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 issues in this case are whether Respondent, Nemi, Inc., should pay a $500.00 administrative fine for maintaining an unpermitted stationary installation that is reasonably expected to be a source of water pollution (Count I); whether it should pay an administrative fine of $9,500.00 for failing to submit a completed Site Assessment Report (SAR) within 270 days of discovery of the discharge of chemical solvents (Count II); whether it should pay investigative costs and expenses in the amount of $1,500.00 incurred by Respondent, Department of Environmental Protection (Department) (Count III); and whether it should take corrective action, as described in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice of Violation) issued on January 23, 2009.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is a for-profit corporation registered to do business in the State. Respondent's president and registered agent is Neil Schuberg, who represented the corporation at hearing. Respondent is the owner of a 1.1-acre parcel of real property located at 6801 Northwest 17th Avenue, Fort Lauderdale, Florida. The property is situated in what is known as the Gateway Industrial Center just south of the City of Pompano Beach and midway between the Florida Turnpike and Interstate 95. The parcel is rectangular shaped and is approximately 90 feet wide by 180 feet long. The property is further identified by the Broward County Property Appraiser as Parcel Identification Number 494209050040. A one-story warehouse and parking lot are located on the property, which is currently leased by Respondent to a testing laboratory. The evidence shows that for at least since 1981 David R. Ligh owned the property until his death. After he died, his widow, Elsie M. Ligh, sold the property in 1994 to Clayton John Pierce subject to a mortgage in the amount of $167,640.00. Mr. Pierce began operating a business on the premises known as Combined Roof Services, Inc. In 1995, Mr. Pierce decided to sell the property. A potential buyer, S & S Propeller Company, retained the services of Buck Eco-Logic, Inc., an environmental consulting firm, to prepare an environmental site assessment for the purpose of "determining the suitability of property for ownership by [S & S Propeller Company]." When it first inspected the site in July 1995, Buck Eco-Logic, Inc., discovered three thirty-five gallon drums and a twenty-gallon black plastic tub, all labeled "hazardous waste" and reflecting that they had contained tetrachloroethene (also known as perchloroethylene) waste. This is a chemical solvent that is typically used by dry cleaning establishments. The labels carried the name and "EPA ID number" of Family Dry Cleaners located at 6804 Stirling Road, Davie, Florida, an address which appears to be around ten to twelve miles south of the subject property. The three drums were lying on their sides on the northern end of an asphalt parking area beneath overgrown Brazilian pepper trees and were empty; the empty twenty-gallon tub was located inside the building on the property. Soil borings on the property performed by Buck Eco- Logic, Inc., revealed concentrations of tetrachloroethene at 10,613 parts per billion, which exceed allowable standards. Tetrachloroethene and its breakdown products are a solid waste, as defined by Florida Administrative Code Rule 62-701.200(113). A Phase I Environmental Site Assessment (Phase I ESA) dated August 13, 1995, was prepared by the consulting firm and sets forth in detail the results of its inspection. See Department Exhibit 2. The sale was never consummated. Later that year, Mr. Pierce engaged the same consulting firm to perform a Phase II Environmental Site Assessment of the property. That assessment revealed concentrations in groundwater ranging from 8,840 parts per billion to 173,000 parts per billion of tetrachloroethene, which exceed the State Clean Soil Criteria and State Maximum Contaminant Levels. The report, issued on October 13, 1995, was received in evidence as Department Exhibit 3. On October 30, 1995, a Mr. Pivnick, an attorney with the firm of Dombroff & Gilmore, P.A., which represented Mr. Pierce, notified the Department by letter that the empty drums and tub had been discovered on the property. The letter also attached a copy of the Phase I ESA. Mr. Pivnick was instructed by the Department to contact the local police department to report the incident as well as the state warning system for reporting discharges to the environment. Also, the Department contacted other local agencies and the United States Environmental Protection Agency (EPA). In October 1995, Mr. Pierce vacated the premises and ceased operating Combined Roof Services, Inc. In January 1996, he began leasing the property to Sun Valley Industries, also a roofing repair business, until that firm vacated the premises in December 1997. With the use of grant monies, the Department engaged the services of International Technology Corporation to prepare a Preliminary Investigation Report (PIR) for the property. That report was issued on February 13, 1997. See Department Exhibit The PIR recommended that additional monitoring of the site (through shallow monitoring wells, soil samples, groundwater samples, and groundwater flow direction) be made to quantify the presence of chlorinated solvents. Again with the use of grant monies, in 1997 the Department engaged the services of Post, Buckley, Schuh & Jernigan, Inc., to prepare a Site Inspection Report (Report) for the subject property. The Report was issued in March 1998. See Department Exhibit 5. Excessive tetrachloroethene, Cis-1, 2- dichloroethene, and trichloroethylene were detected in ground water samples, while tetrachloroethene was detected in all seven soil samples. On April 2, 1998, Ms. Ligh assigned the mortgage on the property to Nemi, Inc., for around $100,000.00. Mr. Schuberg explained that he was able to purchase it at a discount because Mr. Pierce had ceased making payments on the mortgage and had warned Ms. Ligh that if she foreclosed on the mortgage, she would be responsible for cleanup costs on the property exceeding a million dollars. While Mr. Schuberg acknowledged that he was aware of a contamination problem on the property, he says the mortgage was purchased as an investment, and he never thought he would actually acquire the property because he believed Mr. Pierce would continue to make the mortgage payments. After failing to make payments on the mortgage, on September 21, 1999, Mr. Pierce executed a Warranty Deed in Lieu of Foreclosure in favor of Nemi, Inc. Based on conversations with Mr. Pierce at that time, Mr. Schuberg says he was under the impression that the spill was much smaller than it actually was, and that it would be cleaned up by the Department. At hearing, Mr. Schuberg characterized Mr. Pierce as "a hustler and a liar." After Mr. Pivnick's report of contamination was received, the Department, along with the Broward County Department of Natural Resource Protection, initiated an investigation (probably in late 1995 or early 1996) in an attempt to verify the source of the contamination. Because Family Dry Cleaners "was on the top of [its] list," the Department first sought to determine whether that firm had actually deposited the drums and tub on the subject property. It learned that in 1994, or a year before the contamination was reported to the Department, Family Dry Cleaners had been evicted by its landlord, Lincoln Park. According to the Department, this "led to a dead- end" as far as Family Dry Cleaners was concerned. However, that business had been replaced by another tenant, Liberty Dry Cleaners. The Department then attempted to ascertain whether Lincoln Park or the new tenant might have been responsible for transporting the drums and tub to the subject property and dumping the waste. However, the Department was unable to confirm that either of the two had done so. Photographs of the drums and tub were made by Buck Eco- Logic, Inc., when it conducted an assessment in July 1995. Because the empty drums and tub were later removed from the site by unknown persons, the Department was only able to review the photographs when it conducted its investigation. Photographs of the drums indicated that they were larger than the twenty-gallon drums normally used by a dry cleaning establishment, and the labels on the drums were not perforated or dot matrix, which are more typical of those used by dry cleaners. For this reason, and because the empty tub was found inside the building on the property, the Department attempted to determine if Mr. Pierce had purchased the contaminants for use in his operations; it was not able to confirm this fact. The Department also contacted local law enforcement officials to see whether a criminal investigation could be launched. As noted above, however, the drums and tub had been removed by unknown persons while Mr. Pierce still had possession of the property and there was no forensic evidence for law enforcement officials to examine. The result of the investigation was that the Department was unable to determine who deposited the drums on the site or the exact location where the contents were first dumped. Although Respondent contended that the Department could have easily determined who removed the empty drums and tub from the subject property by examining the manifests of the carriers who engage in that type of business, the Department investigator did not attempt to do this since the yellow pages in the telephone directory reflected at least six pages of transporters in this type of business. Further, there is no evidence that a commercial transporter was even involved. For all of these reasons, the Department looked to the current owner of the property, Respondent, as the entity responsible for site rehabilitation since there were, and still are, contaminants leaching into the groundwater and aquifer system. Specifically, as of 2007, or twelve years after the discharge occurred, the groundwater on Respondent's property was still contaminated with tetrachloroethene, trichloroethylene, and cis-1, 2-dichloroethene exceeding the Department's groundwater standards. Also, the same contaminants exceeded the Department's soil cleanup target levels based on ground water criteria. Because rainfall and surface water continue to come into contact with the contaminated soil, and there is no liner or impervious cap in place, the installation is reasonably expected to be a source of water pollution. On September 12, 2001, the Department sent a letter by certified mail to Respondent advising that contamination was present on the property, that there were "possible violations of law for which you may be responsible," and that a Preliminary Contamination Assessment (PCA) must be filed within sixty days from the date of the letter. See Department Exhibit 6. Although a meeting of the parties was held on October 4, 2001, a PCA was never filed. 16. On April 27, 2006, March 12, 2007, and July 3, 2007, the Department issued Warning Letters to Respondent advising that an enforcement action would be initiated unless Respondent provided a SAR within a time certain. See Department Exhibits 7, 8, and 9. (The record is silent as to why no formal activity occurred between October 2001 and April 2006.) Exhibit 8 reflects that on November 21, 2006, "analysis results of sampling of one monitoring well were received by the Department." A meeting was later conducted by the parties on January 16, 2007, at which time Respondent agreed to "draft a suitable letter of [its] intentions with regard to conducting the required assessment and send it to the Department on or before January 31, 2007." There is no record of such a letter being sent. In August 2007, Respondent contracted with Florida Environmental Engineering, Inc., to perform a "limited site assessment report." In March 2008, that firm submitted to the Department a Preliminary Site Assessment Report (PSAR) See Department Exhibit 10. For this service, Respondent paid around $16,000.00. On March 21, 2008, the Department advised Respondent by letter that the PSAR was incomplete and that further information should be provided by April 30, 2008. See Department Exhibit 11. An Addendum to the PSAR was provided on May 5, 2008. See Department Exhibit 12. This report cost Respondent an additional $3,000.00. The PSAR indicated that contaminants (dichloroethene and trichloroethylene) in the water and soil on the property exceeded Department groundwater and soil cleanup target standards and levels. The report concluded, however, that "the discharge to the site is from an offsite source" (west of the property) and that "the property owner is no longer a responsible party." On August 27 and then again on October 22, 2008, the Department issued letters to Respondent advising that "there is not enough data to support the assumption that the discharge is offsite and the contamination is from an offsite source located west of the property." The Department reached this conclusion because, among other reasons, "[t]he contamination does not seem to be delineated towards the northern and southern portions of the site," "[t]here are no horizontal delineation wells to [the] north," the "iso contour maps provided appear to show the vertical delineation of the contamination but not horizontal delineation [of the plume]," "additional monitoring points need to be [added]," and "the onsite monitoring well, MW-2, shows a very high concentration of Perchloroethylene (PCE) at 81,000 ug/L [microgram per liter] and other contaminants, while the MW-1 does not exhibit groundwater contamination to that extent." See Department Exhibits 14 and 15. In plainer language, Respondent's report was deficient in that all contamination sources were not identified; it failed to delineate the horizontal and vertical extent of soil and groundwater contamination; and it failed to recommend a remedial action to clean up the contamination. The two letters advised that the site assessment was incomplete and that additional information described in the letters must be submitted by November 14, 2008. To date, Respondent has failed to submit the required information. According to Mr. Schuberg, to perform a study that would supply the additional information requested by the Department would cost him around $100,000.00, an amount he is unwilling to pay. More than 270 days has expired since a discharge was discovered on Respondent's property, and it has failed to submit a complete SAR, as described in Florida Administrative Code Rule 62-780.600(8). See also Table A, Fla. Admin. Code R. Ch. 62-780, which prescribes the specific time frame (within 270 days after the discharge is discovered) for submitting this report. The Department has incurred expenses in the amount of $1,500.00 while investigating this matter. See Department Exhibit 17. This amount is not disputed. As corrective action, the Department requests that within ninety days of the effective date of this Final Order, Respondent submit a complete SAR which addresses the deficiencies specified in the Department's August 27, 2008, letter. See Department Exhibit 14. To complete the SAR, additional soil and groundwater samples need to be collected to determine the vertical and horizontal extent of contamination, all source areas must be identified, and a remedial action must be developed to abate the contamination. Finally, the contaminated soil must be removed from the property so that it will no longer discharge into the groundwater. The Notice of Violation requests that upon approval of the SAR, Respondent "shall commence and complete in a timely fashion all further tasks" required by Florida Administrative Code Rule Chapter 62-780. These corrective actions are reasonable and are hereby approved. In calculating the penalty, Respondent has assessed a $500.00 administrative penalty for Respondent maintaining a stationary installation that is reasonably expected to be a source of water pollution without a permit. This is based upon a violation of Section 403.121(5), Florida Statutes, which makes it unlawful to not comply with a regulatory statute's requirement. Under Section 403.121(6), Florida Statutes, the Department has also assessed a $500.00 per day penalty against Respondent for failing to file a SAR for nineteen days, for a total of $9,500.00. When added to the $500.00 previously assessed, the total administrative penalty is $10,000.00, which is the maximum allowed in this type of proceeding. See § 403.121(2)(a), Fla. Stat. Throughout this process, Mr. Schuberg has contended that the responsibility for cleanup lies with the person or entity actually responsible for placing the drums and tub on the property in 1995. He says that the evidence clearly shows that Family Dry Cleaners is the responsible party. However, the Department and local authorities were never able to confirm who actually dumped the waste on the subject property. Although Mr. Schuberg says it will take "[i]n the hundreds of thousands of dollars" to clean up the site, the evidence shows that when he purchased the mortgage in 1998 and assumed ownership in 1999, he knew the property was contaminated. Mr. Schuberg further stated that because his consultant could never get "answers" from the Department, the consultant was instructed to stop work. However, Mr. Schuberg never contacted the Department to get clarification about what was required. At hearing, Mr. Schuberg also offered a lay opinion that his consultant's report filed in March 2008 proves that in 1995 the contents of the drums and tub were dumped on an offsite asphalt road adjacent to the property, surface water runoff then carried the chemical solvents onto his property, and the empty drums and tub were left in the parking lot. The Department's expert did not agree with this supposition, and there is no expert testimony to confirm the accuracy of this theory. Respondent has also contended that the property should be cleaned up with state funds. As pointed out by a Department witness, however, one problem is that the property does not meet the definition of a dry cleaner and thus cannot qualify for funds under that program. Then, too, a state-funded cleanup is a last resort which is used only after the Department has exhausted all enforcement remedies. Also, in this era of tight budgets, the Department has a finite amount of funds to use for this purpose, and is limited to cleaning up only a few sites per year. Finally, the responsible party must first acknowledge by affidavit that it lacks the necessary resources to clean up the property before the Department "may" seek cleanup funds. Respondent has not yet filed such an affidavit or admitted liability. In terms of mitigating evidence, Mr. Schuberg conceded that he has not done "a whole lot" to address the contamination problem since acquiring the property in 1999. In 2008, he did expend around $20,000.00 in having a PSAR and Addendum prepared for the Department. In all other respects, he steadfastly refuses to spend any more money on assessments or take responsibility for the cleanup since he believes that Family Dry Cleaners is the entity responsible for site rehabilitation.
The Issue The issue to be determined in this case is whether a site certification should be issued to Hillsborough County for the construction and operation of a fourth municipal waste combustor unit (“Unit No. 4”) at Hillsborough County’s Resource Recovery Facility, in accordance with the provisions of the Florida Electrical Power Plant Siting Act.
