The Issue Whether the Petitioner's applications for (1) a general permit to operate a used oil refining facility and 2) an operation permit to operate an industrial waste water treatment system, at the same facility, in conjunction with the used oil refining operation, should be granted.
Findings Of Fact Sometime in the 1950's George Davis, the owner and operator of Davis Refining Corporation, became interested in used oil recycling and refining. From that time on, Mr. Davis worked towards his dream of operating a used oil recycling and refining center by gradually accumulating the land and equipment to operate such a facility. In order to further his goal, Mr. Davis acquired property located at 2606 Springhill Road in Tallahassee, Florida. Eventually, Mr. Davis applied for a permit to construct an industrial waste water treatment system in conjunction with a used oil refining facility on the Springhill Road property. On January 21, 1986, the Department issued a construction permit to the Petitioner to modify and construct an industrial waste water treatment system. The construction permit was subsequently extended on three different occasions. The last extension, granted May 30, 1989, extended the construction permit to its full statutory limit of five (5) years. The final expiration date of the construction permit was January 20, 1991. Petitioner was notified of the expiration date by the Department. During the time of the construction permit, Mr. Davis constructed an industrial waste water treatment system and an oil recycling and refining facility on his property on Springhill Road. Less than sixty days prior to expiration of the construction permit for the industrial waste water treatment system, the Petitioner submitted an application for renewal of an operation permit. The Department received the application on January 10, 1991. Unfortunately, the application for renewal of an operation permit was not the correct form since the Petitioner never had an operation permit. The application was rejected by the Department because it was the incorrect form and did not have the required permit fee. In March of 1991, after the expiration of Petitioner's industrial waste water treatment construction permit, Petitioner filed the correct application for an industrial waste water treatment operation permit and submitted the required fee. The industrial waste water operation permit application was denied by the Department because it was incomplete and lacked the required reasonable assurances that the system would not be a source of pollution in violation of water quality standards or contrary to the public interest. On October 29, 1990, Petitioner submitted a Used Oil Recycling Facility General Permit Notification to the Department. By letter dated November 28, 1992, the Department timely denied use of a general permit to operate a Used Oil Recycling Facility because the application lacked the requisite reasonable assurances that the proposed operation of the facility would not discharge, emit, or cause pollution so as to violate water quality standards or be contrary to the public interest. Even though the construction permit has expired and no additional permits have been issued by the Department the Petitioner continues to accept used oil and oily industrial waste water from outside sources for treatment. Currently, the facility consists of a used oil refining plant, industrial waste water treatment system, and separator (coalescer) system and water treatment pond. Munson Slough separates the facility into two parts. The used oil refining portion of the facility together with the industrial waste water treatment system input and separator (coalescer) system are located on the east side of Munson Slough. The refining portion of the facility is immediately adjacent to the slough. The industrial waste water treatment pond is located on the west side of Munson Slough. The industrial waste water treatment pond is likewise immediately adjacent to the slough. The industrial waste water treatment system is an integral part of the used oil recycling operation. Used oil and oily waste water are accepted from outside sources and are put through the separator system to separate the oil from the water and other contaminants. The separated oil is then re-refined at the refinery. The remaining industrial wastewater contains oily materials, solids, and volatiles. The separated water is pumped through a pipe underneath Munson Slough to the industrial waste water treatment pond. Additionally, the surface and stormwater runoff from the refining facility on the east side of Munson Slough also goes through the same industrial waste water treatment system and is pumped into the waste water treatment pond. Runoff from the refinery contains various pollutants as well as pollutants from any spills occurring at the refinery. Both the general permit for the refining facility and the operation permit for the industrial waste water treatment system depend on the ability of the waste water treatment system and pond to adequately handle the waste water and runoff water from the refining facility without permitting leaks of the wastewater into the environment. The industrial waste water treatment pond is lined with soil cement. Soil-cement is not a common material used in the construction of industrial waste water pond liners and the Department's personnel is not familiar with the material and its ability to function as an adequate liner for an industrial waste water pond. The soil-cement is a sand-cement mix (10 percent). The sand-cement was intended to be layered to a depth of six inches on the sides and bottom of the pond. The evidence showed that portions of the liner achieve a six inch depth. However, the evidence did not show that the soil-cement's depth is consistent throughout the liner since no as-built plans or certification for the facility were submitted to the Department and the engineer for the project at the time of its construction was not called to testify on whether the pond was constructed according to the construction plans. The sand cement liner overlays a high clay content pond bottom. The estimated (not established) permeability rate of the sand-cement pond liner is 1/100,000,000 centimeters per second and is within the Department's parameters for the adequacy of a lining material if that material is shown to actually have such a permeability rate by the time the operation permit is applied for. No materials data was submitted to the Department which demonstrated that the sand- cement liner of the pond actually achieved the permeability rate of 1/100,000,000 centimeters per second or the deterioration rate of such a liner. Likewise, no expert witness was called to establish such facts. The small amount of information given the Department on the sand-cement liner in Petitioner's application for its construction permit for the facility is inadequate to establish the actual performance of the sand-cement liner for purposes of the operation permit. Water from the industrial waste water treatment pond is discharged to the City of Tallahassee's waste water treatment system. The City of Tallahassee requires the industrial waste water treatment pond water to be tested for water quality prior to discharge to the City's waste water treatment system. The City requires that the waste water pond be aerated for approximately four (4) hours before discharge to the City waste water treatment system. One function of the aeration is to "blow off" the volatile contaminants from a used oil refining operation which might be present in the ponds water prior to aeration. However, the results of one water quality test indicated the presence of volatile substances and nonvolatile substances consistent with petroleum product contamination. Unfortunately, the results of only one water quality test were presented at the hearing. No conclusions either for or against the Petitioner can be drawn from the results of one testing period. Therefore, such test results cannot be used to affirmatively establish reasonable assurances that the pond is not leaking. In an unprecedented effort to aid the Petitioner in getting approval of his applications, the Department agreed to accept Petitioner's submittals and assertions regarding the integrity of the pond's liner as reasonable assurance if several soil borings and their subsequent analyses did not reveal any indication of contamination from the pond to soil or ground water. One soil boring was obtained by Dr. Nayak and six soil borings were obtained jointly by Dr. Nayak and the Department from locations around the industrial waste water treatment pond for chemical analysis. Unfortunately, chemical analysis of the soil borings revealed the presence of contaminants consistent with contamination parameters for waste oil recyclers. Therefore leakage or improper discharge from the pond could not be ruled out and it fell to the Petitioner to demonstrate that the contamination found in the soil was not the result of leaks or discharge from the pond. Petitioner points to the fact that the pond is supposedly setting on an impermeable layer of clay. However, it is not unusual for the geological features of a site such as the one upon which the treatment pond is located to vary within the limited site area. The different sites of the soil borings around the pond revealed that the substrata differed between the bore sites. The Department's geological expert testified that, based upon his observation at the site, including observing and participating in the taking of soil samples from the borings, that groundwater contamination was likely. In short, it is impossible to determine the geological composition of the entire site by the one soil boring taken by Dr. Nayak or even by the six borings performed jointly by the parties. Dr. Nayak's testimony that he is able to determine the geological features of the pond site with one boring is not credible nor is Dr. Nayak qualified to make such an assessment even if such were an acceptable scientific method for making such determinations. Therefore, the evidence failed to demonstrate that the waste water pond is sited over an impermeable layer of clay. Moreover, even if it were, then any contaminated water improperly discharging through the bottom layer of the pond would migrate along the top of the clay until it reached Munson Slough and still be a pollution problem for water quality purposes. The Petitioner has not, at any time prior to or during the hearing, obtained any environmental background of the site. Nor was any such information introduced at the hearing. The on-site observation of the taking of soil bores, visual inspection of the site, and the chemical analysis of the soil samples taken from the borings are consistent with petroleum contamination resulting from the industrial waste water pond. There are procedures and courses of action which the Petitioner can pursue to address the apparent contamination problems and to demonstrate the reasonable assurances necessary to qualify for the required Department permit to operate the used oil recycling facility. The Department has made many suggestions to the Petitioner as to various methodologies that the Petitioner might employ in order to endeavor to provide reasonable assurances that the waste water treatment pond does not leak. These suggestions include emptying the pond and examining the liner, performing a materials balance calculation, or performing more soil borings sampling and testing, together with assembling additional hydrological data. However, other than chemical analysis of the soil borings, the Petitioner has not opted to pursue any suggested procedure for obtaining the desired permit and did not submit sufficient competent, substantial evidence of any credible or scientifically reasonable alternative explanations for the presence of indicator chemicals in the soil borings. In short, The Petitioner has not submitted sufficient evidence nor provided any reasonable assurance that the operation of the used oil recycling facility will not discharge, emit or cause pollution. The Petitioner also has not provided reasonable assurance that the operation of the used oil recycling facility will not violate water quality standards or be contrary to the public interest. Similarly, there was insufficient evidence and no reasonable assurance submitted or offered by the Petitioner that the industrial waste water treatment system could be operated without violating water quality standards or being contrary to the public interest. Therefore Petitioner is not entitled to either a general permit for a used oil recycling facility or an operation permit for the industrial waste water treatment system used in conjunction with the used oil facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that a Final Order be entered denying the Petitioner both the general permit to operate a used oil recycling facility and the operation permit for the industrial waste water treatment system without prejudice to reapplying for such permits. DONE and ENTERED this 9th day of September, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5140 and 92-1560 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, and 29 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 11, 15, 27 and 30 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraphs 1 and 2 of the Petitioner's Proposed Findings of Fact were introductory and did not contain any factual matters. The facts contained in the 1st, 2nd and 7th sentences of paragraph 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the 4th, 5th, 6th and 7th sentences of paragraph 5 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraphs 3, 6, 7, 10, 12 and 13 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the 3rd and 5th sentences of paragraph 8 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the last sentence of paragraph 11 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dr. S. K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Candi Culbreath, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On July 5, 1978, Gulfside applied to DER for the issuance of a permit to operate a wastewater treatment plant on property owned by it on Perdido Key in Escambia County, Florida. The proposed plant is designed to serve a condominium complex consisting of 64 units, with the expectation that 350 gallons of water per day per unit will be discharged into the system, thus requiring a minimum plant capacity of 22,400 gallons per day. The plant described in the application has a capacity to handle 24,000 gallons per day. The proposed plant will use an extended aeration process whereby effluent is routed from the individual units through a filter within the proposed plant and then discharged into two percolation ponds associated with the facility. The plant is designed to remove 90 percent of B.O.D. and suspended solids. In addition, the plant is designed with duplex blowers and pumps to insure continued operation in the event of failure of one of the units. An emergency generator is included to provide back-up power for the entire plant, including blowers, pumps and chlorinators. Perdido Key, where the proposed plant is to be located, is a barrier island located off the coast of Escambia County, Florida, near the Florida- Alabama border. There is substantial residential development presently on Perdido Key, but no central sewer system exists to service the area. Currently, only septic tanks and package sewer plants are available for waste treatment purposes on the island. Adjacent to Perdido Key is Old River, which has been classified a Class III water. Soils on Perdido Key are primarily sandy, and as a result, have a high percolation rate. The problem of high percolation rate through the soils of Perdido Key was adequately addressed by Gulfside in the design of percolation ponds associated with the proposed plant. The two percolation ponds are designed to be located at a minimum of four feet elevation above maximum high ground water level. In fact, during DER's review of this application, Gulfside agreed to raise the bottom elevation of these percolation ponds in response to a concern regarding their initial location in close proximity to the water table. The problem of the expected fast percolation rate was addressed in designing the size of these percolation ponds, and also taken into consideration in designing the method of distributing effluent across the bottom surface of the ponds. With regard to the latter consideration, initial design of the project contemplated a single point for discharge of effluent into each percolation pond. However, Gulfside has agreed to redesign these percolation ponds in such a fashion to discharge effluent more evenly throughout the bottom area of the ponds too combat the problem of the excess percolation rate. The proposed percolation ponds are designed with surface areas in excess of 15,000 square feet. The ponds were initially designed utilizing a six-to-one slope, which would have given twice the bottom surface area of the three-to-one slope eventually required by DER in the process of reviewing the application. The three-to-one slope shown in the plans and specifications results in a bottom surface area of 2,974 square feet. However, the engineering report submitted with the application indicates that percolation ponds will have a bottom surface area of 4,480 square feet. From the evidence, it would appear appropriate for the ponds to have a minimum bottom surface area of 4,480 square feet. From the evidence, this problem can easily be rectified by raising the bottom elevation of the percolation ponds by approximately one foot. This requirement should be imposed as a condition to the granting of the requested permit. The proposed plant, although designed to remove 90 percent of B.O.D. and suspended solids, is not designed to remove nutrients from the effluent. However, the evidence establishes that these nutrients. Will be removed by a combination of filtration through soil substrata and biological action in the percolation ponds. Gulfside has also agreed to install a spartina marsh waterward of the percolation ponds to act as a final nutrient scrubber. The system design is reasonably calculated to assure removal of harmful quantities of nutrients, and no competent evidence was adduced to indicate that the system design was not sufficient for this purpose. Thus, although the treatment plant is proposed to be located only 50 feet from Old River, there is no indication that it will, in fact, result in any adverse impacts to that water body. In addition, DER has no rules or guidelines regulating distances from which package sewer plants, such as that proposed in this application, should be located from bodies of water such as Old River. It should be noted here that the application which is the subject of this proceeding is solely for the purpose of construction of the proposed facility. DER has imposed a permit condition requiring an initial four months operation for appropriate testing to determine compliance with the rules and regulations promulgated by DER before issuance of an operation permit. If testing demonstrates noncompliance with DER's rules and regulations, the operating permit for the facility can be denied. Testimony adduced at the hearing established that members of Petitioner, Southest Escambia Improvement Association, Inc., own property in the vicinity of the proposed facility, and that they utilize waters surrounding Perdido Key for sailing, swimming, crabbing and other recreational uses. Both Petitioner and Gulfside have submitted Proposed Findings of Fact. Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4 and 8 have been substantially adopted in this Recommended Order. Gulfside's Proposed Findings of Fact numbered 1 through 5 have also been substantially adopted in this Recommended Order. To the extent that Proposed Findings of Fact submitted by either Petitioner or Gulfside are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues under consideration in this cause, or as not having been supported by the evidence.
Findings Of Fact Upon consideration of the oral and documentary evidence in the record, as well as the pleadings and joint prehearing stipulation, the following relevant facts are found: Cast-Crete owns and operates a concrete batch plant in Hillsborough County, Florida, and manufactures concrete products such as reinforced beams, lintels, seals and drainage structures on the property. The plant is located on the west side of State Road 579, 3/4 mile north of Interstate 4, Section 28, Township 28 South, Range 20 East. The concrete products are manufactured in various forms which are laid out over a large portion of Cast-Crete's property. Lubricating oils are utilized to facilitate the removal of the product from the confining forms. During this process some of the lubricating oil is spilled onto the ground. Also, cleaning solutions containing degreasers are utilized to wash the concrete trucks eight to ten times per day. This solution ends up on the ground. Aggregate limerock (crushed limestone) is used in the concrete formulation process and is stored in large piles on the property. In order to contain the dust, water is sprayed on the aggregate piles 24 hours a day. The wash water from the continuous process of wetting the aggregate, other waste water and some stormwater is channeled through the property and into a settling pond in the northwest corner of Cast-Crete's property. This pond discharges continuously off the property by way of a concrete flume into a county maintained ditch. Water in the ditch travels in a westerly direction approximately 200 to 300 yards before it passes under Black Dairy Road, where the watercourse deepens and widens. The ditch discharges into a marshy area which drains into Six Mile Creek and other water bodies. The pond at the northwest corner of Cast-Crete's property is equipped with a metal skimming device to remove oils and greases floating on the surface of the pond. Nevertheless, it is estimated that approximately 100 gallons of oil per year are discharged by Cast-Crete. Oil and grease in the outflow water is occasionally above 5 mg/L. Oil and grease layers have been observed on water at both Black Dairy Road and Six Mile Creek, probably resulting from road run- off. Approximately 90 percent of the water discharged from the property is a result of the wetting or washdown of the aggregate piles. The excess water which comes from the aggregate piles is laden with dissolved limestone, lime and limestone particles. This limestone dust raises the pH level of the water. Because of the continued wetting of the aggregate, water flows through the settling ponds and off of Cast-Crete's property at a rate of approximately 4.8 gallons per minute, or 7,200 gallons per day or 2.5 million gallons per year. During a rain event, the flow increases markedly. Except during times of heavy rainfall, water flowing from the respondent's property provides a thin stream of water in the drainage ditch approximately six inches wide and several inches deep. The pH of the wastewater from Cast-Crete's discharge flume is between 10 and 11 units. During high volume flows, the pH remains at or above 11 units. An increase of one unit of pH in the wastewater means that the wastewater has become 10 times more basic, since pH is measured on a logarithmic scale. The natural background of unaffected streams in the area of and in the same watershed as the Cast-Crete property is less than 8.5 units. Specific conductance or conductivity is the measure of free ions in the water. Typical conductivity readings from other water bodies in Hillsborough County range between 50 and 330 micromhos per centimeter. The specific conductance of Cast-Crete's wastewater ranges from 898 to 2000 micromhos per centimeter. This is due to the presence of calcium carbonate and calcium hydroxide in the water. Blue-green algae is the dominant plant species in the ditch between the Cast-Crete discharge flume and the first 150 meters of the ditch. A biological survey of the ditch system indicates that the diversity of species east of Black Dairy Road is low. This is attributable in part to the high pH of the wastewater. The low diversity can also be attributed to the fact that the County maintains the ditch by use of a dragline on an annual basis. Background samples from a site within one mile to the northwest of the Cast-Crete property were taken. The site (a stream passing under Williams Road) is an appropriate place to take background samples because the water there is unaffected by Cast-Crete's discharge or other man-induced conditions. The pH background sample ranged from 4.6 units to 5.1 units. The specific conductance background samples ranged from 70 to 100 micromhos per centimeter. Samples taken from a site potentially impacted by Cast-Crete's discharge showed a pH level of from 6.35 to 7.37 units and specific conductance of from 592 to 670 micromhos per centimeter. Cast-Crete discharges water from its concrete plants operation without a permit from the DER.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered requiring respondent to submit a complete application for an industrial wastewater permit within thirty (30) days, and that, if it fails to do so, it cease discharging wastewater from its property until such time as an appropriately valid permit is issued by the DER. Respectfully submitted and entered this 3rd day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1985. COPIES FURNISHED: David K. Thulman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building Blairstone Road Tallahassee, FL 32301 W. DeHart Ayala, Jr. 501 E. Jackson Street Suite 200 Tampa, FL 33602 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA, Petitioner, vs. CASE NO. 84-1647 CAST-CRETE CORPORATION OF FLORIDA Respondent. /
The Issue The central issue in this case is whether the application for a surface water management permit (permit no. 4-009-0077AM) filed by the Respondent, David A. Smith (Applicant), should be approved.
