce the current radon gas emissions naturally occurring at the site. The radon gas was not demonstrated to have any health impact on people working at the site nor on surrounding residents. Nor were existing levels of gamma radiation at the site shown to have any human health impact. Sink Holes The likelihood of a sink hole occurrence at the proposed landfill is very low. Dr. John Garlanger of Ardaman and Associates was accepted without objection as an expert in the area of soil mechanics, clay waste disposal, hydrogeology, and sink hole formation. He is a member of the advisory board for sink hole research at the University of South Florida and has published numerous papers and articles on the remediation of sink holes and their causes. He directed the subsurface hydrogeologic investigation at the landfill site preparatory to filing the permit applications. The overburden soil at the immediate site of the landfill is approximately 22 feet thick, with the phosphate bearing Bone Valley formation underlying that, for a depth of approximately 20 feet. Below that formation is the dense Hawthorne formation of an approximate 105-foot thickness, before the Tampa Limestone strata, which encompasses the Floridan Aquifer, is reached. Because of the great thickness of the Hawthorne formation, which is quite dense and which serves to protect the limestone underlying it from fissure development caused by percolation of ground water (which can ultimately result in sink hole formation), there is a scant likelihood of sink holes developing beneath or in the immediate vicinity of the landfill which could cause a deleterious impact on ground water supplies in the area. The likelihood of a sink hole developing at the proposed site is much lower than in other areas of Hillsborough County to the north, northeast, and northwest. The fact is corroborated by the investigation of Southwest Florida Water Management District which establishes that indeed the site has a low potential for sink hole development (DER Exhibit 5). 2/ Dredge and Fill Activities The proposed dredge and fill activities at the landfill consist of the installation of several culverts for road crossings and similar minor activities. The proposed activities were designed to minimize any potential impacts on state waters. Hillsborough County will use turbidity curtains and other recognized techniques for controlling erosion, sedimentation and other impacts from these activities. In this regard, there is no contiguous connection between the clay-settling area where the landfill will be constructed and any surface water body. A culvert is located passing through a berm or dike on the southwest side of the clay-settling area, but the culvert only discharges water on rare occasions of extreme rainfall. The vegetation near the culvert shows that the rainwater standing on the clay-settling area rarely rises to a level which would cause a discharge from that basin. Similarly, with regard to the lakes on the southeast side of the county's property, which are not involved in the area of the proposed landfill construction and operation, there is no contiguous surface water connection between those lakes and the surface waters located off the site. There is some groundwater seepage from the foot of a dike, but no regular flow over the top of the dike connecting to any surface water body was established. In any event, the proposed activities would have no significant short- or long-term adverse impacts on water quality. The Petitioner relied on the testimony of two expert witnesses, Drs. Carnahan and Urone. Drs. Carnahan and Urone collected no soil, water, or air samples and performed no laboratory tests nor independent calculations or analyses. Dr. Carnahan read the permit application less than a week before the final hearing and visited the site only on the day before his testimony. Dr. Urone never visited the landfill site. Dr. Urone was proffered as an expert in air pollution, but he has no prior experience with the construction and operation of landfills in terms of their air pollution potential. Dr. Urone opines that there could be a potential odor problem at the landfill, but has done no analysis or investigation regarding this potential problem at the subject landfill site, or any other similar landfill, to calculate the amount of potential odor which could be generated. He admittedly is not an expert concerning the use of soil cover to control odors at landfills. He refrained from expressing an opinion about the suitability of the proposed daily, intermediate, and final soil covers. Further, Dr. Urone acknowledges that the methane gas in itself, in the concentrations to be expected from such a landfill, would have no significant impact on air quality. He further admitted he was unable to estimate what would occur at the subject site in terms of airborne dust emissions, but acknowledged that they could be controlled by using well-known dust control techniques such as those found above. Finally, Dr. Urone admits that if the landfill was operated in a manner described in the permit application documents which he reviewed, then there should be no health problem as that is defined by current health standards, nor did he expect any violation of air quality standards. Based on a limited review of the permit application materials, both Drs. Carnahan and Urone expressed only general concerns about the effects of the proposed project. Finally, Dr. Carnahan admitted the thoroughness of the investigation and site evaluation performed by Respondent's expert witnesses in these subject areas and did not dispute the result of their investigations (in evidence). Thus, the testimony of the expert witnesses presented by the County in the above subject areas is accepted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Department of Environmental Regulation issue permits to Hillsborough County for the construction and operation of the proposed Southeast Hillsborough County landfill and for the attendant storm water drainage system and dredge and fill operations, subject to the following conditions: That the Hillsborough