The Issue The issue is whether Petitioner's request for a variance from agency rules governing daily domestic sewage flow so as to authorize an increase in the number of seats for his restaurant located in Howey in the Hills, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Fletcher C. Bishop, Jr., is the owner of a parcel of property located at Lot 22, Block C-2, Lakeshore Heights Subdivision, 102 South Palm Avenue, Howey in the Hills, Florida. The property consists of .0946 acre, or approximately one-tenth of an acre, and is one of several parcels located in Block C-2. Since January 1997, the property has been leased to Robert P. Jencic, who now operates a pizza restaurant on the premises known as Hungry Howies Pizza Shop. According to Jencic, he has a contract to purchase the property from Bishop at the end of his lease, or on March 1, 1998. Whether the property was actually purchased by Jencic on that date is not of record. Lakeshore Heights Subdivision is not served by a central wastewater treatment system; rather, each lot is served by a septic tank and drainfield system. Lot 22 adjoins several other commercial or business establishments situated on Lots 20, 21, 23, and 23A in the western half of Block C-2, and all share a common drainfield easement located to the rear of the lots. Except for Lot 20, all lots have tied into the drainfield and now use the easement for waste disposal purposes. Because they share a common easement, each lot has been allocated a portion of the easement for its respective septic tank and drainfield. In Petitioner's case, he has been allocated approximately 990 square feet. After Jencic signed a commitment in January 1997 to lease and purchase the property, he made extensive renovations in order to convert the property to a restaurant. On or about February 20, 1997, Jencic met with a representative of the Lake County Health Department, an agency under the direction and control of Respondent, Department of Health (Department). At that time, Jencic filed an application for a site evaluation concerning the replacement of the existing onsite sewage disposal system. The application noted that he intended to operate a pizza restaurant with 56 proposed seats. On February 21, 1997, a site evaluation was conducted by Robin Gutting, a Lake County Department of Health environmental supervisor. According to her report [t]he property size of 4120 square feet with available central water will allow a maximum 236 gallons of sewage flow per day . . . This will allow a 12 seat restaurant using single service articles and operating less than 16 hours per day. . . The size of the Onsite Sewage Treatment and Disposal System would be a minimum 900 gallon tank with 197 square feet of drainfield trench configuration. (emphasis added) Jancic received a copy of the report on or about March 12, 1997, and it clearly conveyed to him the fact that he could operate no more than 12 seats in his restaurant due to sewage flow limitations on his property. Despite being on notice that the restaurant would be limited to only 12 seats due to the lot flow restrictions, on March 19, 1997, Jencic filed an application with the Lake County Health Department for a construction permit to replace the existing septic tank with a 900 gallon septic tank, install a 900 gallon grease trap, and utilize a 197 square-foot primary drainfield and a 200 square-foot bed system. The application indicated that Jencic intended to operate a restaurant "for 12 seats, single service, open less than 16 hours per day." On May 28, 1997, Jencic's application was approved for "12 seats, single service, open less than 16 hours per day." After installing the new tank and grease trap, Jencic began restaurant operations subject to the above restrictions. After operating his pizza restaurant for a short period of time, Jencic determined that he could generate a profit only if the restaurant could be expanded to allow more seats, and he could use china and silverware (full service articles) rather than single service articles (throwaway utensils). To do this, however, he would need a larger sewage treatment system. By letter dated November 9, 1997, Jencic requested a variance from various Department standards for onsite sewage treatment and disposal systems so as to "increase the seating from 12 seats to a maximum of 36 seats and [authorize] the use of china, silverware, and dishes." Although the letter does not refer to any rules, the Department has treated the letter as seeking a variance from three of its rules found in Part I, Chapter 64E-6, Florida Administrative Code. First, Rule 64E-6.001(4)(c), Florida Administrative Code, provides that an establishment cannot exceed the lot flow allowances authorized under Rule 64E-6.005(7)(c), Florida Administrative Code. If the seating capacity in the restaurant were increased, Jencic would exceed the lot flow allowances in violation of this rule. Second, Rule 64E-6.005(7)(b), Florida Administrative Code, prescribes the manner in which a determination of lot densities shall be made. Among other things, daily sewage flow cannot exceed an average of 2,500 gallons per day per acre. The easement which Petitioner shares with other lots is far less than an acre, even counting the space allocated to the adjoining lots. Finally, Rule 64E-6.008(1), Florida Administrative Code, provides that minimum design flows for systems serving a structure shall be based on the estimated daily sewage flow as determined by Table I of the rule. That table specifies an estimated daily sewage flow of 20 gallons per seat for restaurants using single service articles only and operating less than 16 hours per day. Therefore, a 12-seat restaurant with those operating characteristics would require a system that could handle at least 240 gallons of sewage flow per day. The table further provides that a restaurant operating 16 hours or less per day with full service will generate an estimated sewage flow of 40 gallons per seat. Thus, a restaurant with up to 36 seats, as Jencic has requested, would require a system handling at least 1,440 gallons of sewage flow per day. In order to qualify for a variance, an applicant must show that (a) the hardship was not caused intentionally by the action of the applicant; (b) no reasonable alternative exists for the treatment of the sewage; and (c) the discharge from the onsite sewage treatment and disposal system will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. In its letter denying the variance, the Department asserts that Jancic has failed to show that items (a) and (c) have been satisfied. Jencic, who recently immigrated to this country, will suffer considerable financial hardship if the request for a variance is denied. Indeed, he demonstrated at hearing that his life savings have been invested in the restaurant, and his parents have placed a substantial mortgage on their property to assist him in his endeavor. If he does not purchase the property as required by his contract, he will be forced to restore the property to its original condition at great expense. In short, given his investment in renovations and equipment, unless the restaurant is expanded, he fears he must file for bankruptcy. Both parties agree that Jancic will suffer a hardship if the variance is not approved. However, Jancic was aware of the lot flow limitations before he made application to replace the existing septic tank in March 1997, and well before he began operating the restaurant in May 1997. Unfortunately, then, it must be found that the hardship was intentionally created by Jencic's own actions. If the variance were approved, it would result in a much larger amount of sewage being discharged into the easement, which could not handle that amount of flow. This in turn could cause the system to fail, thus creating a sanitary nuisance and the leaching of sewage into the groundwater. In this respect, Jancic has failed to show that the discharge will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. Jencic offered into evidence a summary of his water usage during a representative period in 1997. That document indicated that metered water usage was approximately 3,000 to 4,000 gallons per month, even when he temporarily (and without authority) expanded his restaurant to 24 seats during a recent two-month period to test water consumption at the higher seating capacity. However, because the sewage strength of a restaurant is far greater than that of a residence, a sewage system must be sized on estimated waste flow, and not metered water flow rates. Therefore, the fact that Jancic's monthly metered water usage is less than 4,000 gallons is not relevant to a determination of the issues. The same finding must be made with respect to Jancic's well-intentioned efforts to decrease water flow by installing high pressure toilets and timed spring systems on his hand sinks. Jencic also requested that he be allowed "spike time" during the hours of 11:30 a.m. to 1:00 p.m. and 6:00 p.m. to 7:30 p.m., which are his peak hours of the day. In other words, the undersigned assumes that he is asking that consideration be given to the fact that he has virtually no business during the other hours of the working day, and that the flow during the peak hours alone would not be excessive on a daily basis. However, the Department's rules are calculated to maximum usage, and thus a "spike" allowance is not allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying Petitioner's request for a variance. DONE AND ENTERED this 11th day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert P. Jencic 102 South Palm Avenue Howey in the Hills, Florida 34737 Marya Reynolds Latson, Esquire Post Office Box 2408 Ocala, Florida 34478 James Hardin Peterson, III, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether an on-site sewage disposal system ("OSDS") construction permit should be issued to the Petitioner based upon the question of whether the property lies within the ten- year flood elevation of the Suwannee River, and if so, whether an appropriate system can be designed which will remove the system an adequate distance above the ten-year flood elevation level and thus comply with Rule 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Allyn B. Giffin, wishes to construct a vacation-type, part-time residence on his lot lying in Dixie County, Florida, in the vicinity of the Suwannee River. The subject proposed disposal system site lies at the Suwannee River Water Management District's river mile no. 50 and the ten-year flood elevation for that site and river mile is 21 feet above mean sea level ("MSL"). The property also lies within the "regulatory floodway" of the Suwannee River, as regulated by the Suwannee River Water Management District, and may require a "works of the district" permit. The elevation of the surface grade at the subject site is approximately 17 feet, 7 inches above MSL, as shown by the survey of Herbert Raker, a certified land surveyor. Because the property lies within the regulatory floodway of the Suwannee River, the pertinent rule requires that an engineer certify that any mounding of the system to raise it above the flood plain and the regulatory floodway level will not cause any alteration in the base flood level in that regulatory floodway of the Suwannee River. Aside from being within the regulatory floodway and beneath the ten- year flood elevation, the property is amenable to the type of subsurface septic tank and drain-field system proposed. The water table at the time of the site evaluation performed by Mr. Fross, of the Department was 72 inches below the existing surface grade. Based upon mottling in the soil, the estimated wet season water table was 42 to 48 inches below surface grade. Since the surface grade elevation at the proposed site is 17 feet, 7 inches, and the ten-year flood elevation is only 21 feet, it was shown to be quite feasible to elevate the septic tank system in a filled mound and mound pad, such that the entire system could be raised the required regulatory distance above the ten-year flood elevation level. Mr. Ted Biddy was accepted as an expert witness in the field of civil engineering with emphasis on sanitary system engineering. He testified on behalf of the Petitioner. Mr. Biddy has designed a sewage disposal system for the Petitioner, which design is admitted into evidence, which is designed to be constructed and to operate above the ten-year flood plain elevation found above. The system is called a "mounded balancing system". It will consist of a raised earthen pad with a raised mound on top of that pad containing the septic tank and drain-field system at an elevation sufficient to maintain the required regulatory differential between the bottom elevation of the drain-field trenches and the ten-year flood elevation. This system was established by Mr. Biddy's testimony to avoid any deleterious effect on public health and environmental safety which might be posed by the sewage effluent entering the system if it were placed below the existing surface grade of the lot in question. The water table elevation is at a minimum of 42 inches below the surface grade of the lot; and if the proposed system were raised above the ten- year flood elevation, the bottom grade of the drain-field trenches would be at least five feet above the surface grade elevation of the lot at the proposed installation site, plus an additional 42 inches above the wet season water table level established by the testimony of Mr. Fross, who did the site evaluation for the Department. It was thus established that such a mounded system will meet all of the parameters contained in Chapter 10D-6 and, specifically, Rules 10D- 6.044-049, Florida Administrative Code, the rules as they applied at the time of application and hearing. Dr. Richard Hunter, testifying as an expert witness for the Department, had not seen this design until the day of the hearing. Upon reviewing it, he agreed that if such a system were installed on the lot in question, it would meet all of HRS regulatory parameters and would be permittable, at least for a two-bedroom dwelling. Mr. Biddy further established that even with a three-bedroom dwelling, as originally proposed by the Petitioner, because it would only have intermittent, occasional use as a vacation retreat, the sewage loading would be substantially less than would the loading from a normal three-bedroom, full-time residence. It is also true, as found above, that the property is in the regulatory floodway of the Suwannee River. Because of this, the Department's rule requires that an engineer certify that installation of such a mounded system will not raise the base flood level of the so-called "100 year flood". This is a balancing system, as described by Mr. Biddy, which involves the removal of approximately 877 cubic yards of fill material from the site or that portion of the site which lies within the regulatory floodway. This is an amount exactly equal to the required amount of fill to construct the mounded system, as proposed. Because of this, the addition of the 877 cubic yards of fill material for the mounded system will not cause additional displacement and resulting raising of the base flood level. Thus, the Department's rule in this regard will be complied with. This is because the fill material will replace an equal amount of material excavated from the lot in that portion below the regulatory floodway level, which excavated material will be removed from the regulatory floodway entirely, thus resulting in no net gain of fill material within the regulatory floodway and, therefore, no additional displacement or elevating of the base flood level. In summary, it has been demonstrated that the addition of the mounded system, as proposed by the Petitioner through the testimony of Mr. Biddy, will not pose any environmental hazards or any potential harm to public health and safety and will result in the sewage disposal system proposed being installed at an elevation properly above the ten-year flood elevation of 21 feet above MSL. The Department has interpreted the Executive Order of the Governor, 90-14, purporting to prohibit such systems beneath the 10-year flood elevation of the Suwannee River as requiring strict prohibition of such systems in those circumstances when it carries out its enforcement of the requirements of Rule 10D-6.047(6), Florida Administrative Code, the rule applicable to this permit application, hearing and circumstances. Further, the Petitioner has agreed to limit the size of his dwelling to a two-bedroom dwelling instead of a three- bedroom dwelling.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be issued by the Department of Health and Rehabilitative Services granting a permit to the Petitioner, Allyn B. Giffin, authorizing the installation of an on-site sewage disposal system in the manner and under the conditions enumerated in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 29 day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4424 Petitioner's Proposed Findings of Fact 1-7. Accepted. Respondent's Proposed Findings of Fact The Respondent submitted no proposed findings of facts. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Conrad C. Bishop, Jr., Esq. P.O. Box 167 411 N. Washington Street Perry, FL 32347