Findings Of Fact Based upon the prehearing stipulations of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Applicant is the owner of the subject property. The Applicant filed an application for a permit to construct a stormwater management system which was proposed to serve a residential and golf course development to be known as Sabal Hammocks. The site of the proposed project is approximately 720 acres in size and is located in township 24 south, sections 28, 29, 30, 32, 33, and 34, range 35 east, Brevard County, Florida. The entire project site for the Sabal Hammocks development is located within the boundaries of the St. Johns River Water Management District. To the west of the project site is an 140 acre public park that treats its own stormwater and releases pre-treated stormwater during some storm events into the canals on the Sabal Hammocks site. The Applicant's site is located adjacent to Lake Poinsett and prior uses of the land have included cattle grazing and the cultivation of rye and oats. The Applicant filed his application for the stormwater management permit (permit NO. 4-009-0077AM) on December 22, 1989. That application was deemed complete by the District on June 19, 1990. The District issued a notice of its intended action to approve the permit application on June 28, 1990. Save timely filed a petition challenging the proposed action. By law the District is the appropriate agency charged with the responsibility of reviewing applications for stormwater management permits within the subject area. Save is an association of individual persons and representatives from groups who utilize the waters of Lake Poinsett and its surrounding areas for recreational and business purposes. The receiving waters for stormwater discharge from the proposed Sabal Hammocks development will be Lake Poinsett. That water body is classified as Class III waters. Currently, a dike system exists along the southern boundary of the subject property. That dike system separates the internal grazing lands of the parcel from the lower marsh and flooded areas external to the dike. A series of ditches cross the parcel to drain the interior areas. Two agricultural discharge pumps are currently in use at the site. The operation of those pumps has been authorized pursuant to a consent order approved by the District's governing board on December 13, 1990. The dike system on the subject site has been in place since the 1970s. The original construction specifications of the dike are unknown. Sometime in the 1980s, several openings or breaches were cut in the dike system. Those breaches were opened pursuant to permits issued by the District and the Department of Environmental Regulation (DER) . The breaches were cut to a sufficient width and depth to allow boats to navigate through to interior areas of the subject property during those times when the water levels outside the dike would allow such entrance. The breaches were not cut to ground level and the original dike remained intact and uncompromised by the breaches. That is, the dike has not failed to impede water movement and the integrity of the dike was not weakened by the breaches. The original outline, dimension of the dike, remained visible despite the breaches. In 1986, the Applicant requested permission from the District staff in order to close or restore the dike breaches. At that time, the District staff advised David Smith that a permit would not be required to restore the dike since such improvements would be considered a maintenance exemption. Subsequently, and in reliance upon the representations made by the District's director,, the Applicant closed the breaches and restored the continuity of the dike system of the subject property. The Applicant's work to close the breaches was performed in an open manner, would have been visible to persons using the adjacent marsh or water areas for recreational purposes, and was completed at least one year prior to the application being filed in this case. Neither the District nor DER has asserted that the work to complete the original dike in the 1970s, nor the breaches completed in the 1980s, nor the restoration of the breaches in 1986 was performed in violation of law. Further, the District had knowledge of the subject activities. Save contends that the restoration of the dike system was contrary to law and that it was not afforded a point of entry to contest the closure of the breaches. Additionally, Save infers that the original construction of the dike system in the early 1970s was without authorization from authorities. Save's contention is that the prior condition of the property, ie. the parcel with breached openings, must be considered the correct pre- development condition of the land. The District, however, considered the pre- development condition of the parcel to be that of a diked impoundment separated from Lake Poinsett. The same assumption was made regarding the pumping of water from the area enclosed by the dike via an existing 36 inch pump which discharges to Bass Lake (and then to Lake Poinsett) and an existing 12 inch pump that discharges into the marsh areas adjacent to the property (between it and Lake Poinsett). The District's consideration of the site and the application at issue was based upon the actual condition of the land as it existed at the time this application was filed. The pre-development peak rate and volume of discharge from the site was calculated based upon the maximum discharge capacity of the two existing pumps (described above). Accordingly, the maximum pre-development rate of discharge from the two existing pumps is in the range of 90-107 cubic feet per second. The pre-development volume of discharge, based upon actual pump records, was calculated as 710 acre-feet for a 25 year, 96 hour storm event. The total areas encompassed by the Applicant's proposal are the 720 acre site where the golf course and residential homes will be located together with 140 acres from an adjacent public park. The runoff entering the stormwater system from that public park will have already been treated in its own stormwater management system. The Applicant's proposed stormwater system will consist of a series of lakes and interconnected swales. This wet detention system will capture the runoff and direct its flow through the series of swales and lakes via culverts. The waters will move laterally from the northwestern portion of the parcel to she southeastern end of the site. From the final collecting pond, she waters will be pumped to Bass Lake and ultimately flow to Lake Poinsett. Wet detention systems generally provide greater pollutant treatment efficiencies than other types of stormwater treatment systems. The maintenance associated with these systems is also considered less intensive than other types of treatment systems. The wet detention system proposed for Sabal Hammocks accomplishes three objectives related to the flow of stormwater. The first objective, the collection of the. stormwater, requires the creation of several lakes or pools into which water is directed and accumulates. The size and dimension of the lakes will allow the volume of accumulated water to be sufficient to allow stormwater treatment. The capacity of the lakes will also provide for a sufficient volume to give adequate flood protection during rainfall events and storms. The second objective, the treatment of the stormwater, requires the creation of a littoral zone within the system. The littoral zone, an area of rooted aquatic plants within the lakes or ponds, provide for the natural removal of nutrients flowing into the system. The plants serve as a filtering system whereby some nutrients are processed. The proposed littoral zone in this project constitutes approximately 37 percent of the detention system surface area and therefore exceeds District size requirements. The depth of the treatment volume for the proposed system will not exceed 18 inches. A third objective accomplished by the creation of the series of lakes is the provision for an area where pollutants flowing into the detention system may settle and through sedimentation be removed from the water moving through the system. The average residence time estimated for runoff entering the Sabal Hammocks detention system is 48 days. The permanent pool volume will, therefore, be sufficient to assure the proposed project exceeds the District's requirements related to residence time. The design and volume of the Sabal Hammocks system will also exceed the District's requirements related to the dynamic pool volumes. In this case the Sabal Hammocks system will provide for approximately 65 acre-feet of runoff. Thus, the proposed system will adequately control and detain the first 1 inch of runoff from the site. The length to width ratio for the proposed lakes, 18:1, exceeds the District's minimum criteria (2:1). The final lake or pond into which the stormwater will flow will be 17 acres and will have 15 acres of planted wetland vegetation. Before waters will be released into Bass Lake, the site's runoff will pass through 3100 linear feet of this final lake before being discharged. The proposed project will eliminate the two agricultural pumps and replace them with one pump station. That station will contain four pumps with a total pumping capacity of 96 cubic feet per second. Under anticipated peak times, the rate of discharge from the proposed single station is estimated to be less than the calculated peak pre-development rate of discharge (90-107 c.f.s.). The estimated peak volume of discharge will also be lower than the pre-development discharge volumes for the comparable storm events. The proposed pump station is designed to be operated on electrical power but will have a backup diesel generator to serve in the event of the interruption of electrical service. Additionally, the pumps within the station will be controlled by a switching device that will activate the pump(s) only at designated times. It is unlikely that all four pumps will activate during normal rainfall events. The Applicant intends to relinquish maintenance responsibilities for the stormwater system including the pump station to Brevard County, Florida. Finished floor elevations for all residential structures to be built within the Sabal Hammocks development will be at a minimum of 18.2 mean sea level. This level is above that for a 100 year flood. The floor elevations will be at least one foot above the 100 year flood elevation even in the event of the dike or pump failure or both. Finished road elevations for the project will be set at 17.5 feet mean sea level. This elevation meets or exceeds the County's requirements regarding the construction of roadways. It is estimated that the Sabal Hammocks system will retain at least 26 percent of all storm events on site. If the lake system is utilized to irrigate the golf course the proposed system could retain 45 percent of all storm events on site. Of the 31.27 acres of wetlands within the proposed site, only 4.73 acres of wetlands will be disturbed by the construction of this project. Some of the wetlands are isolated and presently provide minimal benefits to off-site aquatic and wetland dependent species. No threatened or endangered species are currently utilizing the isolated wetlands. The areas of wetlands which are productive and which will be disturbed by the development will be replaced by new wetlands to be created adjacent to their current location at a lower elevation. The new wetlands should provide improved wetland function since those areas will be planted with a greater diversity of wetland plant species. Additionally, other wetland areas will be enhanced by the removal of invader species and increased hydroperiod in the area. The integrated pesticide management plan for the proposed project will be sufficient with the additional condition chat use of Orthene, Subdue, and Tersan LSR will be authorized when approved insecticides or fungicides have not been effective. In this case, the estimates regarding the water quality for the proposed project were based upon data from studies of multifamily residential projects. Data from single family/ golf course developments was not available. Therefore, based upon the data used, the projected runoff concentrations for this project should over estimate pollutants and are more challenging to the treatment system than what is reasonably expected to occur. In this regard, the overall treatment efficiencies are estimated to be good for all of the parameters of concern with the exception of nitrogen. The projected increase in nitrogen, however, will not adversely impact the receiving water body. The projected average concentration for each constituent which may be discharged is less than the state standard with the exceptions of cadmium and zinc. In this regard, the District's proposed conditions (set forth in the District's exhibits 4 and 9) adequately offset the potential for a violation of state water quality standards. More specifically, the use of copper-based algaecides in the stormwater management system should be prohibited; the use of galvanized metal culverts in the stormwater management system, or as driveway culverts, should be prohibited; and the use of organic fertilizers or soil amendments derived from municipal sludge on the golf course should be prohibited. Additionally, a water quality monitoring plan should be implemented by the Applicant. The monitoring plan mandates the collection of water samples from areas in order to adequately monitor the overall effectiveness of the treatment facility. The source of cadmium is not be expected to be as great as projected since the most common source for such discharge is automobiles. It is unlikely that the golf course use will generate the volume of discharge associated with automobile use that the multifamily data presumed. The projected quality of the discharges from this project should be similar to the ambient water quality in Lake Poinsett. In fact, the post- development pollutant loading rates should be better than the pre-development pollutant loading rates. The discharge from the proposed Sabal Hammocks project will not cause or contribute to a violation of state water quality standards in Lake Poinsett nor will the groundwater discharges violate applicable state groundwater quality standards. The floodways and floodplains, and the levels of flood flows or velocities of adjacent water courses will not be altered by the proposed project so as to adversely impact the off- site storage and conveyance capabilities of the water resource. The proposed project will not result in the flow of adjacent water courses to be decreased to cause adverse impacts. The proposed project will not cause hydrologically-related environmental functions to be adversely impacted The proposed project will not endanger life, health, or property. The proposed project will not adversely affect natural resources, fish and wildlife. The proposed project is consistent with the overall objectives of the District.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the governing board of the St. Johns River Water Management District enter a final order approving the application for permit number 4-009-0077AM with the conditions outlined within the District's exhibits numbered 4, 8, and 9 and as previously stated in the notice of intent. DONE and ENTERED this 2 day of July, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2 day of July, 1991. APPENDIX TO CASE NO. 90-5247 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant. Paragraphs 5 and 6 are accepted. The first sentence of paragraph 7 is accepted the remainder is rejected as irrelevant. Paragraph 8 is accepted. Paragraphs 9 through 11 are accepted. Paragraph 12 is rejected as irrelevant. 8 Paragraphs 13 through 21 are accepted. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 25 are accepted. The last two sentences of paragraph 26 are accepted, the remainder is rejected as irrelevant. Paragraph 27 is accepted. Paragraph 28 is rejected as comment, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraph 29 is accepted. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as argumentative. Paragraphs 32 and 33 are accepted. With regard to paragraph 34 it is accepted that compensating storage was not required. Otherwise, unnecessary, irrelevant, or comment. With regard to paragraph 35, it is accepted the proposed system meets the first 1 inch of runoff requirement otherwise, unnecessary or irrelevant or comment. Paragraph 36 is accepted. Paragraphs 37 through 41 are rejected as irrelevant, argumentative or comment. Paragraphs 42 and 43 are accepted. With the deletion of the last sentence which is irrelevant, paragraph 44 is accepted. Paragraphs 44 through 49 are accepted. The second sentence of paragraph 50 is accepted, the remainder of the paragraph is rejected as irrelevant or contrary to the weight of the evidence. The first sentence of paragraph 51 is accepted, the remainder is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 52 through 56 are rejected as irrelevant, comment, or recitation of testimony. Paragraph 57 is accepted. Paragraph 58 is accepted. Paragraphs 59 and 60 are rejected as irrelevant, comment, or argumentative. Paragraphs 61 and 62 are accepted. The first sentence of Paragraph 63 is accepted. The remainder of the Paragraph is rejected as contrary to the weight of the evidence. The proposed project will benefit the wetland areas in an unquanitifiable measure due to the enhancements to prior wetlands and the creation of new wetlands. The first sentence of paragraph 64 is accepted. The remainder is rejected as contrary to the weight of the evidence. Paragraph 65 is accepted. Paragraph 66 is rejected as argument or irrelevant. Paragraph 67 is accepted. Paragraphs 68 and 69 are accepted. Paragraph 70 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 71 through 73 are accepted. Paragraph 74 is rejected as irrelevant or unnecessary. Paragraphs 75 through 78 are rejected as argument, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraphs 79 through 82 are accepted. Paragraph 83 is rejected as irrelevant. Paragraphs 84 and 85 are rejected as argument or comment. It is accepted that the Corp and DER are aware of the restoration of the dike and that neither has asserted such work was performed contrary to law. Paragraph 86 is rejected as comment on the evidence or irrelevant. It is accepted that the District advised Applicant that he could restore the dike system and that the District was apprised of the completion of that work. With regard to paragraph 87, it is accepted that the restoration of the dike entailed filling the breaches to conform to the dike's original design; otherwise, rejected as irrelevant. Paragraphs 88 and 89 and the first sentence of Paragraph 90 are accepted. The remainder of paragraph 90 and Paragraphs 91 through 93 are rejected as irrelevant, argument, or comment. Paragraph 94 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DISTRICT: Paragraphs 1 through 78 is accepted. Paragraph 79 is rejected as argumentative. Paragraph 80 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SAVE: None submitted. COPIES FURNISHED: Mary D. Hansen 1600 S. Clyde Morris Boulevard Suite 300 Daytona Beach, Florida 32119 Brain D.E. Canter HABEN, CULPEPPER, DUNBAR & FRENCH, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Wayne Flowers Jennifer Burdick St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178
The Issue Schofield Corporation of Orlando has applied to the Department of Environmental Regulation for a permit to construct and operate a Class III trash/yard trash landfill in Orange County, Florida. The issues are whether the applicant is entitled to the permit and, if so, what conditions should attach. Also at issue is Schofield Corporation's motion for attorney's fees and costs, pursuant to Section 403.412(2)(f), F.S.
Findings Of Fact The applicant, Schofield Corporation of Orlando (Schofield), owns the proposed landfill site and existing permits for the site. The proposed site is located in West Orange County, southwest of the intersection of State Road 545 and Schofield Road on the west half of the northwest quarter of section 32, township 23 south, range 27 east, comprising approximately sixty acres within a larger eighty-acre parcel. In some undetermined distant past the site was cultivated in citrus. It is currently being excavated as a borrow pit. The materials proposed to be placed in the landfill include trash, yard trash, construction and demolition debris and clean debris, as defined in DER Rule 17-701.020, F.A.C. The northern half of the site is flat and will be used first for the composting operation. The southern excavated portion of the site will receive the permitted fill material until it is flattened. Then, the two functions will alternate; the composting will occur on the south, and the north end will be excavated to receive fill. The proposed facility will be operated by Chambers Corporation, a nationally recognized waste management company with approximately 20 years of experience in solid waste management. The landfill site will be completely fenced, with a gate entrance mid-site between the landfill and compost area. The gate will be locked when the facility is not in operation, and will be patrolled by security personnel 24 hours a day. "Spotters", or inspectors will be employed to examine incoming waste loads at the gate, from a high gantry, and at the place where the waste is deposited. The loads will be monitored by a television camera, and all haulers will be under contract. The landfill will not accept loads from trucks coming off the road looking for a place to dump. Receptacles will be maintained on site to receive errant non-permitted waste that is found in a load, and that waste will be properly disposed of elsewhere. Schofield has several permits related to its proposed operation. These include a type III landfill permit from Orange County, a compost facility permit from DER, a general construction and demolition debris landfill permit from DER, a surface water management permit from the South Florida Water Management District, and a permit to excavate or mine from the Florida Department of Natural Resources. Schofield also has a contract to receive yard waste from Orange County. The initial term of contract requires at least ten percent of the yard waste to be composted or recycled, with the percentage amount to be renegotiated in subsequent contract renewals. In the hierarchy of landfills, DER considers Class III the least environmentally sensitive. Problems with unauthorized waste and with water quality occur more frequently with Class I landfills, defined as accommodating more than twenty tons a day of residential garbage. In this case DER has proposed to grant Schofield its Class III permit without the requirement of a bottom liner or a leachate or gas control system because of the nature of the waste that will be accepted and because of the rigorous controls, described above, to avoid receiving unauthorized or hazardous waste. The Petitioners are an individual and a homeowners' association representing a residential area approximately a half mile south of the proposed site. Petitioners contend that the applicant's data is insufficient to provide reasonable assurances that water quality standards will not be violated. Petitioners contend that the landfill, if approved, should be required to have a liner to prevent leachate from polluting the groundwater. They further contend that the groundwater monitoring plan submitted by the applicant is inadequate to detect vertical movement of contaminated leachate into the Floridan aquifer, a major source of water supply in Orange County. Hydrogeology The site of the proposed landfill is within a high recharge area. Water percolates rapidly though the soil, moving downward into the aquifer, and laterally off site. The site is considered Karst terrain, underlined with limerock. There is evidence of relic sinkholes, thousands of years old, but there is a low probability of future open sinkhole development. The geology in the area of the site provides adequate structural support for the proposed facility. An aquifer is generally defined as a unit of material which contains water and can give up a sufficient amount of yield to provide some productive flow for pumpage. Below the site there are two aquifers: the shallow water table, or surficial aquifer, containing clean well-drained fine sands, about 70 feet down; and the Floridan, primarily limestone, encountered at a depth of approximately 115 feet. The two are separated by a confining layer of less permeable sands and clay. Flow in the Floridan at the site is primarily from the west to east. Flow in the surficial is also generally from west to east, but the Petitioners theorize, and have presented competent supporting evidence, that there are fissures in the confining layer, allowing some internal drainage within the site, causing surficial water to flow vertically into the Floridan, rather than laterally off-site in an eastward direction. Based on recent data taken from two piezometers installed near the middle of the site, the applicant's hydrogeologist, James Golden, concedes that "mounding" exists along the eastern boundary of the site, reflecting some flow westerly back into the interior of the site. Petitioners' theory regarding internal draining of the site is based in part on data as to groundwater elevation. Groundwater elevation or high groundwater table is the elevation at which water stands on a continuous surface under the site. Jammal and Associates is a consultant firm which has done field studies of this and neighboring sites in the past, for various purposes. Some open bore readings taken by Jammal and Associates in a 1983 study for the Orange County Rapid Infiltration Basin project indicate groundwater table levels on site up to 126 feet, National Geodetic Vertical Data (NGVD). Open bore readings are less reliable than cased hole readings; due to collapses within the hole, artificially high readings are sometimes obtained. Data from the applicant's consultants reveals groundwater tables at 96-98 NGVD. This data was most recently obtained in December 1991 from sealed and surveyed piezometer casings, but not from the area of the site where Jammal's higher readings were obtained. Although it may be conjectured that Jammal's high readings are anomalous, additional sealed borings need to be obtained before the anomaly is confirmed. Groundwater elevations are significant also to determine the depth to which the landfill may be excavated. Based on its December 1991 readings, obtained after the application for permit was filed, the applicant agreed to raise the proposed bottom of the landfill to approximately five feet above the level of the estimated high (wet weather) groundwater table in the area. Water Quality and Monitoring Specific conditions of the proposed permit include DER's requirements that Class GII water quality standards be met at the boundary of the zone of discharge, in accordance with Rule 17-3, F.A.C. The zone of discharge for this facility is a three-dimensional volume defined in the vertical plane as the top of the ground to the base of the most surficial aquifer, and horizontally 100 feet from the edge of the waste-filled area, or the property boundary, whichever is less. The groundwater monitoring plan proposed by the applicant includes one upstream monitoring well on the west side of the site and five wells along the east side of the site, with an additional well at the south, between the project and the Petitioners' residential area. The wells extend down into the upper zone of the surficial aquifer, but not into the deeper limestone Floridan. The downstream wells should detect any contamination in the surficial aquifer flowing from west to east at the zone of discharge. However, they will not pick up contamination draining internally within the site and into the Floridan. Such contamination is possible, even though leachate from Class III- type wastes is expected to be relatively benign. Volatile organic carbons (VOCs) have not typically been a problem in Class III landfills, unless those landfills were previously operated as Class I sites. Secondary drinking water standards for certain metals have been violated at some Class III sites, but such violations are often related to the problem of sampling newly-installed wells. From DER records, Petitioners presented evidence of consistent drinking water quality standard violations in Class III landfills. That such violations can occur in Class III landfills is clearly established. It is not so clear that such violations will occur in this facility, given the proposed controls on load content. However, even acceptable materials will not avoid the production of leachate or gas. Within demolition waste there are chemically bound components which are inseparable, for example, creosote and other preservatives, glues, paints, resins, varnishes and stains. The lignin, tannins and volatile organic acids which are produced when wood decomposes alter the pH of the groundwater. As the water becomes more acidic, heavy metals that were typically bound up in the waste or in the soil, are released in soluble form and travel with the water. The decomposition process occurring in the construction and demolition waste is enhanced by the addition of yard trash which becomes the food source for the biodegradation. Summary of Findings and Proposed Permit Conditions If, as applicant suggests, all groundwater moves primarily from west to east within the site, given the proposed operational controls and the proposed monitoring plan, reasonable assurances have been provided that water quality standards will not be violated beyond the zone of discharge. That is, any contamination likely to occur will be contained within the surficial aquifer and within the 100 feet or property line horizontal boundary. Transmissivity of the surficial aquifer is low enough to allow mixing of the leachate before it reaches the zone of discharge. The Petitioners, however, have presented credible evidence sufficient to question the groundwater flow premise and sufficient to require additional conditions on the permit. If leachate reaches the Floridan through fissures in the confining layer, it will move rapidly off site. In its proposed recommended order DER has suggested additional permit conditions and in its adoption of the proposed recommended order, the applicant has accepted those additional permit conditions. Those permit conditions recognize the fact that data presently provided by the applicant is insufficient to overcome the evidence by Petitioners as to the hydrogeological characteristics of the site with the possibility of internal drainage and vertical intrusion of contaminated water into the Floridan aquifer. The proposed recommended order provides this finding: ...that the ground water monitoring plan as proposed in this proceeding is adequate, provided that there be added to the permit conditions that the permittee conduct appropriate water table testing with cased piezometers during the next wet season to determine whether ground water flow is internal within the site and therefore not intercepted by the present ground water monitoring wells. The permittee shall consult with DER and get approval for the location and construction of these wells prior to their installation. The results shall be immediately submitted to the DER. The ground water monitoring requirements should be modified if necessary at that time pursuant to Rule 17-28.700(5) to assure proper monitoring at this site. (DER proposed Recommended Order, p. 17) The ground water monitoring plan modification suggested by DER is that deeper monitoring wells, into the Floridan aquifer, be required if the additional testing reveals the likelihood of internal on-site ground water drainage. These conditions are still inadequate since they lack specificity with regard to the extent of testing, the location and construction of the wells, and the amendments to the monitoring program to be required if internal drainage is confirmed. Moreover, the proposed conditions fail to address the possibility that the permit should require a liner for the landfill if the data to be obtained reveals the likelihood that contaminates will penetrate into the groundwater of the Floridan. Monitoring programs, however effective, only predict or detect problems; they do not remediate them. Groundwater contamination by landfills is not quickly and easily reversed. Unlike discharges from other facilities such as spray application or deep well injection, the leachate from a landfill is not "turned off". Without the additional data which all parties agree is needed, it is impossible to determine what additional conditions, if any, should be required or what amendments, if any, need to be made to the applicant's proposed monitoring plan.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Environmental Regulation issue its Final Order denying the application for Class III land fill permit. DONE AND RECOMMENDED this 17th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraph 1. Adopted in substance in paragraph 10. 3.-11. Rejected as unnecessary. 12.-23. Rejected as argument or summary of testimony, rather than findings of fact. 24. Rejected as unnecessary. 25.-30. Rejected as argument or summary of testimony, rather than findings of fact. 31. Rejected as unnecessary. 32.-41. Rejected as argument or summary of testimony, rather than findings of fact. Rejected as unnecessary. Adopted in substance throughout the recommended findings. 44.-50. Adopted in Preliminary Statement and paragraph 4. 51. Rejected as unnecessary. 52.-53. Adopted in paragraph 2. 54.-55. Rejected as statement of testimony rather than finding of fact. Adopted in paragraph 3. Rejected as unnecessary. 58.-97. Rejected as argument or statement of testimony, rather than findings of fact. Subparts a), b), c) and e) are rejected as unsupported by competent evidence. The evidence suggests that violations might occur and that insufficient data has been produced. Subpart d) is adopted, by implication in paragraph 18. 99.