The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
The Issue The issue presented is whether the application of Respondent Robbie's Safe Harbor Marine Enterprises, Inc., for a general permit to construct and operate a solid waste transfer station should be granted.
Findings Of Fact In April 1998 Respondent Robbie's Safe Harbor Marine Enterprises, Inc., filed an application with Respondent Department of Environmental Protection, seeking a general permit to construct and operate a solid waste transfer station at the end of Shrimp Road on Stock Island in Monroe County, Florida. The application was accompanied by the required supporting documentation, including a site plan and an engineering report. The site plan submitted with the application depicted access to the transfer station by using Shrimp Road. The access road was also designated as a private road. What the site plan and remainder of the application did not reveal is that Shrimp Road, the private road providing access from the public road system to the proposed solid waste transfer station, is not owned by Robbie's. Rather, the road is owned by the adjoining property owner, Petitioner Safe Harbor Enterprises, Inc. Robbie's is the holder of an easement allowing use of Shrimp Road. Robbie's published notice of its application for a general permit to construct and operate a solid waste transfer station. As a result of that notice, the adjoining property owner, Safe Harbor Enterprises, Inc., filed the petition initiating the instant proceeding, objecting to the issuance of a general permit to Robbie's. On February 2, 1998, prior to Robbie's filing its application for a general permit to construct and operate its solid waste transfer station, Robbie's entered into a Consent Order with the Department which resolved the Department's allegations that Robbie's had been operating a solid waste transfer facility without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Robbie's Safe Harbor Marine Enterprises, Inc.'s, application for a general permit to construct and operate a solid waste transfer station. DONE AND ENTERED this 29th day of January, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1999. COPIES FURNISHED: Roger M. Bernstein, Vice-President Safe Harbor Enterprises, Inc. Post Office Box 144235 Coral Gables, Florida 33144 Tracy J. Adams, Esquire Tracy J. Adams, P.A. 617 Whitehead Street Key West, Florida 33040 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Board of County Commissioners of Monroe County is responsible for maintaining a solid waste management program for the unincorporated areas of the county. The portion of the Florida Keys known as the "lower keys" between Pigeon Key on the north and Key West on the south is such an area. Prior to July 1, 1977, solid waste from this area was dumped at a site located on Middle Torch Key. Until approximately two years prior to the hearing, the Middle Torch Key dump site had been operated by private companies. The private companies apparently could not operate the site profitably under rules and regulations promulgated by the Department, and the County took over operation of the site. The site served as the solid waste dump for the lower keys until July 1, 1977. The Department had issued a temporary operating permit for the site, and open burning was permitted. The temporary permit expired on July 1, 1977. The Middle Torch Key dump site was never operated in full compliance with the Department's rules. The temporary operating permit was issued for the apparent purpose of allowing the County an opportunity to develop a system that could be operated accordance with the Department's rules. The County purchased a site on Cudjoe Key in the lower keys with the intention of utilizing it as a sanitary landfill. The instant proceeding is the culmination of the County's effort to obtain a permit to operate the Cudjoe Key site. The County has been utilizing the Cudjoe Key Site as a sanitary landfill since July 1, 1977. The Petitioners are homeowners in a residential subdivision which is located between three fourths of a mile and one mile from the proposed landfill site on Cudjoe Key. They object to operation of a sanitary landfill in such close proximity to their homes. In order to meet its obligation to maintain a solid waste disposal system, and in order to comply with DER regulations, the County needed to locate a landfill site in the area of the lower keys. The County lacks resources to truck solid waste from the lower keys to any sites in the upper keys, or on the mainland. Tie Cudjoe Key site was chosen for a sanitary landfill for two reasons. First, it was relatively isolated and had been used as a dump before. Secondly, it was for sale, and the County could afford to purchase it. The Cudjoe Key landfill site is not visible from any highway or from any residences or businesses. The site adjoins other public property, and is next to electric company property. The average height of the site is seven to eight feet above sea level. The site is located in close proximity to a borrow pit, and fill is thus obtainable at a fairly inexpensive rate. The County's plan of operation basically is to place solid waste on the site, and to cover it with six inches of landfill at the end of each working day. The site, if used in this manner, would have a useful life of approximately three years. If incineration techniques are eventually permitted, the life expectancy of the site would be increased to approximately twenty years. It does not appear that there is any ideal site for a sanitary landfill in the lower keys. There is very little dry land available that has not been previously developed. It appears that the best present alternative for solid waste disposal for the lower keys would be a joint venture with the City of Key West to desalinate salt water through incinerating activities at a site on Stock Island located just south of Key West. Neither the City of Key West, nor the unincorporated areas of the lower keys produce sufficient solid waste alone to make such a project feasible. Thus far a solution of this sort has not been politically feasible. Aside from this possibility, it appears that the proposed Cudjoe Key site is the best location for a sanitary landfill in the lower keys. The site on Middle Torch Key, which was previously operated as a dump would not comply with the Department's rules. The site is under water at high tide. In order to develop the site so that it would comply with the Department's regulation, a very large expenditure would be required. A copy of the County's completed application to the Department was received in evidence at the hearing as Department's Composite Exhibit 1. The application is complete, and contains the material required under Rule 17-7.05,, Florida Administrative Code. No competent evidence was presented at the hearing from which it could be concluded that the proposed Cudjoe Key landfill site does not comply with statutory requirements, or with the requirements set out in the Department's rules and regulations. Considerable evidence was offered from which it could be concluded that the site has not been operated in full compliance with the Department's regulations since July 1, 1977. Clearly the County has been operating the site since that date without a permit issued by the Department. It is apparent that the Department has not sought to take action against the County due to the pendency of this action. Pictures offered at the hearing, and observations made at the view of the site demonstrate that the required daily cover of solid waste has not been applied at the site. These violations could, and should if they continue, result in enforcement action being taken by the Department. The violations, and anticipated violations cannot, however, constitute grounds for denying a permit to operate a sanitary landfill site which complies with the pertinent statutes and rules and regulations.
The Issue The issues for determination in this matter are: (1) whether Petitioner, MW Horticulture Recycling Facility, Inc. (MW), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration; (2) whether Petitioner MW is an irresponsible applicant; and (3) whether Petitioner MW Horticulture Recycling of North Fort Myers, Inc. (MW-NFM), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and the Registration Denials Petitioner MW is a Florida corporation that operates an SOPF located at 6290 Thomas Road, Fort Myers, Lee County, Florida. The site is commonly referred to as the "South Yard." Petitioner MW-NFM is a Florida corporation that operates an SOPF located at 17560 East Street, North Fort Myers, Lee County, Florida. The site is commonly referred to as the "North Yard." The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of part IV of chapter 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Chapters 62-701 and 62-709. Pursuant to that authority, the Department determines whether to allow SOPFs to annually register in lieu of obtaining a solid waste management facility permit. On April 25, 2019, Petitioner MW submitted its application for registration renewal for the South Yard. On August 22, 2019, the Department issued a notice of denial. The listed reasons for denial focused on non-compliance with orders for corrective action in a Consent Order (Order) between Petitioner MW and the Department entered on February 22, 2019. The Order was entered to resolve outstanding violations in a Notice of Violation, Orders for Corrective Action and Administrative Penalty Assessment (NOV), issued on November 20, 2018. The notice of denial stated that, as of August 9, 2019, Petitioner MW had not completed the following corrective actions of the Order by the specified timeframes: (a) within 90 days of the effective date of this Order, Respondent shall remove all processed or unprocessed material (yard trash) from the Seminole Gulf Railway Right of Way and the swale along Old US 41 and establish a 20 foot wide all-weather access road, around the entire perimeter of the site; (b) within 90 days of the effective date of this Order, Respondent shall reduce the height of the piles to a height that the facility’s equipment can reach without driving (mechanically compacting) onto the processed or unprocessed material; and (c) within 90 days of the effective date of this Order, Respondent shall have all the processed and unprocessed material be no more than 50 feet from access by motorized firefighting equipment. The notice of denial also stated that when Department staff conducted compliance visits on April 29, 2019, June 27, 2019, July 7, 2019, and July 18, 2019, the following outstanding violations were documented: (a) unauthorized open burning of yard waste; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) an all-weather access road, at least 20 feet wide, around the perimeter of the Facility has not been maintained and yard trash has been stored or deposited within the all-weather access road; and (d) yard trash is being stored more than 50 feet from access by motorized firefighting equipment. On April 25, 2019, Petitioner MW-NFM submitted its application for registration renewal for the North Yard. On August 22, 2019, the Department issued a notice of denial. The notice of denial stated that compliance and site observation visits were conducted on July 9, 2019, July 30, 2019, August 1 and 2, 2019, and the following non-compliance issues were documented: (a) unauthorized open burning; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) yard trash received has been stored or disposed of within 50 feet of a body of water; and (d) yard trash received is not being size-reduced or removed, and most of the unprocessed yard trash has been onsite for more than six months. The notice of denial also stated that on March 27, 2018, May 10, 2018, and October 3, 2018, Department staff conducted inspections of the North Yard. A Warning Letter was issued on November 2, 2018. The Warning Letter noted the following violations: (1) unauthorized burning of solid waste; (2) the absence of the required 20-foot-wide all-weather perimeter access road along the southern unprocessed yard trash debris pile; (3) inadequate access for motorized firefighting equipment around the southern unprocessed yard trash debris pile (lake pile); (4) the lake pile not size-reduced or removed within six months; (5) mechanical compaction of processed and unprocessed material by heavy equipment; and (6) yard trash storage setbacks from wetlands not maintained. Petitioners' SOPFs The North Yard is located in North Fort Myers and is bound by the southbound lanes of Interstate 75 to the east and a lake to the west. The South Yard is slightly larger than the North Yard and abuts Thomas Road to the west and a railroad owned and operated by the Seminole Gulf Railway Company to the east. Petitioners' facilities accept vegetative waste and yard trash (material) from the public in exchange for a disposal fee before processing and size-reducing the material into retail products such as organic compost, topsoil, and mulch. The unprocessed material is staged in various piles generally according to waste type until it can be processed by grinding or screening. As of the date of the final hearing, both the North Yard and the South Yard were completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meander between the piles themselves. As the material in the piles decomposes, heat is produced from the respiration and metabolization of organic matter. This heat ignites the dry material and can cause substantial fires. Both the North Yard and South Yard are susceptible to fires caused by spontaneous combustion as a result of their normal operations of collecting and stockpiling organic waste. Fires Although spontaneous combustion is an inherent risk with SOPFs, the evidence at the hearing established that the material at Petitioners' facilities catches fire at an abnormally high rate as a result of poor pile management. Piles need to be turned and wetted to keep down incidents of spontaneous combustion. Monitoring temperatures, rotating the piles, and removing the material at a faster rate would help reduce the incidence of fires. Large piles with no extra land space cannot be managed in a way "to aerate and keep the temperatures at a level where you're not going to have spontaneous combustion." See Tr. Vol. I, pg. 32. Fire Marshal Steve Lennon of San Carlos Park Fire and Rescue regarded the South Yard as a fire hazard compared to other similar sites in his district. He testified that the pile heights, widths, and lengths at the South Yard are not in compliance with applicable fire-code size requirements. He also testified that if the pile sizes were in compliance, Petitioner MW would not have to put their motorized firefighting equipment on top of the piles "because [they] would be able to reach it from the ground." See Tr. Vol. I, pg. 41. As of the date of the hearing, San Carlos Park Fire and Rescue had responded to 43 active fire calls at the South Yard in the last two years, and three times in 2020 alone. In 2018, the active fire calls at the South Yard were multi-day suppression operations. In 2019, the active fire calls were mostly hotspots and flare-ups. Captain Doug Underwood of the Bayshore Fire Rescue and Protection Service District (Bayshore Fire District) testified that his department had responded to approximately 75 fire calls at the North Yard in the last two years. The most common cause of the fires was spontaneous combustion. The piles were not in compliance from a size standpoint. Captain Underwood testified that the majority of the 75 calls were to the lake pile at the North Yard. See Tr. Vol. I, pg. 59. The lake pile was a temporary site on the southern end of the lake that borders the North Yard, and for most of 2018 and 2019, contained debris from Hurricane Irma.1 The lake pile temporary site was completely cleared by the time of the hearing. Captain Underwood testified that in 2018, he recommended to Petitioners that they engage the services of an expert fire engineer. Petitioners engaged Jeff Collins who met with Captain Underwood on multiple occasions. They discussed how to address fires and hotspots and that the facilities should have a written fire protection safety and mitigation plan. Such a plan was created and Captain Underwood was satisfied with its provisions. Although the lake pile temporary site was completely cleared by the time of the hearing, it was not an entirely voluntary effort on Petitioners' part. Captain Underwood testified that Petitioners' "initial plan of action was to leave it there for . . . eight months or greater, depending on the time frame needed to have the product decompose and cool down to a temperature that they could remove it." See Tr. Vol. I, pg. 83. It took Lee County code enforcement efforts "to compel MW to remove this material off-site as quickly as possible." See Tr. Vol. I, pg. 82. 