The Issue The issue is whether respondents should have a civil penalty imposed against them for failing to repair allegedly faulty on-site sewage disposal units.
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Respondents, Carl L. and Deborah J. Forrester, have resided on Lem Turner Road in Callahan, Nassau County, Florida, since December 1988. Their home is serviced by two underground sewage disposal systems, both located in the back yard and installed prior to 1983. In the fall of 1991, Betty Bailey and her now deceased husband began construction of a new home on the lot adjacent to the Forresters. The home was completed in early 1992. As a result of a complaint filed by Bailey with the Nassau County Public Health Unit, which is an arm of respondent, Department of Health and Rehabilitative Services (HRS), respondents were required to obtain a construction permit to repair their sewage disposal systems. Because HRS concluded that respondents did not repair their systems as required by the permit, it contends they should be assessed a civil penalty until the violations are corrected, but that such fine not exceed $1500. This preliminary decision is embodied in an administrative complaint issued against respondents in early 1993. The street on which respondents live, Lem Turner Road, runs in a north- south direction. Beginning at the northern end of the block and going south are the Lindemann, Forrester, Bailey, and Campbell home sites, respectively. The natural slope of the land runs north to south so that water runs from the Lindemann property, which is the high point on the block, south over the Forrester property, then over the Bailey property, and finally through the Campbell property and into a small pond on an adjacent lot. Directly behind the Forrester lot is a home owned by Susan Lewis and her husband while Ronald K. Earl's home is located on a 3-acre home site directly behind Bailey's lot. There is also a sod farm which lies to the south and east of the block and, at its closest point, is no more than seventeen hundred feet from the Earl property. Since there is no central wastewater treatment plant, each of the homes in this area must use an individual sewage disposal unit (septic tank and drainfield). It is noted that because of the low elevation in the area, and the seasonal high water table elevation, at least 95 percent of all new systems currently installed in Callahan must use a septic tank with a mound-type of drainfield. When the Baileys were constructing their home, Betty Bailey noticed that the elevation of her property was lower than the Forresters' lot, and the area in the back yard immediately adjacent to the Forresters' property line was always "wet" and "mushy". Indeed, it was so wet that on occasion construction trucks would get stuck. She also observed water bubbling up out of the Forresters' yard adjacent to her property line. In an effort to eliminate the wet area, Bailey added a considerable amount of fill dirt to her lot and sodded the area. She recalls adding some twenty loads or so while Carl Forrester says it was much more than that. In any event, the elevation on her lot increased to a height slightly greater than that of the Forrester lot, and this changed the natural flow of stormwater runoff from over her lot to a ditch which straddles her property line. Even so, she says the fill and sod did not correct the wet condition near the property line and it still remained wet as of the date of hearing. After moving into her home in February 1992, Bailey began noticing a sewage odor emanating from the soggy area of ground running from her back yard to the Forresters' back yard. The odor, which was worst in the evening and when it rained, was so bad that it prevented her from using her screened back porch and swimming pool in the evening or entertaining friends outside. The condition still existed as of the date of hearing. Bailey spoke to Carl Forrester about the odor and mushy ground on several occasions. Once he told her there was an underground spring causing the wet ground and suggested she install a french drain system to convey stormwater runoff from her back yard. He also suggested the odor was caused by the nearby sod farm which used manure to fertilize the sod. Bailey contacted the Nassau County Public Health Unit on March 2, 1992, and requested that it check out the source of the problem. Shortly thereafter, Stanley Stoudenmire, a Nassau County environmental health care specialist, inspected the area where respondents' property abuts the Bailey property and observed "mushy" ground, standing water, flies, and bright green algae growth. He also smelled hydrogen sulfide, which is indicative of a failing drainfield, and observed water coming out of the ground. Without the need to take water samples, Stoudenmire identified the pooling liquid as effluent flowing from respondents' drainfields. All of these conditions were indicative of a failed sewage system and constituted a sanitary nuisance. It is noted that an improperly operating system is a threat to human life and safety since it can cause a number of diseases. After advising Carl Forrester that there was a problem with his drainfield, Stoudenmire was told by Forrester that his systems had been checked out by two septic tank firms and nothing was wrong. Nonetheless, Stoudenmire advised Forrester to repair the systems. Stoudenmire continued to monitor the situation and even ran a red dye test on one visit. This produced no evidence of a faulty system, but the test is not a conclusive indicator of a failed system. After Bailey continued to make complaints and further inspections revealed that no repairs had been made, Stoudenmire advised Forrester by letter dated July 9, 1992, that he must obtain a permit to correct the systems. On July 13, 1992, Carl Forrester made application for a permit. The application required him to make a site and soil evaluation and prepare a drawing of the proposed corrections. The next day, Stoudenmire conducted a soil and site evaluation on the Forrester property as an aid to them in determining the type of repairs that they needed and the specifications for the drainfield. According to the soil borings, which were not contradicted, the bottom of the existing drainfields were not separated from the seasonal high water table elevation by at least twelve inches, as required by Rule 10D-6.0571(4), Florida Administrative Code. Further, the area had a clay subsurface, which means that water percolation is not good. On July 16, 1992, respondents made application for a construction permit. The permit contained specifications consistent with Stoudenmire's evaluation and required respondents to disconnect both existing systems and install a mound-type drainfield, like that in Betty Bailey's back yard, so that the required 12-inch separation could be achieved. The permit required the work to be completed within ninety days. On September 15, 1992, Stoudenmire advised respondents by letter that they "had not notified (his) office of any efforts to correct the problem". They were told that unless corrective action was taken within ten days, "legal action would be pursued". On October 26, 1992, a second letter was sent to the Forresters by Stoudenmire advising them that he continued to receive complaints, that the repairs may have been done in "an illegal manner", and that they had "5 days from receipt of this notice to contact (him) for an inspection." In November 1992, Carl Forrester made certain "repairs", but they were not of the type required under the permit. Instead, he installed a french drain system, consisting of a 55-gallon drum, an electric pump and a drain pipe, which simply conveyed stormwater runoff and effluent from his back yard to a percolation system in his front yard. Bailey says that, as a result of these "repairs", she can now smell the sewage odor emanating from the front yard. Forrester also placed lime on the soggy area and sprayed the same area with a chemical. On November 26, 1992, HRS issued another warning letter to the Forresters stating that it was "imperative" that they "cooperate and respond immediately" due to continued complaints by Bailey. Stoudenmire also returned to the site and once again observed insects and "mushy ground", caused by a combination of effluent and stormwater, and could smell a raw sewage odor in an area which straddled the Forrester-Bailey property line. These conditions were the same as those previously observed on prior inspections, were indicative of a failed sewage disposal system, and constituted a sanitary nuisance. There is no evidence that the conditions had been corrected as of the date of hearing. During this same period of time, Susan Lewis, who lives directly behind the Forresters, occasionally smelled a raw sewage odor, especially in the evening, coming from the Forresters' back yard. When she spoke with Carl Forrester about the odor, he told her that he was aware of the problem, had "no doubt" there was sewage "going to" the Bailey property, but denied it was from his systems. However, he also told her he intended to correct the problem. Testimony by two other neighbors established that they do not smell any foul odors coming from the Forrester property but that when climatic conditions are just right, they can smell an odor from the nearby sod farm. However, it is found that the odor smelled by Stoudenmire, Bailey and Lewis comes from the Forresters' faulty drainfields and is different from that occasionally caused by the sod farm. Respondents do not want to incur the cost of disconnecting their two existing systems and installing an unsightly mound system, which would cost almost $3,000.00. In addition, Carl Forrester says that the trucks and equipment used to install a mound system would cause another $2,000.00 in driveway and landscape damage. Because of this, Forrester contends he will sell his home before installing a mound system. Forrester also blamed the newly added fill on Bailey's lot, which disrupted the natural flow of water, for causing the standing water on his property. However, there was no evidence that this condition caused the drainfields to operate in a faulty manner. Forrester also said four septic tank firms found his systems to be in compliance with HRS rules. But this testimony is hearsay in nature and cannot be used to make a finding in his favor. Finally, he blamed part of the odor on a rotting gum tree stump in his back yard which eventually dissipated. However, this contention is not accepted as being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a $1,000 civil penalty upon respondents for violating Subsections 386.041(1)(a) and (b), Florida Statutes, and Rule 10D-6.0571(4), Florida Administrative Code. Respondents should also be required to correct their failed system by installing a mound- type drainfield within thirty days from date of final order. DONE AND ENTERED this 20th day of May, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1300 Petitioner: 1-2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 6 and 9. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Covered in preliminary statement. Partially accepted in finding of fact 4. 9-10. Partially accepted in finding of fact 7. Partially accepted in finding of fact 12. Partially accepted in finding of fact 2. Respondents: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 12. 6-7. Partially accepted in finding of fact 6. 8. Partially accepted in finding of fact 7. 9. Partially accepted in finding of fact 6. Partially accepted in findings of fact 1 and 12. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 13-14. Partially accepted in finding of fact 11. 15. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire Post Office Box 2417 Jacksonville, FL 32231-0083 J. Gary Baker, Esquire Post Office Box 1177 Callahan, FL 32011
The Issue The issue for consideration is whether the City of Sarasota should be issued a permit by the Department of Environmental Regulation for the construction of a dry line sewer system through the Petitioner's neighborhood.
Findings Of Fact At all times pertinent to the matters in issue herein the Petitioners, Becky Close, et al., were residents of the area in issue which is located both within and outside the boundaries of the City of Sarasota and in portions of Sarasota County contiguous thereto. The City of Sarasota, (City), is a municipality in Sarasota County which has applied to the Department of Environmental Regulation, (Department), for a permit to construct a sewage collection/transmission system in Sarasota County which Petitioners fear will adversely impact the safe, quiet enjoyment of their property. The Department is the state agency responsible for the permitting of sewage transmission, collection, treatment and disposal in this state. The City currently owns and operates a domestic wastewater collection, transmission, treatment and disposal system, including a wastewater treatment plant, which serves approximately 96% of the City's residents and which is authorized by a Construction Permit and Amended Consent Order issued by the Department. On or about November 30, 1990 the City applied to the Department for a permit to construct an additional collection and transmission system for wastewater. This permit, if issued, would provide for the City to construct several system extensions at various locations throughout the city and includes the construction of seven lift/pump stations and fourteen "tie-in" locations at which the existing system will be extended to the unserved areas. Upon completion, the system will serve approximately 99% of the City's residents. Accompanying the application was a set of engineering plans and specifications for the proposed project which had been signed and sealed by the City's engineers. Sometime after the application was filed, the Department requested additional information relating, inter alia, to the design of the lift stations in regard to flood conditions. On January 8, 1991, the City provided the requested information which was based in part on a flood insurance map prepared by the Federal Emergency Management Agency, (FEMA). Thereafter, by Notice dated March 26, 1991, the Department indicated its intention to grant the permit application. The proposed permit specifically notes that it is for the construction of the line only and before it can be placed in service, the City must secure separate approval. Specifically, the permit conditions state: 2. This permit does not authorize the connection of these collection systems to the City of Sarasota WWTP [Wastewater Treatment Plant]. The permit shall not be construed to infer any assurance that the necessary authorization for connection shall be granted. Any such authorization shall be granted only when adequate treatment in accordance with rules, regulation, and issued permits of the Department is available for any flows transported by the systems. * * * 5. Upon completion of the system and prior to use, the permittee ... shall submit to this Department a written request ... to obtain Department approval to place the system into service, .... In addition to the terms of those specific conditions relating to the limited approval effect of this permit, the General Conditions provide: 3. ... This permit is not a waiver of or approval of any other Department permit that may be required for other aspects of the total project which are not addressed in this permit. It is clear from the language of the permit that as proposed, it does not include authorization to place the covered work into service or, for that