-101. Adopted in summary in paragraph 20. Respondent's Proposed Findings of Fact Addressed in Preliminary Statement. Adopted in paragraphs 1, 2 and 5. 3.-4. Adopted in paragraph 4. Adopted in summary in paragraph 11. Adopted in paragraph 13. Rejected as unnecessary or irrelevant, given the stipulation related to Section 403.412, F.S. standing. Rejected as cumulative. Adopted in paragraph 10. Adopted in paragraph 9. Adopted in substance in paragraph 9. 12.-13. Adopted in paragraph 13. Adopted in substance in paragraph 16. Rejected as unsupported by the evidence. If internal drainage is shown to exist, conditions other than additional monitoring wells may be required. Adopted in paragraph 17. 17.-18. Adopted in paragraph 3. 19.-21. Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 12. 24.-26. Adopted in general in paragraph 14. 27. The unlikelihood that unauthorized waste will be dumped is adopted in paragraph 3. Whether there will be a violation of ground water quality standards at the zone of discharge was not established, given the need for additional data on internal draining. COPIES FURNISHED: Thomas B. Drage, Jr., Esquire P.O. Box 87 Orlando, FL 32802 Irby G. Pugh, Esquire 218 Annie Street Orlando, FL 32806 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The Proposed Permit This case involves a 65-acre site in north Lee County owned by the City of Ft. Myers. At all material times, the land has been zoned under industrial- equivalent designations. By leases that are not part of this record, Ft. Myers has leased 21.4 acres of the 65 acres to various governmental agencies, including Lee County, Lee County Sheriff's Office, and possibly the Florida Department of Juvenile Justice (formerly known as Department of Health and Rehabilitative Services). The following facilities are presently located on the 21.4 acres: Juvenile Detention Center, Lee County Stockade, Price Halfway House, Sheriff's Office Aviation Department, and Emergency Operations Center. By lease dated September 20, 1993, Ft. Myers leased the remaining 43.6 undeveloped acres to Lee County for a term of 50 years. This lease allows Lee County to use the 43.6 acres for $1 per year, but only for the operation of a Juvenile Justice Facility. Under Paragraph 20 of the lease, Ft. Myers may terminate the lease if Lee County ceases to operate the facility. Likewise, Lee County may terminate the lease if the Department of Juvenile Justice ceases to fund the County's operation of the facility. Under the lease, preference is given to juvenile residents of Ft. Myers. Paragraph 22 of the lease allocates liability to Lee County for claims or damages arising from released fuels, including from pipelines. The lease is not assignable without Ft. Myer's consent. By agreement dated December 17, 1993, Ft. Myers consented to the sublease of the entire 43.6- acre parcel to the Department of Juvenile Justice for the purpose of the construction of a juvenile residential commitment facility. Lee County receives no rent from the Department of Juvenile Justice. In Paragraph 10 of the agreement, the Department of Juvenile Justice agrees to maintain, at its expense, "all improvements of every kind . . .." Lee County must make any repairs to improvements if the Department of Juvenile Justice fails to do so. By subsequent agreement, Respondent Department of Management Services (DMS) became the agent for the Department of Juvenile Justice for the design, permitting, and construction of the juvenile justice facility. By Application for a surface water management permit executed June 16, 1994, DMS applied for a surface water management permit for the construction and operation of a 10.9- acre project known as the Lee County Juvenile Commitment Facility. This 10.9-acre project is part of the 43.6 acres leased to Lee County and subleased to the Department of Juvenile Justice. The application states that the existing 21.4 acres of developed sites, which are leased under separate agreements to different governmental entities, "will be permitted as is." The Staff Review Summary of Respondent South Florida Water Management District (SFWMD) describes the purpose of the application as follows: This application is a request for Authorization for Construction and Operation of a surface water management system to serve a 10.9 acre Institutional project discharging to Six Mile [Cypress] Slough via onsite wetlands and road- side swales. The application also requests Authorization for Operation of a surface water management system serving a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Staff recommends approval of both authorizations with conditions. The Staff Review Summary accurately states that the owner of the land is Ft. Myers. Of questionable accuracy is the statement that Ft. Myers leases to Lee County the 21.4 acres devoted to the five existing facilities. Although Lee County probably is a lessee of some of these parcels, the Lee County Sheriff's Office is the lessee (or perhaps sublessee) of at least two parcels. One of the other parcels may involve a state agency, again under either a lease or a sublease. The Staff Review Summary inaccurately states that the project developer is Lee County. The project developer is DMS or its principal, the Department of Juvenile Justice. The Staff Review Summary reviews the existing development on the 21.4 acres. The improvements consist of the 4.8-acre Juvenile Detention Center, 2.9- acre Price Halfway House, 4.7-acre Lee County Stockade, 5.1-acre Sheriff's Office Aviation Department, and 3.9-acre Emergency Operations Center. The Staff Review Summary states that the footer of the Juvenile Detention Center was inspected in February 1980. The site drains into a 1.2- acre retention pond, which was a natural pond dug out to accept the drainage from the Juvenile Detention Center. A small amount of surface flow drains from the Juvenile Detention Center to a perimeter swale that drains west into a ditch running along Ortiz Avenue. The Staff Review Summary states that the building permit for the Price Halfway House was issued in October 1982. The site drains into the 1.2-acre retention pond, which was apparently enlarged a second time to accept the additional flow. A small amount of the flow from the Price Halfway House also drains to the perimeter swale and west into the Ortiz Avenue ditch. The Staff Review Summary states that the building permit for the Lee County Stockade was issued on May 25, 1976. SFWMD issued an exemption and a determination that no permit was required for two additions to the stockade in 1988 and 1989. For the additional impervious surface added by these additions, one inch of water quality treatment was provided. After the abandonment of a pumping system, drainage of the stockade site consists of water building up in existing onsite ditches and sheet flowing into the Ortiz Avenue ditch. The Staff Review Summary adds that a small retention area constructed at the southeast corner of the site treats stormwater from the stockade and the Sheriff's Office Aviation Department. The summary adds that a small amount of stormwater drains north into an exterior swale that drains into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Sheriff's Office Aviation Department in August 1977. Stormwater from the site sheetflows to exterior swales north and south of the building. When the swales fill up, the water flows into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Emergency Operations Center on October 11, 1977. Drainage from the center flows directly into the Ortiz Avenue ditch. Under "Water Quality," the Staff Review Summary reports that SFWMD "did not require compliance with discharge rate or criteria" based on Section 1.6, Basis of Review for Surface Water Management Permit Applications within the [SFWMD] March 1994 (Basis of Review), which contains guidelines issued by SFWMD for the construction and operation of surface water management systems. The summary adds that there have been no "water quality or quantity complaints associated with this site over the past 18 years since its initial construction." Noting that a surface water management permit is requested for the entire 65-acre parcel, the Staff Review Summary states that the above-described drainage systems for the five existing facilities are "operational and will remain as they now exist." Turning to the proposed development, the Staff Review Summary states that the remaining 43.6 undeveloped acres "will also be leased to Lee County by the City for the proposed commitment facilities." The facilities are accurately described as a 5.2-acre halfway house and a 5.7-acre bootcamp, both of which will be drained by internal drainage swales and culverts flowing into detention areas, which will discharge through a control structure into onsite wetlands leading to the Ortiz Avenue swale. Addressing designed discharge rates, the Staff Review Summary acknowledges that the bootcamp's discharge rate will exceed the allowable rate for a 25-year, three-day storm event. The allowable rate is .33 cfs, and the design rate is .37 cfs. The Staff Review Summary explains that this discrepancy results from the use of the minimum size orifice (three inches) in the control structure. Addressing water quality, the Staff Review Summary reports that commercially zoned sites are required to provide one-half inch dry pretreatment for water quality unless reasonable assurance can be provided that hazardous material will not enter the surface water management system. Determining that no hazardous material will be stored or generated on the site, SFWMD did not require the one-half inch dry pretreatment of runoff. Noting that no surface water management permits have ever been issued for any part of the 65-acre parcel, the Staff Review Summary recommends that, subject to the customary Limiting Conditions, SFWMD issue: Authorization for Construction and Operation of a 10.9 acre Institutional Project discharging to Six Mile Cypress Slough via onsite wetlands and roadside swales, Operation of a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Limiting Condition 4 states that the permittee shall request transfer of the permit to the "responsible operational entity accepted by [SFWMD], if different from the permittee." Limiting Condition 8 adds: A permit transfer to the operation phase shall not occur until a responsible entity meeting the requirements in section 9.0, "Basis of Review . . .," has been established to operate and maintain the system. The entity must be provided with sufficient ownership or legal interest so that it has control over all water management facilities authorized herein. Special Condition 11 states: "Operation of the surface water management system shall be the responsibility of Lee County." The Permittee and the Entity Responsible for Maintenance The proposed permit consists of two authorizations. The first authorization is for the construction and operation of the surface water management system on the 10.9-acre parcel on which will be constructed the bootcamp and halfway house. The second authorization is for the operation of the existing surface water management system on the already-developed 21.4 acres and the unimproved surface water management system on the remaining 32.7 acres. There are two problems with the designation of Lee County as the entity responsible for maintaining the permitted surface water management systems. Basis of Review 9.1.B states: To satisfy [P]ermit [L]imiting [C]ondition [8], the Permittee must supply appropriate written proof, such as either by letter or resolution from the governmental entity that the governmental entity will accept the oper- ation and maintenance of all the surface water management system components . . .. The authorization for operation of the systems on the 21.4-acre and 32.7-acre parcels does not await any construction. Once the permit is issued, the authorization is effective. Therefore, all prerequisites to the designation must have been satisfied before the operation permit issues. For the 21.4-acre parcel, DMS has not provided reasonable assurance that Lee County is the lessee or sublessee of all of the parcels underlying the five existing facilities. In fact, it appears that Lee County is not the lessee or sublessee of all of these parcels. Even if Lee County were the lessee or sublessee of these five parcels, DMS has not provided reasonable assurance that Lee County has assumed responsibility for the maintenance of the surface water management system for the five parcels. Contrary to Basis of Review 9.1.B, there is no written agreement by Lee County to assume operational responsibility, nor is there even an actual agreement to this effect. SFWMD's rules sensibly require that written consent be obtained before the operation permit is issued. Likewise, DMS has failed to show that Lee County has agreed to assume responsibility for the operation and maintenance of the surface water management system for the 32.7-acre parcel. Again, SFWMD must obtain written consent before issuing the permit because no construction will precede operation for the surface water management system on this parcel. Unlike the situation as to the 21.4-acre parcel, the 32.7-acre parcel is leased to Lee County as part of the 43.6- acre parcel. But in the December 17, 1993, agreement, the Department of Juvenile Justice, not Lee County, assumes responsibility for maintaining all improvements, which arguably includes drainage improvements. As between Ft. Myers and Lee County, Lee County assumes secondary liability for the maintenance of all improvements. But the failure of the Department of Juvenile Justice to do so would likely represent a default under the agreement. In such a case, the lease and separate agreement probably would either be in litigation or Lee County would have terminated its obligations under the contracts. In either case, it is unlikely that Lee County would perform its secondary responsibility to maintain the drainage improvements, especially where it is receiving no rent from the Department of Juvenile Justice and priority is given to Ft. Myers juveniles in admission decisions. Construction will precede operation as to the 10.9- acre parcel so the parties have an opportunity, even after the construction and operation permit is issued, to secure the necessary written consent before the operation permit goes into effect. But similar deficiencies exist with respect to the 10.9- acre parcel because the same agreement imposes upon the Department of Juvenile Justice, not Lee County, the obligation to maintain improvements. An additional complication arises as to the 10.9-acre parcel. The Department of Juvenile Justice intends to contract with one or more private entities to operate the bootcamp and halfway house, so there is at least one more party that Lee County could claim was responsible for maintenance of the surface water management system. The question of who is responsible for maintaining the surface water management systems is important. Drainage quantities and directions can change if swales clog up with vegetation or other matter. In this case, one roadside swale in the area of the 21.4-acre parcel is blocked with vegetation. DMS and SFWMD have thus failed to provide reasonable assurance that the designated entity has assumed responsibility for the maintenance and operation of the existing systems or will assume responsibility for the maintenance and operation of the proposed system following its construction. Permit for Existing Development Section 1.6, Basis of Review, states: [SFWMD] issues construction and operation permits for proposed surface water management activities and operation permits for existing systems. The criteria herein are specifically designed to apply to proposed activities (construction and operation permits). Therefore, some of the criteria may not be applicable to the permitting of existing systems (operation permits). For example, in some cases, existing systems may not meet flood protection criteria. Criteria deviation for existing systems will be identified in staff reports. SFWMD has produced no evidence explicating the extent to which existing systems, such as the systems on the 21.4- and 32.7-acre parcels, are entitled to operating permits without meeting some of the criteria applicable to proposed systems, such as the system on the 10.9-acre parcel. There is nothing whatsoever in the record to explain why certain existing systems might not have to meet certain criteria, such as flood protection criteria. Except for the quantity deviation discussed below, there is nothing in the record disclosing the extent to which SFWMD has waived, or even considered the applicability of, certain or all criteria prior to the issuance of operation permits for the existing systems. In practice, SFWMD does not adhere even to the vague standards implied in 1.6. According to the SFWMD witness, the practice of SFWMD, as reflected in this case as to the systems on the 21.4- and 32.7-acre parcels, is to permit existing systems "as is, where is," as long as they have had no reported problems. There are numerous deficiencies in the "as is, where is" unwritten policy, apart from the obvious one that it conflicts with the assurance of 1.6 that only "some of the criteria may not be applicable" to existing systems. First, the record does not define what a "problem" is. Second, the record discloses no means by which reported problems are collected and later accessed, such as by a parcel index. The "as is, where is" policy is an abdication of the limited responsibilities that SFWMD imposes upon itself in 1.6, especially when applied to the present facts. The facts are straightforward. Neither Ft. Myers, Lee County, nor any other party has ever obtained a permit for any surface water management system, despite numerous improvements in the past 20 years requiring such permits, including the construction of a heliport, at which maintenance and refueling of helicopters takes place. In two relatively minor cases, discussed below, SFWMD erroneously determined that no permit was required. In one of those cases, the applicant, Lee County, candidly admitted the existence of a flooding problem. Based on the present record, neither DMS nor SFWMD has justified the issuance of an operation permit for the systems on the 21.4- and 32.7-acre parcels based either on Basis of Review 1.6 or on the "as is, where is" unwritten policy. Construction of the five improvements on the 21.4 acres began between 1975 and December 1977 with construction of a portion of the Lee County Stockade building and parking, Emergency Operations Center building and parking, and a now- removed barn for the Lee County Sheriff's Office. At the same time, a lake was dug, probably for fill purposes. By the end of 1977, about 2.39 acres of the 21.4 acres were converted to impervious surface. From 1978 to March 1980, another 0.96 acres of the 21.4 acres were converted to impervious surface by the construction of a perimeter dike and road. During this period, construction commenced on the Juvenile Detention Center, adding another 1.63 acres of impervious surface. Between March 1980 and December 1981, additions were made to the Lee County Stockade building and the lake for an additional 0.45 acres of impervious area. Between December 1981 and March 1984, the Price Halfway House building and parking were constructed, adding another 0.79 acres of impervious surface. Between March 1984 and February 1986, a heliport facility and landing area were constructed for the Lee County Sheriff's Office, adding another 1.01 acres of impervious surface. Between February 1986 and February 1990, an additional 2.31 acres of impervious surface were added through additions to the Lee County Stockade and parking area, juvenile detention center, and Emergency Operations Center parking area. Between February 1990 and April 1993, another addition to the Lee County Stockade added 0.62 acres of impervious surface. An additional 0.17 acres of lake was excavated. During this time, applicable rules and statutes required permits for the construction of "works" affecting surface water, including ditches, culverts, and other construction that connects to, or draws water from, drains water into, or is placed in or across the waters in the state. The buildings, parking, other impervious surfaces, ditches, swales, dikes, lake excavations, and, at one point, addition of a now- abandoned pump all constituted "works" for which surface water management permits were required. In 1988, Lee County or Ft. Myers applied for an exemption for an addition to the Lee County Stockade. The basis for the claim of exemption was that the parcel consisted of less than 10 acres and the total impervious surface did not exceed two acres. Although rules in effect at the time required consideration of the contiguous 65 acres under common ownership and the total impervious surface for the 9.7-acre "parcel" exceeded two acres, SFWMD erroneously issued an exemption letter. The second instance involving a claim of exemption took place in 1989 when Lee County submitted plans for another addition to the Lee County Stockade, adding 0.51 acres of impervious surface. The submittal acknowledged a "flooding" problem, but promised a master drainage plan for the "entire site." SFWMD determined that no permit would be required due to the promise of a master drainage plan. No master drainage plan was ever prepared. The flooding problem precluded issuance of the operation permit on an "as is, where is" basis for the already-developed 21.4-acre parcel, even assuming that SFWMD adequately justified the use of this unwritten permitting procedure. In fact, SFWMD has not explained adequately its "as is, where is" permitting procedure or even the undelineated permitting criteria referenced in 1.6, Basis of Review. The 65- acre parcel is a poor candidate for preferential permitting of existing systems. The owner and developer constructed the existing systems in near total disregard of the law. The two times that the owner and developer complied with the permitting process involved small additions for which exemptions should not have been granted. In one case, SFWMD exempted the proposed activity due to its error calculating minimum thresholds as to the areas of the parcel and the impervious surface. In the other case, SFWMD exempted the proposed activity partly in reliance on a promised master drainage plan that was not later prepared. To issue operation permits for the existing systems on the 21.4- and 32.7-acre parcels would reward the owner and developer of the 65-acre parcel for noncompliance with the law and provide an incentive for similarly situated landowners and developers likewise to ignore the law. Before issuing operation permits on systems that have received no comprehensive review and that have been added piecemeal over the years, SFWMD must evaluate the surface water systems on the entire 65-acre parcel to determine whether they meet all applicable criteria. The "as is, where is" unwritten policy has no applicability where there have been reports of flooding. If SFWMD chooses to dispense with criteria in reliance upon Basis of Review 1.6, it must be prepared to identify and explain which criteria are waived and why. Water Quality Basis of Review 5.2.2 provides that projects that are zoned commercial or industrial, such as the present one, must provide one-half inch of "dry" detention or retention pretreatment, unless reasonable assurances are provided "that hazardous materials will not enter the project's surface water management system." There is no existing or proposed dry detention on the 65 acres. The existing development includes the Sheriff's Office Aviation Department, which serves as a heliport. The fueling and maintenance of helicopters means that contaminants may enter the stormwater draining off the site. The functioning of the surface water system on this site is therefore of particular importance. There also may be more reason to question the functioning of the surface water system on this site. It is south of the Lee County Stockade, where flooding has been reported. The heliport site has also been the subject of more elaborate drainage improvements, such as the location of a small retention pond near the Stockade boundary and a pump, the latter of which has since been abandoned. The existing system on the 21.4-acre parcel, as well as the existing and proposed systems on the remainder of the 65 acres, require dry pretreatment for reasons apart from the presence of the heliport. The materials likely to be used with the existing and proposed developments are similar to those found on residential sites. SFWMD and DMS contend that there is therefore no need to require dry pretreatment as to these areas. However, the existing and intended institutional uses, such as jails and bootcamps, represent an intensity of use that exceeds the use typical in areas zoned residential. This increased intensity implies the presence of typical residential contaminants, such as petroleum-based products or cleaning solvents, but in greater volumes or concentrations, if not also, in the case of solvents, different compositions. The lease addresses potential liability for released petroleum. In the absence of a showing that such hazardous materials are prevented from entering the runoff, SFWMD must require dry pretreatment for the systems occupying the entire 65-acre parcel. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quality criteria or that the proposed system will satisfy applicable water quality criteria. Water Quantity The 65-acre parcel adjoins Ortiz Avenue on the west and property owned by Petitioners on the east and south that is undeveloped except for a borrow pit some distance from the 65- acre parcel. The parcel is roughly 1000 feet east- west and 2700 feet north-south. The proposed halfway house is at the north end of the parcel. The halfway house is situated between a proposed detention pond on the west and a recreation field on the east. A paved road divides the halfway house from the rest of the 65- acre parcel. South of the road are the Lee County Stockade on the west, which abuts Ortiz Avenue, and the Juvenile Detention Center on the east. A berm separates these two sites. The berm runs from the road along the west shore of the twice- enlarged 1.2- acre retention pond and the west boundary of the Price Halfway House, which is south of the Juvenile Detention Center. To the west of the berm, south of the Lee County Stockade, is the Sheriff's Office Aviation Department or heliport facility, which abuts Ortiz Avenue. South of the Aviation Department is an outparcel used by the Florida Department of Corrections that also abuts Ortiz Avenue. East of the outparcel is the proposed halfway house with a proposed detention pond west of the halfway house and south of the outparcel. The Emergency Operations Center, which abuts Ortiz Avenue, is south of the detention pond and surrounded on three sides by the 32.7 acres to be left undisturbed at this time. There are perimeter berms around all of the parcels except for the Juvenile Detention Center and Price Halfway House, which are served by a single berm, and the Emergency Operations Center, which appears not to be bermed. The prevailing natural drainage is not pronounced either by direction or volume because the land is nearly level. The natural direction of drainage is to the south and west and remains so on Petitioners' land to the east and south and the undisturbed 32.7 acres to the south. The variety of drainage directions within the remainder of the 65- acre parcel reflects the extent to which berms, swales, ponds, pumps, roads, buildings, parking areas, and other works have been added to the northerly parcels. Runoff reaching the northern boundary of the 65 acres will be diverted due west around the proposed detention pond to the swale running along the east side of Ortiz Avenue. Runoff from the recreation field and halfway house building and parking area drain into the proposed detention pond, which releases water through a gravity control device to the Ortiz Avenue swale. There appears to be a connection routing some runoff from the south side of the recreation field to the Juvenile Detention Center, where it travels west in a roadside swale to the Ortiz Avenue swale. A little less than half of the area of the Juvenile Detention Center site drains into perimeter swales along the north and east borders and then to the west before emptying into the Ortiz Avenue swale. The remainder of the Juvenile Detention Center drains into the retention pond. The same is true of the Price Halfway House. The Lee County Stockade drains to each of its borders where the water then runs west along the north or south border to the Ortiz Avenue swale. The southern half of the Lee County Stockade site drains into the small retention pond at the northwest corner of the Sheriff's Office Aviation Department. Most of the runoff from the heliport facility runs to the southwest corner of the parcel, which is the location of the abandoned pump. From there, the runoff continues to the Ortiz Avenue swale. Very little if any of the runoff from the heliport enters the small retention pond on the northwest corner of the parcel. The bootcamp drains into the detention pond, which then releases water by a gravity control structure into a portion of the undisturbed 32.7-acres before entering the Ortiz Avenue swale. The Emergency Operations Center site drains in all directions away from the building and parking area, eventually draining into the Ortiz Avenue swale. Stormwater discharge rates from the proposed halfway house and bootcamp are 0.28 cfs and 0.37 cfs. Under SFWMD rules, the allowable maximums in the Six Mile Cypress drainage basin are 0.30 cfs and 0.33 cfs, respectively. SFWMD and DMS contend that the excessive discharge from the bootcamp is acceptable because the gravity control device for the proposed detention pond is of the smallest size allowable, given the indisputable need to avoid clogging and ensuing upstream flooding. Initially, SFWMD approved the discharge rates for the halfway house and bootcamp because, when combined, they did not exceed the total allowable value. However, this approach was invalid for two reasons. First, the two sites contain entirely independent drainage systems separated by several hundred feet. Second, after correcting an initial understatement for the value for the halfway house, the actual total exceeds the maximum allowable total. SFWMD contends that the slight excess is acceptable because of the inability to use a smaller orifice in the gravity control structure. However, the discharge quantity easily could have been reduced by design alternatives, such as enlarging the detention pond, which is mostly surrounded by land that is to be left undisturbed. The ease with which the minimum-orifice problem could have been avoided rebuts the presumption contained in Basis of Review 7.2.A that excessive discharge quantities are presumably acceptable if due to the inability to use a smaller orifice. Also, SFWMD and DMS have failed to show that the effect of the excessive discharge quantities is negligible, so the exception in the SFWMD manual for negligible impacts is unavailable. Neither SFWMD nor DMS provided any reasonable assurance as to the quantity of discharge from the 21.4 acres. Rough estimates suggest it is more likely that the quantity of discharge may greatly exceed the allowable maximum. SFWMD must evaluate the water-quantity issues before issuing operation permits for the systems on the 21.4- and 32.7- acre parcels and a construction and operation permit for the 10.9-acre parcel. Obviously, if SFWMD determines that all water quantity criteria are met as to the existing systems, it may issue operation permits for the systems on the 21.4- and 32.7- acre parcels. Otherwise, SFWMD must quantify the extent of the deviation and, if it seeks to waive compliance with any or all quantity standards in reliance on Basis of Review 1.6, evaluate the effect of the waiver and explain the basis for the waiver. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quantity criteria or that the proposed system will satisfy applicable water quantity criteria. Impacts on Adjacent Lands Petitioners' property is impacted by the above- described drainage in two ways. First, Petitioners' property abutting the east side of Ortiz Avenue, south of the 65 acres, is especially vulnerable to flooding because the Ortiz Avenue swale is not a V-notch, but a half-V. The closed side of the swale prevents the water from running onto Ortiz Avenue. The open side of swale abuts Petitioners' property, so, if the swale's capacity is exceeded, stormwater will be released onto Petitioners' land. Second, perimeter berming along the east side of the 10.9- and 21.4- acre parcels will impede flow off the part of Petitioners' property located to the east of the 65 acres. A swale between the proposed halfway house and the Juvenile Detention Center will receive runoff from a small portion of Petitioners' property to the east and mostly north of the 65 acres. But there is no indication how much runoff from Petitioners' property can be so accommodated, how much runoff is impeded by the existing berm along the east side of the Juvenile Detention Center and Price Halfway House, and how much runoff will be impeded by the addition of new berms along the east side of the proposed halfway house and bootcamp. Basis of Review 6.8 requires that swales and dikes allow the passage of drainage from off-site areas to downstream areas. Rule 40E-4.301(1)(b), Florida Administrative Code, requires that an applicant provide reasonable assurances that a surface water management system will not cause adverse water quality or quantity impacts on adjacent lands. Neither SFWMD nor DMS obtained topographical information for Petitioners' property, as required by the Basis of Review. Rough estimates suggest that the proposed project may require Petitioners' property to retain considerably more stormwater from the design storm event of 25 years, three days. DMS and SFWMD have thus failed to provide reasonable assurance that the proposed system would not have an adverse impact on Petitioners' upstream and downstream land.