1 Throughout this proceeding, the lake pile was referred to by various names in testimony and exhibits, such as, "southern unprocessed yard trash debris pile," "lake yard," "trac[t] D," and "temporary site." As recently as February 12, 2020, a large pile of hardwood, green waste, and compost at the North Yard caught fire as a result of spontaneous combustion. The size of the fire was so large and hot that the Bayshore Fire District could not safely extinguish the fire with water or equipment, and allowed it to free-burn openly for 24 hours in order to reduce some of the fuel. The fire produced smoke that drifted across the travel lanes of Interstate 75. The free-burn allowed the pile to reduce in size "down to the abilities of the district and the equipment on-site." See Tr. Vol. I, pgs. 51-52. Captain Underwood testified that "once we started putting water on it, then the MW crews with their heavy equipment covered the rest of the smoldering areas with dirt." See Tr. Vol. I, pg. 56. Rule Violations By Petitioners' own admission, the facilities have repeatedly violated applicable Department rules throughout the course of their operations over the last two and one-half years. The most pertinent of these violations center around the Department's standards for fire protection and control to deal with accidental burning of solid waste at SOPFs. Renee Kwiat, the Department's expert, testified that the Department cited the South Yard nine times for failing to maintain a 20-foot all-weather access road. The South Yard consistently violated the requirement to maintain processed and unprocessed material within 50 feet of access by motorized firefighting equipment, and the North Yard has violated this requirement twice. The North Yard consistently violated the requirement to size-reduce or remove the lake pile material within six months. Both the North Yard and South Yard were cited multiple times for mechanically compacting processed and unprocessed material. Following a period of noncompliance and nearly 11 months of compliance assistance at the South Yard, Petitioner MW told the Department it would resolve all outstanding violations by July 1, 2018. The July 1, 2018, deadline passed and on October 18, 2018, the Department proposed a consent order to resolve the violations at the South Yard. However, Petitioner MW did not respond. On November 20, 2018, the Department issued the NOV to Petitioner MW regarding the South Yard. The violations included failure to maintain a 20-foot all-weather access road around the perimeter of the site, failure to ensure access by motorized firefighting equipment, mechanical compaction, and the unauthorized open burning of solid waste. On February 22, 2019, the Department executed the Order with Petitioner MW to resolve outstanding violations in the NOV. By signing the Order, Petitioner MW agreed to undertake the listed corrective actions within the stated time frames. Compliance visits to the South Yard on April 29, 2019, June 7, 2019, June 27, 2019, July 18, 2019, and August 22, 2019, documented that many violations outlined above were still present at the site. At the time of the final hearing, the preponderance of the evidence established that none of the time periods in the Order were met. The preponderance of the evidence established the violations listed in paragraphs 5 and 6 above. At the time of the final hearing, the preponderance of the evidence established that Petitioner MW still had not reduced the height of the piles such that their equipment could reach the tops of the piles without driving (mechanically compacting) onto the processed or unprocessed material. Thus, all the processed and unprocessed material was not more than 50 feet from access by motorized firefighting equipment. At the time of the final hearing, the preponderance of the evidence established more incidents of unauthorized open-burning of solid waste; and continuing unauthorized mechanical compaction of processed and unprocessed material. The evidence also established that the South Yard does not encroach on Seminole's real property interest. The Department did not issue an NOV for the North Yard. The preponderance of the evidence established that there were repeated rule violations at the North Yard. These violations formed the basis for denying the North Yard's registration as outlined in paragraph 8 above. The Department deferred to Lee County's enforcement action for violations of County rules as resolution of the violations of Department rules. At the time of the final hearing, however, the preponderance of the evidence established more incidents of unauthorized open burning of solid waste, and continuing unauthorized mechanical compaction of processed and unprocessed material at the North Yard. Petitioners' Response and Explanation Approximately two and one-half years before the date of the hearing in this case, Hurricane Irma, a category four hurricane, made landfall in the state of Florida. It was September 10, 2017, and Hurricane Irma significantly impacted the southwest coast of Florida, where Petitioners' facilities are located. Hurricane Irma caused extensive damage, including the destruction of trees, vegetation, and other horticultural waste which required disposal. Massive amounts of such yard waste and horticultural debris were deposited on roadways and streets throughout Lee County, creating a significant issue that needed to be addressed by local governments, and state and federal agencies. Due to the threat posed by Hurricane Irma, the state of Florida declared a state of emergency on September 4, 2017, for every county in Florida. This state of emergency was subsequently extended to approximately March 31, 2019, for certain counties, including Lee County, due to the damage caused by Hurricane Irma. An overwhelming volume of material needed to be processed and disposed of following Hurricane Irma. The Petitioners' facilities were inundated with material brought there by Lee County, the Florida Department of Transportation, the Federal Emergency Management Agency, and others. After Hurricane Irma, haulers took considerable time just to get the materials off the streets, and processors like the Petitioners, ran out of space because there was limited space permitted at the time. As a result, these materials stacked up and had to be managed over time at facilities, including Petitioners' facilities. To accommodate the material, Petitioner MW-NFM added the temporary site that was labeled the "lake pile" or "southern unprocessed yard trash debris pile" in Department inspection and compliance reports of the North Yard. In order to address the volume of material on the site after Hurricane Irma, Petitioner MW-NFM requested approval from the Department to move the material off-site to other locations in order to reduce the size of the piles at the North Yard's lake pile. For reasons that remain unclear, such authorization was not obtained, and Petitioner MW-NFM believes that this would have size-reduced the piles and prevented accumulation of material in violation of Department rules. In order to process the North Yard's lake pile and move it off-site more quickly, Petitioner MW-NFM requested permission from Lee County and the Department to grind unprocessed material on site, which would have size-reduced the lake pile and allowed it to be moved off-site more quickly. Because existing zoning did not authorize this grinding, the request was denied in spite of the fact that a state of emergency had been declared which Petitioner MW-NFM believes would have permitted such an activity. This further hampered Petitioner MW-NFM's ability to size-reduce the lake pile leading to more issues with hot spots and fires. Because the material was of such volume, and was decomposing, a major fire erupted in 2018 at the North Yard's lake pile. Petitioners' fire safety engineer, Jeff Collins, wrote reports to address this issue and recommended to the local fire department that the pile be smothered in dirt until the fire was extinguished. The request was denied by the Bayshore Fire District, which instead directed that Petitioners break into the pile in order to extinguish the fire. When Petitioners did so, the piles immediately erupted into flames as predicted by Petitioners' fire safety engineer. Moving the smoldering material to the South Yard also led to fires at the South Yard. In spite of the large volume of material at the North Yard's lake pile, Petitioners made steady progress in size reducing the material and moving it off-site. However, as of the date of the final hearing, both the North Yard and the South Yard were still completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meandered between the piles themselves. Mechanical Compaction Each party presented testimony regarding the question of whether Petitioners' facilities violated the prohibition that any processed or unprocessed material shall not be mechanically compacted. The parties disagreed over how the prohibition against mechanical compaction was applied to yard trash transfer facilities. In March of 2018, Petitioners' representative, Denise Houghtaling, wrote an email to the Department requesting clarification of the Department's definition of "mechanical compaction" because it is undefined in the rules. On April 3, 2018, Lauren O' Connor, a government operations consultant for the Department's Division of Solid Waste Management, responded to Petitioners' request. The response stated that the Department interprets "mechanical compaction" as the use of heavy equipment over processed or unprocessed material that increases the density of waste material stored. Mechanical compaction is authorized at permitted disposal sites and waste processing facilities, but is not permissible under a registration for a yard trash transfer facility.2 Mechanical compaction contributes to spontaneous combustion fires, which is the primary reason for its prohibition at yard trash transfer facilities. Petitioners' interpretation of mechanical compaction as running over material in "stages" or "lifts" was not supported by their expert witnesses. Both David Hill and Jeff Collins agreed with the Department's interpretation that operating heavy equipment on piles of material is mechanical compaction. The persuasive and credible evidence established that Petitioners mechanically compact material at their facilities. Mechanical compaction was apparent at both sites by either direct observation of equipment on the piles of material, or by observation of paths worn into the material by regular and repeated trips. Department personnel observed evidence of mechanical compaction on eight separate inspections between December 2017 and January 2019. Additional compaction was observed at the South Yard on June 7, 2019, and in aerial surveillance footage from August 28, 2019, September 5, 2019, January 30, 2020, and February 12, 2020. Petitioners' fire safety engineer, who assisted them at the North Yard lake pile, testified that the fire code required access ramps or pathways for equipment onto the piles in order to suppress or prevent fire. However, Captain Underwood and Fire Marshal Lennon testified they do not and have never required Petitioners to maintain such access ramps or paths on the piles. The fire code provision cited by Petitioners' expert does not apply to their piles. See Tr. Vol. II, pgs. 78-80. In addition, Fire Marshal Lennon testified that placing firefighting equipment on top of piles is not an acceptable and safe way to fight fires at the site by his fire department. 2 Rule 62-701.710 prohibits the operation of a waste processing facility without a permit issued by the Department. See also Fla. Admin. Code R. 62-701.803(4). Rule 62- 701.320(16)(b) contemplates the availability of equipment for excavating, spreading, compacting, and covering waste at a permitted solid waste disposal facility. Despite receiving clarification from the Department in April of 2018, Petitioners choose to ignore the Department's prohibition against mechanically compacting unprocessed or processed material piles. In addition, the persuasive and credible evidence suggests that Petitioners blanket the piles with dirt to both suppress fires and accommodate the "access roads" or "paths" on the piles.3 Ultimate findings The persuasive and credible evidence established the violations cited in the Department's registration denial for the North Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established the violations cited in the Department's registration denial for the South Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established that Petitioners did not consistently comply with Department rules over the two and one-half years prior to the final hearing. However, Petitioners established through persuasive and credible evidence that because of the impacts of Hurricane Irma, and the subsequent circumstances, they could not have reasonably prevented the violations. The totality of the evidence does not justify labeling the Petitioners as irresponsible applicants under the relevant statute and Department rule. However, Petitioners did not provide reasonable assurances that they would comply with Department standards for annual registration of yard trash transfer facilities. 3 The evidence suggests that Petitioners may prefer to follow the advice of their hired experts with regard to the practice of mechanical compaction and blanketing the piles with dirt. See, e.g., Petitioners' Ex. 16. However, the evidence suggests that the experts' level of experience is with large commercial composting and recycling facilities that may be regulated by solid waste management facility permits and not simple annual registrations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioners' annual registration renewal applications for the North Yard and South Yard. DONE AND ENTERED this this 17th day of September, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2020. COPIES FURNISHED: Clayton W. Crevasse, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Sarah E. Spector, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Carson Zimmer, Esquire Department of Environmental Protection Mail Station 49 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Findings Of Fact Bay County's application to construct a sanitary landfill comprising nearly 80 acres located at the north end of Bay County abutting Washington County near the intersection of S.R. 20 and S.R. 77 was initially submitted to the Department of Environmental Regulation (DER) in November, 1979 (Exhibit 1). The site is surrounded by 400 feet of pine woods which buffer the site from all roads and residences . There are no residences within several hundred yards of the proposed site and the nearest natural body of water is over one-fourth mile from the site. The noise generated by the operation of the landfill will be similar to the noise generated on S.R. 20 and S.R. 77 by passing vehicles. Following conferences between representatives of Bay County and DER and several revisions of the application of May 16, 1980 DER issued its notice of intent to grant the applied-for permit (Exhibit 10) and this proceeding was initiated by Petitioners. The site is located in an area of predominately "Lakeland series" sands which provides little barrier to the percolation of surface or ground waters into the Floridan Aquifer. The site is one of the highest in Bay County and the ground water table is located about 45 feet below the surface in this area. The Floridan aquifer lies some 100 feet below the proposed site and is in direct contract with the ground water table. Accordingly, contamination of the ground water by the proposed landfill would enter into the Floridan Aquifer and degrade the water quality of this aquifer. Additionally escaping leachate could contaminate and degrade the waters of the lakes in the general vicinity of the proposed site. As initially presented the application was denied by DER and recommended for denial by the other state agencies involved, viz. Florida Game and Freshwater Fish Commission and the Northwest Florida Water Management District. The reason for disapproval was that, absent some impervious surface between the aquifer and lakes in the vicinity could occur and was likely. Not only is the site located in a recharge area to the Floridan Aquifer but also in a karst area, in which the topography is marked by sinkholes resulting from the collapse of cavernous limestone under the ground. While the possibility exists that a sinkhole could develop under the proposed landfill this is no more likely than that a sinkhole will develop anywhere else in the northern half of Bay County. As finally proposed the site will be developed into cells some 400' x 500' x 28' deep which are expected to be filled in about six months, covered with a a clayey soil and vegetation replanted over the cell. To keep leachate from escaping to the lakes or aquifer the cells will be lined with a polyvinyl chloride (PVC) liner is 20 mils thick manufactured by B. F. Goodrich. If the liner functions as proposed there will be no escape of leachate and hence no degradation of the waters. Petitioners contend that reasonable assurances have not been given that the PVC liner will adequately perform this function and this was the only real issue presented at the hearing. PVC liners for landfills have been in use for only bout 10 years. However, numerous tests have been conducted and, projecting the deterioration of the PVC observed during the test period to the estimated life of the landfill, leads to an expected liner life well beyond the life of leachate production in the landfill. To give PVC the flexibility and elasticity necessary to lay it over uneven surfaces in sheets, plasticizers are added to the PVC during the manufacturing process. These plasticizers will be released from the PVC if exposed to sunlight for an extended period. However, as proposed for use here, even if the liner was exposed to sunlight for the entire six months the cell will be open, or even for one year, no significant loss of plasticizer will result. Once the cell has been closed, no further dynamic stresses will be placed on the liner. Accordingly, even if the liner lost all of its plasticizer and thereby lost its elasticity and flexibility, it would remain impervious and prevent the pasage of leachate through the liner. To protect the liner from solid waste, trash, and equipment used in the cell to compress the solid waste, the liner will be covered with two feet of sand before any solid waste is placed in the cell. Each night the solid waste dumped that day will be covered with six inches of on-site earth material to deter flies, odors, etc. The two feet of sand cover will protect the liner from puncture by solid waste or equipment. The liner will be placed on a tight slope with a sump provided near the low end of each cell from whence leachate will be pumped from the cell and treated, if necessary. Additionally, vents will be installed to exhaust gases from the cell once it is closed. Monitoring wells will be placed around the land fill to detect if leachate is escaping from the site. These wells would allow detection of escaping leachate before it could progress to the natural water bodies in the general vicinity. The three to one slope proposed for the sides of the landfill will result in some movement of free sand resting on the liner along the sides and could bare the liner. To insure there will be a minimum of two feet of soil between the fill material and the liner the cell will not be filled completely to the side of the liner to fill in the space left between the garbage and the side wall each day when the material dumped that day is covered. Hazardous wastes will not be allowed at the site. The site will be enclosed and have an attendant on duty at all times it is opened to receive solid waste. Public access will be restricted and the attendant on duty will monitor the waste dumped in the cell. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. The sand over the liner, the pumping out of the leachate and overall operation of the landfill are adequate to protect against these small amounts of hazardous materials. Bay County proposes to use an existing disposal site to dump tree and hedge trimmings and may provide a place to dump this woody trash at the proposed site other than in the cells. This will increase the capacity of the cells for solid waste and diminish the possibility of damage to the liner by woody products. The only credible evidence submitted regarding the availability of alternate sited for the proposed landfill was that other areas further south were investigated and were unacceptable because the groundwater table was above the bottom of the proposed cells. This would result in dumping solid waster directly into the water table, and is unaceptable. Petitioner's principal contention is that there has been insufficient experience with PVC liners and the tests that have been conducted were not sufficiently rigorous or extensive to provide assurances that leachate would no escape from the site and contaminate the waters of the State. Petitioners also contend that joining of sections of PVC in field, which will be necessary to cover that bottom of the cells (because a liner large enough to cover the bottom of one cell would be too large and heavy to handle), would also create unacceptable risks in the making of these "field seams". Bay County has arranged for the manufacturer of the PVC to provide personnel to supervise the "field seaming" of the sections of the PVC. These seams do not need to be wrinkle-free and no particular problem with respect to joining sections of PVC liner so as to make it watertight was shown. The tests conducted by the Environmental Protection Agency on PVC liners have been ongoing for nearly ten years. None of these tests to date show any reason to question the effectiveness of a PVC liner properly installed to provide an impermeable barrier to leachate in a sanitary landfill. Petitioners also object to the use of cover material proposed by Bay County when a cell is closed. The soil analysis submitted with the application for the cover proposed does not have a high clay content and is more permeable than would be desired. At the hearing, Bay County officials testified they would use a more impermeable soil to cover the cells. Failure to do so would increase the amount of water from rainfall that would penetrate the cell, thereby increasing the quantity of leachate to be pumped from the sump. This would increase the maintenance cost of the landfill to the point it would be uneconomical not to put a water-repellant cover on the cell when it is closed. No evidence was presented that the formation of additional leachate would increase the risk of leachate escaping from the cell.