matter, to even connect it to the existing plant. The Petitioners live within an eight block area through which one of the proposed extensions, with its lift stations, will run. Many have lived in the area for decades and have experienced periodic flooding which, for the most part, results from the inability of the drainage flow to adequately handle the large amounts of rainwater which come with storms that routinely hit the area. In addition, increased paving as a part of commercial and residential development in the area has resulted in a reduction of absorption which has contributed to the flooding. The flooding which occurs usually recedes within a couple of hours and leaves a residue. Many of the residents oppose the projected permit because they fear that if the system fails during a flood period, sewage would be ejected from the system, would mix with the flood waters, and spread across the area. When the waters receded, the residue would include waste as well. William Hartman, a resident of the areas for 35 years, who is not an expert in any pertinent field, prepared a map of the area and the watershed which drains it. In doing so, he didn't consult with anyone nor can he state the total acreage or the number of impervious or pervious areas. He does not know how much rainfall there is in either a 100 year or a 25 year storm and he cannot say if any of the photographs of flooding introduced by the Petitioners depicted a 100 year storm, the last of which occurred in 1968. Nonetheless, he is still concerned. Mr. Hartman tried to make this information available to City officials before the design of the system was started but they did not seem to be much interested in it. He also tried to present the information to the City Commission before the project was voted on, but, again, it was rejected. Another resident, Mr. Williams, built a home in the area several years ago, but before he could do so, he was required to bring in fill to build up an area on which to build. Whenever it rains, the water runs off his land and onto his neighbors' and floods their houses. Since his house is built up, he does not suffer water damage, but when it floods, he has trouble getting into and out of his property. Ms. Hartman, another neighbor, was caught outdoors in the 1971 flood which brought water up to her chest. In her opinion, if sewage were released into this kind of water, it would be revolting. The evidence of periodic flooding is also supported by Mr. Lawson, the mail carrier in the area for 10 years, whose vehicle has stalled in the high water, and Mr. Riddlemoser, a resident, who has, on occasion, been unable to drive into the area due to high water. The manager of the County's Stormwater Management Division confirms there is a flooding problem in the area. Several alternatives have been proposed to deal with it. One is emergency evacuation of the residents and another is channel modification to drain the water away. Additional development in the area can be expected and any such development is required to be designed to minimize impact downstream. Nonetheless, some additional problems might be expected. The County plans to study all the reports and come up with proposed solutions to the flooding problem. Though he cannot judge whether the Corps of Engineers' report or the FEMA report has the better flood information, he would use the Corps' figures. The County's utilities plans examiner, Mr. Cole, has visited the area and attended a residents' meeting about the flooding problem. His study of the problem generates two questions. The first is what caused the flooding, and the second is that given the existence of flooding, why allow the system to be built there? He determined that the problem is caused by the fact that the City's ditches are not cleaned out and the County's are. The solution to that is to clean the ditches. Mr. Cole reviewed the application and consulted with the Department about it. Based on the information he received, he recommended the permit be issued since the plans for the design of the system are within the guidelines established by the County Code. Therefore, the County has no objection to the line being constructed. Turning to the project proposed, those portions of the system extension which will relate to the eight block area inhabited by the Petitioners are identified in the permit application as tie in extension areas C and D, and include lift stations 75 and 76, neither of which will serve any residents outside the eight block area in question. Station 75 is to be placed to the east of Central Avenue near 42nd Street and Station 76 is to be placed east of Central Avenue near 38th Street. Petitioners are concerned that in the event of flooding as a result of heavy rains or for some other reason, the sewage line as designed is incapable of protecting them against a back-up of sewage and escape of that sewage into the flood waters in the area. Evidence presented by the City indicates that at the present time, the City's existing system wastewater treatment and disposal plant capacity is 13 million gallons per day, (MGD), and average existing wastewater flow received there is only 6.467 mgd. Even with the increase in flow created by the extension of the system to existing homes, the plant is well equipped to handle the additional flow as well as that additional flow anticipated as a result of future wastewater flow when the areas to be served by the extension are fully built up. It is clear then, that the available capacity of the plant is more than sufficient to properly treat and dispose of any additional waste water flows created when and if the proposed sewer extension is approved and placed into service even after accounting for increased residential building in the area. From a technical standpoint, the proposed system must be designed and constructed according to the technical standards contained in Water Pollution Control Federation's Manual of Practice No. 9, Design and Construction of Sanitary and Storm Sewers. The evidence of record clearly indicates that the proposal here, as evidenced by the plans and specifications drawn therefor, is in compliance with those technical standards and criteria. Further, the technical standards and criteria established by the Great Lakes/Upper Mississippi River Board of State Sanitary Engineers' 1987 edition of Recommended Standard Sewage Works, also applies. The evidence of record indicates that the proposed system is in compliance with those standards as well. There is some concern as to whether privately owned property will be used for the construction of this project and the evidence indicates that this project extension for the eight block area in question will be located only on public rights of way, land owned by the City, or easements granted to the City. The evidence also demonstrates that the extension here is designed to insure the safety of the surrounding area as it pertains to runoff and other possible pollutants. In fact, the system is designed to preclude the deliberate introduction of stormwater runoff or certain other pollution such as condensate from air conditioning systems, closed system cooling water, and other sources of waste water. Specifically, both lift stations are designed to be equipped with standard receptacles for connecting portable power generating equipment to provide lift pumping capability in the event that commercial power to the area is interrupted. Both stations are also designed to discharge through the smallest possible pipes, (less than 6" in diameter), and both are designed to be equipped with risers and appropriate coupling devices at the discharge pipe so that portable pumps may be connected in the event that becomes necessary. The stations in question are designed so as to be protected from lightning and abnormal voltage surges through the affixation of lightning arresters and surge capacitors. They are designed to be equipped with phase protection and will incorporate a stand-by pumping capability to be utilized with off line power generation so that they will continue to operate even in the event of a shutdown of commercial power. The stations are equipped with locking components and barriers designed to discourage the intrusion into the station by unauthorized people or by animals, and are enclosed and designed so as to eliminate, as much as possible, any odor which might be offensive or harmful to the residents in the area. In addition, the stations are designed so as to minimize noise through the incorporation of submersible pumps. What is more, recognizing the fact that the locations of the stations have a high water table, the stations were designed so as to remain in place even when empty. In that regard, the bottom slab is designed to be broader than the overlying body of the station so that the weight of the dirt above the slab will hold the station in place. Taken together, then, the evidence indicates, and it is so found, that the proposed system extension has been designed consistent with sound engineering practices so that it will accomplish its purpose in an environmentally sound manner. A primary concern of the residents is that the City has failed to account for flooding conditions which occur in the eight block area. In support of their concerns, Petitioners introduced several photographs purporting to show flooding into evidence, yet the photographs were not specifically identified as to which flood and under what conditions the scenes represented thereon took place. The City presented expert testimony based on varying sources of information including FEMA and the Corps of Engineers. Both are sources that engineers would rely upon to determine flood elevations in the course of designing a sewer system. This evidence indicates that both lift stations would not be located in those areas depicted in the flooding photographs presented by the Petitioners. By way of background, floods are categorized in year configurations. For example, a "25 year flood", is one in which the water level is likely to occur at least once over a 25 year period. By the same token, a "100 year flood" is one in which the water level is likely to occur at least once over a 100 year period. A 25 year or 100 year flood incorporates conditions caused by "flash flooding", a term used to depict a very rapidly occurring flood which arises without warning. Use of the two flood elevation maps, that by FEMA and that by the Corps of Engineers, creates a discrepancy, however. The FEMA map indicates the stations are not located within either the 25 or 100 year flood zones. On the other hand, the Corps of Engineers reconnaissance report indicates they are. The Corps of Engineers report indicates that the 25 year flood elevation at station 75 is approximately 15.2 feet above sea level, and the 100 year elevation at that site is approximately 15.9 feet above sea level. The Mobilife engineering report, which describes actual water levels at particular locations in the eight block area during the 1962 flood, recognized as a 100 year flood, (and which considers stations 75 and 76 to be within the 100 year flood zone), shows the 100 year flood water at station 75 reached approximately 16.2 feet, the same as at station 76. Regardless of which flood level is considered accurate, however, the City's evidence shows that the electrical components in both stations, those components sensitive to water, are contained within a control panel which is sealed for protection from the weather. Further, it must be noted that the bottom of the electrical control panel is at an elevation of 18.3 feet at station 75 and at 17.7 feet at station 76. Consequently, whether one uses the FEMA/COE figures for water level or the Mobilife figures for a 100 year flood, the fact remains that the sensitive electrical components would be well above high water in either case. It is clear, then, that the design of both lift stations sufficiently addresses the potential for damage or interruption of operation because of flooding. The system is designed so that those components sensitive to flooding will be placed above the expected high water marks, and the mechanical components are designed for submerged use and are not generally affected by flood conditions. The lift stations are designed so that they will be protected from damage by wind or water and should remain fully accessible and operational during either a 25 or a 100 year flood. This evidence presented by the City was neither contradicted or rebutted by any evidence submitted by Petitioners. Even if, however, there should be a flood elevation higher than those predicted by either FEMA or the Corps or Engineers, it would be relatively easy and inexpensive, to raise the control panels even higher at those lift stations to correct any problem that might arise. There are, in addition, safeguards designed into the system which will alert the population to problems occurring in the pump function. Visual alarms are installed which will alert passersby or staff from the utility to the fact that the pumps are not operating properly. In addition, the design of both stations incorporates a reserve capacity which is sufficient to provide the City with sufficient time to correct any failures, electrical or mechanical, which might occur before damage can take place. Specifically, the design at station 75 will provide additional capacity of approximately 24 hours at maximum build-out before a back-up can be expected to occur. At station 76, this reserve capacity will permit 2.26 days of additional operation before a problem takes place and this also assumes maximum build-out. Under those circumstances, if a failure should occur at either station, there would be ample time for the City to utilize temporary electrical or pumping activities to prevent a back-up from occurring. The City contends that if flood conditions were to occur at either station that were not corrected and which resulted in the unlikely backup of sewage, the impact of such backup on residents in the area would be minimal. Its rationalization is based on the supposition that if flood conditions causing such a back-up were to occur, they would result in the Petitioners evacuating the area, and therefore, they would not be impacted. This would relate, of course, only to the impact on personal safety, but not to potential impacts such as loss of property or secondary safety consideration. This argument, which is not significant, is not considered pertinent and is rejected. Were a failure to occur at lift station 75 that resulted in sewage back-up, that back-up would occur at the lowest point in the system, the manhole at 40th Street. If a similar failure resulted in a backup in system 76, the back-up would be at 39th Street. In either case, the City claims, the back-up would not reach customers' homes. This argument, too, though not rebutted by the Petitioners, appears not to consider all the potential impacts such as odor, appearance, and the like which, while not necessarily accompanied by sewage entering the home, is, nonetheless, adverse in impact if located in the immediate area of those homes. Other factors are also pertinent to a study of the safety and propriety of the project include the fact that the system extension is designed in such a fashion as to adequately address the forces of water movement. It is also noted that the system does not include any intersection with force mains; it does not include any stub-outs on existing force mains since it is designed to accommodate the service area at full build-out. The City does not anticipate that the system will involve any sewage pipes intersections with water mains, but if such mains are encountered, the project plans contain instructions to the contractor to afford appropriate protection. The program does not envision any intersection between sewer lines, storm mains or water mains, and the project has been designed so that manhole settling and pipe settling should be minimized. In the event there is settling, however, the project proposes the use of flexible pipe and pipe connectors to minimize any damage that might result therefrom. In that regard, the project calls for the use of flexible, water-tight, wall-to-pipe joints which would compensate for any remaining differential or stress. Normal operation and maintenance will be enhanced by the use of standard size manholes in the system. Since the proposed system is not designed to cross any waterways or canals subject to maintenance dredging, there should be no damage by virtue of those activities. In addition, there is little likelihood that any part of the system could be damaged by boat anchors or by interface with underwater sewage lines. Taken together, the system appears to be well designed and compatible with accepted engineering standards. All foreseeable contingencies appear to have been provided for and the risk of back-up and resultant damage to the property or safety of residents in the area has been minimized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered issuing Permit No. CS 58-189732, for the dry line construction of an expansion to the City's existing domestic wastewater collection/transmission system, as outlined in the Department's Notice of Intent dated March 27, 1991. RECOMMENDED in Tallahassee, Florida this 26th day of September, 1991. ARNOLD H. POLLOCK 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 26th day of September, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2470 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONERS: None submitted FOR THE CITY: 1.