Recommendation It is hereby RECOMMENDED that the South Florida Water Management District enter a final order denying the application of the Department of Management Services for all permits for the operation and construction and operation of surface water management systems on the 65-acre parcel. ENTERED on June 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 19, 1995. APPENDIX Rulings on Proposed Findings of Petitioners 1-18: adopted or adopted in substance. 19: rejected as subordinate. 20-21: adopted or adopted in substance. 22-24 (first sentence): rejected as irrelevant. 24 (remainder)-46: adopted or adopted in substance. 47-53: rejected as subordinate. 54-64 (first sentence): adopted or adopted in substance. 64 (second sentence)-66: rejected as subordinate. Rulings on Proposed Findings of Respondent SFWMD 1-10: adopted or adopted in substance. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as unnecessary. 13: adopted or adopted in substance. 14-15: rejected as subordinate. 16: rejected as unsupported by the appropriate weight of the evidence. 17 (except for last sentence): adopted or adopted in substance. 17 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 18-32 (first sentence): rejected as unnecessary. 32 (remainder): rejected as unsupported by the appropriate weight of the evidence. 33: rejected as subordinate. 34: rejected as unsupported by the appropriate weight of the evidence, except that the proposed ponds are wet detention. 35 (first sentence): adopted or adopted in substance. 35 (remainder): rejected as unsupported by the appropriate weight of the evidence. 36-45: rejected as unnecessary. 46-47: rejected as unsupported by the appropriate weight of the evidence. 48-50 (second sentence): adopted or adopted in substance. 50 (remainder): rejected as unsupported by the appropriate weight of the evidence. 51-52, 55-57 (first sentence), and 58: adopted or adopted in substance, although insufficient water quality treatment. 53: adopted or adopted in substance. 54: rejected as unsupported by the appropriate weight of the evidence. 57 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 59: rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance, except after "therefore." None of remainder logically follows from what is said in 1.6. 61: rejected as unsupported by the appropriate weight of the evidence. 62-64: rejected as subordinate, unsupported by the appropriate weight of the evidence, and irrelevant. 65: rejected as subordinate. 66: rejected as irrelevant. The burden is on the applicant and SFWMD, if it wishes to issue the permits, to provide reasonable assurances as to the adverse impact of the drainage systems. 67-68: rejected as subordinate. 69: rejected as unsupported by the appropriate weight of the evidence. 70: rejected as unsupported by the appropriate weight of the evidence. 71: rejected as repetitious. 72: rejected as irrelevant, except for past report of flooding, which is rejected as repetitious. 73: rejected as repetitious. 74: rejected as irrelevant and subordinate. 75 (first three sentences): adopted or adopted in substance. 75 (remainder): rejected as unsupported by the appropriate weight of the evidence. 1 and 2: rejected as irrelevant insofar as the same result is reached with or without the permit modifications. Rulings on Proposed Findings of Respondent DMS 1-4: adopted or adopted in substance. 5: rejected as subordinate. 6: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 8: rejected as subordinate. 9: adopted or adopted in substance, except that the excessive discharge was not "caused" by the minimum-sized orifice, only defended on that basis. 10: adopted or adopted in substance. 11-12: rejected as subordinate. 13: rejected as irrelevant. 14: adopted or adopted in substance. 15: adopted or adopted in substance, except for implication that no flooding problems existed. 16: rejected as recitation of evidence. 17: rejected as subordinate. 18: rejected as irrelevant. 19: adopted or adopted in substance, to the extent that separateness of systems is relevant. 20: rejected as subordinate. 21: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23-30: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence, based on the present record. 33: rejected as unsupported by the appropriate weight of the evidence and relevance. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416 Russell P. Schropp Harold N. Hume, Jr. Henderson Franklin P.O. Box 280 Ft. Myers, Fl 33902 O. Earl Black, Jr. Stephen S. Mathues Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, FL 32399-0950 Vincent J. Chen Toni M. Leidy South Florida Water Management District 3301 Gun Club Road West Palm Beach, FL 33401
The Issue The issues are whether Respondent violated Florida Administrative Code Rules 64E-6.022(1)(b)2., 64E-6.022(1)(d), and 64E-6.022(1)(p) by repairing an onsite sewage disposal system without a permit, resulting in missed inspections, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with enforcing the statutory and regulatory provisions pertaining to the practice of septic tank installations and repairs in Florida. See § 381.0065(3), Fla. Stat. (2003). Repair of onsite sewage treatment and disposal systems must be performed under the supervision and control of a registered septic tank contractor. Respondent is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc., having been issued the registration number SR00011389. Respondent has 15 years of experience in the field of septic system construction and repair. The qualifying registered septic tank contractor for Simmons Septic and Tractor Service, Inc., is Joey Wayne Simmons. The qualifying registered septic tank contractor for AA Septic Tank Service, Inc., is Billy Wayne Joyner. However, Mr. Simmons, Mr. Joyner, and Respondent work closely together, sometimes working together on a job and/or acting as the qualifying registered septic tank contractor on each other's behalf. On September 2, 2003, the septic disposal system at the residence of Jack Young was not functioning properly. Mr. Young contracted with one of the above-referenced septic tank services to repair the system. On September 2, 2003, Respondent and another employee of All Florida Septic Tank Service, Inc., along with two employees from AA Septic Tank Service, Inc., went to Mr. Young's residence to repair Mr. Young's onsite sewage disposal system. No one applied for a permit to make any repairs to Mr. Young's system. With Respondent acting as the registered septic tank contractor, the men used a backhoe to dig up the septic tank, which was buried three feet in the ground. Respondent then repaired the pump and ran a new one and one-quarter force main line to the existing header because the old line had been compromised by roots. Respondent also cleaned roots from inside the distribution box. Respondent then sealed the tank and directed the men to cover it up. No one called Petitioner's local office, the Duval County Health Department, to request an inspection of the repair before covering the tank. The work on Mr. Young's septic system involved the replacement of an effluent transmission line. It required a permit because it constituted more than a minor repair to the pump and distribution box. Respondent should not have performed the work without a permit from the Duval County Health Department. Because there was no permit, there was no request for inspection by the Duval County Health Department. When the work was completed, Mr. Young gave Respondent a check in the amount of $1,000, payable to Mr. Simmons. The check reflected payment for repair to the filter bed, otherwise known as the drainfield. Respondent indicated his receipt of the check by signing the AA Septic Tank Service, Inc.'s Daily Truck Log and Maintenance Report. In February 2004, Mr. Young's septic system began to fail once again due to root blockage in the lines. Respondent advised Mr. Young that a permit would be required in order to make any further repairs. Mr. Young refused to pull a permit or to pay for any additional costs. On February 17, 2004, Mr. Young contacted Petitioner to report the failure of his system's drainfield. On February 18, 2004, Petitioner's inspector confirmed that Mr. Young's drainfield had failed and was causing a sanitary nuisance. During the hearing, Respondent admitted that there are no disputed issues of material facts in this case. He stated that he agreed with everything. However, he did not agree that the work he performed for Mr. Young required a permit from and inspections by Petitioner's Duval County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, finding that Respondent violated the standards of practice and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 6th day of December, 2005. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 West Beaver Street Jacksonville, Florida 32220 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John A. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (HRS) should grant the Petitioner's applications, filed under F.A.C. Rule 10D-6.045, for variances from the F.A.C. Rule 10D-6.046(1)(c) requirement that on-site treatment and disposal systems (OSTDS's) be placed no closer than 200 feet from public drinking water wells serving a facility with a sewage flow of more than 2,000 gallons per day (gpd).
Findings Of Fact The Petitioner, Joseph DiGerlando, owns three lots (1, 2 and 26) in the San Remo subdivision in Hillsborough County, which was platted in 1977. There is a public water well located between lots 1, 2 and 26. The well serves the entire San Remo subdivision, a 55-lot residential development having a total sewage flow much greater than 2,000 gallons per day (gpd) (although the sewage flow from homes built on lots 1, 2 and 26 can be expected to total no more than approximately 1350 gpd.) There is no way for the Petitioner to construct an on-site sewage treatment disposal system (OSTDS) on each of the three lots so that no part of any OSTDS will be closer than 200 feet from the San Remo well, measured horizontally across the ground surface to the well head. Measuring horizontally across the ground surface to the well head: an OSTDS on lot 1 could be placed no farther than 156 feet from the well; an OSTDS on lot 2 could be placed no farther than 184 feet from the well; according to drawings in the Petitioners' application, an OSTDS on lot 26 could be placed no farther than approximately 185 feet from the well. (Although lot 26 is larger than the others, it is contiguous to a surface water body, and the required setback from the surface water body decreases the area available for siting an OSTDS on the lot. The evidence was not clear exactly how far an OSTDS on lot 26 would be from the San Remo well.) HRS concedes: (1) that requiring 200-foot setbacks from the San Remo well will place the Petitioner under a hardship that was not caused intentionally by his own actions; and (2) that no reasonable alternative exists for the treatment of sewage on his lots 1, 2 and 26. (It is not clear how or why HRS determined that utilization of a joint OSTDS to serve all three lots through the imposition of cross-easements on the lots would not be a reasonable alternative to at least one or two of the variance applications.) The San Remo well, which is 400 feet deep, has a steel casing from the surface of the well to 100 feet below the ground surface. The steel casing prevents the entry of ground water into the well above the bottom of the casing. If the distances between the proposed OSTDS's and the San Remo well were measured diagonally, through the ground, from the proposed OSTDS's to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 185 feet from the well; the proposed OSTDS on lot 2 would be 209 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (The evidence was not clear exactly how much farther.) In fact, due to the draw-down effect of the well, the path groundwater would travel from the proposed OSTDS's to the bottom of the steel casing of the San Remo well would curve upward somewhat from, and be somewhat longer than, the diagonal line running directly between those two points. (The evidence is not clear exactly how much longer the curved path would be.) If the distances between the proposed OSTDS's and the San Remo well were measured first horizontally across the ground surface to the well head and then vertically down to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 253 feet from the well; the proposed OSTDS on lot 2 would be 281 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (Since the bottom of the OSTDS's will be three feet below the ground surface, the vertical component of the measurement is only 97 feet instead of the full 100 feet between the well head and the bottom of the casing.) When applying the HRS rules on distances required between OSTDS's and existing public water wells, HRS measures from the OSTDS horizontally across the ground surface to the well. The evidence was that HRS's method of measurement is consistent both with the methods used by the federal EPA and with the scientific data on which the technical advisory board based the distances in the HRS rules. The Petitioner's expert witness testified that there is a 17-foot thick layer of sand and clay between 53 and 70 feet below the ground surface in the vicinity of the San Remo well and that the sand and clay layer would prevent contamination from the OSTDS's from reaching the bottom of the steel casing of the well. (He also testified that is a white lime rock layer between 70 and 90 feet below the ground surface and inferred that the white lime rock layer would add some degree of protection.) The opinions of the Petitioner's expert are accepted. Petitioner's expert is a civil, sanitary and environmental engineer, not a geologist or hydrogeologist; however, his experience is in the area of wastewater treatment and disposal is extensive. Meanwhile, HRS presented no competent evidence whatsoever to contradict the Petitioner's expert. The Petitioner proposes to use Norweco Singulair Bio-Kinetic Waste Water Treatment Systems. These systems treat waste better than a standard septic tank system. Instead of the single septic tank, they have three distinct chambers: first, a retreatment chamber; second, an aeration chamber to reduce biological oxygen demand (BOD) and total dissolved solids (TDS); and, finally, a clarification or filter chamber that further reduces BOD and TDS. With the proposed systems, BOD and TDS will be reduced to approximately a fourth of the BOD and TDS levels that would enter the drainfield from a septic tank system. In addition, unlike in a septic tank system, the proposed systems utilize chlorine tablets in conjunction with the clarification chamber to kill bacteria and viruses. It is found that the evidence presented in this case, taken as a whole (and in particular in the absence of any competent evidence to contradict the credible opinions of the Petitioner's expert) was sufficient to prove that the proposed OSTDS's would not adversely affect the health of members of the public. Except for a fleeting reference in its Proposed Recommended Order, HRS has not taken the position that the Petitioner's proposed OSTDS's will significantly degrade the groundwater or surface waters. The reference in the Proposed Recommended Order would seem to reflect that HRS's concern about the impact of the Petitioner's proposed OSTDS's on groundwater quality is limited to its public health concerns.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order granting the Petitioner's applications for variances, on the condition that the Petitioner utilizes the proposed Norweco Singulair Bio- Kinetic Waste Water Treatment Systems. RECOMMENDED this 30th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6483 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-6. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as to "significantly degrade the groundwater or surface waters"; HRS did not make this an issue, except with respect to public health concerns. Otherwise, accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. However, accepted that HRS presented no evidence sufficient to support a finding on the issue. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994). Accepted but subordinate and unnecessary. Rejected as to "relevant criteria"; not proven and as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-7. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as contrary to facts found and as contrary to the greater weight of the evidence. (As found, HRS did not contend that the Petitioner's OSTDS's would "significantly degrade the groundwater or surface waters." HRS only raised this issue with respect to public health concerns.) 10.-12. Accepted but subordinate and unnecessary. (These were hearsay statements that were not sufficient to support findings as to the matters asserted. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994).) COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 W. Dr. Martin Luther King, Jr., Boulevard Tampa, Florida 33614 Nelson D. Blank, Esquire Trenam, Kemker, Scharf, Barkin Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 E. Kennedy Boulevard Tampa, Florida 33601-1102 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Okaloosa County has provided reasonable assurances that its proposed sewage treatment plant and an associated reclaimed water reuse system will not cause pollution significantly degrading the waters of the unnamed stream on the project site and/or the Santa Rosa Sound and that therefore the County's application for a permit to construct such facilities should be granted on the basis of assurances of compliance with applicable rule and statutory criteria.