Findings Of Fact The Applicant The Applicant, Hillsborough County, is a political subdivision of the State of Florida. The County owns the existing Facility and will own the proposed Project. The Facility was designed, built, and is operated by a private company pursuant to a long-term contract with the County. It is anticipated that a private company will design, construct, and operate the Project for the County. Hillsborough County’s Existing Solid Waste System The County has adopted a solid waste Comprehensive Master Plan (the “Master Plan”) in conjunction with the Cities of Tampa, Temple Terrace, and Plant City. The Master Plan provides for state-of-the-art technology and innovative approaches to recycling, waste reduction, and waste disposal. In accordance with the Master Plan, the County has developed: (a) an aggressive recycling program that significantly reduces the quantity of materials requiring disposal; (b) a resource recovery facility for waste reduction and energy recovery from those materials that are not recycled; and (c) a landfill for the disposal of ash and by-pass waste (i.e., materials that are not recycled or processed in the Facility). Hillsborough County and the three cities have used a cooperative, regional approach to solid waste management issues, while providing environmentally protective, cost-efficient programs for local residents. Despite the County’s comprehensive recycling program, the amount of solid waste generated in the County has increased each year since the Facility began operation, primarily due to population growth. The amount of solid waste generated in the County now significantly exceeds the Facility’s design capacity. Consequently, large quantities of solid waste currently are being diverted from the Facility to the County landfill. In 2005, the Board of County Commissioners decided to expand the Facility, consistent with the County’s long-standing Master Plan, rather than dispose of ever-increasing amounts of solid waste in a landfill. The Board’s decision was based on a thorough evaluation of the County’s solid waste disposal options. For these reasons, on November 21, 2005, the County filed an application with DEP for the construction and operation of Unit No. 4. The Site The Facility is located next to Falkenburg Road in an unincorporated area in the County. The Facility is southeast of the City of Tampa, west of Interstate 75 (“I-75"), and north of the Crosstown Expressway and State Road 60. The Facility was built on a 50.4-acre site (“Site”), which is in the southern portion of a 353-acre tract of land owned by Hillsborough County. The Surrounding Area The Facility is surrounded by a variety of governmental and industrial land uses. The Facility is bounded: on the south by the County’s Falkenburg Road Wastewater Treatment Plant and a railroad track that is owned by the CSX railroad company; on the west by a 230 kilovolt transmission line corridor and easement owned by Tampa Electric Company (“TECO”); on the north by vacant improved pasture land, the Falkenburg Road Jail, the Hillsborough County Department of Animal Services, and the Hillsborough County Sheriff’s Office (District 2); and on the east by Falkenburg Road and vacant land. The Facility is compatible with the adjacent and surrounding land uses. The nearest residential area is approximately 1 mile away from the Facility. It is located on the opposite (east) side of I-75. Zoning and Land Use In 1984, the Siting Board determined that the Site and Facility were consistent and in compliance with the applicable land use plans and zoning ordinances. The Siting Board’s determination was based on the County’s plans for the construction and operation of four MWC units at the Facility. The Site is currently zoned “Planned Development”, and is designated “Public/Quasi-Public” under the County’s comprehensive land use plan, specifically to allow the Facility and the Project to be built and operated on the Site. The Existing Facility The Facility currently has three MWC units. Each MWC unit has a nominal design capacity of 400 tons per day (“tpd”) of municipal solid waste (440 tpd when burning a reference fuel with a higher heating value of 4500 British thermal units (“Btu”) per pound). The three MWC units are located inside a fully enclosed building, which also contains the air pollution control systems for the MWC units, the “tipping floor,” the refuse storage pit, and a turbine generator. The Facility also includes an ash management building, cooling tower, stack, stormwater management ponds, water treatment system, transformer yard, electrical transmission lines, and ancillary equipment and facilities. Municipal solid waste (e.g., household and commercial garbage) is delivered to the Site in trucks, which drive inside the refuse storage building to the tipping floor, where the trucks dump the MSW into the refuse storage pit. Two overhead cranes mix the waste in the refuse storage pit and then load the waste into the charging hoppers that feed the three MWC units. The combustion of the municipal solid waste produces heat, which is used to produce steam. The steam is used in a turbine generator to produce approximately 29.5 megawatts (“MW”) of electricity. The Project The Project involves the construction and operation of a fourth MWC unit at the Facility. The new unit will be substantially the same as the three existing MWC units, but larger. The new unit will be designed to process approximately 600 tpd of municipal solid waste (660 tpd @ 5000 Btu/lb). A new turbine generator also will be installed, which will increase the Facility’s electrical generating capacity by approximately 18 MW, thus increasing the Facility’s total net generating capacity to approximately 47 MW. In addition, the Facility’s cooling tower will be expanded, the refuse and ash management buildings will be expanded, two lime silos and a carbon silo will be installed, a new settling basin will be installed, and other related improvements will be made. Construction of Unit No. 4 The Facility was designed and built to accommodate the addition of a fourth MWC unit, thus making the construction of Unit No. 4 relatively simple, without disrupting large areas of the Site. Unit No. 4 will be located adjacent to the three existing MWC units. The construction of the other Facility improvements also will occur adjacent to the existing components of the Facility. Only about 0.3 acres of the Site will be converted from open space to a building or similar use. Construction of Unit No. 4 will occur in previously disturbed upland areas on the Site that are already used for industrial operations. Construction of Unit No. 4 will not affect any wetlands or environmentally sensitive areas. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by Unit No. 4. No new pipelines or other linear facilities will need to be built for the Project. The construction of Unit No. 4 will not expand the Facility beyond the boundaries of the Site that was certified by the Siting Board in 1984. Operation of Unit No. 4 The basic operation of the Facility will not change when Unit No. 4 becomes operational. Municipal solid waste will be processed at the Facility in the same way it is currently processed. The Facility has operated since 1987 and has an excellent track record for compliance with all applicable regulations, including regulations concerning noise, dust, and odors. All of the activities involving solid waste and ash occur inside enclosed buildings. The tipping floor and refuse storage pit are maintained under negative air pressure, thus ensuring that dust and odors are controlled within the building. Since the operations at the Facility will remain the same after Unit No. 4 becomes operational, no problems are anticipated in the future due to noise, dust, or odors. The Facility’s basic water supply and management system will remain the same after Unit No. 4 becomes operational. Treated wastewater from the County’s co-located Falkenburg Road Wastewater Treatment Plant (“WWTP”) will be provided via an existing pipeline to satisfy the Facility’s need for cooling water. Potable water will be provided to the Facility via an existing pipeline from the City of Tampa’s water supply plant. The Facility does not use groundwater or surface water for any of its operations. The Facility will not discharge any industrial or domestic wastewater to any surface water or groundwater. Most of the Facility’s wastewater will be recycled and reused in the Facility. Any excess wastewater will be discharged to the Falkenburg Road WWTP. Stormwater runoff from the Project will be collected and treated in the existing system of swales and ponds on the Site. The County will modify two existing outfall weirs to provide improved treatment of stormwater and to ensure compliance with water quality standards. A traffic analysis was performed to evaluate the potential traffic impacts associated with the operation of the Facility, after the Project is completed. The analysis demonstrated the Facility will not have any significant impacts on the surrounding roadway network, even when Unit No. 4 is operational. Air Quality Regulations The County must comply with federal and state New Source Performance Standards (“NSPS”) and Best Available Control Technology (“BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. The County also must comply with Ambient Air Quality Standards (“AAQS”) and Prevention of Significant Deterioration (“PSD”) standards, which establish criteria for the protection of ambient air quality. Best Available Control Technology BACT is a pollutant-specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. As part of the BACT determination, all available and feasible pollution control technologies being used worldwide are evaluated. The Department performed a BACT determination for the Project. As part of its BACT analyses, DEP determined that (a) a flue gas recirculation system and a selective non-catalytic reduction system (“SNCR”) will control NOx; (b) a spray dryer with lime injection will control MWC acid gas; (c) an activated carbon injection system (“ACI”) will control MWC organic compounds; (d) a fabric filter baghouse will control particulate matter and MWC metals; and (e) proper facility design and operating methods will control other pollutants. These air pollution control technologies (except flue gas recirculation) and methods are currently used in the three existing MWC units and they have performed extremely well. Unit No. 4 will have better, more modern, and more sophisticated versions of these air pollution control systems, plus a flue gas recirculation system. In its analysis of the Project, DEP determined the emission limits for the Project that represent BACT. All of the emission limits determined by DEP for Unit No. 4 are as low as or lower than the emission limits established in 2006 by the U.S. Environmental Protection Agency (“EPA”) in the NSPS (40 CFR 60, Subpart Eb) for new MWC units. The NSPS are based on the use of Maximum Achievable Control Technology (“MACT”). Unit No. 4 will be subject to the lowest NOx emission limits imposed on any MWC unit in the United States. The Facility will use an array of continuous emissions monitors to help ensure that the Facility is continuously in compliance with the DEP’s emission limits. Indeed, Unit No. 4 will be the first MWC unit in the United States to be equipped with a continuous emissions monitor for mercury. Protection of Ambient Air Quality The EPA has adopted “primary” and “secondary” National Ambient Air Quality Standards ("NAAQS"). The primary NAAQS were promulgated to protect the health of the general public, including the most susceptible groups (e.g., children, the elderly, and those with respiratory ailments), with an adequate margin of safety. The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility, and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (“FAAQS”) that are more stringent than EPA’s NAAQS. The County analyzed the Project’s potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project’s impacts by a wide margin. These analyses demonstrate that the maximum impacts from Unit No. 4 will be less than one percent of the amount allowed by the ambient air quality standards. The maximum impact from the Facility (i.e., all four units) will be less than 2.5 percent of the amount allowed by the FAAQS and NAAQS. For these reasons, the emissions from Unit No. 4 and the Facility are not expected to cause adverse impacts on human health or the environment. The maximum impacts of Unit No. 4 and the Facility, when operating under worst case conditions, will be immeasurably small and will be indistinguishable from ambient background conditions. Human Health and Ecological Risk Assessments The County performed a human health and ecological impact assessment of the risks associated with the Facility’s airborne emissions. The County’s risk assessment evaluated the impacts of the entire Facility, with all four MWC units in operation. The risk assessment was designed to over-estimate the potential impacts of the Facility. The County’s risk assessment was conducted in compliance with current EPA guidance. The risk assessment considered hypothetical human receptors (e.g., infants, children, and adults) that were engaged in different types of behavior (e.g., a typical resident; a beef farmer; a subsistence fisherman) and were exposed through multiple pathways (e.g., inhalation; ingestion of soil; ingestion of local produce, beef, and/or fish) to chronic long term impacts from the Facility. The risk assessment also considered the Facility’s potential impacts on sensitive environmental receptors, including aquatic life (benthic dwelling aquatic organisms), wood storks, and river otters. The County’s risk assessment demonstrates that the potential risks associated with the Facility’s emissions will not exceed, and in most cases will be much less than, the risks that are deemed acceptable by the EPA and DEP for the protection of human health and the environment. The County’s assessment is consistent with the findings in environmental monitoring studies, epidemiological studies, and risk assessments that have been performed for other modern waste-to-energy ("WTE") facilities in the United States. The County’s findings also are consistent with the determinations made by the EPA, which has concluded that WTE facilities equipped with modern pollution control systems are a “clean, reliable, renewable source of energy.” The evidence presented by the County in this case demonstrates that the Facility is not likely to have any adverse effect on human health or the environment, even when all four MWC units are operational, if the Facility is built and operated in compliance with the Conditions of Certification. Potential Impacts on Water Quality The Facility’s emissions of nitrogen oxides (i.e., NOx) will not cause or contribute to violations of any water quality standards in any surface waterbody. Environmental Benefits of the Project The addition of Unit No. 4 will provide significant environmental benefits to the County. Unit No. 4 will reduce the volume of processible solid waste by approximately 90 percent. By reducing the volume of processible waste, Unit No. 4 and the Facility will greatly extend the useful life of the County’s landfill, thus postponing the need to build a new landfill. The Facility also will convert putrescible waste into a relatively inert ash, which poses less threat to groundwater resources. The Project will also provide environmental benefits to the State of Florida. For example, the Facility will produce electricity from discarded materials. In this manner, Unit No. 4 will reduce the need to use fossil fuels to generate electricity at traditional power plants. Unit No. 4 will eliminate the need to use approximately 4 million barrels of oil and thus will save approximately $200 million in oil purchases over the next 20 years. Socioeconomic Benefits of the Project The local economy and labor market will benefit from approximately $100 million that the County will spend to construct the Project. A significant amount of construction supplies, goods, and services are anticipated to be purchased from local businesses. The Project will provide jobs for construction workers. The daily workforce is expected to average between 25 and 75 people over a period of approximately 21 months. The addition of Unit No. 4 will also provide approximately 8 new permanent jobs at the Facility. WTE Criteria in Section 403.7061 Section 403.7061, Florida Statutes, establishes several criteria that must be satisfied before an existing waste-to-energy facility may be expanded. The County has provided reasonable assurance that the Project will satisfy all of the standards and criteria in Section 403.7061, Florida Statutes. Among other things, the County has demonstrated that the County’s waste reduction rate has consistently exceeded the State’s 30 percent recycling goal. Consistency With Land Use Plans and Zoning Ordinances As required by Section 403.508(2), Florida Statutes, the County demonstrated that the Site is consistent and in compliance with the Hillsborough County comprehensive land use plan and Hillsborough County’s applicable zoning ordinances. Compliance with Environmental Standards The Department has concluded and the evidence demonstrates that the County has provided reasonable assurance the Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air quality, water consumption, stormwater, and wetlands. The County has used all reasonable and available methods to minimize the impacts associated with the construction and operation of the Facility. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional, or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare, with a wide margin of safety. Agency Positions Concerning Certification of the Project On May 4, 2006, the PSC issued a report concluding that the Project was exempt from the PSC’s need determination process, pursuant to Section 377.709(6), Florida Statutes. The DEP, DOT, and SWFWMD recommend certification of the Project, subject to the Conditions of Certification. The other agencies involved in this proceeding did not object to the certification of the Project. The County has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Public Notice of the Certification Hearing On December 19, 2005, the County published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Tampa Tribune, which is a newspaper of general circulation published in Hillsborough County, Florida. On May 25, 2006, the County published notice of the Certification Hearing in the Tampa Tribune. On December 23 and December 30, 2005, the Department electronically published “Notice of Filing of Application for Power Plant Certification.” On May 26, 2006, the Department electronically published notice of the Certification Hearing. The public notices for the Certification Hearing satisfy the informational and other requirements set forth in Section 403.5115, Florida Statutes, and Florida Administrative Code Rules 62-17.280 and 62-17.281(4).
Conclusions For Petitioner Hillsborough County (the “County”) David S. Dee, Esquire Young van Assenderp, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301-1720 For the Florida Department of Environmental Protection (“Department” or “DEP”) Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-300
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a site certification for the construction and operation of Unit No. 4 at the Hillsborough County Resource Recovery Facility, in accordance with the Conditions of Certification contained in DEP Exhibit 2. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 2nd day of August, 2006.
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Lee B. Sayler, Esquire 50 South U.S. Highway One Suite 303 Jupiter, Florida 33477 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Respondent, Kimmins Recycling Corporation (Kimmins), is entitled to use the General Permit issued under Rule 62-701.801, Florida Administrative Code (the General Permit) of the Department of Environmental Protection (Department) to operate a solid waste transfer station in the City of Jacksonville (the City).