County Environmental Protection Commission and/or DER ensure that the landfill operation is inspected by duly qualified personnel on a weekly basis; That the county have a qualified employee on the site daily to ensure that the landfill and storm water drainage system is being consistently operated properly; That the Department should take background water samples from wells of the residents living within one mile of the site before construction and operation of the landfill commences to establish background data by which to measure the quality and safety of the later landfill operation in terms of any impacts on groundwater quality, which water quality should be periodically monitored in a similar manner thereafter. DONE AND ENTERED this 29th day of December, 1983, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street, North St. Petersburg, Florida 33701 William W. Deane, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Jacob D. Varn, Esquire David S. Dee, Esquire Suite 410, Lewis State Bank Building Post Office Drawer 190 Tallahassee, Florida 32302 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Kearney is engaged in the development of real property in and around Hillsborough County, Florida, and is located in Tampa, Florida. Corrugated is a Louisiana Corporation which maintains a local headquarters in Tampa, Florida, and is presently seeking a business outlet in Hillsborough County for the assembly and distribution of metal buildings. At all times material hereto, Kearney and Corrugated have been parties to a real estate transaction concerning certain real property located at 1920 U.S. Highway 301 in Tampa, Hillsborough County, Florida. The subject property consists of .82 acres of undeveloped land which is located in an area of rapid commercial and industrial growth. Under the Hillsborough County Zoning Code, the subject property is designated M-1, which authorizes commercial and industrial uses. Corrugated is the purchaser of the subject property, and proposes to establish an assembly and distribution center for pre-painted sheet metal buildings. Corrugated does not propose to engage in any activity which will generate industrial wastewaters of any kind, and in particular, will not generate wastes or wastewaters of a "hazardous" or "toxic" nature. No centralized public wastewater service has been available to this property, and septic tanks with drainfields are utilized by both adjacent properties for their domestic and other wastewater needs. Kearney and Corrugated have determined that the property in question is suitable for the intended uses in all other respects, including water, electricity, and transportation. In September, 1988, Kearney and corrugated sought approval from Respondent of a permit to install an onsite sewage disposal system (septic tank and drainfield) for the sole purpcse of providing toilet services to employees of the company. The site plan and preliminary construction drawings for the on- site system were reviewed by the Department of Environmental Regulation (DER) to determine whether the project posed unusual wastewater problems or relied upon inadequately designed facilities. The DER had no objection to the installation of the septic tank and drainfield to serve the proposed system because of the non-hazardous character of the business, and the absence of floor drains in the proposed work areas. The Hillsborough County Health Department, however, gave immediate verbal denial of a septic tank permit based solely upon the industrial zoning of the property, and set forth its denial, in writing, on October 14, 1988. Following the County Health Departnent's denial, Kearney and Corrugated, based upon consultation with Respondent's officials in Tallahassee, assembled additional information to provide further assurance that the site would not generate industrial or hazardous wastes which could be disposed of via the septic tank. They provided detailed descriptions of each process to be performed by Corrugated, in substantiation of its claim that no wastewaters would be generated at the site. They also obtained the agreement of the Hillsborough County Building Department to subject any future building permit applications at the site to particular wastewater scrutiny, in addition to formal deed restrictions which they proposed for the subject property. Notwithstanding these additional representations, the Environmental Health Director of the Hillsborough County Health Department continued to reject the application on the sole ground that the property was zoned for industrial uses. On October 14, 1988, Petitioners submitted an application for a variance to the Hillsborough County Health Department and the Respondent, accompanied by supporting material setting forth the regulatory history referred to above, as well as the written representations and assurances, including proposed deed restrictions, which they had previously tendered to the County Environmental Health Director. They appeared before the Variance Advisory Review Board on November 3, 1988, to substantiate the specific measures which they proposed in order to ensure that no toxic or hazardous substances would be introduced into the septic tank system. These proposals were received by the Advisory Board without objection, and members observed that Petitioners had done everything they could do to provide the comfort margin which the agency sought. However, denial of the variance was recommended based upon the failure of Hi1sborough County to adopt a local ordinance providing for future inspections or controls by local officials to prevent future toxic or hazardous wastes from being disposed into the on- site sewage disposal system. Without such a local ordinance, the Advisory Board members expressed the view that it did not matter what the applicant presented to the Board. On December 2, 1988, the Respondent formally informed the Petitioners, in writing, that their application for a variance had been disapproved. This denial had the effect of formally denying Petitioners' permit application. Thereupon, Petitioners timely sought review of this decision by filing a petition for formal administrative hearing.