Conclusions Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Petitioners' Exceptions, and Respondent's Response to Petitioners' Exceptions, it is, therefore: ORDERED that the Hearing Officer's Findings of Fact are adopted; his Conclusions of Law and Recommended Order, to the extent that they are consistent with this Final Order, are adopted; and ORDERED that the permit reflected in the Notice of Intent issued by the Department on May 16, 1980, be issued with the following additional conditions: The applicant shall notify the Department at least on week in advance of when the P.V.C. is to be installed and allow for on-site inspection of its installation by Department personnel. No operation permit will be issued unless the applicant has shown reasonable assurances that the P.V.C. has been properly installed and all other applicable rules of the Department and the applicable Florida Statutes have been complied with. Any operation permit issued shall be for only one cell and no permit for subsequent cells shall be approved in accordance with 2. above without a showing of proper operation for the previous cells. The final cover material for each cell shall be clay, substantially clay or other impermeable material. Any DER permits for this site shall only be valid until 24 months from the date of this order. ORDERED that the country shall submit within thirty days a plan with schedule by which this landfill site will be phased out in 24 months, which shall include selection of alternate acceptable sites or the implementation of a resource recovery program in accordance with 17-7, Part II, Florida Administrative Code. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980. JACOB D. VARN, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing "Final Order" has been furnished by United States Mail to Kenneth F. Hoffman, Esquire, Oertel and Laramore, P.A., 646 Lewis State Bank Building, Tallahassee, Florida 32302, Les W. Burke, Esquire, County Attorney, Bay County, Post Office Box 1818, Panama City, Florida 32401, and K.N. Ayers, Hearing Officer, Division of Administrative Hearings, Collins Building, Room 101, Tallahassee, Florida 32301, this 22nd day of December, 1980. DOUGLAS H. MacLAUGHLIN Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9730
The Issue Is Respondent, Watson Construction Company, Inc. (Watson), entitled to a general permit allowing it to operate a construction and demolition debris facility in Newberry, Alachua County, Florida?
Findings Of Fact DEP, in accordance with Chapter 403, Florida Statutes, is responsible for enhancing the beauty and quality of the environment; conservation and recycling of natural resources; prevention of the spread of disease and creation of nuisances; protection of the public health, safety and welfare; and provision for a coordinated statewide solid waste management program. It accomplishes these tasks, in part, by regulatory oversight directed to entities who operate solid waste facilities in Florida. That oversight includes permitting the activities by the facilities subject to compliance with statutory and rule requirements. Watson wishes to operate a solid waste facility in Newberry, Florida. In particular, Watson seeks to operate a C&D facility for off-site disposal of C&D debris to be placed where sand has been mined. Watson would pursue this enterprise by using a general permit, as allowed by DEP. Petitioner, City of Newberry (the City), is a political subdivision of the State of Florida. It opposes Watson's use of a general permit to conduct business as a C&D facility, based upon the belief that Watson has not demonstrated compliance with regulatory provisions that would allow Watson to use a general permit. Petitioner, Citizens for Watermelon Pond, Inc. (Citizens), is a corporation constituted of persons who oppose the use of the general permit for the same reasons expressed by the City. On July 21, 1994, Watson noticed DEP that it intended to use a general permit to operate a C&D facility. On July 29, 1994, a notice was published in the Gainesville Sun, a local newspaper, concerning the pendency of the use of a general permit to operate the C&D facility in Newberry, Florida. On August 12 and 16, 1994, the Petitioners filed petitions seeking an administrative hearing on the use of a general permit by Watson to operate the C & D facility. On August 19, 1994, DEP issued a Notice of Denial of the permission to use a general permit to operate the C&D facility. This permit request was under an arrangement between Watson and a co-applicant, Whitehurst. Following the Notice of Denial, no further action being requested by the applicants, DEP issued an order closing its file. In December 1994, in its name only, Watson resubmitted an application to use a general permit to operate the C&D facility in question. The level of consideration at that time was as a pre-application review. This was followed by a formal notice by Watson and application to use a general permit to operate the C&D facility. The formal application was filed on January 17, 1995. On January 24, 1995, notice was published in the Gainesville Sun concerning the more recent intention to use a general permit to operate the C&D facility. On February 6, 1995, Citizens filed a verified petition opposing the use of the general permit contemplated by the January 17, 1995 application. Two days later, the City filed a verified petition in opposition to the most recent request to use a general permit to operate the C&D facility. On February 15, 1995, DEP gave notice that it did not object to Watson's use of a general permit to operate the C&D facility. Watson's most recent request to use a general permit to operate a C&D facility was made on a form provided by DEP in accordance with Rule 62- 701.900(3), Florida Administrative Code. The application to use a general permit was sealed by a professional engineer. The legal description of the property in question is described in the application. It is located in Newberry, Alachua County, Florida. The site location for the proposed C&D facility is one and one-eighth mile south of Southwest 46th Avenue on the east side of County Road 337 in Newberry, Florida. Documentation has been provided which identifies the legal authorization to use the property as a C&D facility. The C&D facility has a planned active life of 50 years. It is intended that the sand that is excavated will be replaced by C&D debris at a similar grade. The mailing address and telephone number of the C&D owner and operator is identified. Watson is the owner/operator. There are 158 acres within the proposed site. Approximately 143 acres would be used in the C&D operation by mining sand as a prelude to recontouring the site by placing the C&D debris. It is intended to excavate tan sand and silty sand to a depth of 20-30 feet. Although Watson anticipates excavating sand to a depth of 30 feet, bore hole data reveals the existence of sand below that depth. Watson does not intend to excavate below 62 feet mean sea level (MSL). In any event, it is not the intention to excavate below the interface of the sand and underlying sandy clays. Once the sand has been excavated, it is anticipated that the bottom of the C&D disposal area will be approximately 15 feet above the piezometric water table associated with the Floridan Aquifer, according to the applicant. The proposed site is located in rolling terrain, whose elevations range from approximately 80 feet MSL to 100 feet MSL. To support the use of a general permit, Watson has provided a site plan with a scale not greater than 200 feet to the inch, which identifies the project location, with proposed disposal areas, total acreage of the site and of the proposed disposal area, and other relevant features that exist on or within 500 feet of the site. The property boundaries are identified. The site would be fenced. Access to the facility would be controlled by a locked gate on County Road 337. The gate would be open during daily operations. The site does not contain surface water. There being no surface water, the C&D facility does not require a surface water management permit from the Suwannee River Water Management District. The site does not present a problem with stormwater runoff. A potable well is located within 500 feet of the property boundary. However, placement of C&D debris would be offset by a 500-foot buffer from the well. Wetlands are located 2,100 feet from the southern edge of the proposed site in the eastern part of the adjacent Whitehurst parcel. Within 3,000 feet of the proposed site is an old phosphate mining pit on the Whitehurst parcel, and 6,200 feet from the proposed site is the northern-most unnamed pond associated with Watermelon Pond. The site is not susceptible to flooding at present. The sand mined at the proposed site would be used to build roads and for foundations for houses and other buildings. Clay removed from the building sites to make room for the sand would be placed in the C&D facility. The material that is removed from building sites and substituted by sand fill is clay with a high shrink and swell factor. That material, together with flint rocks, tree limbs and stumps, would be transported to the C&D facility by Watson's dump trucks. At present, Watson has 20 dump trucks. The dump trucks hold 20 yards each. In addition to those materials removed from Watson job sites by dump trucks, Watson has approximately 36 roll-off dumpsters which hold 20 yards each. Two Watson trucks are available to transport the roll-off dumpsters to the C&D facility. The roll-off dumpsters are placed on construction sites, not exclusively Watson's, and construction materials not used in the building process would be placed in the roll-off dumpsters for disposal at the C&D facility. Approximately 70 percent of the fill material to be placed in the C&D facility would be unsuitable soils, trees, limbs and stumps. The remaining material would be the C&D debris from construction at sites where the dumpsters have been placed. The dump trucks that hold the clay, limbs and stumps would be loaded by Watson employees, who can control what is placed in the trucks. Watson would not control what is placed in the roll-off dumpsters at other construction sites. The Watson dump trucks from job sites directly related to its activities would arrive at the C&D facility and dump their loads for compaction. Those loads would not be spotted for unsuitable fill materials. By contrast, the roll-off dumpsters would be examined at the construction site by the Watson driver. If the driver discovers excessive amounts of material not classified for C&D fill, contact would be made with the Watson office and the material taken to the Alachua County landfill for disposal. If the driver picks up the dumpster at the construction site and there are limited amounts of material not suitable for disposition at the C&D facility, the dumpster would be taken to the C&D facility. The material would be spread out, and a spotter would segregate materials that are not suitable for C&D fill. The unsuitable material would be placed in temporary containers at the disposal site and transported off-site to a permitted landfill or other appropriate facility. Some material brought to the landfill would be recycled. Woods, such as pine or hardwood would be recycled. The limbs and stumps would be placed in the pit as fill. Copper, aluminum, steel, iron, and any other metal would be recycled. The metals would be sold to a scrap-iron facility. An employee at the landfill would keep the money earned from recycling. Metal embedded in broken concrete would be used as fill. The C&D facility would be operated by two persons: one, a loader/operator who loads the dump trucks with the sand that is being excavated; the second individual, a bulldozer operator who pushes the dump truck loads of clay, limbs, and stumps into the fill area and spreads them. He would also spot the roll-off dumpsters and segregate the fill material from unsuitable material. The sorted construction material to be used as fill would be pushed into the working face of the pit, where the tree limbs, stumps and clay would have also been placed. It is anticipated that six to ten roll-off dumpsters with C&D material would be brought to the C&D facility on a daily basis. The amount of unsuitable material that must be sorted from the dumpsters would vary with the individual loads. Watson operates an existing C&D facility in Alachua County, Florida. The proposed C&D facility would be similar in its operation. Based upon the experience in the existing facility, there is no indication that the proposed C&D facility could not be adequately operated by two employees, taking into account the need to segregate unsuitable material before filling. The spotter would receive verbal training concerning his duties. The training provided the spotter is on-site training. He would be reminded once a week of the need to do an adequate job of looking for unsuitable materials. At present, Alachua County inspects the existing C&D facility on a weekly basis and reminds the spotter at that facility what is appropriate for placement and what is not. The expectation is that the same function would be performed at the proposed facility. If sinkholes are encountered in excavating the sand, the equipment operator would contact the Watson office. In turn, Watson would contact its consulting engineer to address the problem, to include placing a plug or cap to repair the breach caused by the sinkhole. In the event that limerock is encountered in the excavation, a clay cap will be placed to prohibit leachate from flowing into the ground water. Areas where limerock is located at higher elevations and not covered by clay present the greatest risk for sinkhole formation. The period between excavation and fill will be approximately two years, leaving the site exposed at the level of excavation before fill is replaced. When the site is closed, the front-end loader operator and bulldozer operator will spread 24 inches of soil as a cap and grade the site in preparation for planting of pine trees. The soil material would be constituted as six inches of top soil suitable for planting pine trees. The remaining 18 inches would contain clay with high shrink/swell properties. The planting of pine trees would be done through a contract forester. The equipment operated at the facility would employ approved muffler systems. Odor generated by the facility is not anticipated to be a problem, in that household garbage, if found, would only be temporarily maintained, pending placement in an appropriate landfill. The site will be examined on a weekly basis to remove blown "litter". Proper provision is made for maintenance of slopes and compaction of fill material as it is placed. Through the application process noticing DEP that Watson intends to use a general permit to operate its C&D facility, DEP has been informed of the location of the proposed site. DEP would have permission to inspect the site during normal business hours. In response to Rule 62-701.420, Florida Administrative Code, Watson conducted a geotechnical investigation and prepared a report to support the application for a general permit. In support of the application Kenneth J. Hill, P.E. investigated the subsurface conditions at the proposed site through drilling activities. The drilling was done at the site and adjacent to the site. In May, 1995, Douglas L. Smith, Ph.D., P.G., conducted an electrical resistivity study (ER) at the site to investigate the subsurface conditions. Thomas H. Patton, Ph.D., P.G. and Charles Swallows, P.E. assisted in the investigation of the subsurface conditions at the site. Ralph E. Eng, P.E., signed and sealed the application for general permit for the proposed C&D facility. In rendering a report following his investigation of the subsurface conditions, Mr. Hill signed and sealed the report and supporting documentation. Likewise, Dr. Smith signed and sealed the report and supporting documentation associated with the ER study, together with Anthony F. Randazzo, Ph.D., P.G. The contribution by Dr. Patton and Mr. Swallows to the geotechnical investigation did not include signing and sealing a report and documentation. Nonetheless, Dr. Patton and Mr. Swallows, when testifying concerning the permit request, as with other professional witnesses, were found qualified to offer testimony consistent with their professional credentials and factual knowledge. 