Findings Of Fact Background On December 12, 2000, Kimmins filed a Notification of Intent to Use a General Permit to Construct and Operate a Solid Waste Transfer Station (Notice of Intent) pursuant to Rules 62- 701.801 and 62-4.530, Florida Administrative Code, using DEP Form 62-701.900(4). The Notice of Intent includes revised documents which appear in the record. Kimmins filed an addendum to its Notice of Intent on December 21, 2000, substituting a service agreement between Kimmins and Peninsular Pest Control Services, Inc. (Peninsula) dated December 19, 2000, providing for insect and vector control at the proposed facility. This addendum also contained an Emergency Services Spill Response Agreement with Environmental Remediation Services, Inc. dated January 1, 2000. Kimmins also supplemented its Notice of Intent with a revised pest control service agreement with Peninsular dated January 19, 2001. Kimmins published a Public Notice of Application for a General Permit in the Florida Times Union, Jacksonville, Florida, on December 22, 2000. On January 11, 2001, the Department issued a "Notification of Use of a General Permit to Construct and Operate a Solid Waste Transfer Station from the Kimmins Recycling Corporation General Permit Number 0017894-002-50." The Department did not object to the use of the general permit, provided several changes were made to the project. The evidence indicates that these changes have been incorporated by Kimmins. See, e.g., Findings of Fact 5 and 6. As part of its Notice of Intent submitted to the Department, Kimmins submitted a Site Plan and a Floor Plan, Figures 2 and 3, respectively. In response to the Department's Notice of Use, Kimmins submitted amended Figures 2 and 3 for the Notice of Intent. The revised site plan added two notes (i) regarding the base flood elevation at McCoys Creek and the elevations of the developed portions of the site, and (ii) a notation that "the site shall be designed and managed in such a way to divert stormwater [or] floodwaters away from the solid waste storage area," and showing the one-hundred (100) year flood plain delineation. The revisions to the floor plan contain the same note with respect to diversion of stormwater or flood waters and shows a three-inch by eighteen-inch rounded curb along the north end of the building. The facility depicted in the Notice of Intent and the revised Site and Floor Plans is a graphical description of Kimmins' intent to operate the facility, although these plans were sealed by a professional engineer, Mr. Gauntt. The service area for the facility extends from just south of Savannah, Georgia, to Dade City, Florida, inland from the Atlantic Ocean in an arch almost reaching the Gulf of Mexico and passing north through Chiefland, Florida, and further north to Valdosta and Odom, Georgia. Proposed Solid Waste Transfer Station Location/Surrounding Area The facility site for the proposed transfer station is located at 140 Stockton Street in Jacksonville, Florida. The area to the east, and north of the facility to Beaver Street, is generally industrial in nature, although there is an open portion of property immediately north of the facility. Residential homes appear on the north side of Beaver Street. There is a commercial truck business on the southwest corner of Beaver Street and Stockton. There are also industrial buildings to the west of the facility. By stipulation, the existing building on the proposed facility site is located north and 214.7 feet from the top of the nearest (northern) bank of McCoys Creek (Creek). A minority residential neighborhood, the closest residential area to the facility, is located south of the Creek and McCoys Creek Boulevard (Boulevard). The Boulevard is the northern boundary of this neighborhood. (The Creek and the Boulevard are referred to herein as "McCoys," see Transcript, page 430, notwithstanding the different spelling used through the Transcript, Exhibit i-1, and post-hearing submissions.) The Creek is a tidally influenced creek, which floods at the intersection of Stockton Street and the Boulevard, when the incoming tides coincide with heavy rainfall. See also Findings of Fact 104-114. There are trees which act as a buffer between the facility and the residential area to the south. Looking south from the facility at ground level, nothing can be seen other than trees. In response to concerns about the traffic impact of the proposed transfer station on the residential area south of the facility, Kimmins submitted a revised transfer route that would bring collection vehicles and transfer vehicles in and out of the facility by way of Stockton Street north of the residential area and south of the facility. The transfer vehicles will utilize a route to the landfill that will avoid residential areas. The trucks leaving the facility with waste will travel north on Stockton Street to Beaver Street, travel west to McDuff Avenue, then south and access I-10. This is generally considered an industrial route. In terms of siting a solid waste transfer station, the Stockton Street facility is an acceptable location as it is located close to waste generation and centrally located in the City of Jacksonville, making it an acceptable transition point for solid waste. Further, it is located near major traffic corridors, I-95 and I-10, and there is a large amount of acreage available for the proposed land use and adequate buffering and screening from the standpoint of vegetation. Prior Use The building proposed to be used as a transfer station has previously been utilized by Kimmins as a construction/demolition debris recycling center. The center also handled and stored municipal solid waste (MSW). Municipal solid waste coming onto the facility and under the City of Jacksonville's Ordinance could remain on site for up to ninety (90) days. The recycling center was operated in a way that caused excessive noise in the neighborhood, e.g., a chipping machine operated outside, and also caused other problems due to the way in which it was operated, including causing offensive odors and attracting vectors. Ms. Kerr noticed garbage washed from the facility into McCoys Creek during heavy rains. Kimmins has not had any operations at the site for approximately three and one-half (31/2) years. The problems associated with the former facility are not indicative of the manner in which Kimmins expects to operate the transfer facility. Change in Ownership/Management Kimmins was a wholly-owned subsidiary of Eastern Environmental, but was acquired by Waste Management in December 1998, when Eastern was acquired. No former Kimmins managers or employees will be employed at the transfer station. Kimmins Recycling Corporation is owned by Waste Management Holdings, Inc., which in turn is owned by Waste Management Incorporated. Waste Management Holdings, Inc., also owns Waste Management, Inc. of Florida. Proposed Operations The facility is proposed to be operated as a solid waste transfer station, which involves smaller solid waste collection vehicles transporting their loads to the facility, where the waste is segregated as either MSW or construction and demolition (C & D) waste. This waste is deposited on the floor of the transfer station and loaded by excavator or backhoe (and potentially a front-end loader) into larger transfer trucks, which then take the waste to one of the landfills designated in the Notice. The average daily volume of the transfer station is expected to be 300 tons of waste, although it is designed to handle up to 1,000 tons per day. If the facility reached its emergency capacity volume, Kimmins has the right to refuse the waste. Absent emergency conditions, the maximum waste storage time will be twenty-four (24) hours. On an emergency basis such as the aftermath of a hurricane, waste, which would be principally C & D waste, could be held for up to three (3) days. The proposed building is fairly common in design, other than the fact that it is larger than normal. The additional size is sufficient to allow separate vehicles on the tipping floor for the two different types of waste (MSW and C & D) with separate entrances for those trucks. There are no apparent restrictions on vehicle movement. In the event that waste can not be properly processed, due to equipment failure and the inability to secure backup equipment or adverse weather conditions, waste would not be accepted at the transfer station. The purpose of the proposed transfer station is to more effectively and efficiently transport waste to the landfill, i.e., rather than a large number of smaller collection vehicles traveling 30 to 40 miles to the landfill, a much smaller number of large transfer vehicles would deliver the waste from the transfer station to the landfill. In this manner, truck traffic would be reduced at the landfill. The result of the efficiencies derived from the transfer station may result in lower cost in delivering solid waste to the landfill, cost reductions that would be realized by Waste Management and, if the City of Jacksonville chose to utilize the transfer station, would be shared by the City and its taxpayers. There is an additional benefit because fewer trucks will travel the lengthy route to the landfill and the overall air emissions for the City of Jacksonville are expected to be generally reduced, although the specific reductions were not quantified. Rule Requirements not in Dispute A review of the Pre-hearing Stipulation reveals that the following subsections of Rule 62-701.801, Florida Administrative Code, are not in dispute: (2), (2)(c)(1), (2)(c)(6), (3)(a), (3)(d), (3)(e), (4)(b), and (4)(e)-(g). Rule Requirements in Dispute Rule 62-701.801(2)(c)2., Florida Administrative Code- Machinery and Equipment Section 4.2 of the Notice of Intent describes the machinery and equipment to be used and specifically names the loader, excavator, and transfer trailers and their respective cubic yard capacity. Table 2 of the Notice of Intent specifically sets forth the loading capacities of the excavator and loader, including cubic yards per hour, tons per hour and tons per day. The loading capacities of either the excavator or wheel loader individually (respectively 1,166 and 1,604 tons per day) exceeds the anticipated handling capacity of approximately 1,000 tons per day. The requirements of the rule with respect to machinery and equipment have been met. Rule 62.701.801(2)(c)3., Florida Administrative Code- Transfer Plan Section 4.3 of the Notice of Intent, in conjunction with the revised transfer route in Kimmins' Exhibit j, sets forth the proposed transfer plan. The transfer plan sufficiently describes the transfer route, which has been amended to avoid having collection vehicles and transfer vehicles traverse the neighborhood south of the facility. The new route generally transgresses an industrial area. Kimmins will ensure that this specified route will be followed by controlling Waste Management's own trucks; contract provisions with other users of the facility; and video monitoring to ensure that trucks enter and leave Stockton Street north of the facility. Ultimately, a carrier's failure to comply with this requirement will result in the withdrawal of that carrier's right to use the transfer station. The types of transfer vehicles to be used are described in Section 4.3.2. While the average number of trucks can be determined by dividing the average expected daily volume of 300 tons per day by the legal limit of 22 tons per transfer trailer, it is anticipated that volume will vary. To meet this varying demand, Kimmins will subcontract out the hauling of waste by transfer trailers, so that trucks will be available on an as- needed basis. With respect to the timing of the transfer of solid waste, Section 4.1.3.4 provides that waste will be handled "on a first-in, first-out basis to the extent practical. Transfer trucks will be loaded as soon as waste is available." Kimmins has provided a transfer plan meeting the requirements under the rule for the General Permit. Rule 62.701.801(2)(c)5., Florida Administrative Code- Staffing Section 4.5 of the Notice of Intent describes the personnel procedures for the proposed transfer station and sets forth the hiring plan in Section 4.5.1 and the training plan in Section 4.5.2. The minimum personnel listed in the Notice of Intent is based on the average of 300 tons per day. If that amount of waste were exceeded, the number of trained employees would be increased to meet the increased load. Waste Management encourages its employees to become certified and, to encourage that training, it not only pays for the training, but also provides a wage incentive. As a result that program is typically utilized by its employees. The laborer listed in Section 4.5.1 as part of the staffing component would be a person trained as a "spotter," i.e., a person who could identify unauthorized waste as well as putting trucks in the correct area to dump their load. In addition to the training described by Mr. Mathes, there is periodic retraining of employees including review of prohibited and restricted material as well as emphasis on compliance with permits. Rule 62-701.801(3)(b), Florida Administrative Code- Ventilation for Tipping, Processing, Sorting, Storage, and Compaction Areas Section 4.7.2 of the Notice of Intent describes the ventilation system design and states that all tipping, storage and loading areas are located within the building. The facility is completely open on its north face which serves as ventilation. Additionally, there are three (3) fans that can be utilized to provide ventilation for the facility, either drawing air in or drawing out as needed. The ventilation system for the facility, although minimal from an equipment standpoint, complies with the requirements for the General Permit. Rule 62-701.801(2)(c)4., Florida Administrative Code- Drainage Section 4.4 of the Notice of Intent describes the drainage and water supply systems for the proposed facility, which also serves as the leachate control system. See also Kimmins' Exhibit f (revised site plan). The following discussion regarding drainage overlaps significantly with the later discussion of the leachate control system and potential contamination of McCoys Creek. Some of the findings are repeated in light of the specific issue discussed. The purpose of the leachate control system is to collect all liquids that come in contact with the waste to be routed through some form of treatment process, in this case an oil/water separator and then into the sanitary sewer system for ultimate treatment at the publicly-owned wastewater treatment plant. All of the concrete floors in the facility will be finished to provide a positive slope to the floor drains, which will have traffic bearing clean-outs and gutters. The building walls and the three-inch curb will also serve to confine leachate within the building and prevent it from mixing with stormwater. See also Findings of Fact 54-68. The system, which utilizes an eight-inch pipe for ease of operations to clean out and for maintenance, is more than adequate to handle the anticipated liquids. If the pipe were sized to handle the amount of leachate generated, it would need to be only two-to-three inches in diameter. The stormwater management system is planned to prevent rainwater from being directed from the parking area into the building. Instead, rainwater is expected to be diverted around the building into the existing retention pond. The parking area "apron" slopes up to the building to prevent water from flowing inside the facility. It is expected that the rainwater will flow east or west to the stormwater retention pond. Additionally, the proposed three-inch curb would prevent stormwater from flowing into the facility, notwithstanding the slope. Ms. Clem, an expert in stormwater design and permitting, noted that she has reviewed the existing stormwater permit and, because no additional impervious area is being proposed to be added near the site, believes there is no reason that a permit modification would be required, nor would the change in use require permit modification. Fires at transfer stations are not at all common. With the updated and modernized sprinkler system anticipated to be part of the building improvements, there would be zoning of the sprinkler system and the ability to shut off a leaking source from the system. If a fire occurred during the day, there would be people on-site to deal with the fire and there would be appear to be very little sprinkler water involved. Even if a fire were to happen at night, there are approximately one to two hours of storage capacity within the facility even if the drains were blocked, and if the drainage systems were operating, it is anticipated that they would be able to adequately handle the sprinkler water without overflowing the curb, although the design has not yet been completed. There is no reason to believe that the stormwater management system would not operate as required to keep stormwater out of the facility and to drain into the permitted retention pond, which is south of the facility. Further, the stormwater system, which will be maintained and operated by facility personnel, is sufficient to prevent the mixing of leachate with stormwater and will prevent contamination of McCoys Creek. Rule 62-701.801(3)(c), Florida Administrative Code- Leachate Control Section 4.7.3 of the Notice of Intent generally describes the leachate control system, i.e., catch basins located in the central portion of the unloading area and one catch basin located in the center of the loading area (where the transfer vehicles will park). The floor of the building will be sloped to drain toward the catch basin, and the liquids thus collected will be directed through pipes to an oil/water separator and then the system will be connected to an existing sanitary sewer system. See also Finding of Fact 46. By definition, the term leachate means that the substance leaches through or moves through a body. There is a significant difference between the composition of the leachate at a landfill versus a solid waste transfer facility. The transfer station leachate is substantially weaker and less concentrated in strength than leachate from a landfill. There are very few liquids generated by the waste in a transfer station as most of the water which comes in contact with the floor is wash water and, at days end, the floor is washed down, which constitutes the majority of the water travelling into the system. The Kimmins' leachate control system has been designed to keep all leachate within the building, to be ultimately transported through the leachate control system to the sanitary sewer system. The system is designed to be more than adequate to handle the small amounts of leachate that would be generated at a transfer station. The leachate control system is comprised of the concrete transfer station floor, which is sloped toward the floor drains, the walls of the facility, and the three-inch curb that would confine the leachate to the facility. The substance flows into collection gates at two locations on the floor. The effect of the system is that water, including water contaminated by leachate, cannot leave the facility other than through the floor drains or by overflowing the three-inch curb. Given the large storage capacity of the floor and the "pit," where the transfer trucks pull into the facility, the only scenario under which water might overflow into the retention pond from the facility would be if a fire occurred at the facility at night and the drains for the leachate control system were blocked. If that were to occur, the retention pond has the capacity to contain the water produced by the worse case scenario with respect to fire. Any leachate that overflowed into the retention pond could be held until tested and if it was unacceptable to go into McCoys Creek, it could be handled in a number of ways, such as pumping into a nearby sanitary sewer system. There is an oil/water separator included as part of the leachate control system to remove oil and any chemicals that might cling to the oil. The system, however, is not designed nor required to treat leachate. The leachate will be treated at the publicly-owned wastewater treatment plant. See also Finding of Fact 46. The connection of the leachate system to the sanitary sewer system is an appropriate way to collect, treat, and dispose of the leachate in accordance with the rules for General Permit for a Transfer Station. The sanitary sewer system is operated by the local wastewater utility, JEA, and it is unclear at this time whether an industrial wastewater permit will be required for the facility. If such a permit were required, it would be obtained, assuming one were necessary, before the facility began operation. There is no requirement that Kimmins obtain a permit from JEA prior to requesting the General Permit. To the extent that a JEA permit is required and there is a testing requirement, it would not have to be done on a batch sampling, but could be done in a manner that would allow continuous operation of the leachate control system. Kimmins is more likely than not to be able to comply with JEA's requirements if they are applicable, particularly given the fact that leachate generated at a transfer station is extremely diluted, i.e., "primarily wash water." The facility and its stormwater management system are designed to prevent stormwater from mixing with the leachate by preventing water outside of the building from entering the building and preventing leachate from exiting the building. There is asphalt paving approximately twenty feet to the north of the building, sloping up to the northern entrance into the building. This system includes the walls of the building and the three-inch curb at the north end of the building that would keep out water. The water is expected to flow to the east or west of the building to the stormwater retention pond to the south of the building. See also Findings of Fact 46-47. There was some suggestion by the City that there would be a problem resulting from leachate leaking from trucks onto the facility’s parking area. It was noted, however, that seals on trucks are standard requirements. Additionally, there is an economic incentive for haulers of waste to the facility, which are weighed and pay a fee based on weight, not to pay for processing water. The hauler would be required to correct the problem in order to continue to use the facility. At worst, leachate falling onto the parking area would flow through