- 3. Accepted and incorporated herein. 4.- 10. Accepted and incorporated herein. 11. Not a proper Finding of Fact. 12.- 14. Accepted and incorporated herein. 15.- 16. Accepted and incorporated herein. 17.- 20. Accepted and incorporated herein. 21.- 28. Accepted and incorporated herein. 29.- 34. Accepted and incorporated herein. 35.- 37. Accepted and incorporated herein. 38.- 43. Accepted and incorporated herein. 44. Accepted and incorporated herein. 45.- 50. Accepted and incorporated herein. 51.- 55. Accepted and incorporated herein. 56. Accepted and incorporated herein. 57. Accepted and incorporated herein. 58. Not a Finding of Fact but a comment on the evidence. 59.- 65. Accepted and incorporated herein. 66.- 69. Accepted and incorporated herein. 70.- 73. Accepted and incorporated herein. 74.- 79. Accepted and incorporated herein. 80.- 87. Accepted and incorporated herein. 88.- 89. Accepted and incorporated herein. 90.- 95. Accepted and incorporated herein. 96. Rejected as not a appropriate Finding of Fact. 97.- 99. Accepted and incorporated herein. 100.-114. Accepted and incorporated herein. 115.-118. Accepted. 119. Not a Finding of Fact but a comment on the evidence. 120.-123. Accepted. 124. Just a comment on the evidence. 125. Accepted. 126.-128. Merely a comment on the evidence. 129. Accepted. 130 -131. Merely a comment on the evidence. 132.-133. Accepted and incorporated herein. 134.-136. Accepted. FOR THE DEPARTMENT: 1.- 6. Accepted and incorporated herein. 7.- 11. Accepted and incorporated herein. 12.- 19. Accepted and incorporated herein. 20.- 25. Accepted and incorporated herein. 26.- 36. Accepted and incorporated herein. 37. Accepted and incorporated herein. 38.- 42. Accepted and incorporated herein. 43.- 49. Accepted and incorporated herein. 50.- 54. Accepted and incorporated herein. COPIES FURNISHED: Becky Close 1380 42nd Street Sarasota, Florida 34234 William Hartman 1325 41st Street Sarasota, Florida 34234 Robert Rhoades 1335 40th Street Sarasota, Florida 34234 David M. Caldevilla, Esquire de la Parte & Gilbert, P.A. P.O. Box 172537 Tampa, Florida 33672-0537 W. Douglas Beason, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues for consideration in these cases concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit, or the grant of a variance from the permitting requirements embodied in the statutes and rules cited herein, so as to authorize installation of an OSDS for property they own near the Suwanee River in Dixie County, Florida. See, Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners are the owners of certain real property located in Dixie County, Florida, in close proximity to the Suwanee River, more particularly described as Lots 22 and 37, High Point Suwanee Riverfront Estates, a subdivision platted and recorded in 1983. Lot 22 is approximately 150 feet by 127 feet by 121 feet, and Lot 37 is approximately 100 feet by 175 feet by 176 feet in dimension. The lots were purchased on September 22, 1987 and December 10, 1987, respectively. The parties have stipulated that evidence and factual testimony adduced in this proceeding shall apply equally to the circumstance of both lots since they are in close proximity to each other and have similar elevations and other site characteristics. Accordingly, these Findings of Fact will be based upon that stipulated, combined evidence; and all Findings of Fact will apply to both lots, except as to elevation figures peculiar to each lot and as otherwise noted in these Findings of Fact. The Petitioners purchased Lot 22 for $14,995.00 and Lot 37 for $12,500.00. They were purchased in September and December of 1987, respectively. The Petitioners purchased them with the intent of holding them for investment and building a retirement-type home on one of the lots. On March 22, 1990, the Petitioners applied for an OSDS permit for the lots in question. The new systems applied for would be for a frame-type "stilt home", which would contain three bedrooms and a heated and cooled area of 1,232 feet, which equates to a 350-450 gallons per day sewage flow under the standards contained in the Respondent's rules. Hubert H. Raker, a certified, land surveyor of Cross City, Florida, performed a survey on the property, shown by Petitioners' Exhibit NO. 1 in evidence. That survey establishes a benchmark elevation for Lot 22 of 11.79 feet above mean sea level ("MSL"). That benchmark is actually six inches above the grade level elevation of the property at the benchmark location. Lot 37 was established to have a benchmark elevation of 12.25 feet above MSL, also six inches above the actual grade level of the lot at the benchmark elevation site. The site of the proposed installation of the OSDS has an elevation of 11.19 feet above MSL, as to Lot 22, and 11.75 feet above MSL, as to Lot 37. The ground water level, at the time the site evaluation was made by the Respondent's representative, was 60 inches below the surface of the grade for Lot 22 and 54 inches below the surface of the grade for Lot 37. The wet season water table for both lots was shown, by "mottling" existing in the soil beneath the surface of the lots, to be 54 inches below `:he surface of both lots. The soil type for both lots, starting with six inches below the surface, is of a "slight limited" soil characteristic and is fine sand down to approximately 48 inches and from 48 inches to 72 inches, consists of "loamy-sand". Such soils are well adapted to OSDS installation and operation. The property was shown, by the Respondent's own Composite Exhibit NO. 2 in evidence, to not be subject to frequent flooding. The property is, however, as to both lots, beneath the ten-year flood elevation established by the Suwanee River Water Management District's calculations and admitted into evidence in this proceeding as a part of Respondent's Composite Exhibit NO. 2. The ten-year flood elevation for both lots was shown to be 15 feet above MSL. Thus the surface elevation of both lots is somewhat below the 15-foot, ten-year flood elevation. The bottom of the drain-field or absorption-bed trenches, if the systems were installed on the lots, would be a greater distance beneath the ten- year flood elevation. Thus, the property is located within the ten-year flood elevation of the Suwanee River and is also located within the regulatory floodway of the Suwanee River. Other properties and lots in the immediate proximity of the Petitioners' two lots are equipped with OSDS's, including a number of "mounded systems", involving the placement of septic tanks and drain fields in elevated earthen mounds in order to elevate them above the ten-year flood elevation. Petitioner, John W. Holian, testified in a general way that such a system might be feasible and advisable in his situation, as well as the possibility of installing an aerobic septic tank treatment and disposal system, involving the injection of air into the septic tanks so that aerobic, (as opposed to anaerobic), bacteria could perform the sewage treatment function, which typically perform the function better than does a conventional anaerobic system. Petitioner Holian, did not offer any detailed testimony or evidence which would explain and establish how such a system could work without endangering the health of the Petitioners or members of the general public, if placed on the lots in question below the ten-year flood elevation, nor if or how such a system would protect against degradation of the ground or surface waters involved in the proximity" of the sites. If the system were mounded above the ten-year flood elevation, the Petitioners did not establish, through proper engineering testimony and other evidence generated by a registered engineer, that the use of the fill for the earthen mound for such a system would not raise the level of the "base flood." In summary, although the Petitioners suggested such a mounded system or an aerobic system or such a system possibly used in combination, the Petitioners did not go beyond suggesting an alternative and did not offer evidence which could establish that such an alternative would be a reasonable operationally feasible one and would adequately protect the ground or surface waters and the members of the general public from health hazards associated with sewage effluent. See, Rule 10D-6.47(6), Florida Administrative Code. On May 1, 1990, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding upon the initial denial of their OSDS permit application and advised them that an application for a variance from the requirements of Rule 10D-6.47(6), Florida Administrative Code, regarding the ten-year flood elevation problem at issue, should not be pursued but rather, the formal hearing process before the Division of Administrative Hearings should be employed by the Petitioners. The Respondent asserts, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such systems beneath the ten year flood elevation was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications. The Petitioners apparently took-that advice because no variance application was filed. It is noted, somewhat parenthetically, however, that in terms of the requirements for the establishment of a right to a variance, the Petitioners have not shown that no reasonable alternatives exist to a standard subterranean septic tank and drain field OSDS, (such as those alternatives referenced in the paragraph next above, which efficacy was, nonetheless, not established by the Petitioners). Neither did the Petitioners establish, in terms of the variance requirements in the authority referenced below, that the installation of an OSDS would not have an adverse effect on the public's health or the quality of the ground or surface waters involved at the sites. Because these two necessary elements of proof necessary to establish the right to a variance, through hardship, were not proven by the Petitioners, the elements of proof necessary to establish the right to a hardship variance have not been made out by the Petitioners and one could not be granted under the proof of record in this proceeding, even had the Petitioners made formal application for such a variance. That is not to say, however, that with proper preparation and presentation of evidence, entitlement to a variance could not be established in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3109 AND 90-3445 The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact 1-9. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John W. Holian 466 South Lake Triplet Drive Casselberry, Florida Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, Florida 32609
Findings Of Fact On October 13, 1988, Petitioner applied for a permit from Respondent for the operation of an onsite sewage disposal system in connection with a commercial project to be constructed on Petitioner's property in Polk County, Florida. Petitioner's application was disapproved that same day. Respondent denied the application because a publicly owned sewer system was available to Petitioner. A sewage line of the City of Lakeland, Florida, exists within a public easement abutting Petitioner's property. That sewage line is about 10 feet from Petitioner's property line. Gravity flow from Petitioner's proposed facility to the sewer line can be maintained. The city's system is under no moratoriums from any governmental body which would prevent the addition of Petitioner to the system. On October 17, 1988, Petitioner applied to Respondent's variance board, in accordance with provisions of Section 381.272(8), Florida Statutes, and Rule 10D-6.045, Florida Administrative Code. The variance application was considered by the board on November 3, 1988, and a recommendation that the variance be denied resulted. On December 12, 1988, Respondent notified Petitioner of the recommended denial of the variance application. The denial letter to Petitioner informed him that variances were granted for the relief or prevention of excessive hardship in those situations where there is a clear showing that the public health would not be impaired and pollution of groundwater or surface water would not result. The letter further stated that recommendation to deny variance was premised on the availability of public sewer to the property. Existence of adequate drainage for the proposed on site disposal system on Petitioner's property is questionable. The water table during the wettest season of the year on the property is only 20 inches from the surface. During other parts of the year, the water table is 38 inches from the ground surface. Two residences are presently situated on Petitioner's property and produce a flow to the present septic tank sewage disposal system of approximately 900 gallons per day. A commercial building also previously existed on the property and supplied a septic tank flow of approximately 700 gallons. The proof at hearing failed to establish whether the commercial building flow coexisted with the present residential flow. Petitioner proposes to construct a "mini mall" consisting of four stores, each with one toilet, on the property. Since public usage of the toilets in the building is not anticipated to be frequent, Petitioner estimates that approximately 600 gallons of sewage flow will be generated on a daily basis. Petitioner's property is presently served by the public water utility of the City of Lakeland. While the property lies outside the corporate city limits, it is bounded on two sides by property within the city limits on which restaurants, served by the city's sewage system, are situated. The city easement containing the sewer line runs along another side of the property which is contiguous to U.S. Highway 98. Under current policy of the City of Lakeland, connection to the city sewage system is permitted only to property located in the city limits. Petitioner must agree to annexation by the city of his property in order to obtain connection to the sewage system. However, the city assesses impact fees in addition to costs of sewage connection and in Petitioner's situation the amount of impact fees anticipated to be levied by the city is approximately $53,000. Petitioner estimates the value of his property when the "mini mall" is completed at $700,000. Estimated cost of construction, without consideration of the city's impact fees, will be $350,000. While Petitioner does not contemplate selling the property after the development is completed, he will be leasing the individual store facilities. The sole objection of Petitioner to denial of his request for a variance recommendation is that he will be forced to resort to joining the city's public sewage system and, by concomitantly accepting the city's annexation of his property, incurring the city's impact fees. It is Petitioner's contention that the impact fees effectively make the city's system unavailable to him. Alternatively, Petitioner also contends that assessment of impact fees by the city will pose a financial hardship on him and increase the per unit rental or lease costs he must charge tenants. Petitioner also contends that his commercial project will cause no adverse public health considerations because sewage flow from his facility to an on site sewage disposal system will be no more and possibly less than that presently flowing from the residences on the property to the existing septic tank