Findings Of Fact On October 16, 1987, Respondent, Okaloosa County, submitted an application to Respondent, Department of Environmental Regulation, to construct a wastewater treatment plant and related reclaimed water reuse facilities on a site located in southwestern Okaloosa County. The Petitioner is an individual citizen residing in Okaloosa County, Florida. He is the owner of real property which adjoins the northern boundary of the proposed project site. Mr. Ward has used this property as his principal residence for approximately 8 years. The proposed project site is located in southwest Okaloosa County contiguous to the western boundary of the County. The site comprises approximately 45 acres of land bounded on the west by Rosewood Drive and on the south by State Highway 98. The areas to the north and east are residential construction. The site is currently a densely wooded area vegetated with a variety of flora indigenous to the area. The site is essentially bisected by a small fresh water stream system which enters the site at the northwestern corner and runs diagonally to the southeastern corner where it flows through a series of culverts under State Highway 98. The stream system constitutes waters of the state subject to the Department's regulatory jurisdiction. In addition, there is an isolated wetland area of variable size in the northwestern section of the project site. The wetland area is not subject to the Department's regulatory authority. The stream system mentioned above intersects with another larger stream approximately 1000 feet southeast of the project site. These combined streams then meander into a tidal basin which empties into the Santa Rosa Sound approximately 2500 feet south of the project site. The Santa Rosa Sound has been designated as Class II waters of the state. The unnamed stream system on site, as well as the larger stream that it joins south of the site, are designated as Class III waters of the State. Southern Okaloosa County occupies a region of moderate elevation (0-70 feet above sea level) extending along a strip 10 or 15 miles wide along the coast of the Gulf of Mexico. Soils in this area are predominately fine sands low in organic matter. When dry, most of the soils have rapid internal drainage characteristics. The Plant The proposed plant is intended to treat sewage generated by the County's Western subregional service area. Initially, it will treat the flow currently handled by approximately 1400 septic tank systems and 9 package treatment plants within the area. The collection system which will transport the wastewater will be comprised of approximately 98,500 linear feet of 8 to 12 inch diameter gravity sewers. The transmission facilities to convey the raw wastewater from the new collection system will include the construction of approximately 29,400 linear feet of 4 to 10 inch diameter force main, 14 pump stations and approximately 32,100 linear feet of 8 to 12 inch diameter gravity interceptors. By the end of its first year of operation, the proposed facility is projected to receive and treat approximately 750,000 gallons per day ("GPD"). The projected flow through the wastewater facility in the year 2007 is 1,000,000 GPD. The proposed facility is best described as a 1,000,000 GPD capacity oxidation ditch treatment plant with nitrification and denitrification facilities. Reclaimed water reuse will be accomplished by a rapid infiltration basin system (RIB). Sludge from the system will be dewatered by a mechanical belt press system and disposed of at the County landfill. In order to address the question of potential odors which result from the operation of the plant, the facility was located as near the center of the property as possible in order to give as much buffer area as possible between the facility and the surrounding residential area. In addition, the design of the treatment facility incorporates a preprocess aeration tank equipped with an activated carbon airstripper system which is specifically designed to remove the odor from the wastewater influent. The treatment facility was also located near the center of the property in order to keep any noise resulting from the operation of the plant as far away from the surrounding area as possible. The plant utilizes noiseless gravity flow techniques and does not incorporate any blower or pump technology which usually cause a significant amount of noise in wastewater treatment plants. It is expected that the noise level from the operation of this facility would be less than the noise level generated from the traffic on State Highway 98 nearby. The plant is designed to minimize the adverse effects resulting from odors, noise, aerosol drift and lighting. The entire facility is enclosed by a fence. The facility is designed and does comply with the Florida Administrative Code requirements for protection from flooding. The proposed site is at a higher elevation than the established 100 year flood elevation for the area. The plant is designed so that every operational component of the plant has a backup system. The plant is equipped with an emergency generator capable of supplying sufficient power to operate the plant in the event of a power failure. The design of the plant complies with the standards provided by the Environmental Protection Agency for mechanical reliability. The information submitted for the Department's review in relation to the County's construction permit application addressed all the information required in Rule 17-6.037(10), Florida Administrative Code. The proposed plant facility is designed to leave a buffer zone approximately 200 feet wide between the reclaimed water reuse system and the stream system located on the project site. The construction plan prohibits any construction activities and/or clearing within the buffer area. This buffer area contains all the jurisdictional areas which are related to the stream system. The Treatment Process The waste treatment process proposed for this facility consists of secondary treatment, basic disinfection and pH control as defined in Rule 17- 6.060(1)(a)3, (c) and (d). The basic treatment process technology used in the proposed plant is described as a carousel activated sludge process. This process is a superior method of wastewater treatment because of its inherent stability, its reaction to shock and toxic loadings and the degree of process control that is available to the operator. The effluent limitations that the Department has established for this facility require that the effluent, after disinfection, contain not more than 20 mg/1 Biological Oxygen Demand ("BOD") and 20 mg/1 Total Suspended Solids ("TSS"). In addition, effluent standards require a basic level of disinfection which shall result in not more than 200 fecal coliform values per 100 ml of effluent sample. The chlorine residual in recovered water shall be maintained at 0.5 mg/1 minimum, after 15 minutes contact time at peak flow. The pH level in the effluent must be maintained in a range between 6.0 Q and 8.5. The County will be required to retain a Class B operator certified under the provisions of Chapter 17-16, Florida Administrative Code for day-to- day maintenance and operation of the treatment facilities. In addition, the facility must be staffed for a minimum of 16 hours per day, seven days a week by at least a Class C operator certified under the same provisions. A Class B operator shall be on call during all periods that the plant is unattended. At a minimum, the facility must produce reclaimed water which complies with water quality standards provided in Rule 17- 3.404, Florida Administrative Code, as it interacts with groundwater in the established zone of discharge ("ZOD"). The estimated ZOD is an area defined by the boundaries of the facility. These standards are essentially equal to drinking water standards provided in Rule 17-22, Florida Administrative Code. Because the soils under the site are rapid sands, the Department does not rely on them to significantly reduce total nitrogen in the reclaimed water through interaction with the soils and the groundwater table under the rapid infiltration basins. As a result, the proposed facility is limited to a Total Nitrogen limitation of 7 mg/1. This limitation is significantly less than the Department's rapid rate land application treatment standard for Total Nitrogen which is 12 mg/1 in the effluent, with no more than 10 mg/1 in the ground. The proposed plant is capable of producing the 7 mg/1 level under all flow conditions. The Rabid Infiltration Basins In conjunction with the County's application for a construction permit for the wastewater treatment plant itself, the County submitted an application for a reclaimed water reuse system construction permit for a system designed to handle the maximum plant discharge of 1,000,000 gallons of reclaimed water per day. The system is composed of a series of five rapid infiltration basins (RIB's) or percolation ponds designed to receive the daily reclaimed water loads from the operation of the plant and allow the water to percolate into the groundwater beneath the project site. The ponds are proposed to be used so that not all the ponds are working at the same time. On any given day, there will be 3 ponds receiving effluent from the plant and 2 ponds receiving no effluent. The proposed system of rapid infiltration basins is the best approach to effluent disposal on this particular site in consideration of a variety of site specific criteria. While the Department's adopted guidance standards for percolation pond location specifies that areas with average depths to the groundwater table of 10 feet or more are desirable, the guidance document provides that areas with lesser depths may be acceptable. Computer models using highest projected groundwater levels and highest reasonably projected mounding effects related to the effluent disposal system indicate that while at times there may be less than 3 feet of vertical separation between the top of the groundwater mounds beneath any one of the percolation ponds and the floor of those ponds, it is not expected that the groundwater level will intersect the bottoms of the infiltration basin and that an acceptable margin will be maintained. Initially, there was some dispute among Department staff concerning the suitability of the project site to handle the hydraulic loading rates proposed for the facility's pond system. After a significant amount of analysis of the relevant factors affecting site suitability in this regard and after Department staff managed to get the computer program which analyzes this data working properly, the relevant data indicates that the site is suitable for the proposed wastewater treatment plant as designed. Surface and Ground Water Impact The proposed facility is designed to meet applicable Department water quality standards necessary to prevent unacceptable degradation of the water quality in both the unnamed stream system on site and the Santa Rosa Sound. At the Department's request, the County had an independent study performed to assure that the operation of the facility would not have the effect of degrading nearby surface waters. This study, done by Larry Jacobs and Associates, supports the County consultant's projections that, under worst case conditions (highest observed groundwater levels plus maximum effluent loading), approximately 32,000 additional gallons per day of groundwater may enter the stream system as a result of operation of the RIB system. These studies were conducted to address the Department's concern about the potential for increased nitrogen loading into both the stream system and the Santa Rosa Sound as a result of increased groundwater contributions to the stream system on site. The effluent disposal study submitted by the County as part of its application concludes that, discounting any possible reduction of Total Nitrogen content of the effluent as it travels through the ground before its discharged into the stream system, the Total Nitrogen concentration of the groundwater predicted to reach the stream should be diluted at the lowest observed flow volumes in the system to a concentration of less than 1 mg/1 when it reaches the confluence of the two streams approximately 1,000 feet south of the project site. The projection is an improvement in surface water conditions when compared with currently observed average concentrations of Total Nitrogen in the stream system and Santa Rosa Sound of 1.24 mg/1. The performance of existing package plants in the area is generally poor. In fact, one treatment plant was ordered to close, forcing the relocation of residents in its service area. Another plant has continuing groundwater nitrate violations. In addition, the evidence shows that the performance of the septic tank systems in the area is not acceptable to the Environmental Protection Agency. The majority of the population is served by septic systems that fail under high groundwater conditions. The Director of the Okaloosa County Health Department has certified that 60% of the residents in the County West Service Area have failed septic tanks and that the remaining 40% have septic tanks in imminent danger of failing. Three of the eight existing treatment plants are under either Court or Consent orders to cease operations. The United States Environmental Protection Agency has found that the County West area has an immediate need to provide collection, transmission, and treatment facilities to protect surface and groundwaters and eliminate a public hazard. Existing concentration of Total Nitrogen in Santa Rosa Sound and the waterways on and adjacent to the site are attributed to discharge of inadequately treated wastewater from existing septic tanks, existing wastewater treatment plants and stormwater runoff in the area. It is unlikely that the nitrogen concentration in the Santa Rosa Sound will increase as a result of the operation of the proposed facility since whatever wastewater treated at the facility will be eliminated from discharging into the affected waterbodies from other, less efficient treatment facilities. The proposed facility design incorporates a total of seventeen monitoring wells or stations on and around the site. Two wells will monitor background groundwater quality upgradient from the percolation pond system. Twelve wells will monitor groundwater quality down gradient from the percolation pond system as it leaves the established zone of discharge. Two more stations will monitor surface water quality in the on-site system above and below the site. In addition, there is one intermediate monitoring well within the zone of discharge. Samples from these wells will be used to provide quarterly data reports to the Department indicating status of the following parameters in the ground water; water level, pH, BODs, Fecal Coliform, Total Nitrogen, Nitrate/Nitrate and Chloride. The surface water monitoring will provide annual data reports to the Department on the following parameters: Chemical/Physical - Total Nitrogen, Nitrate/Nitrate, Total Phosphorus, Dissolved Oxygen, Temperature and pH Biological Assessment - macroinvertebrate population per species, species diversity per square meter. These data reports will be submitted regularly to the Department in conjunction with operational monitoring data from the treatment plant to allow assessment of the impact of the plant operation on the environment and compliance with permit conditions. Clearly the County has provided reasonable assurances that the proposed plant and related facilities will not cause pollution significantly degrading the waters of the State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Granting the application of Okaloosa County to construct a wastewater treatment facility and related reclaimed water reuse system at the proposed site in southwestern Okaloosa County, Florida, and issuing permits in accordance with the conditions as set forth in the Department's Intent to Issue and draft permit dated August 1, 1988. DONE and ENTERED this 1st day of June, 1989, in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1989. APPENDIX Petitioner's paragraph 1 of his Proposed Findings of Facts (titled Closing Statement) did not contain any factual statements. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Facts are subordinate. All the evidence contrary to the suitability of the Project site was explained by other more credible evidence. The facts contained in paragraphs 1-29 of Respondent's Proposed Findings of Facts are adopted in substance, in so far as material. COPIES FURNISHED: Ron Ward Qualified Representative For J. P. Ward 10 Rosewood Drive Mary Esther, Florida 32569 John R. Dowd, Esquire Representing Okaloosa County P. O. Box 404 Shalimar, Florida 32579 Steven K. Hall, Esquire Assistant General Counsel Representing the Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 (A Dale H. Twachtmann, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On a site that would abut St. Johns County on two sides, the City proposes to develop as a landfill about 400 of the 880 acres it owns in the southeast corner of Duval County. The proposed southeast landfill is designed to serve the approximately 300,000 people living in Duval County south and east of the St. Johns River, by receiving 1,700 tons of solid waste a day for ten years, 400 or 500 tons a day more than people in that part of the city now generate. Sandhill and Swamp Scattered over the portion of the property proposed for solid waste deposition are cypress marshes and blackgum sloughs isolated from a swamp and from each other by upland pine plantation and sandhills. Except for some 40 acres cut off from the remainder by a fill road, the hardwood swamp covering approximately 265 acres of the City's property is part of the pristine "Durbin Swamp system which is a major wildlife area, including habitat for threatened and endangered species." T. 2820. Durbin Swamp south of J. Turner Butler Boulevard and east of U.S. Highway 1 is "the most valuable wildlife habitat in the area, maybe in the southeastern United States." T.2921, 3058. The City's consultants characterized 64 of the 123 gopher tortoise burrows they found on some 105 acres in the southern part of the site as active. Sherman's fox squirrels feed and nest on the property. Although "very little of the sand hill habitat [remains] in its natural condition on the property," (T. 185) turkey oak, long leaf pine and sand pine communities do survive. Isolated wetlands scattered through the eastern portion of the site have also been timbered, and ditches intersect many of them. St. Regis Paper Company, who owned the land until earlier this decade, "dug a series of canals . . . to drain . . . part of the land ["it was called upper wetlands"] . . . so that the ground could be high enough to raise good grade pine trees." T. 1417. "The isolated wetlands . . . provide habitat diversity for wildlife, a seasonal source of drinking water, possible refuge during forest fires, as well as breeding and forage locations," (T. 1255) according to the City's draft application. "Wildlife noted on the site includes Florida black bear, white-tailed deer, raccoon, armadillo, cottonmouth, river otter, common night-hawk, alligator, yellow bellied sapsucker, turkey, frog, quail, dove and red- shouldered hawk," (T. 1255) also according to the City's draft application. Bobcats are common. According to the St. Johns River Water Management District's chief environmental specialist, "animals that you would find utilizing the uplands . . . would be a range of small rodents [including] mice, rabbits . . . insects, [mostly tree] frogs, toads, snakes [including] black snakes, rat snakes . . . [o]possums . . . pastorine birds, cardinals, bluejays, blackbirds . . . [and] probably some hogs." T.537-8. Wood storks wade and feed in the isolated wetlands on site. Wood stork rookeries have been found five miles to the southeast and seven miles north of the City's property. Bald eagles nest nearby but off site. Eagles used the now abandoned eagle nest on Eagle Nest Island "three-quarters of a mile from this proposed landfill site," (T. 1419) at least as recently as 1983. One or more eagles still perch on a dead cypress limb on the property (T. 2422), if not elsewhere on site. Ospreys, southeastern American kestrels (T.2918) and six or seven species of woodpeckers, including the rare hairy woodpecker (T2914) have also been seen on site. "There are dirt logging roads just as there are in any property in Florida, but not a great number." T. 2751. "Almost all of the pine flatwoods habitat on the site has been replaced with planted pine." T. 184. The property is comparable to the Wacasassa tract in Gilchrist County which is on the Conservation and Recreational Lands list and under consideration for state acquisition because of its "comparatively unaltered nature." T. 2721. In the past, conservation efforts have brought animals to the property for refuge. T. 1420. Listed Species The Florida Game and Freshwater Fish Commission (Game and Fish) lists the gopher tortoise and the Shermans's fox squirrel, said by one witness to be "imminently threatened," (T. 2899) as species of special concern. T. 2875. A species of special concern "is beginning to show a decline and needs to be . . . considered as a target of conservation and if present conditions continue it's going to be listed as threatened." T.2874. Game and Fish lists the Florida black bear, the southeastern American kestrel and the bald eagle as threatened, the same category in which the United States Fish and Wildlife Service (Fish and Wildlife) lists the American alligator. A threatened species is one destined to become endangered "if present trends continue." T.2874. Both Game and Fish and Fish and Wildlife list the wood stork as endangered, and Fish and wildlife lists the bald eagle as endangered. "An endangered animal is one that under present conditions is in danger of becoming extinct in the near future." T.2874. Listed in the Convention on International Trade of Endangered Species are the bobcat and the river otter. By definition, rare animals are not often seen in the wild. The parties stipulated that the staff of CZR, Inc., a consultant engaged by the City, spent an aggregate of 1400 man-hours on the landfill site, of which 429 man-hours were spent on site for the purpose of performing a wildlife survey. T. 2803. Despite their effort and putative expertise, the City's consultants did not see even a single listed animal. This failure contrasts with sightings by hunters and other experts who spent less time on site, and may be attributable to the time of year (two weeks in the fall) the survey was performed (T. 2425-27, 2893, 2899) or to the way in which it was done, (T. 2429, 3067, 3068) which a wildlife ecologist testified rendered it of "trivial value." T. 3079. The study was expedited in anticipation of a hearing date. T. 2426-27. In any case, the survey does not give reasonable assurance that species whose range includes the City's property are not present in suitable habitat on site. T. 2896-97, 3079-80. This is, indeed, the conclusion the City's own experts reached as regards the gopher tortoise itself, because of the clear sign these creatures' burrows give of their use of the property. Similarly, with respect to the Sherman's fox squirrel, although only a single individual was spotted, distinctive nests and piles of pine bracts on site established their presence. Bear tracks corroborate infrequent sightings on the property, as well as south and east of the site. On a large tract of land to the north, bears are fed daily; three or four feed each day. T. 2421. Alligator sign bore witness to the alligator's use of the property, although the only sighting clearly proven at hearing occurred just across the boundary line. Of course, wildlife does not respect legal boundaries. There is no reason not to believe that the red-cockaded woodpeckers, with six active nests within three miles or the Bachman's sparrows heard singing nearby do not frequent the City's property, which offers suitable habitat for both. It is even possible that the Florida panther, common in the area as recently as 30 years ago, may have roamed the site in more recent years in pursuit of deer or feral hogs. Two witnesses swore they had seen Florida panthers within two miles of the site, one only a few months before the hearing, (T. 1362, 1371, 1419), and a third testified he thought a "cat" he had seen two and a half or three years before the hearing just north of the site was a Florida panther. T.2429-32. The Florida Everglades mink, a threatened species according to Game and Fish, has been spotted at least twice in a cypress bog across the street from the City's property, and probably occurs on the property, as well. Not spotted either on the City's property or on adjacent land, the Florida mouse, the eastern indigo snake and the gopher frog are known to make their homes in gopher tortoise burrows. Of these listed commensal species, the indigo snake is particularly likely to inhabit the site. "The blue indigo snake was turned loose on that property in . . . '81 or '82, since it was an endangered species." T. 1420. The site also affords suitable habitat for the long tailed weasel, under review for listing. Game and Fish has listed the Florida mouse and the gopher as species of special concern. Bachman's sparrow is under review for listing. Fish and wildlife views both the red cockaded woodpecker and the Florida panther as endangered, while Game and Fish views the latter as endangered but the former as threatened only. Aquatic or Wetland Dependent An "aquatic and wetland dependent" species is a species that "requires wetlands or aquatic systems to satisfy some critical biological need in its natural life cycle," (T. 524) apart from simply drinking water. "[W]ithout wetlands or aquatic systems, these species would probably be extirpated from the state." Id. The Sherman's fox squirrel, the gopher tortoise, the Florida mouse, the Florida long-tailed weasel, the southeastern kestrel, and Bachman's sparrow are not aquatic or wetland dependent. Because they use watery environments for feeding, reproduction and other purposes, the alligator, the wood stork (the only stork in North America) and the gopher frog are aquatic and wetland dependent. Because "the whole black bear population in our state seems to shift . . . primarily in the fall and winter months, to the wetlands and . . . eat . . . fruit produced in wetland trees," (T. 527) the black bear is deemed wetland dependent. The indigo snake is also so classified because it "seemed to be heavily dependent upon eating frogs." (T. 526). Even though not wetland dependent "historically and naturally," (T. 527) the "less than probably 100 Florida panthers left in the state" are now so viewed because "they have more or less been restricted to the major swamp systems," id., without which they probably would not survive. The contiguous wetlands on site comprise the headwaters of Durbin Creek, which empties into Julington Creek shortly before Julington Creek reaches the St. Johns River. Large scale residential development of lands lying within the watershed of Durbin and Julington Creeks has been proposed. Durbin Creek and the swamp that gives rise to it serve as a "juvenile fish nursery" (T. 2468) for white shrimp, blue crabs, croaker, anchovies, bream, bass, shellfish, bluegill, and sheepshead. Lower dissolved oxygen levels or other stressors in Durbin Creek would decrease populations in fisheries already at carrying capacity, and already threatened by the prospect of overdevelopment. Dredging and Filling The City intends to build a road running east and west between the landfill site and U.S. Highway 1 following, for the most part, an existing dirt logging road, and crossing Old Kings Road, built in 1765 to connect the capital of colonial Georgia with St. Augustine. Turbidity screens and staked hay bales would be used during road construction to protect adjacent waters. After construction, seeding and mulching would stabilize the sloping shoulders of the fill road. In connection with construction of the access road, plans call for filling wetlands contiguous to Durbin Swamp, 2.8 acres within DER's jurisdiction and 3.5 acres within St. Johns River Water Management District's jurisdiction. Fetterbush, gallberry, scrub palmetto, cinnamon fern, bamboo vine and sphagnum moss grow in these contiguous wetlands, under a canopy of slash pine, loblolly bay, cypress and swamp tupelo. The proposed Class III disposal area would lie two hundred feet north of the south property boundary and 600 feet west of the east boundary. Over significant portions of this 88-acre site, fill dirt is to be used to raise the grade, because the land is so low. Enough fill is to be placed in the marshes and sloughs to avoid depositing solid waste in the water. Trucks would haul fill dirt to the eastern part of the site ("the area starting at the northeast corner of the Class III landfill and extending about 300 feet to the west, starting from a point about midway along the eastern margin of the landfill, and extending about 450 or 60 feet to the west, and along the southern portion of the Class III landfill, about . . . 