the stormwater management system and be treated in the swales and retention pond. As Ms. Nogas stated, she did not consider this significant, stating that it would be "the same kinds of things that fall on roadways that presently drain in McCoys Creek, nothing particular or special." The overall effect of the system is to divert stormwater around the facility to the retention pond at the south end of the site. The facility has thus been designed with a leachate control system that would prevent discharge from leachate and the mixing of leachate with stormwater as required by rule. Rule 62-701.801(4)(a), Florida Administrative Code- Unauthorized Waste Section 4.1.3.1 of the Notice of Intent states that "Any unauthorized or prohibited wastes will not be accepted at the site," and explains that "[I]f the unauthorized waste is encountered following unloading, that waste will be immediately returned to the delivery vehicle. If the vehicle is not available, then the prohibited waste will be temporarily stored in a [forty-yard capacity box] designated as 'unauthorized waste' on the Floor Plan (Figure 3). Transport and disposal of the unauthorized waste would be performed by Environmental Remediation Services, Inc." This description of the operating procedure was confirmed by Mr. Mathes who stated that there are certain types of waste that would be unauthorized and not accepted at the facility. To the extent that a problem is discovered in time, the truck that delivered it would take it back. If that course of action was not available, it would be put aside in the forty- yard container and the environmental remediation service would remove the waste. The service contract with Environmental Remediation Services, Inc. includes emergency services and states that the company will be available on a "24/7 basis" with a contact number to be reached at "any time." Further, the City has a "household hazardous waste" program. In light of these programs, there is a small, and decreasing, amount of hazardous waste encountered in solid waste. The proposed method for dealing with unauthorized waste would result in it being handled in a way that would satisfy rule requirements. Rules 62-4.530(2) and 62-701.801(4)(c) and (d), Florida Administrative Code- Air Quality; Litter, Odor, and Vectors Overview Section 4.1.3.3 of the Notice of Intent to Use describes how litter, insect, odor, and vector control will be handled. It states that all waste transfer activities will be within the closed area of the building thus minimizing litter. The facility will utilize, as necessary, extermination services of Peninsular Pest Control Services, Inc. to control flies, rats, or other vectors. Odor control will be implemented through daily maintenance of the building area; storage times will be kept to a minimum to eliminate the potential for litter, odor, vectors or insects. The parties stipulated that the Notice of Intent included both an "odor control program" and an "insect and vector control program." Litter Section 4.7.2 of the Notice of Intent again reiterates that all tipping storage and loading areas are located within the building so that litter is expected to be minimal and facility staff will maintain the facility to keep all litter within the building. Kimmins did not describe a litter control program in its Notice of Intent to control on and off-cite litter. However, Kimmins expects a minimal amount of litter to be generated outside of the building from the waste transfer activities, which are planned to be conducted in the enclosed area of the building. Kimmins does not expect litter to be generated from the transport vehicles, either arriving at or leaving the facility. The facility will be maintained by staff to keep all litter within the building. The Department representative, Ms. Nogas, a licensed professional engineer in Florida, was satisfied with the proposal to prevent litter from washing into the retention pond. To the extent that litter entered the retention pond, she noted that it would be picked up by the facility operator as part of its normal daily operations and would not wash into McCoys Creek. "It's part of their housekeeping. It's part of what they do daily." Consistent with the Notice of Intent, the engineer of record testified that he anticipated little if any litter to be generated outside the building during normal operations, consistent with his experience at other facilities operated by Waste Management. The references in the Notice of Intent as to how litter will be handled were consistent with his experience of how it is handled at other transfer stations. Air Quality; Odors While the issue of what applicable air quality standards might be applied to solid waste transfer stations will be discussed in the Conclusions of Law, the only relevant evidence concerning this matter dealt with (i) odors and (ii) dust. MSM includes waste which can generate offensive odors. However, the parties stipulated that "[o]dors at a solid waste transfer station can be controlled by proper waste handling and sanitation procedures." To the extent odors are present, there are a number of ways to control the odors. For example, waste that is considered inappropriate from that standpoint could be rejected; specific loads could be deodorized upon arrival. Moving the waste in and out quickly would prevent odors from becoming a problem as it is primarily an operational issue. The specific plans and procedures that would be utilized to deal with potential objectionable odors would be first and foremost housecleaning, i.e., as waste comes in it is immediately loaded onto trucks and transported to the landfill. Thus, waste will not remain on the floor long enough to develop odors. At night there would be no waste left on the tipping floor, the floor would be cleaned and washed down with water at the end of the day. Cutoff time for accepting certain types of waste could be established to coordinate with the landfill closing times in order to ensure daily removal of waste from the tipping floor. To the extent that waste would remain in the facility overnight, it would be loaded into the transfer vehicles and would be tightly tarped to contain odors. With respect to particular loads that are odoriferous, there are chemical mists or gels that could be applied to neutralize the odor. Additionally, it could be mixed with other waste material to encapsulate it temporarily until it is loaded out. Mr. Mathes also noted that if there is a commercial carrier for garbage routinely bringing odoriferous loads to the facility, that carrier would not be allowed to continue to use the transfer station. The facility would have available to it the resources of Waste Management, and specifically its corporate-based odor initiative group that reviews technology and chemicals that have been used successfully and that knowledge base would be available to managers in Florida. With respect to suggestions of the City as to how odor might be better controlled, these were shown to be impractical or unworkable. For example, designing a facility with negative air pressure would not be practical or reasonable; entirely enclosing the facility, if it were in fact possible, would require ventilation and might in fact be more detrimental than natural dispersion; the lack of a deodorizing system is of little significance and it is very rare that a transfer station would have such a system. Ms. Nogas indicated that while "most transfer stations have huge doors on them to let the trucks in," every transfer station she saw "had large open areas that are open during the time that the transfer station is operating." Ms. Nogas noted that controlling odors basically involved good housekeeping and she determined that the odors could be controlled adequately. Many transfer stations have one open side. To the extent that complaints are received about odors, the management can be expected to resolve the problems. With respect to design issues, the engineer for the Notice of Intent stated that dust control is usually an operational issue and that he did not believe that dust could be better controlled if air filters had been included as part of the design. The Department's expert also considered the absence of air filters not to be significant. Moreover, there is nothing in Rule 62-701.801, Florida Administrative Code, requiring solid waste transfer stations to specifically control dust, and it is not a typical design feature in transfer stations. Mr. Gauntt stated, however, that placing C & D material in back of the building helps the ability to control dust. Operationally, the Notice of Intent referenced that the "[t]he facility will maintain on-site at all times adequate equipment to perform" "[d]ust control," and the person ultimately in charge of operations of the facility stated that a street sweeper would be present for dust control. Additionally, there were a number of operational methods described for controlling dust including: not allowing dusty MSW into the facility as a first line of defense; putting up mesh screens at open bay areas; placing other material on top of a dusty load; and wetting down a dusty load if needed. The Department, in its review of the Notice of Intent, reasonably believed that Kimmins could adequately control dusty material. Vectors and Vermins Pests and other vectors are not normally a serious problem in a transfer station due to housekeeping techniques. Mr. Mathes reiterated that the best control of vermin and other pests is through good housekeeping methods and making sure the tipping floor is cleaned on a daily basis. In addition, a pest control service will provide vector and vermin control, utilizing bait and traps for vermin and for vectors using a gel-type material to put in cracks and crevices where insects would be expected to be. If needed for any problems, the pest control service could be called on. The ability to have the pest control company come out as needed, above and beyond the quarterly treatments, is set forth in the contract. The experience of those with extensive involvement with transfer stations indicates that generally traps or baits for rodents is adequate. Even Mr. Pearson agreed that vectors can be controlled without spraying by maintaining good sanitary procedures. The facility can be operated in such a way that pest and vermin can be adequately controlled. Rule 62-701.801(4)(d), Florida Administrative Code- Waste Handling/Cleaning Section 4.1.3.4 of the Notice of Intent addresses waste handling and cleaning, noting that waste "will be handled on a first-in, first-out basis to the extent practical" and "[t]ransfer trucks will be loaded as soon as waste is available. All waste storage areas shall be cleaned at the end of daily operations or during continuous operation, as necessary to prevent odor and vector problems. All floors will be free of standing liquids; any liquids will be directed to the catch basins along the center of the floor (Figures 2 and 3). The catch basins are part of the leachate collection system described in Section 4.7.3." As Section 4.7.3 notes, the leachate collection system connects to a sanitary sewer system so that the drainage from cleaning areas is discharged into a sanitary sewer system. These statements made in the Notice of Intent were confirmed by Mr. Mathes, who testified that "[a]s waste comes in, it will be immediately loaded onto the trucks and transported to the landfill. At night there would be no waste left on the tipping floor." With respect to cleaning, the floors would first be cleaned utilizing the loader which has a rubber-type strip at the bottom of the bucket to scrape any waste and get it off the floor. The floor would then be washed with water at sixty pounds of pressure with the water running to the leachate collection system, all done on a daily basis. A similar description of the cleaning, i.e., an initial "dry clean-up" removal of waste and then washing down the floor was also provided by Ms. Clem. She stated that the water would be entering the leachate collection system and then into a sanitary sewer. This is appropriate to meet the requirements of the rule. Rules 62-701.801(1) and 62-701.300(2)(g), Florida Administrative Code- Proximity to Residential Neighborhood and Potential Contamination of McCoys Creek The primary objection of the City to the Kimmins project is that the proposed transfer station is located too close to a residential neighborhood, particularly given the potential odor, noise, and pests that the City anticipates from the operation of the transfer station. Contrary to the City's position, there was ample evidence that transfer stations can be operated, without problems, in close proximity to residential neighborhoods. Another issue raised by the City is the potential for contamination of McCoys Creek should the General Permit be granted. Mr. Gauntt testified that he has designed and visited a number of operational solid waste transfer stations in very close proximity to residential areas. In one case, the adjacent property was near an apartment complex and in another area was within sight of "some very high-valued homes." In these cases, there did not seem to be any serious odor problem. Mr. Mathes testified that it is not unusual to have residential neighborhoods near waste transfer stations. He identified a large facility in downtown Denver processing 4,000 to 5,000 tons of waste a day near a residential neighborhood and a facility in the Houston area with neighbors right next door, within 200 to 300 feet. Ms. McCreedy testified that there are solid waste transfer stations in Florida in similar proximity as the Stockton Street facility is to residential areas and that those facilities have had no noise, odor or vermin complaints. With respect to the issue of noise, there is nothing specific in the General Permit rule that addresses noise or requires noise studies to be conducted. Nevertheless, the orientation of the building, which opens to the north and closes to the south, and the fact that the southeast and southwest and east walls and roof are insulated will abate noise to the south. With respect to operations, all heavy equipment will operate inside of the building, the facility will comply with local and federal noise requirements, if applicable, and back-up alarms on trucks using the facility will either be muffled or disengaged on a temporary basis to comply with the facility’s operating rules to minimize noise. The parties stipulated that the existing building is located 214.7 feet from the top of the nearest bank of McCoys Creek. There was no evidence presented that there would be a change to the dimensions of the existing building. The Notice of Intent indicates that all storage of solid waste, including the tipping and loading areas, will occur within the building that is enclosed on three (3) of its four (4) sides and will thus be more than 200 feet from McCoys Creek. There was extensive testimony by Ms. Kerr, an active member of the community, to the effect that McCoys Creek Boulevard is frequently flooded after rain events and the water overflows the bank and becomes a lake. Ms. Kerr, familiar with the prior operation on the site, also observed litter and garbage flowing into the Creek, under dry and flood conditions. She has also observed flood waters from the Creek flowing into the property connected with the facility, but not onto or into the facility. Flood waters have also caused the Creek beds to erode, undermining the tree line. However, the weight of the evidence indicates that this flooding would not adversely effect vehicles entering the transfer station from the north along Stockton Street, which is elevated north of McCoys Creek to the entrance to the facility. Ms. Kerr also admitted that there were other entrances to Interstate I-10, west of McCoys Creek, besides the planned entrance from McDuff. Ms. Kerr admitted that the facility did not cause the flooding and would not affect the flooding that had been occurring. She also agreed that the flooding was not caused by Kimmins or its predecessors operating a facility on Stockton Street. The preponderance of the evidence indicates that any flooding of McCoys Creek would not adversely impact the operations of the facility and that the operation of the facility is not likely to contaminate McCoys Creek as long as Kimmins maintains the facility in the manner presented in this proceeding. See also Findings of Fact 45-68. Kimmins' Compliance Program The facility is configured in such a way that it could be operated in compliance with the Department's rules and that Kimmins would be able to operate the facility in such a way as to meet the appropriate requirements. Waste Management, under Mr. Mathes' direction, operates Trail Ridge Landfill under contract for the City of Jacksonville. The same type of environmental compliance that Waste Management utilizes at that landfill would be applied to the proposed transfer station. Even the City's representative admitted that his experience with Waste Management's operation at Trail Ridge Landfill has been satisfactory. The Landfill Gas management that Mr. Pearson was not satisfied with has not been owned by Waste Management for more than three (3) years. Additionally, Kimmins is now a Waste Management entity and would be subject to the Waste Management compliance program headed by Ms. McCreedy in Florida. That compliance program, puts the responsibility on the district manager (in this case Mr. Mathes) for overseeing the facility. Nevertheless, Ms. McCreedy reviews permits periodically to ensure that a facility operates in compliance with the permit through site inspections and periodic review of permit applications, operating records and any applicable maintenance records. There is also a compliance assurance system creating a database of permits, permit conditions and periodic recording responsibilities that she is responsible for reviewing, along with the district managers. Her experience in Florida in compliance includes overseeing thirteen (13) solid waste transfer stations and this compliance responsibility would extend to the Stockton Street facility if it is permitted. With a newly-permitted facility there is a start-up procedure that would include putting operating permit requirements into the compliance database, ensuring that operators are properly trained and that personnel have received training on specific operation plans within the permit application, all of which would be reviewed periodically. With respect to the Stockton Street facility she did not see any proposed practices or contingencies that would create compliance problems. In addition to the submission of the Notice for the General Permit, there would be additional steps taken before operations could occur, i.e., detailed construction plans and specifications, overseeing of construction by an engineer, preparation of as-built drawings and certification by an engineer that construction has been done in compliance with the General Permit, with the as-built drawings and certification being submitted and accepted by the Department prior to operations beginning. Additionally, other permits would be required that if not obtained, would preclude the facility from becoming operational, including the City of Jacksonville's certificate of need permitting procedure. Kimmins' Experience The witnesses presented by the City objecting to the proposed transfer station have no experience or familiarity with transfer station operations. Mr. Pearson has never obtained a permit for, operated, or managed a transfer station. His familiarity with transfer stations consists primarily of visiting three (3) facilities in northeast Florida, none of which were controlled by Waste Management. With respect to the two (2) stations handling MSW, he was not aware of the procedures they use to control vermin and odors, and conceded that facilities in relatively rural locations (as those stations were) might have different procedures for controlling odor and vermin than one located on Stockton Street, and agreed that he had not reviewed the permits for those stations and thus has no idea what DEP was told as to how they would operate. Ms. Kerr has never visited an operating transfer station, and her only information is derived from speaking to people from Marietta where there were problems with a transfer station where procedures were not followed, and the problems were the result of the failure to follow procedures. In contrast, the witnesses supporting the proposed transfer station have substantial experience with the permitting and operation of solid waste transfer stations. Mr. Gauntt, who prepared the engineering plan for the Notice of Intent to Use, has designed and permitted transfer stations in a number of states, including Florida, and was accepted as an expert in solid waste transfer station design and permitting. Mr. Mathes is an expert in solid waste management and has visited a number of operating Waste Management transfer stations. Ms. Clem, accepted without objection as an expert in solid waste management design and permitting and stormwater design and permitting, has had experience in reviewing solid waste transfer station permits when she was with the Department and is familiar with the permitting requirements for such transfer stations. Ms. McCreedy, accepted without objection as an expert in solid waste facility siting and permitting, permit compliance and solid waste management has been involved with the above- described compliance program for Waste Management's transfer stations within the State of Florida. Ms. Nogas is a solid waste section supervisor for the Northeast District Office for the Department and in that capacity is responsible for permit review for all solid waste permits and has been since 1989. Those supporting the proposed transfer station and testifying as to its compliance with the requirements of the General Permit and its ability to operate in compliance with those requirements have extensive experience with solid waste transfer stations, while those who would suggest that there may be problems in operating a solid waste transfer station, particularly one proximate to a residential neighborhood, totally lack such experience and expertise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Kimmins' proposed Stockton Street solid waste transfer station qualifies for the General Permit. DONE AND ENTERED this 6th day of September, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 7th day of September, 2001.