system. This testimony is not credited due to the fact that anticipated drainage flow is an estimate by Petitioner with no demonstrated expertise in making such estimates; drainage at the proposed site location is questionable; and Petitioner's application states that the proposed site is located five feet from a public water well. Petitioner asserts that facts of a previous decision of the variance board established policy which requires that the variance he has requested be granted. On May 19, 1988, the variance board recommended a variance be granted to an automobile dealership in Polk County to operate an on site sewage disposal system. Had the variance not been granted, the dealership would have been force to accept annexation to a city adjoining the dealership property in order to have sewage disposal. Such a decision would have resulted in two dealerships from the same company within that city. The applicant in that case would have lost his automobile dealer franchise or have been forced to relocate elsewhere. The automobile dealership property site possessed adequate drainage with a water table 44 inches below the surface during the wettest season of the year and 84 inches at other times of the year. Anticipated sewage flow estimated at 525 gallons per day for the automobile dealership is similar to the estimate of 600 gallons per day for Petitioner's facility. Impact fees were not a consideration in the case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying approval of the variance requested by Petitioner. DONE AND ENTERED this 21st day of April, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of April, 1989. COPIES FURNISHED: Deno P. Dikeou Liberty National Bank Building Suite 200 502 N. Highway 17-92 Longwood, Florida 32750 Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esq. General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On a site that would abut St. Johns County on two sides, the City proposes to develop as a landfill about 400 of the 880 acres it owns in the southeast corner of Duval County. The proposed southeast landfill is designed to serve the approximately 300,000 people living in Duval County south and east of the St. Johns River, by receiving 1,700 tons of solid waste a day for ten years, 400 or 500 tons a day more than people in that part of the city now generate. Sandhill and Swamp Scattered over the portion of the property proposed for solid waste deposition are cypress marshes and blackgum sloughs isolated from a swamp and from each other by upland pine plantation and sandhills. Except for some 40 acres cut off from the remainder by a fill road, the hardwood swamp covering approximately 265 acres of the City's property is part of the pristine "Durbin Swamp system which is a major wildlife area, including habitat for threatened and endangered species." T. 2820. Durbin Swamp south of J. Turner Butler Boulevard and east of U.S. Highway 1 is "the most valuable wildlife habitat in the area, maybe in the southeastern United States." T.2921, 3058. The City's consultants characterized 64 of the 123 gopher tortoise burrows they found on some 105 acres in the southern part of the site as active. Sherman's fox squirrels feed and nest on the property. Although "very little of the sand hill habitat [remains] in its natural condition on the property," (T. 185) turkey oak, long leaf pine and sand pine communities do survive. Isolated wetlands scattered through the eastern portion of the site have also been timbered, and ditches intersect many of them. St. Regis Paper Company, who owned the land until earlier this decade, "dug a series of canals . . . to drain . . . part of the land ["it was called upper wetlands"] . . . so that the ground could be high enough to raise good grade pine trees." T. 1417. "The isolated wetlands . . . provide habitat diversity for wildlife, a seasonal source of drinking water, possible refuge during forest fires, as well as breeding and forage locations," (T. 1255) according to the City's draft application. "Wildlife noted on the site includes Florida black bear, white-tailed deer, raccoon, armadillo, cottonmouth, river otter, common night-hawk, alligator, yellow bellied sapsucker, turkey, frog, quail, dove and red- shouldered hawk," (T. 1255) also according to the City's draft application. Bobcats are common. According to the St. Johns River Water Management District's chief environmental specialist, "animals that you would find utilizing the uplands . . . would be a range of small rodents [including] mice, rabbits . . . insects, [mostly tree] frogs, toads, snakes [including] black snakes, rat snakes . . . [o]possums . . . pastorine birds, cardinals, bluejays, blackbirds . . . [and] probably some hogs." T.537-8. Wood storks wade and feed in the isolated wetlands on site. Wood stork rookeries have been found five miles to the southeast and seven miles north of the City's property. Bald eagles nest nearby but off site. Eagles used the now abandoned eagle nest on Eagle Nest Island "three-quarters of a mile from this proposed landfill site," (T. 1419) at least as recently as 1983. One or more eagles still perch on a dead cypress limb on the property (T. 2422), if not elsewhere on site. Ospreys, southeastern American kestrels (T.2918) and six or seven species of woodpeckers, including the rare hairy woodpecker (T2914) have also been seen on site. "There are dirt logging roads just as there are in any property in Florida, but not a great number." T. 2751. "Almost all of the pine flatwoods habitat on the site has been replaced with planted pine." T. 184. The property is comparable to the Wacasassa tract in Gilchrist County which is on the Conservation and Recreational Lands list and under consideration for state acquisition because of its "comparatively unaltered nature." T. 2721. In the past, conservation efforts have brought animals to the property for refuge. T. 1420. Listed Species The Florida Game and Freshwater Fish Commission (Game and Fish) lists the gopher tortoise and the Shermans's fox squirrel, said by one witness to be "imminently threatened," (T. 2899) as species of special concern. T. 2875. A species of special concern "is beginning to show a decline and needs to be . . . considered as a target of conservation and if present conditions continue it's going to be listed as threatened." T.2874. Game and Fish lists the Florida black bear, the southeastern American kestrel and the bald eagle as threatened, the same category in which the United States Fish and Wildlife Service (Fish and Wildlife) lists the American alligator. A threatened species is one destined to become endangered "if present trends continue." T.2874. Both Game and Fish and Fish and Wildlife list the wood stork as endangered, and Fish and wildlife lists the bald eagle as endangered. "An endangered animal is one that under present conditions is in danger of becoming extinct in the near future." T.2874. Listed in the Convention on International Trade of Endangered Species are the bobcat and the river otter. By definition, rare animals are not often seen in the wild. The parties stipulated that the staff of CZR, Inc., a consultant engaged by the City, spent an aggregate of 1400 man-hours on the landfill site, of which 429 man-hours were spent on site for the purpose of performing a wildlife survey. T. 2803. Despite their effort and putative expertise, the City's consultants did not see even a single listed animal. This failure contrasts with sightings by hunters and other experts who spent less time on site, and may be attributable to the time of year (two weeks in the fall) the survey was performed (T. 2425-27, 2893, 2899) or to the way in which it was done, (T. 2429, 3067, 3068) which a wildlife ecologist testified rendered it of "trivial value." T. 3079. The study was expedited in anticipation of a hearing date. T. 2426-27. In any case, the survey does not give reasonable assurance that species whose range includes the City's property are not present in suitable habitat on site. T. 2896-97, 3079-80. This is, indeed, the conclusion the City's own experts reached as regards the gopher tortoise itself, because of the clear sign these creatures' burrows give of their use of the property. Similarly, with respect to the Sherman's fox squirrel, although only a single individual was spotted, distinctive nests and piles of pine bracts on site established their presence. Bear tracks corroborate infrequent sightings on the property, as well as south and east of the site. On a large tract of land to the north, bears are fed daily; three or four feed each day. T. 2421. Alligator sign bore witness to the alligator's use of the property, although the only sighting clearly proven at hearing occurred just across the boundary line. Of course, wildlife does not respect legal boundaries. There is no reason not to believe that the red-cockaded woodpeckers, with six active nests within three miles or the Bachman's sparrows heard singing nearby do not frequent the City's property, which offers suitable habitat for both. It is even possible that the Florida panther, common in the area as recently as 30 years ago, may have roamed the site in more recent years in pursuit of deer or feral hogs. Two witnesses swore they had seen Florida panthers within two miles of the site, one only a few months before the hearing, (T. 1362, 1371, 1419), and a third testified he thought a "cat" he had seen two and a half or three years before the hearing just north of the site was a Florida panther. T.2429-32. The Florida Everglades mink, a threatened species according to Game and Fish, has been spotted at least twice in a cypress bog across the street from the City's property, and probably occurs on the property, as well. Not spotted either on the City's property or on adjacent land, the Florida mouse, the eastern indigo snake and the gopher frog are known to make their homes in gopher tortoise burrows. Of these listed commensal species, the indigo snake is particularly likely to inhabit the site. "The blue indigo snake was turned loose on that property in . . . '81 or '82, since it was an endangered species." T. 1420. The site also affords suitable habitat for the long tailed weasel, under review for listing. Game and Fish has listed the Florida mouse and the gopher as species of special concern. Bachman's sparrow is under review for listing. Fish and wildlife views both the red cockaded woodpecker and the Florida panther as endangered, while Game and Fish views the latter as endangered but the former as threatened only. Aquatic or Wetland Dependent An "aquatic and wetland dependent" species is a species that "requires wetlands or aquatic systems to satisfy some critical biological need in its natural life cycle," (T. 524) apart from simply drinking water. "[W]ithout wetlands or aquatic systems, these species would probably be extirpated from the state." Id. The Sherman's fox squirrel, the gopher tortoise, the Florida mouse, the Florida long-tailed weasel, the southeastern kestrel, and Bachman's sparrow are not aquatic or wetland dependent. Because they use watery environments for feeding, reproduction and other purposes, the alligator, the wood stork (the only stork in North America) and the gopher frog are aquatic and wetland dependent. Because "the whole black bear population in our state seems to shift . . . primarily in the fall and winter months, to the wetlands and . . . eat . . . fruit produced in wetland trees," (T. 527) the black bear is deemed wetland dependent. The indigo snake is also so classified because it "seemed to be heavily dependent upon eating frogs." (T. 526). Even though not wetland dependent "historically and naturally," (T. 527) the "less than probably 100 Florida panthers left in the state" are now so viewed because "they have more or less been restricted to the major swamp systems," id., without which they probably would not survive. The contiguous wetlands on site comprise the headwaters of Durbin Creek, which empties into Julington Creek shortly before Julington Creek reaches the St. Johns River. Large scale residential development of lands lying within the watershed of Durbin and Julington Creeks has been proposed. Durbin Creek and the swamp that gives rise to it serve as a "juvenile fish nursery" (T. 2468) for white shrimp, blue crabs, croaker, anchovies, bream, bass, shellfish, bluegill, and sheepshead. Lower dissolved oxygen levels or other stressors in Durbin Creek would decrease populations in fisheries already at carrying capacity, and already threatened by the prospect of overdevelopment. Dredging and Filling The City intends to build a road running east and west between the landfill site and U.S. Highway 1 following, for the most part, an existing dirt logging road, and crossing Old Kings Road, built in 1765 to connect the capital of colonial Georgia with St. Augustine. Turbidity screens and staked hay bales would be used during road construction to protect adjacent waters. After construction, seeding and mulching would stabilize the sloping shoulders of the fill road. In connection with construction of the access road, plans call for filling wetlands contiguous to Durbin Swamp, 2.8 acres within DER's jurisdiction and 3.5 acres within St. Johns River Water Management District's jurisdiction. Fetterbush, gallberry, scrub palmetto, cinnamon fern, bamboo vine and sphagnum moss grow in these contiguous wetlands, under a canopy of slash pine, loblolly bay, cypress and swamp tupelo. The proposed Class III disposal area would lie two hundred feet north of the south property boundary and 600 feet west of the east boundary. Over significant portions of this 88-acre site, fill dirt is to be used to raise the grade, because the land is so low. Enough fill is to be placed in the marshes and sloughs to avoid depositing solid waste in the water. Trucks would haul fill dirt to the eastern part of the site ("the area starting at the northeast corner of the Class III landfill and extending about 300 feet to the west, starting from a point about midway along the eastern margin of the landfill, and extending about 450 or 60 feet to the west, and along the southern portion of the Class III landfill, about . . . 