600 feet" T. 1562) and elsewhere on site, smothering isolated wetlands, where more or less healthy vegetation, generally of the kind found in the contiguous wetlands, now grows. The 132-acre Class I disposal area, which would abut the Class III area on the north, would also cover isolated wetlands now on the site. Together with excavation of associated stormwater retention basins, the disposal areas would disturb a total of 46.3 acres of isolated wetlands within the St. Johns River Water Management District's jurisdiction. The St. Johns River Water Management District originally asserted jurisdiction over 48.5 acres of isolated wetlands, City's Exhibit No. 80, but the objectors offered no evidence that staff's subsequent decision that vegetation on one 2.3-acre parcel did not qualify was erroneous. This total does not include isolated wetlands less than half an acre in extent or isolated wetlands lying both within and without the disposal areas which will cease to function as such when truncated by dredging or filling. In this latter category are some ten acres that will not themselves be dredged or filled. T. 2777-8. St. Johns River Water Management District identified 5.3 acres of high quality isolated wetlands with connections off-site that are to be impacted, City's Exhibit No 80, along with another 11.2 acres of "low quality" isolated wetlands. Id. No stormwater retention basin would intrude into DER's jurisdictional wetlands, but approximately nine tenths of an acre falling within the St. Johns River Water Management District's contiguous wetlands boundary would be devoted to stormwater retention basins. Replacement Wetlands To mitigate the planned filling of contiguous wetlands for construction of the access road, the City proposes "to excavate 3.5 acres of nonjurisdictional pine plantation and create a contiguous swamp wetland." City's Exhibit No. 56. Mature dahoon holly, loblolly bay, cypress and gum trees "will be transplanted from on-site [isolated] wetlands proposed for construction impact." Id. A tree spade is to be used to transplant trees with trunks as much as 12 inches in diameter at "breast height" and up to 50 feet tall, along with existing soils, microbial communities and adjacent understory vegetation. The "physical structure of the trees themselves . . . provide a good deal of the habitat." T. 436. Removing mature trees from isolated wetlands and replanting them in created wetlands would, to some extent, mitigate the loss of perches for bald eagles and other birds. Mature trees in the created wetland would be replanted at a density "approximately half that of existing on-site wetlands to be impacted." Id. Only 80 percent of the replantings are to be replaced, if they die; and then only if it is clear within three years that replacement is needed. A six-inch layer of organic soil, to be spread after the trees have been transplanted, would "provide for growth of herbaceous vegetation." Id. The City would monitor the created wetland (part of mitigation area "A") for three years and transplant additional trees, if needed to assure survival of not less than 80 percent of the number of trees originally planted. Of these 3.5 acres, the City has identified 2.8 as specifically intended to mitigate the filling of wetlands within DER's jurisdiction. With respect at least to this portion, the created wetland "will function probably much the same as the 2.8 acres" (T. 2765) to be filled in constructing the access road and "would compensate for the" (T.2765) attendant loss of vegetation. In transplanting mature hardwoods, "[i]t's sort of a physical impossibility to get all the root material . . . [and y]ou also get some loss of branches, limbs and stems just from the physical movement of the tree." T. 2482-83. One reason a wetland "system stays wet . . . is a thick canopy." T.2486. With more sunlight streaming through a sparser canopy, the "vegetation is not going to be the same." T. 2487. "[B]ecause you don't expect the wetlands to function as well as the original wetlands you're replacing, there is a general rule of thumb that . . . you create twice as much wetlands as the wetlands you've destroyed." T. 2488. "A three-to-one ratio would not be unusual for a good mature forested hardwood system." T.467. St. Johns River Water Management District's Applicant's Handbook calls for a ratio between 2:1 and 5:1, but states: "The ratios may also be adjusted when wetlands creation is combined with wetland mitigation proposals such as an open buffer area adjacent to the wetlands, conservation easement, wetland enhancement proposals or alternative mitigation proposals." T. 504. The ratio proposed here is less than one to one. In all, mitigation area A would comprise 11.0 acres of what is now pine plantation. Aside from a .55 acre pond in the middle, mitigation area A would consist of wetlands contiguous to existing wetlands on which three different, if related, vegetative communities are to be planted. In addition, the City proposes to create three different isolated wetland areas, one of which (mitigation area D) it characterizes as "high quality." Six acres of what is now pine plantation would be excavated on the north edge of the property. Using the same, experimental techniques proposed for mitigation area A, cypress trees would be placed on 3.4 acres, and 2.6 acres would be devoted to a combination of loblolly, cypress and dahoon holly. Another 9.8 acres of isolated wetlands would be created within borrow pits, 6.8 acres in borrow area No. 1 (mitigation area B) which would include .55 acres of open water, and 3.0 acres in borrow area No. 2 (mitigation area E.) Just north and east of the truck scales, mitigation area B would receive 200 adult trees per acre planted to the extent they are available on site, or 400 trees per acre planted with nursery stock. The same density is planned for mitigation area E, to be located across the road from stormwater retention basin 4. The City also proposes to remove a segment of a logging road built on fill that now cuts off 40 acres from the remainder of Durbin Creek Swamp. Removal of the fill and revegetation would not only increase the extent of the swamp by 0.3 acres, it would restore historic sheet flow in that part of the swamp. Finally, the City proposes to spread muck, if available, over the shallow, southern part of stormwater retention basin 2 and plant 12 acres of grass ("[w]etland herbaceous species" City's Exhibit No. 80) which, however, the City reserves the right to dredge up "from time to time". Id. p.13. Other Effects, Other Mitigation Building and operating the landfill on the site proposed would displace upland wildlife and fragment largely undisturbed and undeveloped wildlife habitat. Fences along the northern, eastern and southern site boundaries would present a physical barrier. Human activity, particularly daytime traffic on the access road, would also create a "bio-geographical barrier." Developing a landfill at the edge of the swamp amounts to "leapfrogging," instead of expanding existing pockets of industrial or other development. A witness characterized the area to the south of the site as "rural developed"; some 164 people live within a mile of the center of the site. T. 78. But private ranch lands to the north, like undeveloped land to the east, afford good wildlife habitat. Habitat fragmentation divides and isolates animal populations. "Fragmented populations are more susceptible to disease, inbreeding and with time, poaching." T. 2890. The landfill would displace gopher tortoises, their commensals, if any, and other wildlife using sandhill or pine plantation habitat, as well as wildife, including wood storks and other migratory birds, making use of the isolated wetlands that are to be filled over. With the filling of isolated wetlands, migratory birds would lose holly berries and other forage. Filling or excavating acreage at the periphery of the swamp would also destroy habitat and displace wildlife. Wildlife now on site reaching suitable habitat elsewhere will have to compete for limited space against animals that have already established territories. The result should be a net decline in populations. T.2898. Increasingly sequestered, the Durbin Swamp system is already under pressure from urbanization to the north. For animals that remained in the vicinity, development of the landfill would occasion other difficulties. But evidence that landfill noises and odors "would have no discernible impacts to the value of wetlands as habitats for aquatic and wetland dependent species" (T. 528) went unrebutted. A buffer of at least 50 feet would separate contiguous wetlands from stormwater basins and other construction, but this is considerably less than the 528 feet Dr. Harris testified was necessary to avoid "greatly erod[ing] the native faunal diversity of the Durbin Swamp wildlife." T.3073-74. Placement of the landfill on this site would increase the numbers of a half dozen "middle-sized mammal omnivores" (T. 3078) so that gopher tortoises, turkey, quail, "anything that nests on the ground will be subject to the plundering by the enhanced population of raccoons, opossums, gray foxes, red foxes . . . and such." T. 3079. Increased numbers of armadillos would also pose a heightened threat to animals that nest on the ground. Landfill operations can be expected to attract seagulls and birds of other species, including nest predators and the brown-headed cowbird, which takes over other birds' nests to lay its own eggs (T. 3071-2) and would pose a particular threat to Swainson's warbler. It is not clear that any of the mitigation areas the City proposes is intended to replace wood stork feeding habitat that would be lost to dredging and filling. Wood storks feed on dense fish populations in shallow water, when receding water levels make the fish easier to catch. Isolated wetlands on site that have served this function would be lost (T. 2419), although not all of the isolated wetlands to be lost have enough water to support the kind of fish on which wood storks prey. The deep, steep-sided ponds planned for the mitigation areas do not replicate the necessary conditions. Whether birds may safely feed in or drink from untreated stormwater run-off in shallow portions of the retention basins is doubtful. When it rains, particularly the initial flush of run-off would deliver pollutants, including oil, greases and gasoline left by garbage trucks, to the retention basins. T. 1820-1. Removing the fill road and restoring normal flows to the 40-acre patch of the swamp on the other side, as the City proposes, would not add to feeding areas available to wood storks, except for the 0.3-acre roadway itself. The project would disrupt "very superior black bear habitat." T. 3059. Tending to avoid human activity, bears would likely range further east, foregoing foodgathering on site. On the other hand, food or other refuse brought to the landfill might lure bears to their deaths, intentional or accidental. "[C]ollisions with human vehicles," (T. 3062) is the chief cause of black bear mortality in Florida. Bears have been killed in this fashion within a mile of the site, (T. 351 1411-4, 2438) although not during daylight hours when the landfill would be in operation and garbage trucks would travel the access road. Creation of wetlands will not mitigate destruction of upland habitat. On the contrary, additional upland would be taken to create the wetland mitigation areas planned. But the City proposes to give a conservation easement on 129 acres of upland, adjacent to the swamp, that is to remain undeveloped. The upland easement would preclude a host of uses inimical to wildlife, and would mitigate to some extent the loss of wetland habitat for animals which use both uplands and wetlands, like the black bear, even though cut over slash pine plantation is among the very least important or productive wildlife habitats in Florida. The easement would not include sandhill habitat. The City has also undertaken to give a conservation easement covering some 260 acres of wetlands contiguous with Durbin Creek Swamp. This would not, of course, increase the extent of existing wetlands, but it would add a measure of protection for those that survived the project. Perhaps most importantly the wetland conservation easement would preclude expansion of the landfill further into the wetlands, as long as it remained in force. Existing regulatory restrictions on the use of wetlands prevent many uses, even without an easement. Apparently no regulation precludes harvesting bottomland hardwoods, however, so long as no excavation is involved, and vegetation, once severed, is not redeposited on site. But converting deforested areas to pinelands, without a permit from the Army Corps of Engineers would probably not be authorized, under 33 U.S.C. s.1344 (f)(2). See Avoyelles Sportmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983). The City proposes to relocate gopher tortoises and any indigo snakes, gopher frogs or Florida mice that can be found to an unspecified new home off- site. Survival rates for gopher tortoises after similar relocations in the past have ranged between 30 and 100 per cent. By the year 2,000, the St. Johns County gopher tortoise population is predicted to fall by 90 percent, and Duval County is predicted to be devoid of gopher tortoises, even without relocation efforts of the kind proposed. Some or all of the gopher tortoises slated for removal may be descended from those who were brought to the site from Lake City. Perhaps even some who started out in Lake City would themselves make this second exodus to a new promised land. Stormwater Management The site proposed for the southeast landfill does not lie within a basin for which the St. Johns River Water Management District has adopted volumetric requirements. A "set of double [triple (T.1740)] box culverts five feet by eight feet . . . and . . . four other," (T. 425-6), "equalizer culverts," large enough for bears to move through (T. 415) would convey preexisting surface flows. A cross drain in the vicinity of the service plaza would serve the same function. Flood elevations would not increase more than a foot immediately upstream or more than 0.1 feet 500 feet upstream. The access road would not impound surface waters. Exfiltration trenches paralleling the access road "designed based on South Florida's criteria" (T. 1737) would filter contaminants from water running off the road. Within 72 hours of a 24-hour, 25-year return storm, the exfiltration system would be able to treat twice the volume of stormwater that recurrence of such a storm would generate. T. 1743. The scale plaza area where garbage trucks moving east on the access road would be weighed before being directed further down the road to a disposal area, is to be built on an upland portion of the property, and with it a wet detention pond to which surface water from the plaza and associated roadway would drain. Swales and berms would divert surface flow from undeveloped parts of the property that might otherwise reach the detention pond. The interceptor ditch and associated works would reduce by 2.5 hours the time of concentration for runoff from a 202-acre watershed, but cause no other changes in watershed characteristics. A weir would make it possible to regulate overflows and allow detention of run off long enough for biological assimilation of most pollutants. For the 25 year return, 24-hour storm, the pre-development peak rate of discharge (6.3 cubic feet per second) is less than the post-development peak rate without detention (18.4 cubic feet per second) but more than the post- development peak rate of discharge with detention: 3.9 cubic feet per second. An orifice below the weir, with a diameter of 1.5 inches, is designed to discharge less than half the treatment volume (22,088 cubic feet or 2.5 inches times the impervious portion of the area drained) in 64.21 hours. The design meets DER and St. Johns River Water Management District criteria. Portions of stormwater retention basins 1 and 2, situated north of the disposal areas, would lie within the 100-year flood plain. These two retention basins are designed to receive stormwater running off the Class I site or diverted around the site, as is stormwater retention basin 3, while stormwater retention basin 4 is intended to collect stormwater flowing off or around the Class III disposal area. Stormwater retention basins 3 and 4, like the southern area of stormwater retention basin 2, are not to be excavated to a depth of more than five feet below grade, to prevent groundwater from seeping into stormwater retention basins, dewatering the wetlands where it would otherwise emerge. With terraces at 20-foot intervals, to a height of 60 feet above grade for the Class I site and 40 feet above grade for the Class III site, both landfills would resemble Mayan temples, at build out. Ditches around the perimeter of each terrace are designed to convey stormwater to slope drains which would bear water to the level below, eventually to the perimeter ditch on grade, from which it would flow, through box culverts under roads built around the landfill, into the retention ponds. To the extent necessary to prevent groundwater infiltration, the ditches are to be lined. Stormwater retention basin 2 has two discharge structures, while each other basin has a single discharge structure leading to a ditch that would convey stormwater to Durbin Swamp. Perforated pipes, swathed in filter cloth, would be buried under highly permeable sand, along the sides of the retention ponds. Installed above seasonal low groundwater elevations, in order to avoid draining groundwater from the area around the ponds, during dry seasons, (T. 1781) they would have to go below seasonal high groundwater elevations, in order to be low enough to serve as drains for the retention ponds. Ambient groundwater would seep into the pipes, whenever groundwater levels outside the ponds rose above the pipes' elevation. But the pipes would still be able to drain the retention ponds, because of the relatively greater (vis-a-vis soils on site) hydraulic conductivity of the highly permeable sand to be trucked in for use as a filter medium. In time, these side drains or underdrains would clog and require expensive maintenance. But, assuming proper maintenance of the retention pond drains and of the drains that make up the roadway exfiltration system, the landfill and associated development would not flood or dewater wetlands that are not themselves to be dredged or filled. Except what is lost to evaporation, water entering the retention ponds would reach the wetlands, whether through the underdrains, over the weirs and through the conveyance ditches, or by movement underground after seeping through the bottom of the basin. The post-development peak rate of discharge from the area draining into the stormwater retention basins should not exceed pre-development rates for a 24-hour 100 year return storm or any lesser event. Because of roads and other impervious surfaces, a greater volume of surface water should reach the wetlands, causing stages about two inches higher than under pre-development conditions in "a typical summer thunderstorm." T.1782-3. The increase in surface flow corresponds to a decrease in water percolating down into the groundwater, and may result in additional loss to evaporation of water that would otherwise reach wetlands. But any such effect will be slight; surface and groundwater levels and surface water flows will not be adversely affected. T. 1783. Nor will existing surface water storage capabilities be adversely affected, despite the placement of portions of retention basins 1 and 2 within the 100-year flood plain. This encroachment at the very edge of the flood plain would rarely have any effect on surface water flows. Almost all development is to occur outside the ten-year flood plain. The stormwater basins could hold an inch of runoff without discharging water over the weirs. The underdrains, which would, when originally installed, have a hydraulic conductivity of about 130 feet per day, could remove an inch of run-off within approximately 40 hours. On the conservative assumptions that half of a two-foot vadose zone would already be saturated at the time a 24-hour, 25-year return storm dropped an additional 8.9 inches of rain on site, and that soils on site have a porosity of .5, the retention ponds could contain the resultant run-off for treatment, before discharging it first through weirs then through the underdrains. Three surface water monitoring stations are planned. One upstream would make it possible to assess background conditions. Another at the point of discharge from stormwater retention pond 2 would reveal whether the retention ponds and their sidedrains were functioning as intended. A third monitoring station in the southwest corner of the site should give similar information as to the roadside exfiltration system. Hydrogeology Except in the southeastern corner of the City's property, where the ground slopes down to the east, the land the City owns, like the adjacent land to the south owned by the McCormicks, slopes down in a more or less northwesterly direction, falling from 55 feet NGVD on the southern boundary to 15 feet NGVD at the northwest boundary, which intersects an elbow of the swamp. Although groundwater flows east of north under the southeast corner of the property, the flow under the property is generally northwesterly, following the topography. Class II groundwater in the surficial aquifer underlies the property at depths ranging "from almost to land surface to five or 10 feet below." (T. 1517). City's Exhibit No. 161. Groundwater flowing northwesterly crops out in isolated wetlands, evaporates, transpires or discharges into the swamp. To assure that the bottom of each exceeds seasonal high groundwater levels, measured in February of 1987, by the number of inches a 24-hour 25-year return storm would add, fill would be placed under both disposal areas, as needed. Because the Class I solid waste disposal site is to be lined, recharge by rainfall would be precluded there. With a liner intercepting percolating rainwater, groundwater would not attain predevelopment levels. The depression thus induced under the Class I site would more than offset the tendency groundwater under the Class III site would otherwise have to mound up into the bottom layers of solid waste deposited there. Recharge from rainfall (become leachate) would continue at the unlined Class III site; the height of accumulated waste would slow or stop evapotranspiration offsetting percolation there. But groundwater would flow down steeper gradients to lower levels underneath the Class I site (which lies between the Class III site and the wetlands where groundwater discharges) rather than rising into waste disposed of on the Class III site. The horizontal component of flow would continue to exceed the vertical component by several orders of magnitude. Beneath the surficial aquifer, which extends to depths of 50 to 100 feet below ground and consists of sand interspersed with a "matrix of soil, organic materials, clays and silts . . . little layers of clay and hardpan" (T. 1517) lies a continuous, confining layer of gray, sandy material with gravel and shell fragments, 12 to 40 feet thick, blanketing the undulating surface of the Hawthorne formation underneath. "[S]ome 40 percent of the material comprising the Hawthorne formation in this area is clay and the remainder is a mix of sands, silt stone, shell beds and phosphatic sands." (T. 1526) This assures that rainfall or other fluids percolating into the surficial aquifer on site will move horizontally downgradiant, reentering the atmosphere or discharging to the surface, rather than penetrating the thinner aquitard above the Hawthorne formation and sinking another 250 feet or more through the Hawthorne formation itself into the Ocala group and Floridan aquifer below. No subterranean feature in the vicinity permits water in the surficial aquifer to reach the Floridan. No peat, muck or other unstable soils underlie the site. Under 3,000 pounds per square inch, the maximum load anticipated, the ground is not expected to settle more than one inch. The addition of fill dirt does not alter this estimate significantly. Disposal Design The Class III disposal area would not have a liner, a leachate collection system or gas controls. After travelling through soils under the site, leachate from the Class III site would enter the groundwater. The City proposes to train and direct staff, to the end that only yard trash and construction and demolition debris end up in the Class III disposal area, where waste would be deposited directly on fill dirt or naturally occurring soils. No solid waste is to be disposed of within 200 feet of wetlands contiguous to Durbin Swamp lying within DER's jurisdiction. A composite liner of the kind in place at Alachua County's southeast landfill would form the corrugated bottom of the Class I landfill: a 60 mil high density polyethelene layer overlying two six-inch lifts of calcium montmorillonite, a clayey sand that is to be placed on compacted subgrade configured in "a herringbone design with peaks and valleys." T.765 Separating trenches in the valleys, sloping ground would rise, then fall at least two feet for every hundred horizontal feet. Steps would be taken to remove rocks, twigs, roots and the like, before compacting subsoils on site. A machine called a sheepsfoot is to be deployed, once half the montmorillonite has been put down, to pulverize clods and mix the material, in an attempt to assure uniformity within each lift of clayey sand. Other machines would compact each lift to a specified Proctor density. These efforts would not succeed in eliminating all clods or other imperfections, and the sheepsfoot would mix subgrade with the bottom layer of montmorillonite, introducing new impurities. Soils on site have hydraulic conductivity ranging from 1 x 10-3 to 1 x 10-4 centimeters per second. Clayey sand is also subject to desiccation cracking; as it dries out, large cracks appear. On top of this kneaded, compacted and finished 12-inch layer of clayey sand, once it had been inspected to assure the absence of roots, rocks, sticks, glass or other sharp objects, a specialty contractor would unroll strips of unreinforced high density polyethylene. After arranging the panels to minimize seams in the leachate collection trenches, technicians would weld the polyethylene strips to one another. An independent, third-party quality assurance contractor would inspect and test the seams before the synthetic liner was finally positioned, and as flush a fit as possible was achieved. Both the high density polyethylene and the quality assurance program are to meet the requirements of NSF Standard 54 and EPA Publication SW-870, March, 1983. Some wrinkling and occasional flaws in the plastic liner are inevitable. Wrinkling causes ponding, not only of rainwater during construction, but also of leachate, once the landfill is in operation. Tire tracks or other indentations in the montmorillonite layer can also cause ponding. In time, under the growing weight of solid waste, and with heat that biodegradation of the waste would generate, some of the wrinkles might subside, but the liner might also sink into additional depressions. Careful construction could keep ponding to a depth of little more than an inch. T. 2971, 2979. Extrusion welds (when done properly) render the seams stronger than the panels they join. But even if "you are really, really good" (T. 2957) and even when you're careful you get an occasional problem, one or two per acre, no matter how careful you are. And if you're not as careful, you get more, typically something on the order of five holes per acre. T. 2967 Carelessness on one project resulted in as many as 60 flaws per acre. Nondestructive testing methods do not detect all defective welds. T. 2966. Defects may develop after the plastic liner has been inspected. Stress on high density polyethylene associated with "conform[ing] itself to whatever is underneath it" (T. 2962) concentrates in scratches, gouges and crimps to cause "as much as 30 percent" (T. 2964) of the holes in the material. "[T]here is no shortage of scratches on a construction site." T. 2962. Leachate Collection Another high density polyethylene geotextile, chosen for its transmissivity (the geonet), is to be placed on top of the high density polyethylene liner (the geomembrane), where it would act as a synthetic drainage medium. In order to prevent overlying sand's clogging the geonet, compromising its ability to conduct leachate down into the trenches, a third, highly permeable geotextile, "a non-woven needle punched type" (T. 637) (the geofilter) would go directly on top of the geonet. The twelve-inch sand drainage layer blanketing the geofilter would have hydraulic conductivity of 1 x 10-3 centimeters per second, if sufficient quantities of suitable sand could be obtained. (T. 764) Another 12 inches of native soil is to cover the sand drainage layer. While the geofilter and the soil layers above it would parallel the landfill liner on the slopes between trenches, they would form arches over the trenches themselves. Continuing to follow the contours of the montmorillonite, the geomembrane and the geonet would line the trench bottoms. Below these arches, inert drain field rock would fill the lined trenches, supporting one perforated PVC pipe eight inches in diameter in each trench. The Class I landfill is to be built in fourteen 250-foot wide cells, with each cell having two leachate collection pipes on 125-foot centers. Manholes at either end of each leachate collection pipe would allow access, in case unclogging the pipe proved necessary. Longitudinally, the trenches would slope to the north, falling two to 20 feet for every 1,000 horizontal feet. Leachate reaching the trenches would flow along the trench bottoms (or through the pipes) to