Findings Of Fact Solite is a light weight aggregate mining and manufacturing facility located in Clay County, Florida. The mining operation extracts clay from quarries on site. That clay is then stored on site for use in the manufacturing. The Solite facility began its operations in Clay County in 1959. To convert the clay into a product, it is introduced into a rotary light weight aggregate kiln. There it is heated to a temperature of 1,900 to 2,100 degrees Fahrenheit. Once the raw feed has been subjected to the heat in the rotary kiln, it becomes light weight aggregate, a product that is used in the construction industry. Before being introduced into the kiln the raw feed clay is stored in a covered shed. When the kiln is operating clay is taken from the shed by front end loader and transported to a pug mill. The clay exits the pug mill onto a conveyor which has a weigh scale. From there, the raw feed clay is introduced into the kiln, at what is referred to as the cold end of the kiln. When a kiln is in operation the clay rolls from the cold end of the kiln through the other end during which transport the raw clay is heated. The clay is discharged from the kiln into a product cooler. From the product cooler it is transferred by a front end loader to a crushing, screening and storage area. Solite has three (3) kilns at the facility. They are kilns 1, 1A and 5. The kilns at the Solite facility are eight to nine feet in diameter and 130 to 160 feet long. When the kilns are in operation, they rotate at a speed of one to two revolutions per minute in producing the product. The fuel sources for heating the kilns on site are constituted of coal, number (2) fuel oil, propane or liquid burnable material (LBM). The LBM fuel source contains a variety of combustible waste materials. Among those waste materials are certain hazardous wastes. In 1973 Solite began to burn material which is now classified as hazardous waste. The combustion process that occurs in manufacturing the light weight aggregate creates gases that run countercurrent to the raw clay feed. The combustion gases are discharged at the same end of the kiln in which the raw clay had been introduced. In managing the hazardous waste used at the facility, Solite has installed two systems to treat the combustion gases before those gases are released into the atmosphere. Kiln No. 5 employs baghouse technology for air pollution control, a treatment system consisting of two compartments with approximately 960 bags. By contrast, the air pollution control devises for kilns 1 and 1A are individual wet scrubber systems for each kiln. As stated, the proposed permit would allow Solite to add an additional baghouse. Under this arrangement two of the existing kilns could be used simultaneously, with the existing baghouse No. 5 and the proposed baghouse No. 1 serving as air pollution control devices. The existing baghouse associated with kiln 5 has a lime injection system as part of the air pollution control system. The proposed permit contemplates a lime injection system as part of the air pollution control to be employed with the additional baghouse. The wet scrubbers associated with kilns 1 and 1A are designed to control particulate matter in emissions. The scrubbers are not designed to respond to other pollutants. To that end the wet scrubber with kiln 1A could meet applicable standards for particulate matter. The wet scrubber for kiln 1 could possibly meet the applicable standard for particulate matter if more spray nozzles were added to the scrubber. The present inability for kiln 1 to meet the applicable standard for particulate matter control is not significant because Solite may only operate kiln 1 or 1A separately. The water that is employed in the wet scrubbers becomes hazardous waste once it has been utilized in the attempt to respond to the pollutants in the air emissions generated by the respective kiln. In the past that water containing hazardous waste was introduced into a settling pond. Solite may no longer discharge that water into the settling pond in accordance with a regulatory decision that is not the subject for consideration in this case. Solite has made no other arrangements for disposing of the waste water. The proposed permit in this case would allow Solite to use the existing scrubbers to control emissions from kilns 1 and 1A in the instance where fuels were used in the manufacturing that were other than LBM with hazardous waste. At present kilns 1 and 1A have necessary permits for their use with the wet scrubber air pollution control devices, subject to the limitations that have been described. Under the terms set forth in the proposed permit the future use of LBM with hazardous waste in the manufacturing in kilns 1 and 1A would be only allowed when baghouse technology was employed as an air pollution control device. The baghouse air pollution control technology does not use water. Therefore it does not create a circumstance in which the treatment water contains hazardous waste. In that respect, kiln 1A ceased burning LBM with hazardous waste on December 1, 1990. That practice was concluded at kiln 1 on June 6, 1991. Kiln 5 ceased burning LBM with hazardous waste on August 19, 1991, but resumed burning LBM with hazardous waste on December 14, 1993 after the baghouse for that kiln was installed with its lime injection system. The baghouse proposed to be installed under the terms of the permit application is almost identical to the baghouse and associated equipment that were recently installed to operate with kiln 5. The baghouse and associated equipment with kiln 5 has achieved full compliance with all applicable state and federal air regulations as evidenced through compliance tests. As noted, with the baghouse at kiln 5 and the proposed baghouse for kilns 1 and 1A, the combustion gases are subject to treatment by lime. In that process the lime is introduced into the air emissions by pneumatic transfer. An alternative means for lime injection is established. That alternative would allow the lime to be introduced at the point where the fuel is fired at the kiln. Lime injection is used to control acid gases, either sulfur dioxide or hydrogen chloride. The combustion gases are also cooled by passing them through a heat exchanger that brings the temperature down from the exit temperature from the kiln temperature of 900 degrees Fahrenheit to approximately 400 degrees Fahrenheit. The cooled gases then enter the baghouse which is designed to control the particulate matter in the emissions. From there the remaining gases are discharged into the atmosphere. It takes four to five seconds for the combustion gases to go from the kiln through the heat exchanger proposed by this project. The particulate matter is in the form of dust that is collected in the baghouse. That dust is removed through a screw conveyor and pneumatically transferred to a kiln storage bin. The air involved in that pneumatic transfer is discharged through a small baghouse. The clay fines in the kilns bin are reintroduced into the pug mill, conveyed and mixed with raw clay before the clay fines are reintroduced into the manufacturing process in the kiln. The clay fines may also be transported from the kiln storage bin to the crusher and introduced into the finishing process for the product. On November 30, 1992, Solite made application for the permit at issue. Solite sought permission to modify the existing facility by constructing duct work that would connect kilns 1 and 1A to the kiln 5 baghouse, to construct and temporarily operate the additional baghouse and to connect kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter (the filter receiver associated with the crusher). The connection of kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter is to control the particulate matter that is captured in the baghouses. The existing pug mill filter receiver and clinker hopper filter presently serve kiln 5. If allowed the opportunity to construct a second baghouse, Solite contemplates using the second baghouse with kiln 1 or 1A. The arrangement contemplated by the proposed permit would allow kiln 1 or 1A to operate simultaneously with kiln 5. The bags in the proposed baghouse would be about six inches in diameter and twelve feet long. As the particulate matter in the air emissions enters the top of the baghouse it passes through these bags. That particulate or dust is collected on the surface of the bags, while the air that has gone through the filtration process exits through the stack to the baghouse and into the atmosphere. The dust that collects on the bags forms a "filter cake." Once a certain atmospheric pressure is achieved in the baghouse a predetermined jet of air is blasted down the bags blowing the filter cakes away from the bags. This allows the cakes to fall down into the bottom of the baghouse where a screw-auger moves that material to one end of the baghouse hopper. From there it is removed through an air lock and pneumatically transferred to the clay fines bin. The proposed baghouse would utilize a continuous monitor that is installed with the baghouse to measure the particulate matter concentration in the clean air section of the baghouse. Should a hole appear in one of the bags, that would cause a increase in the particulate concentration. Then a signal is generated by a broken bag detector which alerts the operator that a problem exists and the bag needs to be replaced. There are access doors into the baghouse that allow the operator to enter the baghouse to inspect the bags and replace them as needed. When the Department reviewed the permit application, it issued a notice of intent to grant a permit and a proposed permit. Petitioner's timely protested the intent to grant. Before hearing the Department issued two amendments to the proposed permit. It is the second amendment which forms the basis for proposed agency action. Solite does not oppose the terms set forth in the second amendment. Petitioners do oppose the grant of the second amended permit. By the actions which the parties have taken in this case, it would appear that they have conceded the standing for Petitioners to bring the challenge to the grant of a permit. The proposed project would not increase the capacity for the manufacture of light weight aggregate products. The amount of fuel used in that manufacturing and the hours of operation when compared to opportunities presently permitted would not be increased. The maximum rate of feed of authorized LBM that could be incinerated in kilns 1 and 1A does not increase when comparing the application to the existing permits for kilns 1 and 1A with wet scrubbers. The removal efficiencies with the proposed baghouse exceed or are equal to those with the wet scrubber systems when examining control of emissions of air pollutants that must be addressed. Clay County is an attainment area for all air pollutants. In considering the application, the Department determined this to be a construction request with a right to temporarily operate the equipment to check its performance. The Department considered the permit request to be one related to a stationary installation which will reasonably be expected to be a source of air pollution. See Section 403.087(1), Florida Statutes. In the proposed permit for baghouse No. 1 the Department intends to impose certain restrictions on emissions that were specified in the permit issued for the baghouse No. 5. The Department in its proposed permit employs a process similar to that set forth in the January 23, 1993 settlement agreement related to kiln No. 5. In determining the acceptability of the proposal the Department looked to Rule 62-730.181, Florida Administrative Code which speaks to standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities. In particular the Department utilized that rule in its terms wherein the rule incorporates by reference 40 C.F.R. Part 266, Subpart H, as it is designed to regulate hazardous waste burned in a boiler or industrial furnace. The regulations in 40 C.F.R. 266, Subpart H, are referred to as the Boiler and Industrial Furnaces regulations (BIF). The Solite kilns are industrial furnaces within the meaning as defined in 40 C.F.R. 266, Subpart H. The Department in its proposed permit would impose the terms set forth in 40 C.F.R. 266, Subpart H, related to the maximum concentrations of certain constituents in the LBM with hazardous wastes and the air emissions produced by their destruction. By imposing those requirements the Department is operating independently. It is not through this permit review administering the BIF regulations as set forth in 40 C.F.R. 266, Subpart H under authority from the United Stated Environmental Protection Agency and for the benefit of that federal regulatory agency. The Department has required that Solite address the combined emissions from metals and other air pollutants for all sources at the facility. By this requirement the Department intends to assure that those emissions do not result in ambient air concentrations that would harm or injure human health or welfare, animal, plant, or aquatic life or property. To demonstrate those assurances Solite was expected to conduct modeling of the emissions of metals and chlorine which could be emitted from the facility. That modeling was properly done. The requirement for modeling was in accordance with Section 403.161, Florida Statutes. In association with this requirement the Department referred to the BIF regulations at 40 C.F.R. 261. The proposed permit is considered in accordance with Rule 62-296.320, Florida Administrative Code, related to the control of air pollutants which cause or contribute to an objectionable odor. The requirements within the proposed permit include the necessity for Solite to establish reasonable precautions to minimize unconfined emissions of particulate matter as described in Rule 62-196.310(3), Florida Administrative Code. As stated in the proposed permit, if kiln 1 or 1A were in operation using the wet scrubbers they must conform to existing permits associated with kilns 1 and 1A, but those opportunities would only pertain to the instance in which the fuel sources are other than LBM with hazardous waste. For Solite to use wet scrubbers as pollution control devices for kilns 1 and 1A in an instance in which LBM with hazardous waste was used for fuel, the treatment efficiency for kiln 1 would have to be improved in the manner described and the treatment water that contained hazardous waste must be disposed of other than by placement in the settling pond. The existing wet scrubber systems for kilns 1 and 1A are not closed systems which continue to re-circulate the scrub water (a closed scrub water containment system). There is no proposal to install a scrubber water re-circulation system. If such a system were installed an arrangement would be necessary for periodically taking the scrubber water and disposing of that water off-site. Without a system for containing and re-circulating the scrubber water which contained hazardous waste, and periodic disposal of that scrubber water, Solite may not use kilns 1 and 1A with a scrubber when burning LBM with hazardous waste. This is true even though the Solite air emissions control device for kiln 1A using the wet scrubber does meet applicable air emissions standards and the scrubber system permitted with kiln 1 has the possibility to meet air emissions standards. Therefore, if kilns 1 or 1A were used with a baghouse this would create a net increase in air emissions when using LBM with hazardous waste as a fuel source. Such an arrangement would not exceed the theoretical air emissions associated with the wet scrubbers for kilns 1 or 1A when using LBM with hazardous waste that are presently set forth in the existing permits for those kilns. But the proposed permit recognizes the problem with the scrubber systems by limiting the use of the scrubber systems to those occasions in which LBM with hazardous waste is not used as a fuel. The proposed permit specifically prohibits the use of kiln 1 and 1A simultaneously. A baghouse or scrubber may only control the emissions from one kiln at a time in accordance with the proposed permit. The Oldover Corporation or another facility permitted to manage hazardous wastes under various provisions at 40 C.F.R. shall be the supplier of LBM with hazardous wastes. Under the terms of the proposed permit Solite is responsible for the LBM with hazardous wastes meeting all the requirements in any applicable state, federal and local regulations. The proposed permit limits the constituents in the LBM with hazardous waste. It does not allow any hazardous waste that is listed for dioxin or derived from the dioxin-listed waste. As set forth in the proposed permit, organic cyanides, sulfide, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services are not allowed to be part of the LBM. Other limitations are placed on the LBM with hazardous fuel concerning its constituents. They are set forth in proposed condition number 22 to the proposed permit. In accordance with the proposed permit, prior to submitting an application for an operating permit, which would allow LBM with hazardous waste to be burned, Solite is required to conduct testing at the facility for chlorinated dibenzo-p-dioxin and dibenzofuran, pursuant to a test plan approved by the Department. The proposed permit addresses test requirements and reports under various provisions set forth in Rule 62-297, Florida Administrative Code. The proposed permit reminds Solite that: Nothing in this permit shall exempt the permit to you from the requirements of 40 C.F.R. 761, polychlorinated bolychlorinated biophenyls, 40 C.F.R. 266, Subpart H, hazardous waste burned in boilers and industrial furnaces, and Chapter 62-730, Florida Administrative Code, hazardous waste, or any other requirements outside the purview of the Department's air regulation (Chapters 62-296 and 297, Florida Administrative Code). The permittee shall obtain such state and federal permits, when applicable, pursuant to any hazardous waste regulation (Rule 62-4.160, Florida Administrative Code). The proposed permit allows for an extension of the construction permit upon request of the Bureau of Air Regulation within the Department. The proposed permit makes it incumbent upon Solite to submit an application for an operation permit to the northeast district of the Department at least ninety (90) days prior to the expiration date of the construction permit. The proposed permit would allow kilns Nos. 1 and 1A to operate 24 hours a day, 7 days a week, 52 weeks a year, but no more than 760 hours during any calendar year, but not simultaneously. Concerning hazardous wastes in the LBM, procedures for testing those fuels to be used at the Solite facility are set forth in the waste analysis plan in the hazardous waste facility permit for the Oldover Corporation and the waste analysis plan for Solite. Oldover supplies those fuels to Solite. Under the waste analysis plan the generator of the waste material must complete a waste profile indicating the type of waste and its constituents which the generator proposes to supply to the facility. Initially Solite evaluates the waste profile to determine if the waste material meets all the necessary requirements for acceptance as a hazardous