600 feet" T. 1562) and elsewhere on site, smothering isolated wetlands, where more or less healthy vegetation, generally of the kind found in the contiguous wetlands, now grows. The 132-acre Class I disposal area, which would abut the Class III area on the north, would also cover isolated wetlands now on the site. Together with excavation of associated stormwater retention basins, the disposal areas would disturb a total of 46.3 acres of isolated wetlands within the St. Johns River Water Management District's jurisdiction. The St. Johns River Water Management District originally asserted jurisdiction over 48.5 acres of isolated wetlands, City's Exhibit No. 80, but the objectors offered no evidence that staff's subsequent decision that vegetation on one 2.3-acre parcel did not qualify was erroneous. This total does not include isolated wetlands less than half an acre in extent or isolated wetlands lying both within and without the disposal areas which will cease to function as such when truncated by dredging or filling. In this latter category are some ten acres that will not themselves be dredged or filled. T. 2777-8. St. Johns River Water Management District identified 5.3 acres of high quality isolated wetlands with connections off-site that are to be impacted, City's Exhibit No 80, along with another 11.2 acres of "low quality" isolated wetlands. Id. No stormwater retention basin would intrude into DER's jurisdictional wetlands, but approximately nine tenths of an acre falling within the St. Johns River Water Management District's contiguous wetlands boundary would be devoted to stormwater retention basins. Replacement Wetlands To mitigate the planned filling of contiguous wetlands for construction of the access road, the City proposes "to excavate 3.5 acres of nonjurisdictional pine plantation and create a contiguous swamp wetland." City's Exhibit No. 56. Mature dahoon holly, loblolly bay, cypress and gum trees "will be transplanted from on-site [isolated] wetlands proposed for construction impact." Id. A tree spade is to be used to transplant trees with trunks as much as 12 inches in diameter at "breast height" and up to 50 feet tall, along with existing soils, microbial communities and adjacent understory vegetation. The "physical structure of the trees themselves . . . provide a good deal of the habitat." T. 436. Removing mature trees from isolated wetlands and replanting them in created wetlands would, to some extent, mitigate the loss of perches for bald eagles and other birds. Mature trees in the created wetland would be replanted at a density "approximately half that of existing on-site wetlands to be impacted." Id. Only 80 percent of the replantings are to be replaced, if they die; and then only if it is clear within three years that replacement is needed. A six-inch layer of organic soil, to be spread after the trees have been transplanted, would "provide for growth of herbaceous vegetation." Id. The City would monitor the created wetland (part of mitigation area "A") for three years and transplant additional trees, if needed to assure survival of not less than 80 percent of the number of trees originally planted. Of these 3.5 acres, the City has identified 2.8 as specifically intended to mitigate the filling of wetlands within DER's jurisdiction. With respect at least to this portion, the created wetland "will function probably much the same as the 2.8 acres" (T. 2765) to be filled in constructing the access road and "would compensate for the" (T.2765) attendant loss of vegetation. In transplanting mature hardwoods, "[i]t's sort of a physical impossibility to get all the root material . . . [and y]ou also get some loss of branches, limbs and stems just from the physical movement of the tree." T. 2482-83. One reason a wetland "system stays wet . . . is a thick canopy." T.2486. With more sunlight streaming through a sparser canopy, the "vegetation is not going to be the same." T. 2487. "[B]ecause you don't expect the wetlands to function as well as the original wetlands you're replacing, there is a general rule of thumb that . . . you create twice as much wetlands as the wetlands you've destroyed." T. 2488. "A three-to-one ratio would not be unusual for a good mature forested hardwood system." T.467. St. Johns River Water Management District's Applicant's Handbook calls for a ratio between 2:1 and 5:1, but states: "The ratios may also be adjusted when wetlands creation is combined with wetland mitigation proposals such as an open buffer area adjacent to the wetlands, conservation easement, wetland enhancement proposals or alternative mitigation proposals." T. 504. The ratio proposed here is less than one to one. In all, mitigation area A would comprise 11.0 acres of what is now pine plantation. Aside from a .55 acre pond in the middle, mitigation area A would consist of wetlands contiguous to existing wetlands on which three different, if related, vegetative communities are to be planted. In addition, the City proposes to create three different isolated wetland areas, one of which (mitigation area D) it characterizes as "high quality." Six acres of what is now pine plantation would be excavated on the north edge of the property. Using the same, experimental techniques proposed for mitigation area A, cypress trees would be placed on 3.4 acres, and 2.6 acres would be devoted to a combination of loblolly, cypress and dahoon holly. Another 9.8 acres of isolated wetlands would be created within borrow pits, 6.8 acres in borrow area No. 1 (mitigation area B) which would include .55 acres of open water, and 3.0 acres in borrow area No. 2 (mitigation area E.) Just north and east of the truck scales, mitigation area B would receive 200 adult trees per acre planted to the extent they are available on site, or 400 trees per acre planted with nursery stock. The same density is planned for mitigation area E, to be located across the road from stormwater retention basin 4. The City also proposes to remove a segment of a logging road built on fill that now cuts off 40 acres from the remainder of Durbin Creek Swamp. Removal of the fill and revegetation would not only increase the extent of the swamp by 0.3 acres, it would restore historic sheet flow in that part of the swamp. Finally, the City proposes to spread muck, if available, over the shallow, southern part of stormwater retention basin 2 and plant 12 acres of grass ("[w]etland herbaceous species" City's Exhibit No. 80) which, however, the City reserves the right to dredge up "from time to time". Id. p.13. Other Effects, Other Mitigation Building and operating the landfill on the site proposed would displace upland wildlife and fragment largely undisturbed and undeveloped wildlife habitat. Fences along the northern, eastern and southern site boundaries would present a physical barrier. Human activity, particularly daytime traffic on the access road, would also create a "bio-geographical barrier." Developing a landfill at the edge of the swamp amounts to "leapfrogging," instead of expanding existing pockets of industrial or other development. A witness characterized the area to the south of the site as "rural developed"; some 164 people live within a mile of the center of the site. T. 78. But private ranch lands to the north, like undeveloped land to the east, afford good wildlife habitat. Habitat fragmentation divides and isolates animal populations. "Fragmented populations are more susceptible to disease, inbreeding and with time, poaching." T. 2890. The landfill would displace gopher tortoises, their commensals, if any, and other wildlife using sandhill or pine plantation habitat, as well as wildife, including wood storks and other migratory birds, making use of the isolated wetlands that are to be filled over. With the filling of isolated wetlands, migratory birds would lose holly berries and other forage. Filling or excavating acreage at the periphery of the swamp would also destroy habitat and displace wildlife. Wildlife now on site reaching suitable habitat elsewhere will have to compete for limited space against animals that have already established territories. The result should be a net decline in populations. T.2898. Increasingly sequestered, the Durbin Swamp system is already under pressure from urbanization to the north. For animals that remained in the vicinity, development of the landfill would occasion other difficulties. But evidence that landfill noises and odors "would have no discernible impacts to the value of wetlands as habitats for aquatic and wetland dependent species" (T. 528) went unrebutted. A buffer of at least 50 feet would separate contiguous wetlands from stormwater basins and other construction, but this is considerably less than the 528 feet Dr. Harris testified was necessary to avoid "greatly erod[ing] the native faunal diversity of the Durbin Swamp wildlife." T.3073-74. Placement of the landfill on this site would increase the numbers of a half dozen "middle-sized mammal omnivores" (T. 3078) so that gopher tortoises, turkey, quail, "anything that nests on the ground will be subject to the plundering by the enhanced population of raccoons, opossums, gray foxes, red foxes . . . and such." T. 3079. Increased numbers of armadillos would also pose a heightened threat to animals that nest on the ground. Landfill operations can be expected to attract seagulls and birds of other species, including nest predators and the brown-headed cowbird, which takes over other birds' nests to lay its own eggs (T. 3071-2) and would pose a particular threat to Swainson's warbler. It is not clear that any of the mitigation areas the City proposes is intended to replace wood stork feeding habitat that would be lost to dredging and filling. Wood storks feed on dense fish populations in shallow water, when receding water levels make the fish easier to catch. Isolated wetlands on site that have served this function would be lost (T. 2419), although not all of the isolated wetlands to be lost have enough water to support the kind of fish on which wood storks prey. The deep, steep-sided ponds planned for the mitigation areas do not replicate the necessary conditions. Whether birds may safely feed in or drink from untreated stormwater run-off in shallow portions of the retention basins is doubtful. When it rains, particularly the initial flush of run-off would deliver pollutants, including oil, greases and gasoline left by garbage trucks, to the retention basins. T. 1820-1. Removing the fill road and restoring normal flows to the 40-acre patch of the swamp on the other side, as the City proposes, would not add to feeding areas available to wood storks, except for the 0.3-acre roadway itself. The project would disrupt "very superior black bear habitat." T. 3059. Tending to avoid human activity, bears would likely range further east, foregoing foodgathering on site. On the other hand, food or other refuse brought to the landfill might lure bears to their deaths, intentional or accidental. "[C]ollisions with human vehicles," (T. 3062) is the chief cause of black bear mortality in Florida. Bears have been killed in this fashion within a mile of the site, (T. 351 1411-4, 2438) although not during daylight hours when the landfill would be in operation and garbage trucks would travel the access road. Creation of wetlands will not mitigate destruction of upland habitat. On the contrary, additional upland would be taken to create the wetland mitigation areas planned. But the City proposes to give a conservation easement on 129 acres of upland, adjacent to the swamp, that is to remain undeveloped. The upland easement would preclude a host of uses inimical to wildlife, and would mitigate to some extent the loss of wetland habitat for animals which use both uplands and wetlands, like the black bear, even though cut over slash pine plantation is among the very least important or productive wildlife habitats in Florida. The easement would not include sandhill habitat. The City has also undertaken to give a conservation easement covering some 260 acres of wetlands contiguous with Durbin Creek Swamp. This would not, of course, increase the extent of existing wetlands, but it would add a measure of protection for those that survived the project. Perhaps most importantly the wetland conservation easement would preclude expansion of the landfill further into the wetlands, as long as it remained in force. Existing regulatory restrictions on the use of wetlands prevent many uses, even without an easement. Apparently no regulation precludes harvesting bottomland hardwoods, however, so long as no excavation is involved, and vegetation, once severed, is not redeposited on site. But converting deforested areas to pinelands, without a permit from the Army Corps of Engineers would probably not be authorized, under 33 U.S.C. s.1344 (f)(2). See Avoyelles Sportmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983). The City proposes to relocate gopher tortoises and any indigo snakes, gopher frogs or Florida mice that can be found to an unspecified new home off- site. Survival rates for gopher tortoises after similar relocations in the past have ranged between 30 and 100 per cent. By the year 2,000, the St. Johns County gopher tortoise population is predicted to fall by 90 percent, and Duval County is predicted to be devoid of gopher tortoises, even without relocation efforts of the kind proposed. Some or all of the gopher tortoises slated for removal may be descended from those who were brought to the site from Lake City. Perhaps even some who started out in Lake City would themselves make this second exodus to a new promised land. Stormwater Management The site proposed for the southeast landfill does not lie within a basin for which the St. Johns River Water Management District has adopted volumetric requirements. A "set of double [triple (T.1740)] box culverts five feet by eight feet . . . and . . . four other," (T. 425-6), "equalizer culverts," large enough for bears to move through (T. 415) would convey preexisting surface flows. A cross drain in the vicinity of the service plaza would serve the same function. Flood elevations would not increase more than a foot immediately upstream or more than 0.1 feet 500 feet upstream. The access road would not impound surface waters. Exfiltration trenches paralleling the access road "designed based on South Florida's criteria" (T. 1737) would filter contaminants from water running off the road. Within 72 hours of a 24-hour, 25-year return storm, the exfiltration system would be able to treat twice the volume of stormwater that recurrence of such a storm would generate. T. 1743. The scale plaza area where garbage trucks moving east on the access road would be weighed before being directed further down the road to a disposal area, is to be built on an upland portion of the property, and with it a wet detention pond to which surface water from the plaza and associated roadway would drain. Swales and berms would divert surface flow from undeveloped parts of the property that might otherwise reach the detention pond. The interceptor ditch and associated works would reduce by 2.5 hours the time of concentration for runoff from a 202-acre watershed, but cause no other changes in watershed characteristics. A weir would make it possible to regulate overflows and allow detention of run off long enough for biological assimilation of most pollutants. For the 25 year return, 24-hour storm, the pre-development peak rate of discharge (6.3 cubic feet per second) is less than the post-development peak rate without detention (18.4 cubic feet per second) but more than the post- development peak rate of discharge with detention: 3.9 cubic feet per second. An orifice below the weir, with a diameter of 1.5 inches, is designed to discharge less than half the treatment volume (22,088 cubic feet or 2.5 inches times the impervious portion of the area drained) in 64.21 hours. The design meets DER and St. Johns River Water Management District criteria. Portions of stormwater retention basins 1 and 2, situated north of the disposal areas, would lie within the 100-year flood plain. These two retention basins are designed to receive stormwater running off the Class I site or diverted around the site, as is stormwater retention basin 3, while stormwater retention basin 4 is intended to collect stormwater flowing off or around the Class III disposal area. Stormwater retention basins 3 and 4, like the southern area of stormwater retention basin 2, are not to be excavated to a depth of more than five feet below grade, to prevent groundwater from seeping into stormwater retention basins, dewatering the wetlands where it would otherwise emerge. With terraces at 20-foot intervals, to a height of 60 feet above grade for the Class I site and 40 feet above grade for the Class III site, both landfills would resemble Mayan temples, at build out. Ditches around the perimeter of each terrace are designed to convey stormwater to slope drains which would bear water to the level below, eventually to the perimeter ditch on grade, from which it would flow, through box culverts under roads built around the landfill, into the retention ponds. To the extent necessary to prevent groundwater infiltration, the ditches are to be lined. Stormwater retention basin 2 has two discharge structures, while each other basin has a single discharge structure leading to a ditch that would convey stormwater to Durbin Swamp. Perforated pipes, swathed in filter cloth, would be buried under highly permeable sand, along the sides of the retention ponds. Installed above seasonal low groundwater elevations, in order to avoid draining groundwater from the area around the ponds, during dry seasons, (T. 1781) they would have to go below seasonal high groundwater elevations, in order to be low enough to serve as drains for the retention ponds. Ambient groundwater would seep into the pipes, whenever groundwater levels outside the ponds rose above the pipes' elevation. But the pipes would still be able to drain the retention ponds, because of the relatively greater (vis-a-vis soils on site) hydraulic conductivity of the highly permeable sand to be trucked in for use as a filter medium. In time, these side drains or underdrains would clog and require expensive maintenance. But, assuming proper maintenance of the retention pond drains and of the drains that make up the roadway exfiltration system, the landfill and associated development would not flood or dewater wetlands that are not themselves to be dredged or filled. Except what is lost to evaporation, water entering the retention ponds would reach the wetlands, whether through the underdrains, over the weirs and