1/ A foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the fill material revealed that the weight of the construction debris was approximately 70 pounds per cubic foot, whereas the weight of the existing sand to be excavated is approximately 100 pounds per cubic foot. Thus, the placement of fill material following excavation would impose less stress on the subsurface than before. No significant settlement of the fill materials is expected to occur, resulting from its weight. The nature and fate of leachate promoted by the placement of fill at the site, in an environmental susceptible to bio-chemical and physical influences in transport through the subsurface, has the potential to adversely impact ground water. Those impacts could possibly cause violations of water- quality standards, ground-water standards, and drinking-water standards. These issues are considered based upon facts associated with the imperatives which must be properly addressed through the geotechnical investigation. That process anticipates gaining an understanding of subsurface conditions, to include the soil stratigraphy and ground-water table conditions. The ground-water table conditions involves estimations of the average and maximum high ground-water table. The geotechnical investigation should also explore the possibility of and address the existence of any sinkholes on the site. No specific testimony was given concerning the degree to which leachate, when present in the ground water at the Floridan Aquifer, might promote water-quality violations. Leachate properties and constituents were described in general terms of water-quality considerations, for example, hardness, nitrates, nitrites, alkalinity, presence of ammonia, chlorides, iron manganese, phenols, barium, arsenic, cadmium, lead, mercury, zinc, TDS and sulfates, urea formaldehyde, plaster, creosote, glues, and mastic hardeners. The evidence presented concerning the parameters for water quality did include a reference to barium, ranging from .5UG/L to 8UG/L in basically similar circumstances. The fill material can influence the natural PH by creating acidic conditions causing the PH to fall from a neutral 7.0 to 5.5 to 6.5. The process that takes place over time with the fill material also releases gases, such as methane, hydrogensulphide, and carbon dioxide. Rainwater falling on the ground's surface forms the basis for transporting the leachate through the subsurface. Only the Floridan Aquifer is potentially at risk, there being no surface water bodies or surficial aquifer at the site. Taking into account rainfall disposition by evapotranspiration, storm- water runoff, and subsurface infiltration, without certainty as to the amounts in those processes, it can be said that a significant amount of rainfall is available through infiltration to recharge the Floridan Aquifer and to transport leachate promoted by the fill. This is borne out by the absence of surface water bodies and a surficial aquifer on the site. To gain basic information concerning the subsurface conditions, Watson had 14 standard penetration test borings conducted by Mr. Hill and his firm. Those borings were advanced to depths of 35-72 feet. Additionally, three auger borings were performed to a depth of 40-50 feet. The auger borings were at sites A-1, A-2, and A-3, performed on April 17, 1993. In July of 1993, standard penetration test borings were performed at sites B-1, B-2, B-3, and B-4. In April of 1994, standard penetration test borings were performed at sites B-5, B-6, B-7, and B-8. In September of 1994, standard penetration test borings were performed at sites B-9, B-10, B-11, B-12, B-13, and B-14. The borings that were performed at the proposed site were at B-2, B-5, B-6, B-9, B-10, and B-14, for a total of six borings. The other borings were performed on the adjacent parcel. The borings at the proposed site were widely dispersed over the 143 acres contemplated for excavation and fill. The borings on the adjacent parcel, referred to as the Whitehurst parcel, were widely dispersed over 475 acres. Logs of the soil borings were prepared depicting the findings in the subsurface. The soil stratigraphy found in the borings was varied with sand, clayey sand, sandy clay and limerock present in some but not all borings. The sands that have been described are Aeolian. The sands are remnants of an ancient coastal dune system. Soil permeability tests were conducted on a limited basis at boring B- 9 at a 25-foot sample depth. The tan and orange clayey sand described had a co- efficient for permeability of 1x10-6. That sample and others described were obtained through a split-spoon. At B-12, at 35 feet, tan and orange clayey sand was found with a co-efficient for permeability of 2.6x10-8. At B-13, at 30 feet, tan and orange clayey sand was found and tested as 2.0x10-8 for the co- efficient for permeability. At B-14, at 30 feet, tan and orange sandy clay was found with a co-efficient for permeability of 9.6x10-9. In describing the soils, sieve analysis was not performed to more precisely classify the sediments encountered. This description of the strata is by appearance and texture. The clayey sand and sandy clay found in the borings retard discharge of the leachate to the ground water in the Floridan Aquifer based upon the permeability in those soils. Generally stated, the tan sands described have a co-efficient for permeability of 10-1 to 10-4. These sands are highly permeable, presenting an easy opportunity to convey the leachate contained in the infiltrating rainwater. Anomalous findings concerning soil permeability are shown at B-4, an off-site location, which portrays only sand in the boring. Also, B-9, which was drilled four to five feet east of a known sinkhole at the site is noteworthy in that the boring log describes tan and orange sandy clay, with trace limerock below 30 feet. This is in contrast to the field notation by the driller of the "p" for push and drilling rod "free fall" from 38 feet BLS to 42.5 feet BLS before encountering limerock, connoting a possible cavity in the 38-foot BLS to 42.5-foot BLS region. The karst feature that is located in the area where boring B-9 was conducted will be surveyed and marked with fence posts prior to excavation. No excavation will be conducted within 200 feet of that site. In addition to the phenomenon at the B-9 boring area, sinkholes at the surface were observed one-half to three-quarters of a mile northeast of the site. Sinkholes can occur when the placement of fill changes the hydraulics and loading in a karst environment. Finally, at B-6, limerock was encountered above the 46.9 feet MSL regional piezometric surface of the Floridan Aquifer. That limerock is considered part of the aquifer system. The head pressure at that location was not sufficient to force the ground water from the Floridan Aquifer. The more typical experience was as shown in B-5, where the surface of the limerock was lower than the regional piezometric surface. In B-5, ground water was not encountered until the clayey layer was breached and water rose in the drill hole. On occasions, such as the experience in B-5, there was an indication that Artesian conditions existed at those places. At the locations where the Artesian conditions were experienced, the Floridan Aquifer is confined. At B-6, where the limestone rises higher than the regional piezometric surface, the Floridan Aquifer is not confined. The bore hole at B-2 was terminated before breaching the clayey layer, and ground water was not encountered. Watson's consultant Hill considered that the ground-water table was found within the Floridan Aquifer at the site whose regional potentiometric surface was 46.9 MSL. He perceived that the findings showed ground water at 45 feet MSL constituting the average for the site. Watson estimated that the "seasonal high" ground-water table at the site was 48 feet MSL. The term "seasonal high" is equated to maximum high. Watson claims that the fluctuation in the ground-water table would be only a few feet. This would mean that the 45 feet MSL from bore hole data would represent not only the average across the site but the average value at the site at any point in time during the year. Watson makes this assertion notwithstanding that the borings were made over two years during different seasons. The basis for the estimate of maximum high ground-water table is not evident. In Dr. Patton's remarks in the application, there is a reference to the fact that the lowest encountered elevation for the Floridan Aquifer was 45 feet MSL and the highest was 55 feet MSL, making the average 50 feet MSL. This runs contrary to the remarks by Hill in which Hill said the elevation in the region was 46.9, the elevation detected was 45, and that the seasonal high would be 48. The only borings that were made in which the log reflects the MSL elevation and the boring depth are borings that were conducted in April 1994. On that date, the boring depth at which ground water was encountered varied from 37-43 feet and the MSL depth varied from 39-47 feet. If only the information for B-5 and B-6 on the site proper is used, those two data points associated with the borings on April 1994 reveal ground water at an excavation depth of 37 feet and between 45-47 feet MSL, respectively. Overall, without reference to MSL, the depths at which the ground water was encountered in the borings varied from 19-44 feet, if encountered. Although it is not shown in the boring log what the relationship is to MSL, at B-9, water was found at a drilling depth of 38 feet; at B-10, at a depth of 36 and one-half feet; at B-2, no water had been encountered at a drilling depth of 50 feet; at B-14, no water had been encountered at a drilling depth of 35 feet; at B-1, water was encountered at a level of 44 feet; at B-3, water had not been encountered at the concluding depth of 50 feet; at B-4, water had not been encountered at the concluding depth of 50 feet; at B-11, water was encountered at a drilling depth of 31 and one-half feet; at B-12, water was encountered at a drilling depth of 19 feet; at B-13, water was encountered at a drilling depth of 21 and one-half feet. Where elevations were measured for the water table in the bore holes, the holes were left open until the drillings had been concluded. Then the measurements were made. In this project, the consultant did not equilibrate the ground-water table by the traditional method of leaving a piezometer in the bore hole to maintain its integrity for a day before making the measurement. Watson has not provided sufficient information and explanation to determine a proper estimate of the average and maximum high ground-water table across the site. Returning to the ER investigation, it involved 39 soundings, which is roughly equivalent to drilling bore holes. The sounding profiles were determined through Wenner-Array Sounding and Lee-Directional Equipment. This technique involves the passing of an electrical current underground and measuring its resistance to flow. The expectation is that earth materials, for example, clay, sand, limestone, and cavities will resist the flow of electrical current differently. Substantially greater contrast in the degree of resistance, anomalies, is used to identify and locate earth materials, as well as the presence and shape of cavities. The sounding measurements reveal two- dimensional detail below the surface at progressively-greater depths. Lee- Directional measurements determine the direction of higher or lower resistivity along the survey line. While in the field, electrodes are placed in the ground at equal distances from one another. After a measurement, this distance is increased in an orderly fashion. The greater distance between the electrodes, the greater the depth of penetration. The ER equipment's electrical current has the capacity to penetrate through clay and into lower features in the subsurface. Subsurface from depths five to 100 feet were examined in this study. Within the 39 groundings surveyed, various soils were encountered. Generally, a thick cover of unconsolidated sand was found overlying clayey sand, with a clay layer varying in thickness and limestone found in some soundings, but not others. Where limestone was detected, it was at deeper levels in the southwestern part of the site. Because ER cannot distinguish between clayey sand and sandy clay, the area where those soils are found is referred to in the report as a thinner clayey sand layer. Also, in some places the upper surface of limestone has suffered weathering or deterioration and may appear as the lower part of the clay unit in terms of its electrical properties. The general portrayal in the ER study concerning the soil stratigraphy, wherein reference is made to dry sand up to 30 feet in thickness overlying a thinner clayey sand layer, approximately 10 feet in thickness, overlying a relatively thick clay layer from 10-60 feet and then limestone, does not coincide with the complexity in the stratigraphy found in the soil borings. In the ER study, at stations 8 and 10, voids were encountered. The nature of those voids is unexplained by this investigative process. At station 8, the void was found at approximately 100 feet deep. At station 10, the voids were at 50 feet and 100 feet deep. At station 14, anomalous findings were explained as the placement of fill and organic material during land-clearing operations. The suggestion in the written report, which summarizes the findings in the ER investigation, that a water table was encountered at approximately 40 feet deep, coinciding with the top of the clay layer, is contrary to the findings in the soil borings. To the extent that finding is intended to suggest that there is a perched water table or surficial aquifer above the clay layer, that view is contrary to other evidence adduced at hearing and is rejected. Like the soil borings, the ER soundings examined very discreet areas, but revealed less discreet information. This investigative process is not designed by itself to resolve disputes concerning the character of the subsurface, taking into account statutory and rule requirements for issuing a general permit. To portray the subsurface conditions, in June 1995, Petitioners undertook another basic study by employing ground-penetrating radar (GPR) to reveal the subsurface conditions. Again, GPR, like ER, affords limited insight into the conditions in the subsurface. More precise information than is revealed in the results from the GPR study would be needed to understand the subsurface conditions. GPR is comprised of several pieces of equipment that are connected with cables and a power source. This equipment is mobile. It uses a transmitter and receiver antenna that essentially glides along the ground surface. A signal is emitted through the transmitter. It perpetrates into the ground. It is reflected off materials of different electrical properties back to the receiving antenna and charted. The record that is made is continuous. Unlike ER, GPR is capable of detecting small anomalies in the subsurface. In employing the equipment in this investigation, Petitioners' consultant was looking for either stratigraphic or water-table reflectors and anomalous conditions. The experience at this site was comparable to the experience at other sites in gaining an understanding of how geologic materials are deposited. The GPR investigation covered approximately 10 percent of the site. Four lines were traversed east to west. Two lines were traversed north to south, and two other lines were traversed on a diagonal. GPR will not significantly penetrate clay. Its ability to penetrate is dependent in some measure upon the nature of the clay unit encountered. However, GPR reveals contrasts in the conductivity of clay, when compared to the overlying sand. The greater the contrast, the greater the reflection event. In this connection, the presence of moisture can slow or prohibit the electromagnetic energy generated by GPR. The GPR study revealed a substantial number of subsurface anomalies that might