waste fuel for Solite. If the profile is acceptable, a representative sample is obtained from the waste generator. This sample is analyzed for a comprehensive set of parameters including physical characteristics, metals and organic compounds. If the representative sample indicates that the waste stream is acceptable it is approved and shipments are made to the Oldover facility adjacent to Solite. Once the waste stream has been approved by Solite and shipments are made, Oldover reviews the manifest associated with each shipment to determine the existence of any prohibitive constituents in the fuel before the fuel is accepted. Oldover tests the wastes for a limited number of parameters to determine whether or not the shipment conforms with the pre-established waste profile. If discrepancies are discovered between the waste profile and testing results the shipment may be rejected if the problems with the shipment cannot be reconciled with the anticipated waste profile. Comprehensive waste analysis are performed on an annual basis as well as at the initial point at which Solite begins to do business with a waste generator or upon the occasion when there is a significant change to the generator's waste stream. As it appears, the LBM with hazardous waste obtained from outside generators is generated off-site. Through this processes Solite has provided reasonable assurance that the use of LBM's with hazardous waste envisioned by the proposed permit will not allow the burning of hazardous waste that is listed for dioxin or derived from the dioxin-listed wastes: FO20, FO21, FO23, FO26 or FO27 as specified in 40 C.F.R. 261, Subpart H, or organic cyanides sulfites, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services. Solite has provided reasonable assurance that the LBM with hazardous waste will be properly analyzed to quantify the concentration of any constituent that may reasonably be expected to be in the waste. Those constituents will be identified and quantified, if present. This process of identification and quantification will be at levels detectable by analytical procedures prescribed in EPA method SW-846. That method is the prescribed method for analyzing hazardous LBM under the BIF rules. As a means to promote reasonable assurances that the proposed project will comply with applicable state and federal emissions standards, emissions from kiln 5 using its baghouse have been tested and the emissions at kiln 5 using the baghouse meet all applicable state and federal emission standards. Given that the proposed baghouse for kilns 1 and 1A will be very similar to the baghouse associated with kiln 5, it is to be expected that the emissions from kilns 1 and 1A using the proposed baghouse would be comparable to the experience with kiln 5 and its baghouse. Using a baghouse results in significant reductions in the emissions of particulate matter when compared to the experience with wet scrubbers. The emissions from the proposed project will not exceed emission standards for particulate matter. The use of the lime injection system with the proposed baghouse will decrease emissions of sulfur dioxide. The emissions from the proposed project will not exceed standards for sulfur dioxide. Neither the existing wet scrubber system nor the baghouse system are expected to have any significant impact on nitrogen oxide emissions. Consequently, there will be no significant change in nitrogen oxide emissions associated with the installation of the proposed baghouse. The emissions from the proposed project will not exceed emission standards for nitrogen oxides. The proposed baghouse will result in a reduction in the emissions of metals due to the increased efficiency in the removal of particulate matter. The emissions from the proposed project will not exceed emission standards for metals. The proposed baghouse will result in a reduction in mercury emissions due to increased efficiencies in the removal of mercury in particulate form. The proposed baghouse will not cause a change in the emissions of hydrogen chloride when compared to the experience with the wet scrubbers. The levels of hydrogen chloride when using the baghouse as a control device will not exceed any standards. Nor will there be emissions in excess of standards for chlorine gas. The proposed baghouse when contrasted with the experience in the use of wet scrubbers will not change the amount of emissions of organic materials. The proposed baghouse when contrasted with the wet scrubber system will result in a reduction of the emissions of dioxins and furans. The proposed project will comply with standards applicable to dioxins and furans by exclusion from the LBM and limiting the inlet temperature to the baghouse. The proposed permit prohibits the facility from accepting any dioxins bearing waste. The fuel is screened to insure that it does not contain dioxin. PCB's in excess of five parts per million are not allowed. This is a means to limit the formation of dioxins and furans from the PCB's. The maximum temperature of gases entering the baghouse is established at 450 degrees Fahrenheit and an automatic shut-off device is required if this temperature is exceeded in order to control the secondary generation of dioxins and furans. The inlet temperature to the baghouse is set at 425 degrees. The modeling that was done to examine emissions of metals and chlorine provided reasonable assurances that the ambient concentrations caused by the impact of these pollutants from this facility will be less than the Department's annual air reference concentrations, as a means to ensure that harm or injury to human health or welfare, animal, plant or aquatic life or property does not occur. Solite is required by the terms of the proposed permit to have continuous emission monitors for carbon monoxide and hydrocarbons. When the emission standard for carbon monoxide or alternatively hydrocarbons nears the exceedance level, then the automatic waste feed shut-off is activated to assure that the carbon monoxide or, alternatively, hydrocarbon emission standards are not exceeded. Kiln 5 with its associated baghouse has demonstrated a destruction and removal efficiency for regulated organic pollutants in excess of 99.99 percent. Having similar technology, the proposed permit for a baghouse can be expected to meet the 99.99 percent destruction and removal efficiency for organic pollutants. The addition of the proposed baghouse with its associated features provides reasonable assurance that the particulate matter standard of 0.08 grains per dry standard cubic foot corrected to seven percent O2 will be met. As a protection against exceeding emission standards for various pollutants the proposed permit requires that Solite continuously monitor for carbon monoxide, oxygen, baghouse inlet temperature and sulfur dioxide at levels established in the proposed permit. Furthermore, the proposed permit requires that an automatic shut-off device be installed to maintain established emissions limits for temperature, oxygen or hydrocarbons. Such devices have been installed on the existing kiln 5 with its baghouse. Efficient combustion can be expected in kilns 1 and 1A based upon residence time for burning, turbulence, temperature and oxygen availability. The residence time for the fuels is approximately four seconds. The rotation of the kilns and movement of the clay material ensures adequate turbulence. The temperature of the kiln must be maintained at or above 1,800 degrees Fahrenheit and the fuel feed of LBM with hazardous waste is automatically shut-off if the temperature falls below 1,850 degrees. Oxygen levels are to be continuously monitored. The gas flow rates for fuel introduced into the kiln may not vary significantly. These arrangements are contained in the proposed permit. The re-introduction of clay fines or dust into the kiln to be incorporated into the product has been taken into account in establishing estimates of emissions for kilns 1 and 1A. That phenomenon has been measured in emissions for kiln 5. In using the dust Solite will not create conditions which violate standards for emissions. To support these findings all experts who testified at the hearing agreed that the proposed project will meet all applicable rules and emission standards. Solite has established reasonable assurances concerning those standards. The Solite application was sealed by a professional engineer, Dr. John Koogler, who was among those experts mentioned. The Solite facility uses an industrial furnace which is similar in design to furnaces regulated by the Environmental Protection Agency in its hazardous waste regulatory program. Nothing about the facility is extraordinary, thus requiring a more rigorous regulatory response to this facility which uses LBM with hazardous waste in kiln No. 5 and proposes to do so through the project under consideration. It was not shown that the Department must impose its "Air toxics" permitting strategy for controlling toxic emissions from stationary sources at levels which will not endanger public health in order to adequately consider the proposed project. The "Air toxics" permitting strategy is a non-rule policy. Although not specifically required by rule or standard Solite performed additional modeling concerning the emissions of organics from the facility with the advent of the use of the proposed baghouse. The modeling indicated that there would not be an exceedance of the no threat levels established in the state air toxics strategy. Similarly, although not required, Solite conducted additional modeling of dioxins emissions which indicated that there would be no significant risk posed as a result of the proposed project. Solite has qualified for interim status under the United States Environmental Protection Agency (EPA) regulations to burn hazardous waste at its facility. Solite has filed EPA required precompliance certification for all three kilns and certification of compliance for kiln 5. Solite has obtained an extension from EPA for filing their certification of compliance for kilns 1 and 1A. In addition Solite has submitted an application for hazardous facility permit to EPA and this application is currently under review by EPA. In reviewing the permit application past violations of statutes and rules were considered by the Department. This was done to determine whether Solite had provided reasonable assurances that the Department standards in application to the proposed project would be met. The Department correctly decided that Solite's past violations did not justify denial of the permit. Those violations were not severe and Solite corrected the problems. Furthermore, the proposed project would improve air pollution control to the extent that it reduces or eliminates problems that led to the previous violations.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which grants the construction permit for the air pollution source subject to the provisions set forth in the second amended proposed permit. DONE and ENTERED this 30th day of August, 1995, at Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed findings of facts by the parties: Petitioner's facts Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 12 are not requirements that must be considered in deciding to grant or deny the permit. Paragraphs 13 through 16 are contrary to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraph 18 is rejected in its suggestion that Solite has not given the necessary reasonable assurances. Paragraph 19 is subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 and 22 are rejected in the suggestion that the activities at Solite caused these problems. Paragraphs 23 through 28 are rejected in the suggestion that the emissions tests associated with the permit request are inadequate or that Solite has routinely exceeded air emissions requirements or used unacceptable LBM with hazardous waste in the past. Paragraph 29 is rejected in the suggestion that the Department has inappropriately considered the permit request. Paragraph 30 is rejected in the suggestion that the Department would allow unacceptable fuels to be burned in the kilns. Paragraphs 31 and 32 are subordinate to facts found. Paragraph 33 is rejected as not establishing a requirement for granting or denying this permit. Paragraph 34 is rejected to the extent that it suggests that the Department has failed to take into account appropriate circumstances when determining to grant or deny the permit. Paragraph 35 is rejected in the suggestion that the Solite facility has caused problems for local gardeners. Paragraphs 36 and 37 are not necessary to the resolution of the dispute. Paragraph 38 is rejected in the suggestion that Solite has not complied with applicable standards for lead. Paragraphs 39 through 43 are not necessary to the resolution of the dispute. Paragraph 44 is not relevant. Paragraphs 45 through 47 are rejected in the suggestion that the Department has not adequately considered those circumstances necessary to determine whether to grant or deny the permit. Paragraphs 48 through 49 are subordinate to facts found. Paragraphs 50 and 51 are rejected in the suggestion that these matters must be considered by the Department in deciding whether to grant or deny the permit. Paragraph 52 is subordinate to facts found. Paragraph 53 is not necessary to the resolution of the dispute. Paragraphs 54 through 57 are subordinate to facts found. Paragraph 58 is not relevant. Paragraph 59 is a conclusion of law. Paragraph 60 is rejected in the suggestion that inappropriate modeling was conducted by Solite in support of its application. Paragraph 61 is a conclusion of law. Paragraph 62 is not necessary to the resolution of the dispute. Paragraph 63 is rejected in the suggestion that the air toxics strategy should have been employed in this case. Paragraph 64 is subordinate to facts found. Paragraphs 65 through 67 are not necessary to the resolution of the dispute. Paragraph 68 is not relevant. Paragraphs 69 through 73 are rejected in the suggestion that reasonable assurances have not been given concerning compliance with applicable standards for emissions levels. Paragraph 74 is subordinate to facts found. The first sentence to Paragraph 75 is contrary to facts found. The second sentence is not a requirement for resolving the proposed permit request. Paragraphs 76 through 80 are not relevant. Paragraph 81 is subordinate to facts found. Paragraph 82 is contrary to facts found. Solite's facts: Paragraphs 1 through 5 are subordinate to facts found. The first sentence to Paragraph 6 is not necessary to the resolution of dispute. The second sentence is subordinate to facts found. Paragraphs 7 through 16 are subordinate to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 through 42 are subordinate to facts found. Paragraph 43 is contrary to facts found in its suggestion that LBM with hazardous waste may be used with the existing wet scrubbers and the lack of increase in the capacity to burn LBM with hazardous waste if the proposed permit is granted. Paragraphs 44 and 45 are subordinate to facts found. Department's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is rejected in the suggestion that kilns 1 and 1A may use LBM with hazardous waste when operating with the wet scrubber notwithstanding what the permits may say. Paragraphs 11 through 28 are subordinate to facts found. COPIES FURNISHED: Thomas K. Maurer, Esquire Foley & Lardner Post Office Box 2193 Orlando, FL 32801 Julie Hellmuth 1205 Orange Circle North Orange Park, FL 32073 Priscilla Norwood Harris Post Office Box 702 Green Cove Springs, FL 32043 Jefferson M. Braswell, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the Petitioner's application to participate in the Drycleaning Solvent Cleanup Program with regard to its Kendale Lakes facility should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Environmental Protection is the state agency responsible for administering the Drycleaning Solvent Cleanup Program set out in Section 376.3078, Florida Statutes (1995). Dryclean USA is a Florida corporation and is the owner of commercial real property located at 14099 Southwest 88th Street in Miami, Florida. Dryclean USA is an operator of a drycleaning facility at that location, as those terms are defined in Sections 376.301(8) and (21), Florida Statutes. The facility, known as the Kendale Lakes facility, has been operated by Dryclean USA as a drycleaning facility for approximately twenty years. Drycleaning establishments use solvent in the cleaning process. Tetrachloroethylene, also known as perchloroethylene, is a commonly used drycleaning solvent and is considered a hazardous substance. Tetrachloroethylene is saturated in water at 150,000 parts per billion. The drycleaning process produces lint that can contain tetrachloroethylene; contact water, which is water that has, at some point during the drycleaning cycle, come into contact with tetrachloroethylene; and sludge from the mechanism that separates pure tetrachloroethylene from water and solid materials produced during the drycleaning process. In addition, tetrachloroethylene accumulates in the filters used in the drycleaning machine. These substances must be disposed of as hazardous waste. Steiner Atlantic Corporation is one of the largest distributors of drycleaning equipment in the country, and Dryclean USA purchases its equipment from this company. The drycleaning machine in the Kendale Lakes facility was purchased from Steiner Atlantic and has been in use at the Kendale Lakes facility since 1991. The machine is a third-generation machine that uses closed-loop technology. Tetrachloroethylene is introduced into the system from a pressurized container that is connected to the drycleaning machine through quick-disconnect valves. The tetrachloroethylene is pumped directed into the machine so that it does not come into contact with the air. Once the cleaning cycle is completed, tetrachloroethylene and water are extracted from the clothes, heated, and turned into a vapor. The vapor is routed across condensing coils that chill the vapor and turn it back into a liquid. The liquid goes into a separator, where the tetrachloroethylene and the water are separated; the tetrachloroethylene is returned to the drycleaning machine and the water, called separator water, is collected in a hazardous waste drum, which is hauled off the site by a company which is licensed to dispose of hazardous waste. Steiner Atlantic develops training programs for its customers and for a number of years has worked with Dryclean USA to develop training programs for Dryclean USA managers and employees. The Dryclean USA training programs are among the most extensive programs that Steiner Atlantic has developed and rank among the best in the country. The training for Dryclean USA managers both now and in 1995 consists of an intensive three-week program. In addition to courses on how to manage the business, Dryclean USA managers are trained in the operation and maintenance of all the equipment in the drycleaning facility, including the drycleaning machine, and in the legal requirements for handing hazardous waste. The program also includes training in environmental and safety issues, as well as hands-on instruction on the proper handling of tetrachloroethylene and equipment that comes into contact