the manholes on the northern boundary. Also to be made of leachate-impervious PVC, leachate drain pipes, which would not be perforated, would connect all manholes on the northern perimeter. Varying in diameter from eight to twenty inches, depending on the number of manholes they were designed to empty, they would converge at a leachate pumping station north of the perimeter road. T. 590-1. A rupture in one of the single-walled leachate drain pipes could spill massive quantities of leachate on naturally occurring soils. Leachate which reaches the station is to be pumped into a 12,000 gallon storage tank nearby. To be mounted on a concrete slab surrounded by a curb high enough to contain all 12,000 gallons, if the tank failed, the tank would be constructed of high density polyethylene. The plan is to pump leachate from the tank through a four-inch discharge pipe into tanker trucks which would take the leachate to the Buckman wastewater treatment plan for disposal there. During "the maximum leachate production period, when you have 10 cells open," (T.687) an average of 35,000 gallons of leachate a day would require removal for disposal in this fashion. Additional tanks could be built. As a precaution, isolation valves would permit cutting off all flow of leachate to the pump station. In addition, isolation valves would allow cutting off the flow from any of seven pairs of cells (or slowing the flow from all, T. 705) in the event of an abnormal circumstance where leachate production in the facility exceeds the hydraulic capacity of [the] leachate removal system, the pumping station and storage tank and the tanker truck system. T. 591. Isolation berms separate each pair of cells susceptible to being put to use as temporary storage for leachate. The leachate drain pipes themselves afford more than 23,000 gallons of emergency storage. T.703. Ventilation As they decompose, materials to be deposited in the Class I landfill produce methane gas, carbon dioxide, and other, malodorous gases. Collection pipes with eight-inch diameters, running horizontally on 150-foot centers in the second and fifth lifts would allow gas to escape at either end, on the north and south sides of the landfill. This would prevent methane's building up and exploding or catching fire. By assuring their gradual release, it should also minimize the impact of foul smelling gases, which, in any event, are generally undetectable at a distance of more than 1,000 feet. But specific condition eight of the proposed landfill permit requires that the passive system be converted to an active system, if necessary, using vacuum suction and flaring. GIGO Although there "is not much industry in the southeast portion of Duval County," (T. 953) sewage sludges and other industrial wastes "except any hazardous waste as defined in the Federal Register" (T. 947) would be accepted for disposal at the Class I facility, if properly manifested. The proposed southeast landfill would receive waste that would otherwise have gone to the unlined east landfill. Household waste contains toxic materials. Tests of leachate generated in other lined landfills from which hazardous wastes are excluded have demonstrated the presence of some 30 metals and 56 organic compounds. City's Exhibit No. 89. Rainfall percolating through (and moisture already present in) waste deposited at the proposed Class I facility can be expected to leach the same array of substances from materials deposited there. Judging from experience elsewhere, leachate from the Class I facility would contain 13 or 14 (if 4-methyl phenol is included) substances in concentrations in excess of governmental standards or health-based criteria identified by a toxicologist engaged by the City. City's Exhibit No. 90. Among these would be methylene chloride, trichloroethylene, tetrachloroethylene and benzene, (T. 1478) as to which "the current regulatory policy is that it is possible for as little as one molecule . . . to act as . . . a carcinogenic initiator . . . [so] that there is no real threshold." T. 1447. Maximum concentrations would exceed those Florida prescribes as primary drinking water standards for titanium threefold, for benzene fivefold, for chromium more than fivefold, for sodium approximately 16-fold, for manganese 68- fold, for iron 280-fold, and for methyl ethyl ketone almost 130-fold. City's Exhibit No. 90. Methylene chloride would occur in the leachate in concentrations 39 times greater than the "USEPA proposed Preliminary Protective Concentration Limits." Id. Only yard trash "soils/land clearing waste, waste from landscapers" (T.956) and construction and demolition debris, "clean debris, inert materials, construction and demolition wastes that are inert, roofing materials," id., and the like, not mixed either with industrial or with regular household garbage, would be accepted for disposal in the Class III facility. Unless these materials are adulterated, they are "easy to bio-degrade . . . [or] are insoluble," (T. 1923) and rainwater percolating through them should yield a leachate with "neutral pH . . . low to moderate [biological oxygen demand] . . . [and] metals [if any] . . . below detection limits or background conditions." T.1923. But "some materials get in" (T. 2106) despite efforts to exclude them. "Demolition debris can have oiled floors and creosoted pilings as part and parcel of the structure." T. 3008. Old paint contains lead and cadmium. Debris from old houses can include rat poisons. Grass clippings "could contain small amounts of herbicides and pesticides." T.2101. In fact, "it's not unusual for yard waste to be very rich in biocides." T. 3009. Such chemicals are used in Jacksonville. When autopsies of seagulls found at the Girvin Road landfill revealed traces of diazanon, tests of water taken from "the stormwater ponds in the subdivision across the street" (T.990) showed diazanon was present there. Bioassays the DER runs on effluent from the City's Buckman wastewater treatment plant regularly report toxicity in excess of allowable limits (T.1877-8) and the EPA has "identified malathion and diazanon as the toxicants," (T. 1881) which are killing at least one species of flea in certain standard laboratory tests performed on the effluent. Leachate Leakage The composite liner would not keep all leachate generated in the Class I landfill from reaching the naturally occurring soils underneath, and eventually the groundwater under the site. Even under normal operating conditions, and even on the City's optimistic assumption that it can achieve a permeability of 1 x 10-7 centimeters per second, thousands of gallons of leachate a year would escape through flaws in the liner while the landfill was in operation. If leachate drain pipes burst or torrential rains required backing leachate up in the cells, thousands of gallons a day could leak. If two lifts of clayey sand achieve a permeability no lower than 1 x 10-5 centimeters per second, millions of gallons of leachate would enter the groundwater over the ten-year active life of the landfill, even without burst pipes or extraordinary precipitation. Once the Class I landfill attained the design height, it would be capped with impermeable materials to minimize leachate generation. As with the liner underneath, the impermeable cap would be covered with sand to facilitate drainage. Vegetation would hold the drainage soil in place. Closure plans have already been drawn, but they are subject to revision and require DER approval before implementation. If necessary, side slopes could be lined to prevent leachate seepage there. Closure would reduce, but would not end, leachate production and leakage. Virtually impermeable to water, high density polyethylene is highly permeable to certain permeants, including some that occur in landfill leachate. Leachate constituents known as "aromatic hydrocarbons" move "right on through" (T. 3017) high density polyethylene. To some extent, the montmorillonite component of the liner under the Class I area would impede these materials' movement into naturally occurring soils. The evidence did not quantify the montmorillonite's efficacy in this regard, but the City's expert's testimony that leakage of this kind would be "insignificant" (T. 830) went unrebutted. Permeation aside, the rate at which leachate leaks depends on the nature, number and size of flaws in the synthetic liner, the height and duration of the leachate head above the defects, and the transmissivity of what is underneath. Here transmissivity turns both on the hydraulic conductivity of the clayey sand in the vicinity and on the extent of air spaces between the clayey sand and the overlying high density polyethylene. Sand grains cause microscopic spaces, while imperfections in the montmorillonite layer and wrinkling of the polyethylene cause larger spaces. Leachate leaking into a space between the geomembrane and the soil spreads over a larger area before penetrating the clayey soil, in correspondingly larger volumes. Calculations predicated on the transmissivity characteristics of the geonet and the sand layer above it demonstrate a theoretical leachate flow over the liner so rapid that leachate would never accumulate on the geomembrane to a depth of as much as a tenth of an inch. But these calculations assume no ponding behind wrinkles in the synthetic liner, or any other impediment to the flow of leachate. Especially since holes in liners are likely to occur near wrinkles (because stresses are greater there) a more realistic assumption, for calculating leachate leakage rates, is a head of one inch, "the smallest practical hydraulic head you can achieve." T. 2994. On the twelfth day of hearing, when St. Johns County's liner expert testified that a six-inch layer of the montmorillonite might result in permeability as high as 5 x 10-4 centimeters per second, the City had not yet amended its application to increase the thickness of the clayey sand layer from six inches to twelve. The City's proposal now calls for two lifts of a 20 percent clayey sand with a saturated hydraulic conductivity in situ of 1 x 10-7 centimeters per second. This can be achieved, if at all, only with material that laboratory tests indicate has hydraulic conductivity of 1 x 10-9 centimeters per second or less. "[I]f you put down clay that the lab says has a permeability of 10 to the minus 7 centimeters per second, . . . when you put it down in the field you get from one to two orders of magnitude greater permeability than that. . . . related to how thick it is." T. 2988. Even a three-foot liner comprised of six lifts ends up with conductivity ten times greater than the same material under laboratory conditions. Mr. Deans, who designed the liner for the City, testified that a permeability of 1 x 10-7 centimeters per second was "readily achievable" even with six inches of clayey sand, but he had never designed a liner before, and his testimony in this regard has not been credited. To judge from its eleventh- hour amendment, the City did not believe it, either. Only two lifts are to comprise the clayey sand layer. No study of a clayey sand layer as thin as 12 inches has found hydraulic conductivity of less than 1 x 10-5 centimeters per second. Three lifts are necessary to create an effective barrier. "[Y]ou need at least three lifts to get the middle one hopefully working right." T. 2987. "[E]ngineers believe that the bottom layer gets fouled, the top layer cracks and has problems. Your best chance is the in between layers. You need at least three layers, and they would rather have four to be reasonable, and EPA says six." Id. Studies of twelve-inch liners put down in two lifts ("[t]he thinnest one we found anybody had ever studied" T. 2980) showed them to be "inadequate." T. 2987. With an inch of head, assuming defects with an average area of 1 x 10-5 square meters, an assumption with which all the experts seemed comfortable (the City's expert assumed larger holes), the published EPA formula yields a per defect leakage rate of 6.7598 x 10-11 cubic meters per second, assuming hydraulic conductivity for the montmorillonite layer of 1 x 10-7 centimeters per second. But plans to use only two lifts to form a 12-inch layer do not give reasonable assurance of vertical hydraulic conductivity that low. Mr. Coram's testimony to the contrary, expressly predicated on reports of laboratory tests on samples, did not address the evidence that laboratory tests do not tell the whole story, in the case of a thin layer of clayey sand compromised not only by inherent imperfections, but also by highly permeable subgrade soils, kneaded into it by the sheepsfoot. Because "clods are broken down in the laboratory and stones and cobbles are screened from the sample . . . the effects of both are not accounted for in permeability tests on laboratory compacted samples." City's Exhibit No. 190. Substituting a hydraulic conductivity of 1 x 10-5 centimeters per second, the EPA formula yields a leakage rate between 57 and 58 times greater: 3.8898 x 10-9 cubic meters per second. Although the EPA's most recently published leak rate formula makes no allowance for less than an ideal fit between the components of a composite liner, City's Exhibit No. 190, the author of the EPA formula, who testified for St. Johns County, subscribed to modifications to the formula developed to take this factor into account. DER's Exhibit No. 35. The montmorillonite layer's hydraulic conductivity is an unrealistically low measure of the transmissivity of the medium underneath the polyethylene. Using it for this purpose, without adjustment, ignores inevitable, intervening air spaces. Perfect contact between a synthetic liner and the soil it overlies cannot be accomplished, even in a laboratory setting. On a project of the kind proposed, contact would range from good, where the relatively larger size of sand grains in the clayey mix creates air spaces, to poor, where wrinkles (left in to avoid the weakening effects of stretching the material) cause much larger air spaces. No expert found fault with the more recent formulae (Bonaparte/Giroud) set out in DER's Exhibit No. 35, and none quarreled with the proposition that the published EPA formula made unrealistic assumptions about the contact between polyethylene and clayey sand. The Bonaparte/Giroud formula that assumes good contact yields a leakage rate of 1.6090 x 10-8 cubic meters per second per defect, a little more than four times what the EPA formula predicts for an ideal fit, assuming an inch of head and vertical hydraulic conductivity for montmorillonite in situ of 1 x 10-5 centimeters per second. Assuming poor contact, without varying any other assumptions, yields a leakage rate approximately 5.5 times greater: 8.8115 x 10-8 cubic meters per second. In its proposed recommended order, at page 35, DER accepts, at least for purposes of argument, the proposition that contact between soil and geomembrane would be poor in places, and calculates a leachate leakage rate of 5.45 x 10-3 gallons per day (2.3887 x 10-10 cubic meters per second per defect.) But this assumes that "the permeability of the City's clay liner will be 1 x 10- 7 cm per second and the maximum head over liner will be 0.062 inches." The evidence showed that the maximum head could not be kept below one inch, and did not give reasonable assurances that two lifts would result in vertical hydraulic conductivity of 1 x 10-7 centimeters per second for the clayey layer. Substituting an inch for .062 inches gives a rate of 2.9177 x 10-9 cubic meters per second. Substituting 1 x 10-6 for 1 x 10-7 and an inch for 0.062 inches, the leakage rate becomes 1.6034 x 10-8 cubic meters per second. Groundwater Contamination Uncontroverted expert opinion put the flow of groundwater under the Class I disposal area at 0.063 cubic feet or 0.47 gallons per day (2.0592 x 10-8 cubic meters per second) through a hypothetical square or cube one foot on a side. Except under unusual conditions, leachate leaking from the Class I facility would, before entering the groundwater, pass through approximately a foot of fill dirt or naturally occurring soils, which consist in large part (92 to 99 percent) of relatively inert, quartz sand. The presence of organic materials, however small the quantities, raises the prospect of adsorption and other chemical reactions, before steady state is attained. Physically, the soil would disperse the leachate, diminishing concentrations of leachate constituents entering groundwater. After such attenuation as the soil afforded, leachate would enter the groundwater, which would dilute and further disperse it, although not nearly as dramatically as the City's toxicologist testified. This witness assumed uniform mixing, rather than the discrete plume which persons with greater expertise in groundwater contamination convincingly predicted. By using the rate of "groundwater flow beneath a defect and the rate of leakage through that defect . . . [he] c[a]me up with a volume to volume dilution factor to identify a concentration in the groundwater." T. 1214. Because Dr. Jones took an unrealistically low leakage rate as a starting point, he predicted an unrealistically low concentration of one part leachate to 4,400 parts groundwater, inside a cubic foot immediately below each leak. Concentrations vary directly with the leakage rate per defect. T. 1224. The formula that assumes good, but not ideal, contact between liner components yields a leakage rate per defect of 1.609 x 10-8 cubic meters per second, if the layer of clayey sand has hydraulic conductivity of 1 x 10-5 centimeters per second. Substituting this leakage rate, the City witness' methodology yields a dilution ratio of 2.0592 parts groundwater to 1.609 parts leachate, or 1.2798:1, more than a hundred times less than the 130:1 dilution ratio that the City concedes is the minimum it must prove, at the edge of the zone of discharge. See Respondent City of Jacksonville's Motion to Strike St. Johns County's Memorandum Concerning Leachate Rates, p. 5. Substituting the coefficient for poor contact, the ratio in the hypothetical cube under the landfill becomes a paltry 2.0592 parts groundwater to 8.8115 parts leachate or .2337:1. Using Dr. Jones' methodology, a leakage rate of 1.6034 x 10-8 cubic meters per second per defect would result in leachate concentrations in groundwater of one part leachate to 1.2483 parts groundwater. Substituting a rate of 2.9177 x 10-9 cubic meters per second per defect yields a ratio of 2.0592 parts groundwater to .29177 parts leachate, or one part leachate to 7.0576 parts ground water. Even if the contact between geomembrane and montmorillonite were uniformly good and the clayey sand layer had a permeability of 1 x 10-7 centimeters per second at every point, a dilution ratio of only 37.4444:1 would result. In 132 acres of high density polyethylene, the evidence showed that 660 flaws could reasonably be anticipated, and that 132 flaws were absolutely unavoidable. Methylene chloride would end up in the groundwater in proscribed, carcinogenic concentrations as far away as 20 feet from many leaks within 90 days. Under some leaks, perhaps all, benzene, a proven human carcinogen, would also occur in prohibited concentrations. As leachate plumes dispersed, concentrations would diminish, eventually to levels at which they pose "potentially acceptable" (T. 1475) risks even in the case of "a 70-year water consumption of two liters of water per day by a 70-kilogram adult." T. 1217. No evidence suggested that they would remain in concentrations above these levels by the time they reached the edge of the zone of discharge. City's Exhibit No. 193, which uses a leakage rate much lower than the range of leakage rates likely to occur, if the landfill is built, predicts concentrations of various leachate constituents at the edge of the zone of discharge, assuming a leak at the edge of the disposal area. Multiplying predicted concentrations by quotients, obtained dividing likely leakage rates by the assumed rate, suggests carcinogenic leachate constituents would not occur in prohibited concentrations at the edge of the zone of discharge. But extrapolating in this fashion also suggests that violations may occur outside the zone of discharge, absent attenuation in the vadose zone, in the event of a leak at the edge of the Class I disposal area, for iron, manganese and methyl ethyl ketone. Groundwater Monitoring The City proposes to place monitoring wells at intervals of 250 to 500 feet around the Class I and Class III disposal sites. Some 25 shallow monitoring wells would be located 50 to 100 feet from the deposition areas, within the zone of discharge. In addition, seven clusters, each consisting of three wells screened at different depths, would punctuate the boundary of the zone of discharge. A cluster of wells upgradient would make it possible to monitor background conditions. With two-inch diameters and ten-foot screens, each well would receive a flow of less than a gallon a day. The contaminant plume from the Class III landfill would be large enough to be detected readily in samples drawn from a number of wells. But there was testimony that the plume, even from a 10-foot wide leak at the edge of the Class I disposal area, could pass between two wells 500 feet apart, undetected. Rather than a single large leak, moreover, the experts predict hundreds of small leaks in the Class I disposal area liner. The assumption is that flaws in the geomembrane would have an area of only one tenth of a square centimeter, on average. Any one of the plumes emanating from such a leak could easily pass undetected through a 500-foot gap between monitoring wells. The monitoring plan apparently relies on the great number of leaks expected. But even if samples from a monitoring well revealed a leak, the magnitude of hundreds of other leaks would not be disclosed. Well Contrived After the City filed its application for a permit to construct a landfill, but before DER had issued its notice of intent to grant the application, four wells were put in on the McCormick property, within three feet of the southern boundary of the City's property, and within 205 feet of the proposed Class III disposal area. The wells are more than 500 feet from the lined, Class I disposal area. Spaced at 1,000-foot intervals, within a 125- foot-wide utility easement in favor of the City of Jacksonville Beach, three of the wells are 25 feet deep and one is 28 feet deep. McCormicks' Exhibit No. 7. Each consists of a length of PVC pipe, 1 1/4" in diameter, leading to a red pitcher pump mounted on a wooden platform supported by four fence posts. City's Exhibit No. 194. Pumps of this kind must "periodically be pumped and primed or they have to periodically be taken apart and have the internal seals and leather valves replaced." T.2005. On April 7, 1988, the St. Johns River Water Management District issued a warning notice to "Haden McCormick" alleging that the wells had not been grouted, had been dug without necessary permits, and had not been the subject of required well completion reports. The next day, the St. Johns County Environmental Protection Board, apparently in response to applications inspired by the warning notice, issued a permit for each well designating the "usage" of each as irrigation. McCormicks' Exhibit No. 7. Well completion reports dated April 14, 1988, reported that the wells had been grouted. McCormicks' Exhibit No. 3. Asked the purpose of the wells in a deposition on April 25, 1988, J. T. McCormick said, "We need to monitor what [the landfill is] doing . . . [W]e need to . . . prepare ourselves for having people live in this area, to occupy it, to monitor it." T. 2227-8 A week earlier J. C. Williamson, Jr. had requested on behalf of B.B. McCormick and Sons, Inc. that the St. Johns County Environmental Protection Board amend the permits to show well usage as "Private Potable" instead of "Irrigation". This request was granted on April 27, 1988. McCormicks' Exhibit No. 2. On May 2, 1988, St. Johns River Water Management District's chief hydrologist wrote a lawyer for the McCormicks that "the completion reports submitted by a licensed driller, and the St. Johns County permits fulfill the requirements of the District." McCormicks' Exhibit No. 1. Analysis of samples of water taken from the wells on February 27 and 28, 1989, revealed total coliform levels acceptable for private wells. John Haydon McCormick explained the decision to put the wells in: [D]uring that week the City had filed their application with the DER which, in a sense, fixed their design . . . and when we became aware that this Class III landfill was as close as it is to our border, we became concerned about the future use of potable drinking water, and after consulting with counsel we were informed that we could legally install wells along that border. T. 2242. No owner of the property where the wells are located lives on the property nor, as far as the record shows, has an owner or anybody who does live on the property ever drunk water from the wells. About a half mile from the City's property are two other wells near a house on the McCormick property. When an owner's son drank water from one or more of the wells, as recently as the fall of 1988, he had to take water to the site with him in order to do it. The hand pumps require priming and nobody has bothered to store water near them for that purpose. On February 26, 1989, when the City's expert arrived for "splitting samples to submit to different laboratories," (T.1007) The "pumps were in a 20-gallon washtub in the back of . . . one of Mr. McCormick's employee's trucks. They were all removed from the well heads . . . [apparently] being soaked to generally recondition the seals in the pumps and to sanitize the pumps." T.2008 Two "of the old leather seals from the pumps [were] on the ground." T.2009. Within the shallow aquifer, groundwater flows from the wells northerly underneath the proposed Class III disposal area in the direction of Durbin Swamp. Use of the four existing wells "would in no way modify the groundwater flow system." T. 2045. But a well or wells could be so constructed on the McCormick property that continuously pumping from them would reverse some of the groundwater flow under the proposed Class III disposal area, to the extent that water flowing from beneath the Class III disposal area could be drawn from one of the existing wells along the McCormick boundary. T. 2075-80. Nor would consumptive use permits be necessary to dig wells which could cause such a change in groundwater flows. T. 2075. When the City discovered the wells abutting the southern boundary of its property, it did not direct its engineers to alter the design of the landfill to preclude solid waste disposal within 500 feet of the wells. The total project cost, excluding legal fees, is estimated in the neighborhood of $46,000,000. Redrawing the plans now to reduce the size of the Class III disposal area, without altering the size of the Class I disposal area, would take two to three months, and cost approximately $100,000. This approach would require reducing the capacity of the Class III area from 4.1 million cubic yards to 2.5 million cubic yards and, unless construction debris, which can be disposed of without a DER permit, were diverted elsewhere, its useful life from about ten years to about six years. Tipping fees would have to be higher "to recover the capital fixed costs over fewer tons." (T. 2208) Increased design costs alone would require recouping an additional 4 cents per cubic yard (more considering the time value of money) from tipping fees for Class III debris. Operations would be less efficient and presumably more expensive. T. 2207. Alternatively, the entire facility could be redesigned to achieve the same capacity and useful life as now contemplated. Such a redesign would require four to six months' work and cost approximately $250,000. Recovering this cost through increased tipping fees for Class III wastes would add slightly more than 6 cents a cubic yard (again ignoring the time value of money.) Alternative sites for disposal of Class III waste are available to the City. Indeed the site for which the City now seeks a permit was not even among the ten sites originally considered for the project. T. 2224-5. Decreased transportation costs to another site closer to the source of such waste might more than offset increased tipping fees. But separate facilities could create other problems. Ms. Nogas explained: From an operations standpoint . . .If I run out of Class III area and . . . site a separate Class III area somewhere else, if I had a truck coming to that facility and he really should have been in a Class I area, and I say "No, go out the gate and go five miles down the road . . .[to the] Class I facility," . . . I have a much better chance of . . . him never showing up at my Class I facility. T 2208-9. On the other hand, when asked about placing a Class III facility elsewhere in Duval County, Ms. Nogas, reiterating an earlier statement, testified, "[I]f that were what we had to go to, I would have no operational problems with it." T. 221. Mr. Wells' testimony that there "are 16,000 acres of less environmentally flawed acres seven to 12 miles from the generating centroid accessible from four-lane roads and not near residential or commercial properties," (T. 1248) and that the proposed site "is the furtherest site from the generating centroid, 21 and three-quarters miles to the dump site, and will cost taxpayers an extra $3 million to $5 million a year in longer haul time" (T. 1247) was received on the issue of the decisionmakers' credibility only.