be indicative of possible access for leachate generated by the placement of fill to enter the Floridan Aquifer. These anomalies might represent sand columns and cover subsidence sinkholes. Any sinkholes on the site would be expected to be "cover subsidence"- type sinkholes. Those sinkholes occur through a process in which overlying strata slowly subsides into the sub-adjacent karst feature, rather than suddenly collapsing. Sinkholes develop rarely, but pose more risk of development in areas where sinkholes have occurred previously. Sinkholes are not always seen at the land surface. Sinkholes can present a risk to ground water in the aquifer in view of solution cavities found in the limestone which is part of the aquifer, thus allowing leachate to flow through the cavities into the ground water. Some anomalies found in the GPR study were more significant. One that was observed in the third traverse was 100 feet wide by 80-90 feet deep. There is an indication that this area might be filled with sands, creating a more ready access to the lower subsurface than would be expected with other soils. Another anomaly discovered was 200-300 feet long and 400-500 feet wide, approximately 50 feet below the surface. Overall subsurface conditions are not readily understood. Watson, through its consultant, suggests that the site is part of the Newberry Sand Hills region of the Brooksville Ridge system. As such, karst activity has proceeded in a slower manner than other places in Alachua County, with no presently active karst conditions. In opposition, Petitioners assert that the site is part of the Brooksville Ridge System, which is an internally-drained area of karst-dominated highly fractured terrain, according to its consultants. If Petitioners are correct, those circumstances lead to solutioning of the limestone and are not indicative of area of continuous impermeable clay layers found at the site as part of the Hawthorne formation that Watson's consultant surmises. The exact nature of the site concerning factors that must be considered in this permit application have not been adequately resolved in this record. While it is sufficiently evident that the Floridan Aquifer is not confined, it is unclear whether the circumstances at the site present unacceptable risks to the ground water, in view of existing subsurface conditions. From the record, the proper manner to resolve the issue would be to perform more soil borings on the site proper to identify the subsurface conditions concerning soil stratigraphy and ground-water location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Watson the use of a general permit to operate the proposed C&D facility. DONE AND ENTERED this 7th day of August, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1996.
The Issue The issue is whether a permit should be issued to Respondent, Lake Environmental Resources, LLC (LER), authorizing the construction and operation of a construction and demolition debris disposal facility in unincorporated Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties LER, whose mailing address is Post Office Box 2872, Windermere, Florida, is a limited liability company authorized to do business in the State. LER's principals are Linwood Brannon and Richard Bazinet, both of whom have had at least ten years' experience in the operation and construction of demolition debris disposal facilities. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2005)2, to evaluate applications and issue permits for construction and demolition debris disposal and recycling facilities. The permit in issue here was processed, reviewed, and approved for issuance by the Department's Central District Office in Orlando, Florida. Petitioners Miriam Resto and Jim Taylor did not appear at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by the issuance of a permit. Petitioner Timothy L. McCormack resides at 11321 Valley View Road, Howey-in-the-Hills, Florida. Mr. McCormack's home is "a little over a mile" north-northwest of the proposed facility. His concern with the proposed facility is generally over contamination from the landfill, and not contamination occurring at the property. Petitioner John A. Mapp, Jr., resides at 21307 County Road 561, Clermont, Florida, which is approximately one-half mile from the proposed facility. Mr. Mapp's home is upgradient from the facility and consequently he has no "individual concerns" as to how the proposed facility would affect his home. He is concerned, however, with potential groundwater contamination from the facility. Petitioners David and Lisa Cimini did not testify at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by this proceeding. According to the Partial Pre- Hearing Stipulation filed by Respondents, however, they reside at 21423 County Road 455, Clermont, Florida, which is near the proposed facility. Background On July 26, 2005, LER filed an application with the Department for a permit authorizing it to construct and operate a facility for construction and demolition debris disposal and recycling in an unincorporated area of the County. A lengthy definition of construction and demolition debris is found in Florida Administrative Code Rule 62-701.200(27), which reads as follows: discarded materials generally considered to be not water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, including such debris from construction of structures at a site remote from the construction or demolition project site. The term includes rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project; clean cardboard, paper, plastic, wood, and metal scraps from a construction project; effective January 1, 1997, except as provided in Section 403.707(12)(j), F.S., unpainted, non-treated wood scraps from the facilities manufacturing materials used for construction of structures or their components and unpainted, non-treated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and de minimus amounts of other non-hazardous wastes that are generated at construction and demolition projects, provided such amounts are consistent with best management practices of the construction and demolition industries. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The facility will be located on a 44.33-acre site one- half mile west of State Road 561, off County Road 455, in an unincorporated part of Lake County. Based on this description, it appears that the facility will be located east of Howey-in- the Hills, west of Tavares, and approximately half-way between Astatula and where State Road 561 crosses the Florida Turnpike to the southwest. The site presently has an active sand mine (borrow pit) that covers an area of approximately twenty-two acres. The facility intends to recycle metal, concrete, asphalt, wood chips, and PVC (polyvinyl chloride) and will serve areas in Lake County and nearby communities. In response to LER's initial application, the Central District Office submitted a Request for Additional Information dated August 22, 2005, asking for additional well and site information, operations plan details, and financial assurance clarification. On October 20, 200, LER submitted its Response to Request for Additional Information. While the application was being processed, Mr. Cimini advised the Department that two additional wells surrounded the property, including one that had recently been installed on property owned by Mr. Gary Sprauer that lies within five hundred feet of the limits of waste disposal of the facility. On November 18, 2005, the Department submitted an additional Request for Additional Information, in which it brought up the fact that Mr. Cimini had advised the Department of the existence of these wells. On November 28, 2005, LER submitted its Response to Request for Additional Information, in which it stated that only one well, which belonged to a Mr. Sprauer, had been drilled within five hundred feet of the proposed facility; that there was no electricity to the well; that the nearest residence was approximately seven hundred feet away; and that the well was not approved or being used as a potable water well. Therefore, LER asserted that the Department should not treat the Sprauer well as a potable water well subject to the five-hundred-foot setback from potable water wells for landfills established in Florida Administrative Code Rule 62-701.300(2)(b). LER's submittal provided additional information on the geology and operational aspects of its proposed facility. On December 6, 2005, LER submitted additional information in response to items discussed at a meeting held between the Department and LER on December 2, 2005. The submittal contained further information about potential drinking water wells around the proposed facility, and LER reasserted that the Sprauer well should not be treated by the Department as a potable drinking water well. Based upon its own investigation, however, the Department concluded that the Sprauer well "was a bona fide drinking water well for domestic supply." On January 6, 2006, Mr. Bradner, a Department solid and hazardous waste program manager who was assisting in the processing and review of the application, wrote a memorandum to the file confirming that the Department considered the application complete as of December 6, 2005. On February 10, 2006, LER provided additional hydrologic and operational information in order to try to convince the Department not to apply the five-hundred-foot setback to the Sprauer well. This information showed that the Sprauer well would be upgradient from the proposed facility. The Department allows waste to be placed within five hundred feet of an existing potable water well based upon site-specific conditions as demonstrated by an applicant. See Fla. Admin. Code R. 62-701.300(2)(b). On March 27, 2006, in response to the Department's comments on its submittal of this additional information, LER submitted further hydrologic and modeling information to support its contention that groundwater flowed away from the well belonging to Mr. Sprauer. On April 27, 2006, LER provided the Department with further refinement of its groundwater model to demonstrate that there would be no impact to the Sprauer well. On May 4, 2006, the Central District Office issued notice of its intent to approve the application and issue a permit to LER. Of significance here is the fact that the Department did not require LER to install a liner and leachate collection system. This was consistent with the terms of Florida Administrative Code Rule 62-701.730(4)(a), which does not require a liner unless the Department demonstrates that the facility is "reasonably expected to result in violations of ground water standards and criteria." On May 17, 2006, Petitioners filed their Petition challenging the issuance of the permit. As grounds, Petitioners alleged that there is a substantial risk that the surrounding groundwater will be contaminated by leachates from the facility, and that the Department should accordingly require LER to (a) install a liner and associated leachate recovery system in their facility and (b) post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. The Proposed Project Among other things, the application included an engineering report, an operations plan, a geotechnical evaluation of the stability of the site, a hydrological investigation, a stormwater management plan, a reclamation and closure plan, and financial assurance documentation. These elements are required by Florida Administrative Code Rule 62- 701.730, which governs this type of application. The proposed facility is to be located on a 44.33-acre parcel in a rural area that has been the site of a sand and clay borrow pit. The pit has been mined for the last thirty years, has been permitted by Lake County as a mine since 1986, and before being used as a mine was the site of an orange grove. As explained by Mr. Golden, the proposed facility's project manager, the site is "high and dry" and "a good site for a landfill." The water table is at least one hundred feet below the ground surface. There is a confining layer of clays and sandy clays approximately one hundred fifty feet below the ground surface at the site of the proposed facility, and the layer has very low hydrologic conductivity, that is, 1,000 to 10,000 times less permeable than the surface sands. The Floridan Aquifer is approximately two hundred feet below ground surface. The horizontal velocity of the groundwater at the site is approximately two feet per year, and the vertical velocity about 1.3 inches per year. As a result, the groundwater monitoring system at the proposed facility would detect any contamination that might be emitted. In addition, approximately twenty feet of dry soils underlying the landfill would absorb whatever comes out of the landfill to begin with, just like a septic tank. The confining layer would be approximately one hundred to one hundred twenty feet below the landfill base and would be anywhere from twenty to forty feet deep. As a result, it is highly unlikely that any potential contaminants that hypothetically might be emitted from the facility would ever reach the Floridan Aquifer. The Proposed Permit On May 4, 2006, the Central District Office issued its intent to issue the permit. Attached to that intent to issue was a Draft Permit. The Draft Permit restricts disposal of solid waste exclusively to construction and demolition debris (as defined in the rule cited above) and requires LER to comply with an Operations Plan developed by LER. Among other things, the Operations Plan provides for operators trained in spotting and turning away unacceptable waste and other screening procedures to ensure nondisposal of unacceptable waste. The Operations Plan exceeds minimum Department rule requirements. The Operations Plan prohibits disposal of CCA (chromated copper arsenate) pressure treated wood and has a special screening procedure to ensure that these wood products do not come into the facility. The Draft Permit requires LER to install a system of groundwater monitoring wells that surround the property at both shallow and deep depths to detect any potential contaminants coming off of the site. Thus, LER will be required to monitor the surficial aquifer, the Floridan Aquifer, and adjacent wells to ensure protection of area groundwater. The wells will act as a form of early warning indicator so that corrective action can be undertaken in the event the wells show a potential threat to drinking water beyond the property boundary of the proposed facility. The Draft Permit requires two wells to be installed immediately to the north of the Sprauer well, even though it is upgradient from the site. To be conservative and prudent, the Department is requiring that the number of wells that LER must install be substantially greater than the minimum required under Department rules. Based upon the hydrologic evaluation and the proposed permit conditions, Mr. Golden concluded that LER has provided reasonable assurance that the proposed facility will not discharge pollutants in contravention of Department standards or rules. Mr. Bradner agreed with this conclusion and likewise concluded that LER had provided reasonable assurance that the proposed facility will comply with all of the required statutes and rules. The weight of the evidence supports these conclusions. The weight of the evidence also supports Mr. Golden's conclusion that based upon the hydrologic evaluation and the proposed permit conditions, the proposed facility will not be a source of contamination for wells within or greater than five hundred feet of the proposed facility. In the same vein, Mr. Bradner determined that the Sprauer well was the only existing potable drinking water well within five hundred feet. Both experts concluded that the Sprauer well would not be adversely impacted based upon the Department's review of the groundwater modeling data provided to it by LER. Finally, the weight of the evidence supports Mr. Golden's conclusion that, based upon the hydrologic evaluation and the proposed permit conditions, the Department should not require LER to install a landfill liner at the proposed facility. Mr. Bradner agreed with that conclusion. Petitioners' Objections In their Petition, Petitioners have raised the following