with tetrachloroethylene. Managers are provided with on-going training in addition to the initial training program. Dryclean USA also has a training program in hazardous waste management for all of its employees, and this program was in place in 1995. All of Dryclean USA's employees receive this training from in-house training personnel or from district managers, and the employees must read a training manual, watch a video, and pass several tests that deal with handling hazardous waste. The employees are taught that tetrachloroethylene and substances contaminated with tetrachloroethylene must be disposed of in hazardous waste containers, which are then hauled away and disposed of by a hazardous waste disposal company. Managers at the Dryclean USA facilities are responsible for ensuring that tetrachloroethylene and substances contaminated with tetrachloroethylene are disposed of properly. All Dryclean USA employees receive training in handling spills of tetrachloroethylene and substances contaminated with tetrachloroethylene, although the manager is the person responsible for ensuring-that spills are handled correctly and in accordance with the following procedures. First, all employees who will not participate in cleaning up the spill are evacuated from the premises. Certain designated employees, including the manager, use the spill kit provided in each facility to contain and absorb the spill. The spill kit consists of safety equipment for the employees handling the spill and of absorbent cloth, such as comforters or blankets, to absorb the tetrachloroethylene. The cloth used to absorb the spill is put through the drycleaning cycle to extract the tetrachloroethylene. Dryclean USA requires that all spills, no matter how small, be immediately reported to the Dryclean USA maintenance department, which promptly dispatches an engineer to assist with the spill if it is the result of an equipment malfunction. Additionally, the employees are required to keep internal records of any spill that is less than one quart and to report to the state any spill in excess of one quart. These procedures are set out both in the Dryclean USA Written Hazard Communication Program manual provided to all employees and in the Dryclean USA Emergency Contingency Plan posted on the bulletin board at each Dryclean USA facility. No spills were reported at the Kendale Lakes facility in April or May 1995. In addition to the training given to managers and other employees, the maintenance manager of Dryclean USA is also the environmental officer, and he performs semi-annual audits of each facility operated by Dryclean USA with respect to health, safety, and environmental standards. During these audits, the environmental officer ensures that the employees of each facility are aware of the procedures for the routine collection and disposition of substances contaminated with tetrachloroethylene and of the emergency contingency plan for handling spills of tetrachloroethylene and substances contaminated with tetrachloroethylene. No deficiencies were found at the Kendale Lakes facility during the 1995 audits. In 1994, the soil and groundwater at the Kendale Lakes facility was found to be contaminated by tetrachloroethylene. At that time, Dryclean USA was leasing the property, but, upon learning of the contamination, it purchased the property. Dryclean USA notified DERM of the contamination, and, in the spring of 1994, it retained the U.S. Environmental Group, an environmental consulting firm that, among other things, performs contamination assessments and develops and institutes remediation plans for sites contaminated with tetrachloroethylene. U.S. Environmental Group prepared a contamination assessment report delineating the area of contamination in the soil and groundwater around the Kendale Lakes facility. It also developed and implemented an interim remedial measures plan for both soil and groundwater contamination. Neither DERM nor U.S. Environmental Group nor any other agency or entity has identified the source of the contamination at the Kendale Lakes site. When U.S. Environmental Group began its assessment of the contamination in 1994, it did not find any discharge occurring from the drycleaning system in place at that time and so concluded that the contamination was historical. DERM assigned Nicholas Simmons as project manager for the Kendale Lakes site. In the spring of 1995, Mr. Simmons held the position of Hydrogeologist II in DERM's hazardous waste remediation program. His primary responsibilities in this position were to review contamination assessment reports, remedial action plans, and other documents relating to contaminated sites in Dade County and to make recommendations as to whether the reports and plans should be approved or disapproved. He was project manager for a number of sites contaminated with drycleaning solvents. Before he became a Hydrogeologist II with DERM, Mr. Simmons was a Pollution Control Inspector I with that agency, and his responsibilities included making field inspections of industrial facilities in Dade County, including drycleaning establishments. During his time as a pollution control inspector, Mr. Simmons visited approximately 20 to 30 drycleaning sites, although he did not personally inspect all of them. On April 28, 1995, Mr. Simmons made a visit to the Kendale Lakes facility in his capacity as DERM project manager to observe U.S. Environmental Group install a new monitoring well inside the facility. While at the facility, Mr. Simmons decided to make a cursory inspection to see if he could locate a source of the contamination at the site. He was unsuccessful in this respect, but he found several "items of concern" at the facility, none of which constituted a violation of any federal, state, or local laws, rules, or regulations or involved a discharge of tetrachloroethylene into the soil or groundwater. One "item of concern" he identified during his April 28 inspection was what appeared to be a leak from a pipe connected to the drycleaning machine. The liquid dripping from the pipe was clear and was dripping into a three-gallon bucket. Mr. Simmons did not take a sample of the liquid to determine if it was contaminated with tetrachloroethylene, nor did he observe the method of disposal of the liquid. The temporary manager, who was manager at the Kendale Lakes facility only one day per week, told him that he presumed the liquid was disposed of as hazardous waste. Mr. Simmons prepared a memorandum dated April 28, 1995, to Mark Pettit, a DERM code enforcement officer, in which he reported in detail the inspection, the observations he made, and the conversations he had with Dryclean USA employees during his visit to the Kendale Lakes facility on that date. Mr. Simmons visited the Kendale Lakes site again on May 2, 1995, to observe U.S. Environmental Group install equipment for a soil vapor extraction pilot test. Mr. Simmons took the opportunity to re-inspect the facility. Monica Resconi, the manager of the Kendale Lakes facility, was present during this inspection. In addition, Eddie Rodriguez, then-president of Dryclean USA, was present during most of the May 2 inspection. Mr. Simmons observed that clear liquid was still dripping from the pipe connected to the drycleaning machine into a small bucket. Mr. Simmons asked for and received permission from Ms. Resconi and Mr. Rodriguez to take a sample of the liquid in the bucket, and he submitted it for testing to the DERM laboratory. The laboratory analysis established that the sample contained 220.5 parts per billion of tetrachloroethylene. Mr. Simmons did not ask Ms. Resconi or Mr. Rodriguez how this liquid was disposed of, and he did not observe anyone actually disposing of the liquid. During Mr. Simmons' May 2 visit to the Kendale Lakes facility, he also observed a whitish liquid in a drum labeled "Hazardous Waste" that was located close to the drycleaning machine. A hose connected the drycleaning machine and the drum, but Mr. Simmons did not know whether there was liquid traveling through the hose or whether liquid would travel from the machine to the drum or vice versa. He also observed what appeared to be the same liquid in a puddle on the floor. He asked Ms. Resconi what the liquid was, and she put her hand into the puddle and identified the liquid as water. She wiped it up with a rag. Mr. Simmons did not observe her disposing of the rag, and he did not take a sample of either the liquid in the drum or the liquid on the floor. When Mr. Simmons showed Mr. Rodriguez the dripping liquid he had first observed on April 28 and the area where he had observed the puddle of whitish liquid, Mr. Rodriguez immediately called the maintenance manager for Dryclean USA, and a maintenance technician and the maintenance supervisor were promptly sent to the Kendale Lakes facility. They reported to the maintenance manager that the liquid dripping from the pipe was water that had condensed on the outside of a refrigerator pipe because some of the insulation was missing. They also reported that there were no other leaks from the drycleaning machine. When he inspected the machine the following day, the maintenance manager found that the insulation on the pipe had been replaced and that the pipe was no longer dripping. He also found no other leaks in the drycleaning machine. Finally, Mr. Simmons observed a yellow bucket just inside the back door of the facility during his May 2 inspection. The bucket contained dirty water and a mop with a green handle. He asked Ms. Resconi what the bucket contained, and she explained that it was water that had been used to mop the floor of the facility. When he asked how this water was disposed of, Ms. Resconi stated that it was thrown out the back door. Mr. Simmons asked for and received permission from Ms. Resconi and Mr. Rodriguez to collect a sample of the water in the bucket, but the sample he took was not acceptable for analysis and was discarded. For some time prior to Mr. Rodriguez's meeting with Mr. Simmons, Dryclean USA's policy regarding the disposal of mop water required that water used to mop the front, or store area, of the facility be discarded down the toilet and that water used to mop the back area of the facility where the drycleaning equipment was located be discarded in hazardous waste containers. When Mr. Simmons told Mr. Rodriguez on May 2 that he was concerned that the water in the mop bucket might contain tetrachloroethylene, Mr. Rodriguez responded by directing Ms. Resconi to dispose of all mop water in the hazardous waste containers. Mr. Simmons prepared a memorandum dated May 2, 1995, to Mark Pettit, a DERM code enforcement officer, in which he reported in detail the inspection, the observations he made, and the conversations he had with Dryclean USA employees during his visit to the Kendale Lakes facility on that date. In accordance with Mr. Simmons' recommendation, a detailed inspection of the Kendale Lakes facility was ordered. On May 11, 1995, Heather Wright, an inspector with DERM's hazardous facilities section, visited the facility to perform this inspection. Ms. Resconi was not at the facility, but Ms. Wright met with Brad Clayton, the temporary manager at Kendale Lakes, and with Steve Lundy, Dryclean USA's district manager responsible for the Kendale Lakes facility. Ms. Wright made a detailed inspection of the facility on May 11, 1995, and found that the floor around the drycleaning machine was dry and that there was no evidence of leaks from the drycleaning machine. Mr. Lundy discussed with Ms. Wright the procedure for cleaning up spills of tetrachloroethylene or substances known to be contaminated with tetrachloroethylene, and he told her that spills were picked up with absorbent cloth, which was then put into the drycleaning machine to extract the tetrachloroethylene from the cloth. He also told her that any other materials known to be contaminated with tetrachloroethylene were disposed of in hazardous waste druMs. Ms. Wright questioned Mr. Lundy on the method of disposing of water in the mop bucket, which was located just inside the back door of the facility. He told her that it was thrown out the back door of the facility, but he also told her that spills were not cleaned up with the mop, which was used only to mop the floors of the facility. Ms. Wright collected a sample of the water in the mop bucket and submitted it to the DERM laboratory for testing. The laboratory analysis established that the sample contained 121,928 parts per billion of tetrachloroethylene, an amount close to saturation.3 Ms. Wright did not observe the manner in which the employees of the Kendale Lakes facility disposed of the water in the mop bucket. Ms. Wright prepared an Incident Report dated May 11, 1995, in which she reported in detail the inspection, the observations she made, and the conversations she had with Dryclean USA employees during her visit to the Kendale Lakes facility on that date. When Mr. Rodriguez learned that the sample of water taken from the mop bucket at the Kendale Lakes facility contained almost 122,000 parts per billion of tetrachloroethylene, he instituted a new policy regarding the handling of mop water at all Dryclean USA facilities. Pursuant to a memo dated June 8, 1995, the new procedure requires that two mop buckets be maintained in each Dryclean USA facility, one to be used exclusively for mopping in the front "store" portion of the facility and one to be used exclusively for mopping in the back of the facility where the drycleaning equipment is located. The bucket used for mopping the back of the facility must be red, and the mop used must have a red handle. The water in the bucket used to mop the front of the facility must be discarded into the toilet, and the water in the red bucket, as well as the mop heads, must be disposed of as hazardous waste. According to samples taken by U.S. Environmental Group in November 1996, the level of tetrachloroethylene in samples of groundwater taken from Monitoring Well Number 2, located just outside the back door of the Kendale Lakes facility, was 499 parts per billion, a very small amount but one which was significantly higher than the samples taken from other monitoring wells at the Kendale Lakes site. This indicates that there has been a discharge of tetrachloroethylene in the vicinity of the back door of the facility, but the contamination in this area is in the form of pockets of pure tetrachloroethylene in the soil under the asphalt in the back of the facility. This is not consistent with the discharge of tetrachloroethylene that is dissolved in water. From 1994, when it began working at the Kendale Lakes facility, until the present, U.S. Environmental Group has found no indication of additional or increased contamination from tetrachloroethylene at the Kendale Lakes facility. On April 1, 1996, Dryclean USA applied to the Department for a determination that its Kendale Lakes facility was eligible to participate in the Drycleaning Solvent Cleanup Program. As part of its review process, the Department requested that DERM provide answers to certain questions relating to the Kendale Lakes facility. One of the questions was whether DERM was aware of any "willful" discharge of contaminated materials at the Kendale Lakes site; DERM answered "Unknown." Also in response to the Department's inquiries, DERM provided the Department with materials that included the inspection reports submitted by Mr. Simmons and Ms. Wright in late April and early May 1995 and the laboratory analysis of the mop water sample taken by Ms. Wright on May 11, 1995. The Department relied on the information received from DERM in reviewing the application. In a letter dated August 2, 1996, the Department notified Dryclean USA that its application for the Kendale Lakes facility was denied because it had determined that Dryclean USA had willfully discharged drycleaning solvents "onto the soils or into the waters of the State." The sole basis for this conclusion was the information in Mr. Simmons' and Ms. Wright's reports that Ms. Resconi and Mr. Lundy stated during the inspections on May 2 and May 11, respectively, that the water in the mop bucket found beside the back door of the facility was routinely thrown out of the back door and on the laboratory results showing that the sample of water taken from the mop bucket on May 11, 1995, contained approximately 122,000 parts per billion of tetrachloroethylene. The parties have stipulated that, except for the issue of whether there has been a willful discharge of drycleaning solvent at Dryclean USA's Kendale Lakes facility subsequent to November 1, 1980, the application at issue in this proceeding satisfies all of the statutory criteria to establish Dryclean USA's eligibility to participate in the Drycleaning Solvent Cleanup Program for that facility. The evidence presented by the Department is not sufficient to support a finding that there were willful discharges of drycleaning solvent at the Kendale Lakes facility subsequent to November 19, 1980. The evidence does not establish that spills of tetrachloroethylene and substances contaminated with tetrachloroethylene were routinely cleaned up with a mop and the mop water discharged out the back door of the Kendale Lakes facility. Dryclean USA's employees received extensive training in the proper disposal of hazardous waste and the proper method for handing spills of tetrachloroethylene and substances contaminated with tetrachloroethylene, and its managers were given additional training that included information on the legal and environmental aspects of tetrachloroethylene contamination. There was no plausible reason suggested by the evidence for Ms. Resconi to flout the policies and procedures established by her employer. Furthermore, the evidence presented by the Department is simply too tenuous to establish, as the Department proposes, that Ms. Resconi admitted to Mr. Simmons that spills of tetrachloroethylene and substances contaminated with tetrachloroethylene were routinely cleaned up with a mop and the mop water discharged out the back door of the Kendale Lakes facility.4 At most, the evidence establishes that water used to mop the floor of the Kendale Lakes facility was most likely discharged out the back door until May 2, 1995, when Mr. Rodriguez directed Ms. Resconi to dispose of all mop water at the facility in the hazardous waste containers, and that, on May 11, 1995, the water in the mop bucket contained a significant amount of tetrachloroethylene. There is no evidence that Dryclean USA or its employees knew that the water in the mop bucket on May 11, 1995, contained tetrachloroethylene or that the water in the mop bucket on May 11, 1995, was discharged out the back door of the facility or that any mop water containing tetrachloroethylene was discharged out the back door of the facility. In fact, the uncontroverted evidence is that there has been no increase in the level of tetrachloroethylene contamination at the Kendale Lakes facility since at least 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a Final Order granting the Drycleaning Solvent Cleanup Program Application submitted by Dryclean USA of Florida, Inc., for its facility located at 14099 Southwest 88th Street, Miami, Florida. DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1998.