Recommendation Based upon the foregoing, it is recommended that the Respondent issue a permit for an onsite sewage disposal system to the Petitioners. DONE AND ENTERED this 18th day of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989. COPIES FURNISHED: Charles G. Stephens, Esquire Bayport Plaza - Suite 460 6200 Courtney Campbell Causeway Tampa, Florida 33607 Raymond Deckert, Esguire W. T. Edwards Facility 4000 W. Buffalo 5th Floor, Room 500 Tampa, Florida 33614 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Clerk 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact The Board of County Commissioners of Monroe County is responsible for maintaining a solid waste management program for the unincorporated areas of the county. The portion of the Florida Keys known as the "lower keys" between Pigeon Key on the north and Key West on the south is such an area. Prior to July 1, 1977, solid waste from this area was dumped at a site located on Middle Torch Key. Until approximately two years prior to the hearing, the Middle Torch Key dump site had been operated by private companies. The private companies apparently could not operate the site profitably under rules and regulations promulgated by the Department, and the County took over operation of the site. The site served as the solid waste dump for the lower keys until July 1, 1977. The Department had issued a temporary operating permit for the site, and open burning was permitted. The temporary permit expired on July 1, 1977. The Middle Torch Key dump site was never operated in full compliance with the Department's rules. The temporary operating permit was issued for the apparent purpose of allowing the County an opportunity to develop a system that could be operated accordance with the Department's rules. The County purchased a site on Cudjoe Key in the lower keys with the intention of utilizing it as a sanitary landfill. The instant proceeding is the culmination of the County's effort to obtain a permit to operate the Cudjoe Key site. The County has been utilizing the Cudjoe Key Site as a sanitary landfill since July 1, 1977. The Petitioners are homeowners in a residential subdivision which is located between three fourths of a mile and one mile from the proposed landfill site on Cudjoe Key. They object to operation of a sanitary landfill in such close proximity to their homes. In order to meet its obligation to maintain a solid waste disposal system, and in order to comply with DER regulations, the County needed to locate a landfill site in the area of the lower keys. The County lacks resources to truck solid waste from the lower keys to any sites in the upper keys, or on the mainland. Tie Cudjoe Key site was chosen for a sanitary landfill for two reasons. First, it was relatively isolated and had been used as a dump before. Secondly, it was for sale, and the County could afford to purchase it. The Cudjoe Key landfill site is not visible from any highway or from any residences or businesses. The site adjoins other public property, and is next to electric company property. The average height of the site is seven to eight feet above sea level. The site is located in close proximity to a borrow pit, and fill is thus obtainable at a fairly inexpensive rate. The County's plan of operation basically is to place solid waste on the site, and to cover it with six inches of landfill at the end of each working day. The site, if used in this manner, would have a useful life of approximately three years. If incineration techniques are eventually permitted, the life expectancy of the site would be increased to approximately twenty years. It does not appear that there is any ideal site for a sanitary landfill in the lower keys. There is very little dry land available that has not been previously developed. It appears that the best present alternative for solid waste disposal for the lower keys would be a joint venture with the City of Key West to desalinate salt water through incinerating activities at a site on Stock Island located just south of Key West. Neither the City of Key West, nor the unincorporated areas of the lower keys produce sufficient solid waste alone to make such a project feasible. Thus far a solution of this sort has not been politically feasible. Aside from this possibility, it appears that the proposed Cudjoe Key site is the best location for a sanitary landfill in the lower keys. The site on Middle Torch Key, which was previously operated as a dump would not comply with the Department's rules. The site is under water at high tide. In order to develop the site so that it would comply with the Department's regulation, a very large expenditure would be required. A copy of the County's completed application to the Department was received in evidence at the hearing as Department's Composite Exhibit 1. The application is complete, and contains the material required under Rule 17-7.05,, Florida Administrative Code. No competent evidence was presented at the hearing from which it could be concluded that the proposed Cudjoe Key landfill site does not comply with statutory requirements, or with the requirements set out in the Department's rules and regulations. Considerable evidence was offered from which it could be concluded that the site has not been operated in full compliance with the Department's regulations since July 1, 1977. Clearly the County has been operating the site since that date without a permit issued by the Department. It is apparent that the Department has not sought to take action against the County due to the pendency of this action. Pictures offered at the hearing, and observations made at the view of the site demonstrate that the required daily cover of solid waste has not been applied at the site. These violations could, and should if they continue, result in enforcement action being taken by the Department. The violations, and anticipated violations cannot, however, constitute grounds for denying a permit to operate a sanitary landfill site which complies with the pertinent statutes and rules and regulations.