objections to the issuance of a permit: That because the proposed facility would have no liner, the local environment and drinking water supplies would not be adequately protected from contamination; That the application significantly underestimates the amount of recharge to local aquifers; That the application ignores or underestimates the ecological fragility of the area; and That the location of the Sprauer well should require a reconfiguration of the footprint of the proposed facility. As relief, the Petition asks that the Department require a liner and associated leachate recovery system and adequate financial assurance to ensure proper operation and cleanup if necessary. During opening argument, Petitioners raised one more issue not previously raised in their Petition — - the potential cumulative impacts of the proposed facility in conjunction with two other landfills in the area. This allegation was not timely raised, however, and has been disregarded. The positions taken by Petitioners (other than cumulative impacts) appear to be interrelated, that is, the Department should require a liner because the area is ecologically fragile and recharge is greater than calculated by LER. In support of their position, Petitioners first presented the testimony of Mr. McCormack, who is engaged in the commercial nursery and landscaping business. Mr. McCormack identified the presence of CCA treated wood as his main concern from a contamination standpoint. His concern is that a possible spread of leachate will result from mingling the wood with rainwater or groundwater and that the surrounding groundwater (which ultimately flows into Double Run Springs, the Harris Chain of Lakes, and the Floridan Aquifer) would be adversely impacted. Mr. McCormack estimated that the edge of the Double Run Springs system was approximately 2,500 feet, or around one- half mile, from the site. He expressed the opinion that it was physically impossible to remove such wood prior to its being landfilled. Mr. McCormack conceded, however, that he was not an expert on landfill management or hydrology and had no personal experience with the operation of a landfill. There is specific language in LER's Operations Plan prohibiting the disposal of CCA treated wood and requiring best management practices to enforce the prohibition against the disposal of CCA treated wood. This requirement is mandatory, and not voluntary, and provides reasonable assurance that CCA treated wood would not be a potential source of contamination. The testimony of expert witnesses Bradner and Golden, who expressed this view, is accepted as being more credible on this issue. Petitioners also presented the testimony of Mr. Mapp, who critiqued the hydrological investigation performed by LER by asserting that the recharge to the Floridan Aquifer is four or five times the amount stated in the application. He also opined that LER's evapotranspiration rates were understated.3 Mr. Mapp is a systems analyst for Lockheed Martin Missiles and has a master's degree in business and an undergraduate degree in physics. While highly educated, Mr. Mapp has no prior experience in any kind of hydrologic, geologic, chemical, or similar types of analyses, or any analyses of the rate of transport of chemicals in the environment. The knowledge and opinions rendered in this case by Mr. Mapp were obtained through personal research after the permit application was filed. Mr. Mapp opined that LER's recharge calculations constitute a "significant discrepancy." He acknowledged, however, that his estimate of the true speed of downward flow of water at the site of the proposed facility was "just off the cuff" and did not factor in the effects of applying cover to, and the filling and capping of, the landfill. He did not know how fast particular contaminants may migrate through the groundwater or what volume of waste might be necessary to cause a violation of groundwater quality standards. He also could not give a specific calculation of where a contaminant might be located after a set period of years. Unlike the other experts in this case, the witness had not calculated Floridan Aquifer recharge rates or otherwise used Darcy's Law.4 Even if the permit application underestimated the recharge rate, the thickness of the confining layer below the base of the proposed facility, which was conservatively estimated, would cause groundwater to flow horizontally, not vertically, once the confining layer is reached. As explained by Mr. Golden, LER did not rely exclusively on the recharge calculations that Mr. Mapp relied upon in determining recharge rates. Separate information regarding the permeability of the confining layer provides additional support for the recharge calculations. Mr. Mapp also opined that LER's evapotranspiration rate calculations were underestimated, based upon his review of a study of a deforested site elsewhere in the Lake Wales Ridge. He assumed the evapotranspiration rate in that study (for a site located fifteen miles away) would be applicable to the site of the proposed facility, and he then assumed that the evapotranspiration rate identified in the permit application for the proposed facility would be applicable only to the properties adjacent to the proposed facility. There is, however, no scientific basis for drawing an analogy between the borrow pit that is the location of the proposed facility and the deforested site with different geological characteristics about which Mr. Mapp read in the study he relied upon for his conclusions. Furthermore, LER undertook site-specific analyses of the permeability of the soils underlying the site of the proposed facility, whereas Mr. Mapp's calculations were based upon assumptions drawn from a study of a site fifteen miles away. The testimony of Mr. Golden is found to be credible and persuasive on this issue. Finally, there was no evidence concerning Petitioners' contention that LER should post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. Therefore, no modification to the permit in this respect is required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Lake Environmental Resources, LLC, for a permit authorizing the construction and operation of a construction and demolition debris disposal and recycling facility in unincorporated lake County. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2006.
The Issue Whether the City of Jacksonville has provided reasonable assurances that a proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill will not cause pollution in violation of any of the provisions of Chapter 403, Florida Statutes, or the rules promulgated thereunder? Whether the City of Jacksonville proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill should be denied because of alleged violations of the City of Jacksonville's permit or Florida law?
Findings Of Fact Introduction. The City of Jacksonville North Sanitary Landfill. The City of Jacksonville (hereinafter referred to as the "City") operates two solid waste disposal facilities. One, the City of Jacksonville North Sanitary Landfill (hereinafter referred to as the "North Landfill"), is located at the intersection of New Berlin Road and Island Drive in the northern part of the City and Duval County, Florida. The North Landfill is operated pursuant to permit #SC16-12205 (hereinafter referred to as the "Permit"), issued by the Department on June 6, 1988. The Permit was issued "for operation of the City of Jacksonville North Sanitary Landfill, Phases I, II, and 111a; and of a new disposal area at the North Sanitary Landfill, Phase IIIb." The area in which the North Landfill is located is generally commercial property, with some rural and residential property: The North Landfill is bounded on the north by unimproved land owned by the City. This property stretches to Cedar Point Road. A few parcels within the property owned by the City to the north of the North Landfill are owned by others, including Mr. and Mrs. Leigh. The property to the east of the North Landfill is also unimproved property. It is owned by the St. Johns River Power Park. The St. Johns River Power Park is a power plant facility operated as a joint venture by the City, the Jacksonville Electric Authority and Florida Power and Light. The plant is located on the southern boundary of the North Landfill. The west boundary of the North Landfill is New Berlin Road. The property to the west of New Berlin Road is owned by a number of persons, including M & M Dairy. Phase IIIb of the North Landfill is located in the northeast quadrant of the landfill. The North Landfill primarily serves northern, and a part of western, Duval County. Approximately 3,000 tons of solid waste is disposed of each day in Jacksonville. Approximately 55% of the solid waste is disposed of at the North Landfill. The solid waste disposed of at the North Landfill consists primarily of mixed municipal solid waste and commercial solid waste. The North Landfill is open seven days a weeks from 5:00 a.m. to 11:00 p.m. All phases of the North Landfill are permitted to a height of 75 feet. The land on which the North Landfill is located is approximately 25 to 30 feet above sea level. Therefore, approximately 45 to 50 feet of solid waste can be disposed of at the North Landfill. All phases of the North Landfill have some remaining capacity for the disposal of additional solid waste. The Petitioners. Ms. Holzendorf's residence is approximately ten miles from the North Landfill. Her office is located approximately seven miles from the North Landfill. She does not own any real property located in the immediate vicinity of the North Landfill. Ms. Holzendorf can smell the odor from the North Landfill at her residence when the wind is blowing from the North Landfill toward her residence. Ms. Holzendorf is a Florida State Representative for District 16. District 16 includes the population of approximately one-third of Duval County, The North Landfill is located within District 16. Ms. Holzendorf has received complaints from some of her constituents about the North Landfill. Ms. Holzendorf drives by the North Landfill approximately twice a week. She has visited the site on several occasions. Robin G. and Geraldine Leigh own real property adjacent to Cedar Point Road. The land is unimproved except for a well. The Leigh's land is located north of the unimproved City property located adjacent to the northern boundary of the North Landfill. The Leighs' land is approximately three-fourths of a mile from the North Landfill. The City's Proposal. On August 3, 1988, the City filed an application with the Department for a modification of its Permit. In its application the City requested a "construction permit modification" of its Permit consisting of "extending the height of Phase IIIb of the North Landfill to a constructed elevation including final cover of no greater than 110 feet, NGVD." The City's requested modification of the Permit will provide the City with an additional six months of solid waste disposal capacity. The Department proposed to grant the City's requested modification. The Department issued a proposed Permit modification (hereinafter referred to as the "Modified Permit"). Structural Design of Phase IIIb. Leachate Control System. Waste dumped at the North Landfill is covered daily. Rain falling on the site is disposed of either as "leachate" or stormwater. Leachate is liquid which passes through, and emerges from, solid waste. Leachate on Phase IIIb of the North Landfill is collected and disposed of by a control system which was designed by George Knecht. Mr. Knecht described the leachate control system as follows: The leachate collection system consists of a two-foot drainage layer placed on top of the plastic liner. In this case the city used a plastic liner rather than a clay liner. It's HDPE, which is high-density polyethylene, and that collects the liquid and lets it flow downhill in this drainage layer to the central point, at which point the city has installed a six-inch perforated pipe which is wrapped in a filter media, which is basically a stone, a rock, which in turn is wrapped in a filter media which is porous cloth, and the purpose is that the liquid coming through the landfill gets into this drainage layer, runs downhill in the drainage layer, goes through the filter cloth, and the filter cloth keeps the sand from penetrating into the granular rock, goes through the rock and into the pipe, and then pipes are laid in a sloping downhill direction so that the fluid, once it gets in there, runs downhill. It's collected in manholes at the end of each one of these pipes. Transcript of Formal Hearing, page 49, lines 4-23. The leachate control system of Phase IIIb was properly installed and designed. Although the Petitioners raised questions concerning the manner in which the leachate control system was installed and designed, they did not offer sufficient evidence to contradict the evidence presented by the City that the system was properly installed and designed. The evidence also failed prove that the addition of 35 feet of solid waste to Phase IIIb will adversely affect the operation of the leachate control system. The addition of 35 feet of solid waste to Phase IIIb will probably ultimately have a beneficial effect on the leachate control system of Phase IIIb of the North Landfill. When Phase IIIb reaches its currently authorized height of 75 feet, the leachate depth on the liner of the control system is expected to be an average of approximately three inches. If an additional 35 feet of waste is added to Phase IIIb, the leachate depth on the liner of the control system is expected to decrease to an average of approximately two inches. The depth of leachate on the liner of the leachate control system of Phase IIIb will not exceed one foot. Specific Condition 3 of the Permit required that the City arrange for Department representatives to inspect the facility in the company of the Permittee, Engineer, and onsite operator after completion of construction activities. Cells I and II of the leachate control system of Phase IIIb were not inspected by the Department. The Department was provided with a certification from a registered professional engineer that the installation was inspected and met state requirements. The Department normally relies upon such certificates. Stormwater Disposal System. Rainwater which does not percolate through the waste, thus becoming leachate, runs off in the form of stormwater. Stormwater will consist primarily of rain which strikes the sides of the pyramid formed by the waste deposited on Phase IIIb of the North Landfill. The existing stormwater disposal system of all phases of the North Landfill consists of a series of ditches which collect stormwater and channel the stormwater to other ditches which surround the perimeter of the North Landfill. Stormwater travels through the ditches to collecting ponds located at the northeast corner of the North Landfill. Water reaching the holding ponds is treated by sunlight, oxidation and sedimentation. Ultimately, water reaching the holding ponds runs into Brown's Creek. The existing stormwater collection system of Phase IIIb is in compliance with the Department's permitting requirements. The proposed increase in height of Phase IIIb should not have any appreciable impact on the quality of stormwater eventually emptied into Brown's Creek. Phase IIIb will be capped with an impermeable cap when it is closed. The City has had a stormwater management system designed to take into account the effect of the cap on stormwater disposal. The stormwater collection system which will be installed when Phase IIIb is closed will consist of ditch blocks which will separate the stormwater collection system of Phase IIIb from the other phases of the North Landfill. Stormwater from Phase IIIb will be directed to a new holding pond. Stormwater will eventually be discharged into Brown's Creek. The stormwater collection system which will be installed when Phase IIIb is closed will meet the requirements of Rule 17-25, Florida Administrative Code, and the St. Johns River Water Management District. The system will actually have a positive impact on water quality. Foundation. The earth beneath the leachate control system of Phase