The Issue Whether Petitioner was the subject of an unlawful employment action.
Findings Of Fact Respondent is an employer within the meaning of Chapter 760, Florida Statutes. Petitioner has had diabetes since his youth and requires regular insulin and other medications for his condition. However, even with medication, Petitioner experiences a variety of symptoms due to low or high blood sugar. At the time relevant to this proceeding, Petitioner’s symptoms ranged from mild to severe and included periods of disorientation, faintness and passing out. Around October 1986, Petitioner was hired by Bay County (County) as an Equipment Operator. In that position, he was required to drive trucks. At the time of his employment, the County was aware of Petitioner’s diabetes. However, the evidence was not clear that the County was aware of the severity of Petitioner’s diabetic symptoms at the time of his hire or that Petitioner’s diabetes might have been severe enough to constitute a handicap at the time of his hire. Unfortunately, Petitioner had two accidents during his tenure as an Equipment Operator. Petitioner’s first accident occurred in 1989 and resulted in a reduction of pay. Petitioner’s second accident occurred in 1990 and led to his demotion from the Equipment Operator position. After his demotion, Petitioner assumed the position of Maintenance II with the County. In October 2005, the County changed the title of the Maintenance II position to Senior Maintenance Worker. Under either title, the duties of the maintenance position required heavy physical labor outdoors. The duties included shoveling, lifting, road work and ditch work. Such work was performed in all types of weather experienced in North Florida, including high heat conditions. Petitioner remained in the Senior Maintenance Worker position until December 2, 2007. At some point around early 2005, during Petitioner’s employment as a maintenance worker with the County, his diabetes became a handicap that impacted his major life functions. Petitioner experienced many episodes where he became uncooperative, faint and/or disoriented because of his diabetes. Some of the episodes occurred without warning when Petitioner would become uncommunicative, begin wandering, or pass out. Other episodes had some warning when Petitioner would report that he felt ill and needed to rest or take medication. The evidence demonstrated that Petitioner’s supervisors and co- workers were aware of his diabetic condition and would assist him in recuperating from these hypoglycemic or other diabetic- related episodes. Additionally, although the record is not clear, there was some evidence that summer heat in combination with strenuous labor exacerbated Petitioner’s ability to control his diabetic symptoms. On the other hand, there was some evidence that indicated Petitioner could experience symptoms from his diabetes under any environmental or working conditions. In 2005, the episodes were significant enough for the County to require Petitioner to undergo a medical examination to assess his fitness to safely perform his duties as a maintenance worker. At that time, the doctor recommended that Petitioner learn to control his diabetes better and be monitored for several months to see if Petitioner gained control of his diabetic episodes. Significantly, the doctor did not find Petitioner unfit to perform his duties as a maintenance worker. Petitioner was never denied a break that he needed as a result of his diabetes and was not disciplined because of his diabetic episodes. Indeed, throughout Petitioner’s employment as a maintenance worker, the County reasonably accommodated Petitioner’s diabetic condition and, as needed, allowed him to sit in the shade, eat, rest, test his blood sugar levels, and/or take medications. County supervisors provided Petitioner candy bars or soft drinks to help resolve his diabetic episodes, allowed Petitioner to take unscheduled breaks, leave work early because of his diabetes, and, at least once, provided a County vehicle to transport Petitioner to his home to get medications. Throughout the years of his employment with the County, Petitioner submitted job interest forms to the County. The job interest forms did not demonstrate that there were job openings or positions available at the time Petitioner expressed an interest in those jobs. The jobs Petitioner expressed an interest in were equipment operator, heavy equipment operator, lab field technician, dump truck driver, parks maintenance worker, traffic sign technician, and water treatment plant operator trainee. Petitioner was interested in the positions identified in the job interest forms because he wanted to better himself professionally. Importantly, Petitioner did not pursue the jobs identified in the various job interest forms he submitted as reasonable accommodations for his diabetes. The fact that the County’s doctor indicated in a 2005 medical examination and report assessing Petitioner’s fitness for duty that work under less strenuous conditions might be warranted should Petitioner not gain better control of his diabetes does not demonstrate that Petitioner requested or required transfer to another position in order to reasonably accommodate his diabetes. Indeed, the documentary evidence demonstrated Petitioner did gain control over his diabetic episodes in 2006 and 2007 with reports of such episodes being substantially reduced and one doctor, in 2007, advising the County that Petitioner could drive a truck as long as he monitored his blood sugar adequately. The evidence did not demonstrate that Petitioner sought transfer to a lighter-duty position as a reasonable accommodation until late 2007 as described later in this Recommended Order. Moreover, all but one of the job interest forms Petitioner submitted during his employment with the County sought reemployment to the equipment operator position from which he was demoted. All of these positions required driving or operating machinery. They all required heavy physical exertion and lifting between 45-to-90 pounds. All positions also required exposure to the heat from the sun and exhaust from machinery. However, the evidence demonstrated that these positions were not as strenuous as the maintenance position that Petitioner held. These positions were also promotions from his maintenance worker position. Additionally, Petitioner offered no evidence that his driving had improved or that he was qualified to operate heavy equipment or drive trucks given his insulin-dependent diabetes and the severe symptoms that he experiences as a result of his diabetes. In fact, since Petitioner’s symptoms included disorientation, faintness and passing out, it would have been negligent for the County to allow Petitioner to operate trucks or other heavy equipment. In short, none of the equipment operator/driver positions constituted a reasonable accommodation for Petitioner. As for the other jobs of Laboratory Analyst I, Parks Maintenance Worker, Traffic and Sign Technician or the Water Treatment Plant Operator Trainee positions that Petitioner expressed an interest in, Petitioner did not know the minimum qualifications for these positions and did not offer any evidence that he was qualified for such positions. Similarly, Petitioner offered no evidence that he sought these positions as reasonable accommodations for his diabetes. Additionally, Petitioner’s interest in these jobs was expressed prior to 2007 or 2008, well outside the relevant time period for purposes of this discrimination claim. In September 2007, Petitioner provided the County a Family Medical Leave Act certification from Dr. Steven Wise that stated he could perform all of the essential functions of the maintenance worker position he held. The doctor’s notes do not state that he is unable to perform the duties of his maintenance worker position under current working conditions. In fact, Petitioner never gave the County any document that stated he could not perform the duties of the maintenance worker position and needed a less strenuous and hot job in order to accommodate his diabetes. On October 18, 2007, Petitioner conducted himself in a rude, combative, and extremely argumentative manner during a County-sponsored Diabetes Awareness Seminar. As a result, Petitioner was suspended without pay for one day. On November 1, 2007, Petitioner erupted into a profanity-laced tirade at the workplace only one week after serving the suspension for his outburst during the County’s Diabetes Awareness Seminar. Petitioner gestured his middle finger at a co-worker, threatened to beat an employee’s a _ _, and told the co-worker f_ _ _you, “if you stand up I will kick you’re [sic] a _ _,” “loud mouth punk,” and “you smart mouth d _ _ _head.” Petitioner directed his threats and profanity at co- workers and supervisors in response to another person who had parked their vehicle improperly and blocked or interfered with Petitioner’s ability to move his parked vehicle. At the time, Petitioner was undergoing a change from insulin shots to a continuous insulin pump. Such a change requires a period of adjustment in order for the pump to provide the correct dose of insulin to the user. There was no evidence that the County was aware of the change in Petitioner’s insulin regimen at the time of these outbursts. Additionally, the evidence was unclear that the change in Petitioner’s insulin regimen caused either of these outbursts although such behavior is consistent with a hypoglycemic reaction. As a result of Petitioner’s behavior, the County recommended his termination. Notably, such aggressive outbursts could have led to any employee’s termination, irrespective of whether the employee was handicapped or not, since the ability to get along with co-workers is essential to any working environment. Petitioner was provided a pre-termination hearing prior to the County making a final decision on his recommended discharge. During Petitioner’s pre-termination hearing, he explained that his profanity-laced outburst resulted from a low blood sugar episode and that he felt it was due to the changes he was undergoing in his insulin regimen. Petitioner’s spouse, who is a nurse, also explained his diabetic condition to the County Manager. Petitioner also submitted a note from his physician, Dr. Steven Wise, stating that a “job requiring less heavy physical exertion” would help Petitioner control his diabetes. Petitioner asked that he remain employed with the County and be allowed to transfer to a job with little or no physical exertion, less manual labor, and that was not exposed to the elements. Based upon Petitioner’s claim that his diabetes caused the outburst, his wife’s explanation of his diabetic condition, and the doctor’s note, the County decided to provide Petitioner an opportunity to remain employed in a less strenuous position. Ms. Smith, the County’s Human Resources Director, reviewed Petitioner’s personnel file to ascertain what jobs he had previously demonstrated an interest in and what positions he might be qualified for. After review, the Solid Waste Attendant position was the only position the County had available in November 2007 that fit the less heavy physical exertion requirement requested by Petitioner. At hearing, Petitioner submitted a list of available County jobs for 2007 and 2008. The list does not indicate which of the jobs was available in November 2007 when Petitioner first sought a job transfer as a reasonable accommodation. Additionally, the jobs Petitioner expressed an interest in were the same jobs Petitioner had expressed an interest in that were discussed earlier in this Recommended Order. As to those positions, the record shows that either Petitioner was not qualified for those jobs or there was no substantial or credible evidence that demonstrated the availability of any other less strenuous positions that Petitioner was qualified for in November 2007. Sometime after the pre-termination hearing, the County offered Petitioner the position of Solid Waste Attendant. At some point, the County met with Petitioner before he accepted the Solid Waste Attendant position. At that meeting, Petitioner was told about the duties of the Solid Waste Attendant position. Those duties included counting money, inputting data into a computer, and/or processing paperwork. Two of the essential functions of the Solid Waste Attendant position were the ability to use computers and the ability to make correct change when handling cash. At the time, and even though Petitioner now admits he is not good at math and has not used a computer to any great extent, Petitioner was pleased with the Solid Waste Attendant position and did not raise any concerns or objections regarding his ability to perform the duties of that job. In fact, Petitioner testified during the hearing that he “thought that it would be a good job.” Petitioner accepted the Solid Waste Attendant position and started work on December 3, 2007. He did not lose any pay or benefits when he was transferred to the Solid Waste Attendant position. As with any other County employee, Petitioner was on performance probation status when he assumed the Solid Waste Attendant position. The County’s probationary employee policy allows employees to be discharged prior to the completion of the probationary period. Petitioner was in the Solid Waste Attendant position for approximately two and a half months. With the exception of two weeks (December 28, 2007, until January 14, 2008) that he missed because of hand surgery on his non-dominant left hand, Petitioner spent the remaining ten weeks in training. However, prior to Petitioner’s leaving for surgery on his left hand he was having problems performing the Solid Waste Attendant’s duties. Upon Petitioner’s return to work on January 14, 2008, Petitioner was placed on light duty. He was not restricted in relation to the use of his left hand. However, for a short time, use of his left hand was difficult since it required elevation. Importantly, the evidence did not demonstrate that Petitioner’s surgery on his left hand significantly interfered with his ability to perform the duties of the Solid Waste Attendant position over the period of time he worked in that position. Nor, was there any credible evidence that Petitioner’s large hands hindered his ability to use the computer keyboard at work. Petitioner’s difficulties in mastering the duties required in the position did not involve the speed with which he could input data into the computer system. His problems did involve his ability to do math, understand the waste computer program and learn the codes for appropriately accounting for solid waste disposal. John Beals, Rose Day, and Cynthia Thompson trained Petitioner in the duties of the Solid Waste Attendant position for periods ranging from a couple of weeks to two months. Petitioner was provided training on how to complete solid waste attendant paperwork, computer operation, scale operation, customer service, and cash-handling procedures. Despite the training, his job performance in the Solid Waste Attendant position was unsatisfactory. Specifically, Petitioner was unable to retain the information necessary to complete solid waste attendant tasks, did not understand the WasteWork computer program, did not count money correctly when giving change, could not remember account numbers or material codes relevant to required environmental accounting for solid waste processing, failed to complete forms correctly, and could not multi-task while processing customers leaving waste at the solid waste facility. Petitioner’s performance did not improve after his return from the hand surgery. As a result of Petitioner’s inability to understand the Solid Waste Attendant’s job duties and unsatisfactory work performance in the position, the County terminated Petitioner’s employment during his probationary period. There was no credible evidence that Petitioner’s termination was based on his diabetic condition or was a pretext for discrimination based on his handicap. Petitioner simply could not perform the essential functions of the Solid Waste Attendant job. Finally, the evidence did not demonstrate that any other position was available to Petitioner for which he was qualified. Given these facts, the evidence did not demonstrate that Petitioner was discriminated against based on his handicap and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief be dismissed. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of December, 2009. COPIES FURNISHED: Cecile M. Scoon, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Reynaldo Velazquez, Esquire Velazquez Law Firm, P.A. 100 Almeria Avenue, Suite 340 Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