Recommendation It is, accordingly, RECOMMENDED: That DER deny the City's request for variance. That DER deny the City's application for a permit to construct a landfill. That DER deny the City's application for a dredge and fill permit. That DER grant the City's application for a permit for management and storage of surface waters, on conditions proposed in the intent to issue, unless modified by agreement of all parties. DONE AND ENTERED this 16th day of October, 1989, in Tallahassee, Leon County, Florida. Robert T. Benton, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the division of Administrative Hearings this 16th day of October, 1989. APPENDIX A Petitioner St. Johns County's proposed findings of fact Nos. 1-4, 6, 10-12, 14, 16, 18, 21,23, 24-28, 33, 35, 37, 38, 41-45, 47-48, the first sentence of No. 51, Nos. 52-56, 57 except for the first sentence, which is rejected, 58, 59, 62, 64, 66, 68-74, 95-103, 106-109, 111- 116, 118, 131, 132, 133 except for subpart 7, 134, 136 and 137 have been adopted, in substance, insofar as material. With respect to petitioner St. Johns County's proposed finding of fact No. 5, and the second sentence of petitioner St. Johns County's proposed finding of fact No. 51, the design rate is not the same as the current rate of deposition. Petitioner St. Johns County's proposed findings of fact Nos. 7, 8, 9, 13, 15, 17, 22, 75, 110 and 138 relate to subordinate matters. Petitioner St. Johns County's proposed finding of fact No. 19 accurately recites the testimony. Petitioner St. Johns County's proposed finding of fact No. 20 is immaterial. With respect to petitioner St. Johns County's proposed finding of fact No. 29, the City's evidence that leakage of this kind was insignificant went unrebutted. Petitioner St. Johns County's proposed findings of fact Nos. 32 and 120-123 are immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 30, the City's estimates were unreasonably low. With respect to petitioner St. Johns County's proposed finding of fact No. 31, the evidence showed that nine gallons a day was at the upper limit, not that it would actually occur. With respect to petitioner St. Johns County's proposed finding of fact No. 34, at least 13 substances occur in concentrations that exceed health-based standards. Petitioner St. Johns County's proposed findings of fact Nos. 36 and 63, 117, 119 and 135 are proposed conclusions of law. With respect to petitioner St. Johns County's proposed finding of fact No. 39, the probability of a leak on the edge of the disposal area was not established. With respect to petitioner St. Johns County's proposed finding of fact No. 40, the evidence did not show that when "two or more toxic substances are combined" they necessarily have synergistic impacts. With respect to petitioner St. Johns County's proposed finding of fact No. 46, the City's assumption of no attenuation was an appropriately conservative approach that is not inconsistent with the City's unrefuted testimony that attenuation would occur. With respect to petitioner St. Johns County's proposed finding of fact No. 49, the evidence did not prove that the City would allow four feet of leachate to stand on the liner. Petitioner St. Johns County's proposed findings of fact Nos. 50 and 60 immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 61, the evidence did not establish the contentions following the clause ending "and into Durbin Creek,". With respect to petitioner St. Johns County's proposed findings of fact Nos. 65 and 67, the McCormick wells have served ornamental and talismanic purposes, but they were not shown to be potable water supply wells, within the meaning of the rule. At the time of hearing the pumps did not function and were not mounted on the wells. Petitioner St. Johns County's proposed finding of fact No. 76 has been adopted, in substance, insofar as material, except that there was at least one effort to collect toxic wastes in Jacksonville. With respect to petitioner St. Johns County's proposed findings of fact Nos. 77 through 94, proposed permit conditions are not proposed findings of fact. With respect to petitioner St. Johns County's proposed finding of fact No. 124, the evidence was clear that more wetlands were to be destroyed than were to be created. Petitioner St. Johns County's proposed finding of fact No. 125 is rejected as against the weight of the evidence. With respect to petitioner St. Johns County's proposed findings of fact Nos. 126, 127 and 128, mitigation , particularly as regards the wood stork, if the landfill is built. Petitioner St. Johns County's proposed finding of fact No. 129, Durbin Creek enters Julington Creek, shortly before the latter reaches the river. Findings of fact proposed by petitioners J.T. McCormick and the Estate of Benjamin R. McCormick (McCormicks) Nos. 1-4, 6-10, 13, 15-17, 20, 21 and 23 have been adopted, in substance, insofar as material. With respect to McCormicks' proposed finding of fact No. 5, a preponderance of the credible evidence did not establish that the wells would be used to supply potable water in the future, even if the pumps are repaired to make it possible. Nor did the evidence establish any such authentic, "non-forensic," use in the past. With respect to McCormicks' proposed finding of fact No. 11, evidence was adduced that other sites had been considered by engineers the City engaged. T. 2224-5. With respect to McCormicks' proposed finding of fact No. 12, testimony put the delay at two to three months. T. 2139. The City could have avoided this delay. McCormicks' proposed finding of fact No. 14 has been adopted, in substance, insofar as material, except that the proportion of the Class III waste stream construction and demolition debris comprises is not stated at T. 2149. With respect to McCormicks' proposed findings of fact Nos. 18 and 19, the four and six cents per ton computations ignore the time value of money, among other things. McCormicks' proposed finding of fact No. 22 is immaterial. McCormicks' proposed finding of fact No. 24 is properly a proposed conclusion of law. Findings of fact proposed by Florida Wildlife Federation, Inc., St. Johns County Audubon Society, Sierra Club, Inc., Coastal Environmental Society and River Systems Preservation, Inc. came in two unnumbered installments. Findings of fact have addressed the substance of each. Without numbering, it is difficult to treat the material. Petitioner STOP's proposed findings of fact Nos. 5-7, 9-10, 12-18, 20, 22- 24, 26-27, 29, 32-47, 49, 50, 52, 55-57, 59-60, 62, 63, 66, 67, 69, 70, 72 and 73 have been adopted, in substance, insofar as material. Petitioner STOP's proposed findings of fact Nos. 1-4, 30, 31, 65, 71, 75 and 76 are properly proposed conclusions of law in part and relate otherwise to DER's preliminary analysis, which is technically immaterial. With respect to petitioner STOP's proposed findings of fact Nos. 8 and 58, Mr. Kappes said he had seen alligator on site but, when asked for specifics, testified to tracks they had left in the southeast corner of the site. Equally ambiguously, the City stated in its draft application that alligator had been "noted" on the property. The evidence did not show that ospreys are protected or listed in Duval County. Petitioner STOP's proposed findings of fact Nos. 11 and 74 relate to subordinate matters. With respect to petitioner STOP's proposed finding of fact No. 19, the inference that all commensals is present is problematic here, since the gopher tortoises were relocated by man from a site many miles away. With respect to petitioner STOP's proposed finding of fact No. 21, 80 to 82 of 105.7 acres of gopher tortoise habitat would be destroyed. Petitioner STOP's proposed finding of fact No. 25 is immaterial to this application. With respect to petitioner STOP's proposed finding of fact No. 28, Mr. Wiley so testified. With respect to petitioner STOP's proposed findings of fact Nos. 48, 51 and 64, although the conservation easement on uplands would not result in additional habitat, it would preclude further diminution. With respect to petitioner STOP's proposed findings of fact Nos. 53 and 54, no eagles are currently nesting on site, and Eagle Nest Island, where eagles nested until 1983, is off site. With respect to petitioner STOP's proposed finding of fact No. 61, the evidence did not establish that Mr. Kappes saw the red-cockaded woodpecker on site, even though he found six active nests within three miles of the site. With respect to petitioner STOP's proposed finding of fact No. 68, Dr. White so testified. DER's proposed findings of fact Nos. 1-9, 11-15, 17, 24, 26, 33, 37, 39, 41-45, the first three sentences of No. 50, Nos. 52-56, 62-64, 66, 67, except as regards inherent legislative facts, 70-87, 89-92 and 95 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 10, 0.9 acres of wetlands contiguous to Durbin Swamp and within the jurisdiction of the St. Johns River Water Management District would be used for a storm water retention basin. DER's proposed findings of fact Nos. 18 and 20 have been adopted, in substance, except that these steps do not ensure or guarantee a quick return of water quality functions. DER's proposed findings of fact Nos. 21, 32, 35, the last sentence of No. 50, Nos. 51, 88 have been rejected as against the weight of evidence. With respect to DER's proposed findings of fact Nos. 22 and 28, mitigation areas with deep ponds in the middle will permit fish to avoid the conditions under which wood storks feed. With respect to DER's proposed finding of fact No. 23, the steep sided ponds, sparser canopies and lesser extent of created isolated wetlands offset their "higher quality." With respect to DER's proposed finding of fact No. 25, the mitigation proposed does not amount to a one to one ratio. While significant, the easements preserve the status quo and do not compensate for lost wetland functions. With respect to DER's proposed finding of fact No. 27, the evidence suggested no reason why bears would not forage in isolated, as well as contiguous wetlands. With respect to DER's proposed finding of fact No. 29, to the extent possible, existing trees would be transplanted; if they all survived, the number of perches would be undiminished, except for branches broken in the process. With respect to DER's proposed finding of fact No. 30, sightings nearby and habitat on site amount to evidence of use of the site. As regards the indigo snake, testimony that these animals were introduced to the site was uncontroverted. With respect to DER's proposed finding of fact No. 31, alligator tracks were found in the southeastern part of the site. With respect to DER's proposed finding of fact No. 34, no southeastern kestrel nests were found on site. With respect to DER's proposed finding of fact No. 36, it is not in the public interest to issue a permit for a lined landfill that would cause pollution in violation of DER's water quality standards. If a landfill were properly permitted, it would be in the public interest to have access. With respect to DER's proposed finding of fact No. 38, the first sentence (which seems to contradict the fourth) has been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 40, there was no evidence of cumulative impacts to Durbin Swamp, as opposed to Durbin and Julington Creeks. With respect to DER's proposed findings of fact Nos. 46-48, the clayey sand, placed in two six-inch lifts, would have much greater permeability as a unit than samples of the same material screened for certain imperfections and tested in the laboratory. In the field, it would not be possible to remove all clods and other materials that make for greater vertical hydraulic conductivity of the unit. Subgrade mixing would occur, in putting down the first of the two lifts. A 12-inch layer would be many more times transmissive than a liner of the same material put down in six six-inch lifts to attain the three feet DER requires, when no synthetic liner is used. Mr. Fluet did not testify that a 12-inch layer would achieve a permeability of 1 x 10-7 centimeters per second. He testified that nobody who had studied 12-inch layers had reported permeability of less than 1 x 10-5 centimeters per second for a clayey layer of that thickness. With respect to DER's proposed finding of fact No. 49, the geomembrane is subject to the effects of pressure and temperature variation would contribute to wrinkling. With respect to DER's proposed finding of fact No. 57, leachate leakage would diminish after closure, but would not stop altogether. With respect to DER's proposed findings of fact Nos. 59 and 60, the working hypothesis is that even a single molecule of certain leachate constituents may initiate cancer, although concentrations below the levels identified are said to pose no more than an acceptable risk of doing so. DER's proposed finding of fact No. 61 describes the methodology correctly, but the particular results have not been accepted. With respect to DER's proposed finding of fact No. 65, predicted concentrations depend on the leakage rate assumed. With respect to DER's proposed finding of fact No. 68, data showing the composition of discharges to ground water from other Class III landfills were not presented. Supposed "legislative facts" do not constitute evidence. With respect to DER's proposed finding of fact No. 69, the evidence did not show what concentrations of biocides or other chemical constituents were likely to be. With respect to DER's proposed finding of fact No. 93, the phrase "monitoring well" was not used. With respect to DER's proposed finding of fact No. 94, wells Nos. 21 and 22 were between 25 and 35 feet deep. Haydon McCormick testified that a shallow well near the house was for potable water supply. DER's proposed finding of fact No. 96, has been adopted, in substance, except that additional time might not be required for permitting. With respect to DER's proposed findings of fact Nos. 97 and 99, balancing of social and economic interests is appropriate only if hardship is proven, and immaterial otherwise. The City's proposed findings of fact Nos. 1-9, 16-18, 20-25, 30, 33, 35-38, 42, 44, 46, 49, 50, the first two sentences of No. 55, Nos. 58-62, 65, 73, 74, except for the last sentence, Nos. 75, 77-83, 88-92, 94-100, 104, 107, 108 and 110 have been adopted, in substance, insofar as material. With respect to the City's proposed finding of fact No. 10, despite timbering of the uplands the site was characterized as "relatively unaltered." With respect to the City's proposed finding of fact No. 11, no decline in water levels was shown to be irreversible. With respect to the City's proposed finding of fact No. 12, the study was of "trivial value." With respect to the City's proposed finding of fact No. 13, bald eagles and wood storks do make use of the site and indigo snake(s) were set loose there. With respect to the City's proposed finding of fact No. 14, a witness testified to his "confidence" (T.2918) that the kestrel he spotted was a Southeastern kestrel. Signs of alligator were found near the southeast corner of the property. With respect to the City's proposed finding of fact No. 15, hunting was mentioned. The City's proposed findings of fact Nos. 19, 54, 56 and 84 pertain to subordinate matters. With respect to the City's proposed finding of fact No. 26, the witness so testified. With respect to the City's proposed finding of fact No. 27, it was not proven that noise would be "minimized." With respect to the City's proposed finding of fact No. 28, bears could move through the culvert, but elsewhere the access road (particularly during the day), fences and human activity on site would indeed "impede black bear movement in the area." The City's proposed findings of fact Nos. 29, 48, the last sentence of 55, Nos. 57, 71, 72, 85, 87 and the last sentence of 101 have been rejected as being against the weight of the evidence or as unsupported by the preponderance of evidence. With respect to the City's proposed finding of fact No. 31, mobility will not assure successful relocation if existing populations are fully utilizing habitat in the vicinity. The City's proposed findings of fact Nos. 32, 86 and 93 are properly proposed conclusions of law. With respect to the City's proposed finding of fact No. 34, groundwater was shown unlikely to reach solid waste on site. With respect to the City's proposed finding of fact No. 40, the maximum head would not be less than one inch. With respect to the City's proposed finding of fact No. 41, such sand might not be available on site. With respect to the City's proposed finding of fact No. 43, some leachate would leak through the liner. With respect to the City's proposed finding of fact No. 45, some rainwater would infiltrate. With respect to the City's proposed finding of fact No. 47, the evidence did not show that the clayey sand layer would attain so low a vertical hydraulic conductivity. If these liners have performed well, it has not been without leakage, both through flaws and by permeation. With respect to the City's proposed finding of fact No. 51, the subgrade would be inspected, in an effort to assure complete removal of sharp objects. With respect to the City's proposed findings of fact Nos. 52 and 53, permeability is specific to the permeant. The values quoted are for water. High density polyethylene is highly permeable to aromatic hydrocarbons. That liners leak is not speculation. With respect to the City's proposed finding of fact No. 63, the design engineer envisioned circumstances that would require backing leachate up in the landfill. With respect to the City's proposed finding of fact No. 64, violations were proven, in the absence of sufficient attenuation in the vadose zone, and attenuation there was not quantified. With respect to the City's proposed findings of fact Nos. 66 and 67, these evaluations assumed unrealistically low leachate leakage rates. With respect to the City's proposed finding of fact No. 68, this elaborate house of cards bears little relationship to the language of the free from rule. But this approach, too, shows violations, if realistic leakage rates are used. With respect to the City's proposed finding of fact No. 69, credible and credited evidence of dramatically higher leachate leakage rates than they assumed contradicted their conclusions. With respect to the City's proposed finding of fact No. 70, the witness so testified. With respect to the City's proposed finding of fact No. 76, the precise constituents of the Class III leachate were not proven. With respect to the City's proposed finding of fact No. 102, the witness so testified. With respect to the City's proposed finding of fact No. 103, the well that Haydon McCormick jetted in was 25 to 35 feet deep. With respect to the City's proposed findings of fact Nos. 105 and 106, wells could be placed so that enough water drawn from them would reverse the gradient and cause pollutants to move toward the McCormick property. With respect to the City's proposed finding of fact No. 109, the evidence about the effect on operations was ambiguous. With respect to the City's proposed finding of fact No. 111, it is unlikely that the McCormicks would take steps to reverse the flow of groundwater. APPENDIX B Three methods of calculating per defect leachate leakage rates (in cubic meters per second) were proven at hearing, each expressed as an equation or formula requiring values for three variables, for their solution, viz.: h = height of leachate head over defect (in meters) a = area of defect (in square meters) Ks = permeability (vertical hydraulic conductivity) of clayey sand layer beneath defect (in meters per second) The method advocated by the City, published by the EPA, and shown (by the author) to reflect ideal contact between liner components, which does not obtain in practice, is: Q = (0.7) x (h) x (a0.1 x Ks0.88). The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect good contact between liner components, shown likely to occur in places, is: Q = (0.21) x (h0.9) x (a0.1 x Ks 0.74) The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect poor contact between liner components, shown likely to occur in places, is: Q = (1.15) x (h0.9) x (a0.1 x Ks 0.74) In each case, Q represents the flow of leachate through each defect. COPIES FURNISHED: Carlos Alvarez and Carolyn S. Raepple Hopping, Boyd, Green and Sams Post Office Box 6525 Tallahassee, Florida 32314-6526 Harrison D. Upchurch and Frank D. Upchurch, III Upchurch, Bailey, and Upchurch, P.A. Post Office Box 170 St. Augustine, Florida 32085-0170 Joseph M. Glickstein, Jr. Glickstein and Glickstein 444 Third Street Neptune Beach, Florida 32233-5111 David S. Dee and Allan Wagner Carlton, Fields, Ward, Emmanuel Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 C. Rufus Pennington, III Margol and Pennington, P.A. Suite 1702, American Heritage Tower 76 South Laura Street Jacksonville, Florida 32202 Debra Swim 1323 Diamond Street Tallahassee, Florida 32301 Sidney F. Ansbacher Turner, Ford and Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32207 Dan Brooks Hendrickson and 104 Sixth Avenue 4620 Arapahoe Avenue Pass-A-Grille, Florida 32706 Jacksonville, FL 32208 Frank X. Friedman, Jr. T. R. Hainline, Jr. G. Stephen Manning Marcia P. Parker Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive Jacksonville, Florida 32207 William H. Congdon and Chris McGuire 2600 Blairstone Road Tallahassee, Florida 32399-2400 Kathryn L. Mennella Post Office Box 1429 Palatka, Florida 32078-1429 Larry Gilmore 9131 Fort Caroline Road Jacksonville, FL 32225 Larry A. Wells 237 Pablo Road Ponte Vedra Beach, FL 32082 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