IIIb, because of the weight of the solid waste to be deposited above it, is expected to settle approximately twelve inches under 75 feet of solid waste. The addition of 35 feet of solid waste to Phase IIIb is expected to cause the earth beneath the leachate control system to settle an additional six inches for a total of one and one-half feet. The additional 35 feet of solid waste will not adversely affect the structural integrity or functional capacity of the leachate control system of Phase IIIb. The proposed 35 foot addition of solid waste should not affect the ability of the earth beneath Phase IIIb to support the loads and stress it will be subjected to. III Alleged Violations. Water Quality There is a marsh located to the northeast of the North Landfill. The marsh forms the headwaters of Brown's Creek. Brown's Creek flows into the St. Johns River, south of the North Landfill. Alfred Mintz, the former owner of Clapboard Creek Fish Camp, a fish camp located approximately four miles from the North Landfill, testified about a "black gooey substance" which was on the surface of Clapboard Creek and Brown's Creek. Clapboard Creek flows to the northeast and east of the North Landfill. It eventually flows into the St. Johns River. The substance came from the direction of the North Landfill. Mr. Mintz did not know what the substance was and was unable to identify the source of the substance. The evidence failed to prove what the substance was or that the North Landfill was the source of the substance. Anita James, a commercial fisher, testified about a "film" which she saw on Brown's Creek near the St. Johns River. The substance was not identified. Nor was the source of the substance identified. Ms. James' belief that the film came from the North Landfill is not sufficient to support a finding of fact that the film whatever it was, came from the North Landfill. Mr. Mintz and Ms. James also testified about dead and diseased fish, and a dead dolphin and a dead manatee which they had seen in Clapboard Creek, Brown's Creek and other waters in the vicinity. No competent substantial evidence was presented to prove that the deaths or the disease was caused by waste disposed of at the North Landfill. No evidence concerning what killed the fish, dolphin or manatee, or what caused the diseased fish, was presented. Specific Condition 13 of the Permit requires the City to monitor water at three points along the stormwater disposal system of the North Landfill. One of the three monitoring points is approximately one-tenth of a mile east of the North Landfill in Brown's Creek. During approximately ten years of monitoring of water conditions only two parameters, iron and coliform, have been found in excess of state standards. The evidence did not prove what the cause of the excess iron and coliform was. It is possible that the excesses were caused by leachate from Phases I, II and 111a, which do not have lined leachate control systems like Phase IIIb, seeping into the stormwater disposal system. Leachate from Phase IIIb does not aggravate the problem because the leachate control system of Phase IIIb is lined. The City and the Department entered into a Consent Agreement on July 14, 1989 (hereinafter referred to as the Consent Order). Pursuant to the Consent Order the City is required to update its monitoring of stormwater. Quarterly monitoring of 37 parameters will be required. Specific Condition 19 A 2) of the Modified Permit also specifies that 37 parameters are to be analyzed quarterly. Specific Condition 13 A 2 of the Permit only required analyses of 14 parameters. The requested modification of the Permit should not contribute or extend any adverse affect of the North Landfill on water quality. The Consent Order and Specific Condition 20 C of the Modified Permit require that the City analyze 35 parameters quarterly at four wells located inside the North Landfill. The City has contracted for the preparation of a groundwater monitoring plan consistent with the Consent Order and with the requirements of Rule 17-701.050, Florida Administrative Code. Based upon a review of a well inventory conducted by the City and groundwater studies, wells in the vicinity of the North Landfill, including the well on Mr. & Mrs. Leigh's property and the M & M Dairy, are not at risk of contamination. The requested modification of the Permit should not increase the risk of contamination of wells in the vicinity of the North Landfill. Violation of Height Limits. In 1988 the City filled some portions of Phases I, II and IIIa above their 75 foot limit. The City did not, however, intentionally violate the Permit height limits. The City exceeded the height limit of the Permit only because it believed that solid waste placed on the landfill in excess of 75 feet would eventually settle to less than 75 feet and that this was consistent with the Permits limits. The Department disputed the City's actions in exceeding the 75 foot limit for Phases I, II and IIIa in an administrative action separate from this proceeding. On July 14, 1989, the City and Department settled their dispute and entered into the Consent Order. Pursuant to the Consent Order, the City paid a fine of $1,800.00. The City also built a laser tower for use in measuring the height of the North Landfill and agreed to use it to make more frequent surveys of the landfill. The City was not required to immediately remove the excess height. The City has been allowed to wait until closure. Prior to closure the City can request permission from the Department to leave the excess height. In the modification of the Permit at issue in this proceeding, Specific Condition 3 specifically provides for the manner in which waste may be disposed of in Phase IIIb in an effort to avoid the problems with excessive height experienced with Phases I, II and IIIa. B. Litter. Specific Condition 17 of the Permit provides that [l]itter control devices shall be installed as necessary to prevent litter from leaving the disposal area. Litter outside of the perimeter of the North Landfill along the roads leading to the landfill comes primarily from trucks bringing waste to the North Landfill. A small amount of the litter also comes from the site itself. Although the trucks are not City trucks, the City's litter collection efforts have been extended to cover the main portions of the roads leading to the North Landfill. Litter around and on the North Landfill has been a problem. The City has taken a number of steps to control the amount of litter in and around the landfill: Waste deposited at the North Landfill is covered with six inches of soil. Although the City is not required to do so, six months before the formal hearing of these cases the City began covering the area of the landfill where waste is being deposited (hereinafter referred to as the "working surface") with six inches of dirt. The working surface is also located away from wind. Fences have been installed around the perimeter of the North Landfill. Fences are also placed around the working surface on windy days. Prior to 1989 the City patrolled the immediate vicinity around the North Landfill to collect litter which had not been covered. Collection was performed on a variable time schedule. Only three part-time employees participated in the collection patrols. Beginning in early 1989, the City expanded its litter collection patrols. The roads surrounding the North Landfill (New Berlin Road, Faye Road, Alta Road and Island Drive), are now patrolled daily by five full- time employees. The extent of the patrols prior to 1989 and since early 1989 is depicted on City exhibit 8. The inside of the perimeter of the North Landfill is patrolled for litter collection five days a week and on the weekend, as needed. The stormwater ditches are inspected on a daily basis. At the time of the formal hearing of these cases the stormwater ditches and retention ponds were being excavated. This process had been going on for approximately four to six months. The Modified Permit contains Specific Condition 13, which is essentially the same as Specific Condition 17 of the Permit. Additionally, the Modified Permit contains Specific Condition 8, which provides: The Permittee shall maintain litter controls to prevent litter from entering the collection ditches and from leaving the landfill site. In addition to litter control fences, the Permittee shall provide daily manual collection of litter entering collection ditches and leaving the site. Litter can best be controlled by compacting the waste, picking up litter regularly and using fences. The City has employed these methods of litter control. The City's efforts have been reasonable. The proposed increase in height of Phase IIIb will not adversely affect the amount of litter associated with the North Landfill or the City's litter collection efforts. The City is not required to continue to patrol the roads leading to the North Landfill which it is currently patrolling to pick up litter that is attributable to trucks bringing waste to the North Landfill. Odor. There is no dispute that there is undesirable odor associated with the disposal of solid waste. This is true of the North Landfill. There is undesirable odor associated with the North Landfill most of the time. The nature of the odor associated with landfill's generally, and the North Landfill in particular, was described at the formal hearing as follows: Q The odor that you noticed, is it to some degree all the time? A Some days it won't, but that's very rare. Usually it may be more. Some days it may be in the afternoon, it may not smell in the morning, it may be in the afternoon. Some days it may be in the morning and may not be in the afternoon. Q Could you quantify what percentage of the time? A Probably about 75 percent of the time. Q And you indicate that at times it's much stronger than at other times? A Yes. Q You mentioned odor from the landfill. This was back in time now a good way. When did you start noticing an odor from that landfill? A When did I first start noticing it? Q Yes. A The very day they started dumping. Q And that odor has persisted since then? A Not every -- not every single day, but yes. Q Some days you will have it, some days you won't? A Yes. Q How many years are we talking about since they opened approximately? A Well, we have been out there 17 years. . Q So, over that 14 or 15 years, is it fair to say that basically you have an odor, and some days it will be worse than the average odor, and some days `it will be better than the average odor? A Yes. Transcript, page 511, lines 9-15, page 514, lines 9-13, page 516, line 25, and page 517, lines 1-21. Specific Condition 16 of the Permit provides that 1[o]bjectionable odors originating from the site shall be effectively controlled during all phases of operation. The most effective method of dealing with undesirable odor associated with landfills is to cover the waste daily and minimize the contact of waste with water. The City has been covering the waste disposed of at the North Landfill on a daily basis. The City's efforts have resulted in the North Landfill being as odor free as a "well run" landfill can be. A City ordinance provides for citizen participation in controlling odors in Jacksonville. This ordinance is enforced by the City's Bio- Environmental Services Division. As part of enforcing the odor ordinance the City provides a 24-hour telephone service which citizens can call and complain about odors. Since January, 1988, the City has received 5,500 complaints--an average of 280 complaints a month. Complaints received about odor are investigated by nine inspectors employed by the City. If five or more validated complaints are received about an odor producer during a 90-day period, the City issues a citation. Since January, 1988, the City has received only three complaints about the North Landfill from citizens. No citations have been issued against the North Landfill. Specific Condition 16 of the Permit is included in the Modified Permit as Specific Condition 15. The Modified Permit also includes Specific Condition 6, which provides: The Permittee shall apply no less than 6 inches of compacted initial cover to the top and sides of each cell by the end of each working day, except on the working face which may be left uncovered if additional solid waste will be placed on the working face within 18 hours. An intermediate cover of one (1) foot of compacted earth, in addition to the six (6) inch initial cover, shall be applied within seven (7) days of cell completion if final cover or an additional lift is not to be applied within 180 days of cell completion. The Permittee shall ensure that an adequate quantity of acceptable cover material is available for use during each day of operation of the landfill. The modification of the Permit will not increase the odor associated with the North Landfill. It will, however, extend the period of time that odors emanate from the North Landfill. Access to the North Landfill and Dust. Specific Condition 20 of the Permit provides that "[d]ust free, all- weather access roads to the site and active disposal area, or alternative wet weather disposal area shall be maintained." This condition has been complied with by the City. This condition is included as Specific Condition 12 in the Modified Permit. The roads used to access the North Landfill are paved, two-lane roads. The lanes are twelve feet wide. The speed limit on the access roads is 45 m.p.h. Appropriate turn lanes are available. During December, 1988, New Berlin Road and the North Landfill were able to effectively handle 600 trucks per day, an average of 80 to 90 trucks an hour during peak hours. Normally, the North Landfill effectively handles approximately 300 garbage trucks and 100 cover-dirt trucks a day with a peak of approximately 60 trucks per hour. The unpaved right-of-way on the side of the roads leading to the North Landfill is worn and the source of dust. Dust associated with the North Landfill comes from the roads leading to the landfill. The evidence failed to prove that dust comes from within the perimeter of the North Landfill. Tire Storage. Whole tires have been stored and processed at the North Landfill. At the time of the formal hearing there were more than 1,000 tires at the landfill. The evidence failed to prove how long any specific quantity of tires had been stored at the North Landfill. The City has not allowed the disposal of any whole tires at the North Landfill since July 1, 1989. The City has been shredding tires at the North Landfill. At the time of the formal hearing the City had contracted for the shredding of all the tires which had been located at the North Landfill at the time the contract was entered into in early July, 1989. The contract in existence at the time of the formal hearing was scheduled to expire in October, 1989. The City, however, expected to enter into a follow-up contract to continue shredding tires. In February or March, 1989, the previous tire- shredder contractor walked off the job. Mosquitoes at the North Landfill are managed by the City's Bio- Environmental Services Mosquito Control Division. Spraying is only done "as needed", however. F. Hazardous Waste, Oil Recycling and Infectious Waste. The City has not established an independent hazardous waste disposal program, a used oil recycling program or a infectious waste disposal program. The City attempts to prevent disposal of hazardous waste, used oil and infectious waste through educating the public with signs posted at the North Landfill entrance and periodic inspections of waste disposed of at the North Landfill. The evidence failed to prove that hazardous waste, used oil or infectious waste is being disposed of at the North Landfill. The evidence also failed to prove that approval of the Modified Permit will cause the disposal of hazardous waste, used oil or infectious waste on Phase IIIb of the North Landfill. Specific Condition 5 of the Modified Permit prohibits the disposal of hazardous waste and infectious waste at Phase IIIb of the North Landfill. This condition also requires that the City provide a minimum of one spotter for each working fact of Phase IIIb to watch for unauthorized waste.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department approving issuance of the Modified Permit, modified by the inclusion of a Specific Condition requiring that the City continue its litter patrols as represented at the formal hearing. DONE and ENTERED this 3rd day of January, 1990, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990. APPENDIX Case Numbers 89-0532, 89-0569 All of the parties except the Petitioners in case number 89-0569, have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms.'s Holzendorf's Proposed Findings of Fact Proposed Finding Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 49-52. The Consent Order was entered into on July 14, 1989. The last sentence is not supported by the weight of the evidence. See 49. 80. Whether a violation of Chapter 17- 711, Florida Administrative Code, has occurred is a conclusion of law. The weight of the evidence failed to prove that there is not program for the disposal of tires. The last paragraph of this proposed finding of fact is not supported by the weight of the evidence. IV See 54-55, 61-63, 73 and 77. IV-Hazardous Waste: 86. See 87-89. The second sentence is not supported by the weight of the evidence. Argument. Not supported by the weight of the evidence. V-Used Oil Recycling Plan: 86. See 87-89. The second sentence is not supported by the weight of the evidence. 86. See 87-89. The last paragraph is not supported by the weight of the evidence. Not supported by the weight of the evidence. Not relevant to this proceeding. The Modified Permit only involves a lined portion of the North Landfill. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 2. 3 15. 4 18-19 and 26. 5 20. 6 22-23. 7 34-36. 8 26-29. 9 32-33. 10 30. 11 41-42. 12 43. 13 37-40. 14 49. 15 61-62 and 64. 16 55. 17 56 and 58. 18 74-78. 19 80 and 82-83. The City's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Contrary to testimony of Ms. Holzendorf. Statement of law. 3-4 Hereby accepted. 5 Statement of law. 6 10. 7-8 13. 9 9. 10 1-2. 11 1-2 and 7. 12 4. 13 5. 14 1. 15 6. 16-19 3. 20 14. 21 Hereby accepted. 22 7. 23 8 and 49. 24 16. 25-26 20. 27-28 Hereby accepted. 29-30 25. 31 Hereby accepted. 32-35 22. 36-43 Hereby accepted 44 35-36. 45 Hereby accepted. 46 35. 47 See 36. 48-49 Hereby accepted. 50 44. 51-52 46. 53-58 Hereby accepted. 59 47. 60 48. 61 46. 62-63 Hereby accepted. 64 27. 65-66 43. 67 31. 68 Hereby accepted. 69 33. 70 Hereby accepted. 71 33. 72 30. 73 32. 74 43. 75 30. 76-77 26. 78 42. 79 Not relevant to this proceeding. 80 45. 81-82 Hereby accepted. 83-84 44. 85-86 49-51. 87 49. 88 52. 89 Hereby accepted. 90 55-56. 91-93 56. 94 50. 95 56. 96 59. 97-100 56. 101 55. 102 Hereby accepted. 103 58. 104-112 These proposed findings of fact correctly quote testimony presented the formal hearing. at 113 61 and 64-65. 115 72. 116 66. 117 Hereby accepted. 118 67. 119 Hereby accepted. 120 69. 121 70. 122-123 70 and hereby accepted. 124 See 65. 125 65. 126-129 See 61-62. 130-131 77. 132 Hereby accepted. 133 75. 134 Not relevant to this proceeding. 135 77. 136 79. 137-139 These proposed findings of fact correctly quote testimony presented at the formal hearing. 140 80. 141 82-84. 142 84. 143 81. 144 85. 145-147 Hereby accepted. 148 Cumulative. 149 37-38. 150-152 38. 153-155 40. 156 39-40. 157-161 Hereby accepted. COPIES FURNISHED: Lacy Mahon, Jr., Esquire Mark H. Mahon, Esquire Russell L. Healey, Esquire Lacy Mahon, Jr. & Mark Mahon, P.A. 1120 Blackstone Building Jacksonville, Florida 32202 Robin G. Leigh and Geraldine Leigh 6026 Heckscher Drive Jacksonville, Florida 32226 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel D. Richardson, Esquire Dale H. Twachtmann, Secretary Robin A. Deen, Esquire Department of Environmental Office of General Counsel Regulation Environmental Law Division 2600 Blair Stone Road City of Jacksonville Tallahassee, FL 32399-2400 Towncentre, Suite 715 421 West Church Street Jacksonville, Florida 32202
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following relevant facts are found: In 1984, the citizens of Pasco County approved a "straw ballot" proposal providing for the establishment of a resource recovery facility financed with non-ad valorem revenue bonds for the purpose of disposing of the County's solid waste in lieu of utilizing sanitary landfills as a primary disposal method. The Board of County Commissioners of Pasco County thereafter commissioned the consulting engineering firm of Camp Dresser and McKee (CDM) to perform a resource recovery feasibility study and to identify a site for the facility. CDM concluded that a resource recovery facility was an economically feasible approach to solid waste management for Pasco County. After evaluating seven sites for such a facility, CDM recommended a 751-acre site on Hays Road in western Pasco County. The County purchased the site at a cost of approximately three million dollars. In 1987, the Legislature adopted a Special Act, Chapter 87-441, Laws of Florida, establishing a solid waste disposal and resource recovery system within Pasco County and giving the County exclusive control over the collection and disposal of solid waste generated or brought within the area affected by the Act. The solid waste disposal and resource recovery system proposed by the County will convert solid waste into electrical power through a process of combustion, utilizing a mass-burn technology, followed by landfilling of the ash residue. Initially, the "waste-to-energy" facility will have three combustion/steam generation units, which will dispose of 900 tons of refuse each day and produce approximately 22 megawatts of electricity. A fourth combustion unit may be added in the future, thus allowing the facility to dispose of 1,200 tons of refuse each day and produce 29 megawatts of electricity. The resource recovery facility and landfill/ashfill is designed with the purpose of complying will all applicable environmental regulations. Best available control technology will be utilized to minimize the emissions of air pollutants. The facility will use a baghouse with fabric filters to control particulate emissions and a dry scrubber to control acid gas emissions. The landfill will have two synthetic liner systems and two leachate collection systems to maximize the protection of groundwater resources. Stormwater on the site will be treated in retention/detention basins, and there will be no discharges of wastewater on the site. Ferrous metals in the solid waste will be recovered and recycled. The undeveloped 751 acre parcel of land owned by the County is located in an unincorporated area of northwest Pasco County. It is approximately two and a half miles north of Highway 52 and about four to five miles west of Route The site is accessible by Hays Road, which forms its southern and western boundaries. Shady Hills Road runs to the east of the site and Blue Bird Lane runs along the northern perimeter. The parcel is bisected by Florida Power Corporation power lines, which run in a north/south direction. All development on the site relating to the proposed resource recovery facility will be east of the power lines. The site primarily consists of grasslands and wooded areas. Most of the areas near the site boundaries are wooded. An access road from Hays Road would be constructed to lead to the resource recovery facility, and the site would also contain a landfill/ashfill and several stormwater retention ponds. The resource recovery facility will be located on the southeastern portion of the site, approximately 4,600 feet from the site's northern boundary. The facility will be approximately 2,400 feet from the nearest residence, which is located on Hays Road. There will be at least 250 feet of buffer area between the resource recovery facility and the property boundaries. There will be at least 700 feet of buffer area between the landfill and the northern boundary of the site. The ashfill portion of the project would be developed over a 25 to 35 year period. The areas surrounding the site consist of agricultural and very low density residential developments. The areas to the east, southeast, and southwest are very sparsely populated. There is scattered low density residential development to the north, northeast and northwest, and some scattered residences south and southwest of the site. The subject parcel of land lies within the Pasco County Zoning Code's A-C Agricultural District. According to the Pasco County Zoning Code, Ordinance No. 75-21, the purpose of the A-C Agricultural District is to preserve the rural and open character of various lands within Pasco County. The principal permitted uses within this District include agriculture, general farming and horticulture; single family dwellings; duplexes; home occupations; public and private parks and playgrounds; mineral extraction activities; and residential treatment and care facilities. Accessory uses include private garages and parking areas, private swimming pools and cabanas, and signs. Special exemption uses within the A-C Agricultural District include country club and golf course, aircraft landing fields, cemeteries, animal hospitals, sanitary landfills and public buildings and public utility facilities which do not cause an undue nuisance or adversely affect existing structures, uses and residents. Ordinance Number 82-04, Section 2, amended the Pasco County Zoning Code to exempt from its provisions "development and other activities conducted by Pasco County." (Exhibit No. 3) It was the opinion of Pasco County's Zoning Administrator that the proposed resource recovery facility and landfill/ashfill were exempt from the County's Zoning Code. The County's present Planning Director concurred with this opinion. It was further the opinion of the Zoning Administrator that even if the project were subject to the requirements of the Zoning Code, it could be built as a special exemption use in the A-C Agricultural District. Pasco County has an ordinance, known as the New Development Fair Share Contribution for Road Improvements Ordinance, which requires developers to pay impact fees for transportation purposes. According to the County Planning Director, this ordinance expressly excludes County projects from its provisions. It was the opinion of the County's land use planning and zoning experts that the use of the site for a resource recovery facility would be compatible with surrounding land uses. The project will be designed so as to be barely visible from surrounding areas and to give as pleasing an aesthetic appearance as possible to the site. When a detailed site plan for the facility is prepared, the project will be evaluated by the Pasco County Development Review Committee, composed of County employees from various departments, to ensure that the project is consistent with existing regulations and compatible with surrounding land uses. The Pasco County comprehensive land use plan was adopted in 1982 and is currently being revised. It is a policy document containing various planning elements, with goals, objectives, policies and recommendations. It does not currently include a land use map that specifically identifies the permissible land uses for the site of the proposed resource recovery facility. In the process of updating its comprehensive plan, the County will adopt a future land use map. The Chief Planner for the Pasco County Planning Department testified that the land use map to be submitted for future adoption will designate the proposed site as a resource recovery site. The County's comprehensive plan contains a solid waste and resource recovery element. The plan recognizes waste disposal as a crucial concern, and the goal of this element is to dispose of the County's domestic and industrial waste in the safest and least expensive manner. From an engineering perspective, the project will be designed to comply with applicable state and federal requirements pertaining to air and water pollution. The economic feasibility of a resource recovery facility has been studied, with positive results. Other elements of the Pasco County comprehensive plan relevant to the proposed resource recovery facility include the traffic circulation element, the water element, the conservation/coastal zone protection element, the drainage element and the utilities element. A traffic analysis demonstrated that current levels of service on State Road 52 and on Hays Road will not be diminished as a result of project operations. The use of reclaimed water will promote the objective of water conservation. The proposed site has not been designated for preservation or conservation and the project will have minimal impact on wetland areas. The stormwater management system will be designed so that runoff will not be channelized into any natural surface water body. The retention basins will be of sufficient size to allow adequate settling of suspended solids collected with the stormwater. By producing electrical power as a by-product of solid waste disposal, the project will further the objective of the comprehensive plan's utility element of encouraging the conservation of limited resources in the operations of utility systems. On December 31, 1987, notice of the land use hearing was published in the Pasco Times newspaper, a daily newspaper of general circulation which has been continuously published at Port Richey in Pasco County, Florida, each day for a period in excess of one year preceding the publication of notice in this case. In addition, notice of the land use hearing was published in the Florida Administrative Weekly, Volume 13, Number 53, on December 31, 1987. The Department of Environmental Regulation issued a news release concerning the land use hearing on December 24, 1987. By letters dated December 28, 1987, notice was given by certified mail to the Executive Director of the Tampa Bay Regional Planning Council, the Pasco County Planning Department and the Pasco County Zoning Administrator. Notice of the land use hearing was also posted at the project site. Eight persons, all of whom resided or owned property near the proposed site, testified at the land use hearing as members of the general public. All opposed the construction and operation of a resource recovery facility and landfill/ashfill at that site. Though none of the witnesses claimed to have expertise concerning the subject matter of their testimony, their concerns included the impacts of the proposed project upon the environment; the value and use of their land, homes and businesses; the recreational value of surrounding properties and the general agricultural character and nature of the surrounding land. Concerns were also expressed over the safety features and costs involved in the operation of the facility. These citizens of Pasco County did not believe it was proper for the County to exempt itself from the County's zoning laws and impact fees.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order finding that the use of the site chosen by Pasco County for the location of its proposed solid waste and resource recovery facility is consistent with and in compliance with the applicable land use plans and zoning ordinances. Respectfully submitted and entered this 25th day of March, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 25th day of March, 1988. APPENDIX "A" TO RECOMMENDED ORDER, CASE NO. 87-5337 Pasco County's proposed findings of fact have been fully considered and are accepted and incorporated in this Recommended Order, with the following exceptions: 16, second sentence: Rejected as speculative. See Finding of Fact Number 10. 22, last sentence: Rejected as improper factual finding, but addressed in the Conclusions of Law. 23, last sentence: Rejected as argumentative and improper factual finding, but addressed in Conclusions of Law. COPIES FURNISHED: David S. Dee Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Richard T. Donelan, Jr. Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399 C. Lawrence Keesey Rhyne Building 2740 Centerview Drive Tallahassee, Florida 32399 Edward B. Helvenston 2379 Broad Street Brooksville, Florida 34609-6899 Mike Twomey Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Honorable Bob Martinez Governor The Capitol Tallahassee, Florida 32399 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32399 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399