through the conveyance ditches, or by movement underground after seeping through the bottom of the basin. The post-development peak rate of discharge from the area draining into the stormwater retention basins should not exceed pre-development rates for a 24-hour 100 year return storm or any lesser event. Because of roads and other impervious surfaces, a greater volume of surface water should reach the wetlands, causing stages about two inches higher than under pre-development conditions in "a typical summer thunderstorm." T.1782-3. The increase in surface flow corresponds to a decrease in water percolating down into the groundwater, and may result in additional loss to evaporation of water that would otherwise reach wetlands. But any such effect will be slight; surface and groundwater levels and surface water flows will not be adversely affected. T. 1783. Nor will existing surface water storage capabilities be adversely affected, despite the placement of portions of retention basins 1 and 2 within the 100-year flood plain. This encroachment at the very edge of the flood plain would rarely have any effect on surface water flows. Almost all development is to occur outside the ten-year flood plain. The stormwater basins could hold an inch of runoff without discharging water over the weirs. The underdrains, which would, when originally installed, have a hydraulic conductivity of about 130 feet per day, could remove an inch of run-off within approximately 40 hours. On the conservative assumptions that half of a two-foot vadose zone would already be saturated at the time a 24-hour, 25-year return storm dropped an additional 8.9 inches of rain on site, and that soils on site have a porosity of .5, the retention ponds could contain the resultant run-off for treatment, before discharging it first through weirs then through the underdrains. Three surface water monitoring stations are planned. One upstream would make it possible to assess background conditions. Another at the point of discharge from stormwater retention pond 2 would reveal whether the retention ponds and their sidedrains were functioning as intended. A third monitoring station in the southwest corner of the site should give similar information as to the roadside exfiltration system. Hydrogeology Except in the southeastern corner of the City's property, where the ground slopes down to the east, the land the City owns, like the adjacent land to the south owned by the McCormicks, slopes down in a more or less northwesterly direction, falling from 55 feet NGVD on the southern boundary to 15 feet NGVD at the northwest boundary, which intersects an elbow of the swamp. Although groundwater flows east of north under the southeast corner of the property, the flow under the property is generally northwesterly, following the topography. Class II groundwater in the surficial aquifer underlies the property at depths ranging "from almost to land surface to five or 10 feet below." (T. 1517). City's Exhibit No. 161. Groundwater flowing northwesterly crops out in isolated wetlands, evaporates, transpires or discharges into the swamp. To assure that the bottom of each exceeds seasonal high groundwater levels, measured in February of 1987, by the number of inches a 24-hour 25-year return storm would add, fill would be placed under both disposal areas, as needed. Because the Class I solid waste disposal site is to be lined, recharge by rainfall would be precluded there. With a liner intercepting percolating rainwater, groundwater would not attain predevelopment levels. The depression thus induced under the Class I site would more than offset the tendency groundwater under the Class III site would otherwise have to mound up into the bottom layers of solid waste deposited there. Recharge from rainfall (become leachate) would continue at the unlined Class III site; the height of accumulated waste would slow or stop evapotranspiration offsetting percolation there. But groundwater would flow down steeper gradients to lower levels underneath the Class I site (which lies between the Class III site and the wetlands where groundwater discharges) rather than rising into waste disposed of on the Class III site. The horizontal component of flow would continue to exceed the vertical component by several orders of magnitude. Beneath the surficial aquifer, which extends to depths of 50 to 100 feet below ground and consists of sand interspersed with a "matrix of soil, organic materials, clays and silts . . . little layers of clay and hardpan" (T. 1517) lies a continuous, confining layer of gray, sandy material with gravel and shell fragments, 12 to 40 feet thick, blanketing the undulating surface of the Hawthorne formation underneath. "[S]ome 40 percent of the material comprising the Hawthorne formation in this area is clay and the remainder is a mix of sands, silt stone, shell beds and phosphatic sands." (T. 1526) This assures that rainfall or other fluids percolating into the surficial aquifer on site will move horizontally downgradiant, reentering the atmosphere or discharging to the surface, rather than penetrating the thinner aquitard above the Hawthorne formation and sinking another 250 feet or more through the Hawthorne formation itself into the Ocala group and Floridan aquifer below. No subterranean feature in the vicinity permits water in the surficial aquifer to reach the Floridan. No peat, muck or other unstable soils underlie the site. Under 3,000 pounds per square inch, the maximum load anticipated, the ground is not expected to settle more than one inch. The addition of fill dirt does not alter this estimate significantly. Disposal Design The Class III disposal area would not have a liner, a leachate collection system or gas controls. After travelling through soils under the site, leachate from the Class III site would enter the groundwater. The City proposes to train and direct staff, to the end that only yard trash and construction and demolition debris end up in the Class III disposal area, where waste would be deposited directly on fill dirt or naturally occurring soils. No solid waste is to be disposed of within 200 feet of wetlands contiguous to Durbin Swamp lying within DER's jurisdiction. A composite liner of the kind in place at Alachua County's southeast landfill would form the corrugated bottom of the Class I landfill: a 60 mil high density polyethelene layer overlying two six-inch lifts of calcium montmorillonite, a clayey sand that is to be placed on compacted subgrade configured in "a herringbone design with peaks and valleys." T.765 Separating trenches in the valleys, sloping ground would rise, then fall at least two feet for every hundred horizontal feet. Steps would be taken to remove rocks, twigs, roots and the like, before compacting subsoils on site. A machine called a sheepsfoot is to be deployed, once half the montmorillonite has been put down, to pulverize clods and mix the material, in an attempt to assure uniformity within each lift of clayey sand. Other machines would compact each lift to a specified Proctor density. These efforts would not succeed in eliminating all clods or other imperfections, and the sheepsfoot would mix subgrade with the bottom layer of montmorillonite, introducing new impurities. Soils on site have hydraulic conductivity ranging from 1 x 10-3 to 1 x 10-4 centimeters per second. Clayey sand is also subject to desiccation cracking; as it dries out, large cracks appear. On top of this kneaded, compacted and finished 12-inch layer of clayey sand, once it had been inspected to assure the absence of roots, rocks, sticks, glass or other sharp objects, a specialty contractor would unroll strips of unreinforced high density polyethylene. After arranging the panels to minimize seams in the leachate collection trenches, technicians would weld the polyethylene strips to one another. An independent, third-party quality assurance contractor would inspect and test the seams before the synthetic liner was finally positioned, and as flush a fit as possible was achieved. Both the high density polyethylene and the quality assurance program are to meet the requirements of NSF Standard 54 and EPA Publication SW-870, March, 1983. Some wrinkling and occasional flaws in the plastic liner are inevitable. Wrinkling causes ponding, not only of rainwater during construction, but also of leachate, once the landfill is in operation. Tire tracks or other indentations in the montmorillonite layer can also cause ponding. In time, under the growing weight of solid waste, and with heat that biodegradation of the waste would generate, some of the wrinkles might subside, but the liner might also sink into additional depressions. Careful construction could keep ponding to a depth of little more than an inch. T. 2971, 2979. Extrusion welds (when done properly) render the seams stronger than the panels they join. But even if "you are really, really good" (T. 2957) and even when you're careful you get an occasional problem, one or two per acre, no matter how careful you are. And if you're not as careful, you get more, typically something on the order of five holes per acre. T. 2967 Carelessness on one project resulted in as many as 60 flaws per acre. Nondestructive testing methods do not detect all defective welds. T. 2966. Defects may develop after the plastic liner has been inspected. Stress on high density polyethylene associated with "conform[ing] itself to whatever is underneath it" (T. 2962) concentrates in scratches, gouges and crimps to cause "as much as 30 percent" (T. 2964) of the holes in the material. "[T]here is no shortage of scratches on a construction site." T. 2962. Leachate Collection Another high density polyethylene geotextile, chosen for its transmissivity (the geonet), is to be placed on top of the high density polyethylene liner (the geomembrane), where it would act as a synthetic drainage medium. In order to prevent overlying sand's clogging the geonet, compromising its ability to conduct leachate down into the trenches, a third, highly permeable geotextile, "a non-woven needle punched type" (T. 637) (the geofilter) would go directly on top of the geonet. The twelve-inch sand drainage layer blanketing the geofilter would have hydraulic conductivity of 1 x 10-3 centimeters per second, if sufficient quantities of suitable sand could be obtained. (T. 764) Another 12 inches of native soil is to cover the sand drainage layer. While the geofilter and the soil layers above it would parallel the landfill liner on the slopes between trenches, they would form arches over the trenches themselves. Continuing to follow the contours of the montmorillonite, the geomembrane and the geonet would line the trench bottoms. Below these arches, inert drain field rock would fill the lined trenches, supporting one perforated PVC pipe eight inches in diameter in each trench. The Class I landfill is to be built in fourteen 250-foot wide cells, with each cell having two leachate collection pipes on 125-foot centers. Manholes at either end of each leachate collection pipe would allow access, in case unclogging the pipe proved necessary. Longitudinally, the trenches would slope to the north, falling two to 20 feet for every 1,000 horizontal feet. Leachate reaching the trenches would flow along the trench bottoms (or through the pipes) to the manholes on the northern boundary. Also to be made of leachate-impervious PVC, leachate drain pipes, which would not be perforated, would connect all manholes on the northern perimeter. Varying in diameter from eight to twenty inches, depending on the number of manholes they were designed to empty, they would converge at a leachate pumping station north of the perimeter road. T. 590-1. A rupture in one of the single-walled leachate drain pipes could spill massive quantities of leachate on naturally occurring soils. Leachate which reaches the station is to be pumped into a 12,000 gallon storage tank nearby. To be mounted on a concrete slab surrounded by a curb high enough to contain all 12,000 gallons, if the tank failed, the tank would be constructed of high density polyethylene. The plan is to pump leachate from the tank through a four-inch discharge pipe into tanker trucks which would take the leachate to the Buckman wastewater treatment plan for disposal there. During "the maximum leachate production period, when you have 10 cells open," (T.687) an average of 35,000 gallons of leachate a day would require removal for disposal in this fashion. Additional tanks could be built. As a precaution, isolation valves would permit cutting off all flow of leachate to the pump station. In addition, isolation valves would allow cutting off the flow from any of seven pairs of cells (or slowing the flow from all, T. 705) in the event of an abnormal circumstance where leachate production in the facility exceeds the hydraulic capacity of [the] leachate removal system, the pumping station and storage tank and the tanker truck system. T. 591. Isolation berms separate each pair of cells susceptible to being put to use as temporary storage for leachate. The leachate drain pipes themselves afford more than 23,000 gallons of emergency storage. T.703. Ventilation As they decompose, materials to be deposited in the Class I landfill produce methane gas, carbon dioxide, and other, malodorous gases. Collection pipes with eight-inch diameters, running horizontally on 150-foot centers in the second and fifth lifts would allow gas to escape at either end, on the north and south sides of the landfill. This would prevent methane's building up and exploding or catching fire. By assuring their gradual release, it should also minimize the impact of foul smelling gases, which, in any event, are generally undetectable at a distance of more than 1,000 feet. But specific condition eight of the proposed landfill permit requires that the passive system be converted to an active system, if necessary, using vacuum suction and flaring. GIGO Although there "is not much industry in the southeast portion of Duval County," (T. 953) sewage sludges and other industrial wastes "except any hazardous waste as defined in the Federal Register" (T. 947) would be accepted for disposal at the Class I facility, if properly manifested. The proposed southeast landfill would receive waste that would otherwise have gone to the unlined east landfill. Household waste contains toxic materials. Tests of leachate generated in other lined landfills from which hazardous wastes are excluded have demonstrated the presence of some 30 metals and 56 organic compounds. City's Exhibit No. 89. Rainfall percolating through (and moisture already present in) waste deposited at the proposed Class I facility can be expected to leach the same array of substances from materials deposited there. Judging from experience elsewhere, leachate from the Class I facility would contain 13 or 14 (if 4-methyl phenol is included) substances in concentrations in excess of governmental standards or health-based criteria identified by a toxicologist engaged by the City. City's Exhibit No. 90. Among these would be methylene chloride, trichloroethylene, tetrachloroethylene and benzene, (T. 1478) as to which "the current regulatory policy is that it is possible for as little as one molecule . . . to act as . . . a carcinogenic initiator . . . [so] that there is no real threshold." T. 1447. Maximum concentrations would exceed those Florida prescribes as primary drinking water standards for titanium threefold, for benzene fivefold, for chromium more than fivefold, for sodium approximately 16-fold, for manganese 68- fold, for iron 280-fold, and for methyl ethyl ketone almost 130-fold. City's Exhibit No. 90. Methylene chloride would occur in the leachate in concentrations 39 times greater than the "USEPA proposed Preliminary Protective Concentration Limits." Id. Only yard trash "soils/land clearing waste, waste from landscapers" (T.956) and construction and demolition debris, "clean debris, inert materials, construction and demolition wastes that are inert, roofing materials," id., and the like, not mixed either with industrial or with regular household garbage, would be accepted for disposal in the Class III facility. Unless these materials are adulterated, they are "easy to bio-degrade . . . [or] are insoluble," (T. 1923) and rainwater percolating through them should yield a leachate with "neutral pH . . . low to moderate [biological oxygen demand] . . . [and] metals [if any] . . . below detection limits or background conditions." T.1923. But "some materials get in" (T. 2106) despite efforts to exclude them. "Demolition debris can have oiled floors and creosoted pilings as part and parcel of the structure." T. 3008. Old paint contains lead and cadmium. Debris from old houses can include rat poisons. Grass clippings "could contain small amounts of herbicides and pesticides." T.2101. In fact, "it's not unusual for yard waste to be very rich in biocides." T. 3009. Such chemicals are used in Jacksonville. When autopsies of seagulls found at the Girvin Road landfill revealed traces of diazanon, tests of water taken from "the stormwater ponds in the subdivision across the street" (T.990) showed diazanon was present there. Bioassays the DER runs on effluent from the City's Buckman wastewater treatment plant regularly report toxicity in excess of allowable limits (T.1877-8) and the EPA has "identified malathion and diazanon as the toxicants," (T. 1881) which are killing at least one species of flea in certain standard laboratory tests performed on the effluent. Leachate Leakage The composite liner would not keep all leachate generated in the Class I landfill from reaching the naturally occurring soils underneath, and eventually the groundwater under the site. Even under normal operating conditions, and even on the City's optimistic assumption that it can achieve a permeability of 1 x 10-7 centimeters per second, thousands of gallons of leachate a year would escape through flaws in the liner while the landfill was in operation. If leachate drain pipes burst or torrential rains required backing leachate up in the cells, thousands of gallons a day could leak. If two lifts of clayey sand achieve a permeability no lower than 1 x 10-5 centimeters per second, millions of gallons of leachate would enter the groundwater over the ten-year active life of the landfill, even without burst pipes or extraordinary precipitation. Once the Class I landfill attained the design height, it would be capped with impermeable materials to minimize leachate generation. As with the liner underneath, the impermeable cap would be covered with sand to facilitate drainage. Vegetation would hold the drainage soil in place. Closure plans have already been drawn, but they are subject to revision and require DER approval before implementation. If necessary, side slopes could be lined to prevent leachate seepage there. Closure would reduce, but would not end, leachate production and leakage. Virtually impermeable to water, high density polyethylene is highly permeable to certain permeants, including some that occur in landfill leachate. Leachate constituents known as "aromatic hydrocarbons" move "right on through" (T. 3017) high density polyethylene. To some extent, the montmorillonite component of the liner under the Class I area would impede these materials' movement into naturally occurring soils. The evidence did not quantify the montmorillonite's efficacy in this regard, but the City's expert's testimony that leakage of this kind would be "insignificant" (T. 830) went unrebutted. Permeation aside, the rate at which leachate leaks depends on the nature, number and size of flaws in the synthetic liner, the height and duration of the leachate head above the defects, and the transmissivity of what is underneath. Here transmissivity turns both on the hydraulic conductivity of the clayey sand in the vicinity and on the extent of air spaces between the clayey sand and the overlying high density polyethylene. Sand grains cause microscopic spaces, while imperfections in the montmorillonite layer and wrinkling of the polyethylene cause larger spaces. Leachate leaking into a space between the geomembrane and the soil spreads over a larger area before penetrating the clayey soil, in correspondingly larger volumes. Calculations predicated on the transmissivity characteristics of the geonet and the sand layer above it demonstrate a theoretical leachate flow over the liner so rapid that leachate would never accumulate on the geomembrane to a depth of as much as a tenth of an inch. But these calculations assume no ponding behind wrinkles in the synthetic liner, or any other impediment to the flow of leachate. Especially since holes in liners are likely to occur near wrinkles (because stresses are greater there) a more realistic assumption, for calculating leachate leakage rates, is a head of one inch, "the smallest practical hydraulic head you can achieve." T. 2994. On the twelfth day of hearing, when St. Johns County's liner expert testified that a six-inch layer of the montmorillonite might result in permeability as high as 5 x 10-4 centimeters per second, the City had not yet amended its application to increase the thickness of the clayey sand layer from six inches to twelve. The City's proposal now calls for two lifts of a 20 percent clayey sand with a saturated hydraulic conductivity in situ of 1 x 10-7 centimeters per second. This can be achieved, if at all, only with material that laboratory tests indicate has hydraulic conductivity of 1 x 10-9 centimeters per second or less. "[I]f you put down clay that the lab says has a permeability of 10 to the minus 7 centimeters per second, . . . when you put it down in the field you get from one to two orders of magnitude greater permeability than that. . . . related to how thick it is." T. 2988. Even a three-foot liner comprised of six lifts ends up with conductivity ten times greater than the same material under laboratory conditions. Mr. Deans, who designed the liner for the City, testified that a permeability of 1 x 10-7 centimeters per second was "readily achievable" even with six inches of clayey sand, but he had never designed a liner before, and his testimony in this regard has not been credited. To judge from its eleventh- hour amendment, the City did not believe it, either. Only two lifts are to comprise the clayey sand layer. No study of a clayey sand layer as thin as 12 inches has found hydraulic conductivity of less than 1 x 10-5 centimeters per second. Three lifts are necessary to create an effective barrier. "[Y]ou need at least three lifts to get the middle one hopefully working right." T. 2987. "[E]ngineers believe that the bottom layer gets fouled, the top layer cracks and has problems. Your best chance is the in between layers. You need at least three layers, and they would rather have four to be reasonable, and EPA says six." Id. Studies of twelve-inch liners put down in two lifts ("[t]he thinnest one we found anybody had ever studied" T. 2980) showed them to be "inadequate." T. 2987. With an inch of head, assuming defects with an average area of 1 x 10-5 square meters, an assumption with which all the experts seemed comfortable (the City's expert assumed larger holes), the published EPA formula yields a per defect leakage rate of 6.7598 x 10-11 cubic meters per second, assuming hydraulic conductivity for the montmorillonite layer of 1 x 10-7 centimeters per second. But plans to use only two lifts to form a 12-inch layer do not give reasonable assurance of vertical hydraulic conductivity that low. Mr. Coram's testimony to the contrary, expressly predicated on reports of laboratory tests on samples, did not address the evidence that laboratory tests do not tell the whole story, in the case of a thin layer of clayey sand compromised not only by inherent imperfections, but also by highly permeable subgrade soils, kneaded into it by the sheepsfoot. Because "clods are broken down in the laboratory and stones and cobbles are screened from the sample . . . the effects of both are not accounted for in permeability tests on laboratory compacted samples." City's Exhibit No. 190. Substituting a hydraulic conductivity of 1 x 10-5 centimeters per second, the EPA formula yields a leakage rate between 57 and 58 times greater: 3.8898 x 10-9 cubic meters per second. Although the EPA's most recently published leak rate formula makes no allowance for less than an ideal fit between the components of a composite liner, City's Exhibit No. 190, the author of the EPA formula, who testified for St. Johns County, subscribed to modifications to the formula developed to take this factor into account. DER's Exhibit No. 35. The montmorillonite layer's hydraulic conductivity is an unrealistically low measure of the transmissivity of the medium underneath the polyethylene. Using it for this purpose, without adjustment, ignores inevitable, intervening air spaces. Perfect contact between a synthetic liner and the soil it overlies cannot be accomplished, even in a laboratory setting. On a project of the kind proposed, contact would range from good, where the relatively larger size of sand grains in the clayey mix creates air spaces, to poor, where wrinkles (left in to avoid the weakening effects of stretching the material) cause much larger air spaces. No expert found fault with the more recent formulae (Bonaparte/Giroud) set out in DER's Exhibit No. 35, and none quarreled with the proposition that the published EPA formula made unrealistic assumptions about the contact between polyethylene and clayey sand. The Bonaparte/Giroud formula that assumes good contact yields a leakage rate of 1.6090 x 10-8 cubic meters per second per defect, a little more than four times what the EPA formula predicts for an ideal fit, assuming an inch of head and vertical hydraulic conductivity for montmorillonite in situ of 1 x 10-5 centimeters per second. Assuming poor contact, without varying any other assumptions, yields a leakage rate approximately 5.5 times greater: 8.8115 x 10-8 cubic meters per second. In its proposed recommended order, at page 35, DER accepts, at least for purposes of argument, the proposition that contact between soil and geomembrane would be poor in places, and calculates a leachate leakage rate of 5.45 x 10-3 gallons per day (2.3887 x 10-10 cubic meters per second per defect.) But this assumes that "the permeability of the City's clay liner will be 1 x 10- 7 cm per second and the maximum head over liner will be 0.062 inches." The evidence showed that the maximum head could not be kept below one inch, and did not give reasonable assurances that two lifts would result in vertical hydraulic conductivity of 1 x 10-7 centimeters per second for the clayey layer. Substituting an inch for .062 inches gives a rate of 2.9177 x 10-9 cubic meters per second. Substituting 1 x 10-6 for 1 x 10-7 and an inch for 0.062 inches, the leakage rate becomes 1.6034 x 10-8 cubic meters per second. Groundwater Contamination Uncontroverted expert opinion put the flow of groundwater under the Class I disposal area at 0.063 cubic feet or 0.47 gallons per day (2.0592 x 10-8 cubic meters per second) through a hypothetical square or cube one foot on a side. Except under unusual conditions, leachate leaking from the Class I facility would, before entering the groundwater, pass through approximately a foot of fill dirt or naturally occurring soils, which consist in large part (92 to 99 percent) of relatively inert, quartz sand. The presence of organic materials, however small the quantities, raises the prospect of adsorption and other chemical reactions, before steady state is attained. Physically, the soil would disperse the leachate, diminishing concentrations of leachate constituents entering groundwater. After such attenuation as the soil afforded, leachate would enter the groundwater, which would dilute and further disperse it, although not nearly as dramatically as the City's toxicologist testified. This witness assumed uniform mixing, rather than the discrete plume which persons with greater expertise in groundwater contamination convincingly predicted. By using the rate of "groundwater flow beneath a defect and the rate of leakage through that defect . . . [he] c[a]me up with a volume to volume dilution factor to identify a concentration in the groundwater." T. 1214. Because Dr. Jones took an unrealistically low leakage rate as a starting point, he predicted an unrealistically low concentration of one part leachate to 4,400 parts groundwater, inside a cubic foot immediately below each leak. Concentrations vary directly with the leakage rate per defect. T. 1224. The formula that assumes good, but not ideal, contact between liner components yields a leakage rate per defect of 1.609 x 10-8 cubic meters per second, if the layer of clayey sand has hydraulic conductivity of 1 x 10-5 centimeters per second. Substituting this leakage rate, the City witness' methodology yields a dilution ratio of 2.0592 parts groundwater to 1.609 parts leachate, or 1.2798:1, more than a hundred times less than the 130:1 dilution ratio that the City concedes is the minimum it must prove, at the edge of the zone of discharge. See Respondent City of Jacksonville's Motion to Strike St. Johns County's Memorandum Concerning Leachate Rates, p. 5. Substituting the coefficient for poor contact, the ratio in the hypothetical cube under the landfill becomes a paltry 2.0592 parts groundwater to 8.8115 parts leachate or .2337:1. Using Dr. Jones' methodology, a leakage rate of 1.6034 x 10-8 cubic meters per second per defect would result in leachate concentrations in groundwater of one part leachate to 1.2483 parts groundwater. Substituting a rate of 2.9177 x 10-9 cubic meters per second per defect yields a ratio of 2.0592 parts groundwater to .29177 parts leachate, or one part leachate to 7.0576 parts ground water. Even if the contact between geomembrane and montmorillonite were uniformly good and the clayey sand layer had a permeability of 1 x 10-7 centimeters per second at every point, a dilution ratio of only 37.4444:1 would result. In 132 acres of high density polyethylene, the evidence showed that 660 flaws could reasonably be anticipated, and that 132 flaws were absolutely unavoidable. Methylene chloride would end up in the groundwater in proscribed, carcinogenic concentrations as far away as 20 feet from many leaks within 90 days. Under some leaks, perhaps all, benzene, a proven human carcinogen, would also occur in prohibited concentrations. As leachate plumes dispersed, concentrations would diminish, eventually to levels at which they pose "potentially acceptable" (T. 1475) risks even in the case of "a 70-year water consumption of two liters of water per day by a 70-kilogram adult." T. 1217. No evidence suggested that they would remain in concentrations above these levels by the time they reached the edge of the zone of discharge. City's Exhibit No. 193, which uses a leakage rate much lower than the range of leakage rates likely to occur, if the landfill is built, predicts concentrations of various leachate constituents at the edge of the zone of discharge, assuming a leak at the edge of the disposal area. Multiplying predicted concentrations by quotients, obtained dividing likely leakage rates by the assumed rate, suggests carcinogenic leachate constituents would not occur in prohibited concentrations at the edge of the zone of discharge. But extrapolating in this fashion also suggests that violations may occur outside the zone of discharge, absent attenuation in the vadose zone, in the event of a leak at the edge of the Class I disposal area, for iron, manganese and methyl ethyl ketone. Groundwater Monitoring The City proposes to place monitoring wells at intervals of 250 to 500 feet around the Class I and Class III disposal sites. Some 25 shallow monitoring wells would be located 50 to 100 feet from the deposition areas, within the zone of discharge. In addition, seven clusters, each consisting of three wells screened at different depths, would punctuate the boundary of the zone of discharge. A cluster of wells upgradient would make it possible to monitor background conditions. With two-inch diameters and ten-foot screens, each well would receive a flow of less than a gallon a day. The contaminant plume from the Class III landfill would be large enough to be detected readily in samples drawn from a number of wells. But there was testimony that the plume, even from a 10-foot wide leak at the edge of the Class I disposal area, could pass between two wells 500 feet apart, undetected. Rather than a single large leak, moreover, the experts predict hundreds of small leaks in the Class I disposal area liner. The assumption is that flaws in the geomembrane would have an area of only one tenth of a square centimeter, on average. Any one of the plumes emanating from such a leak could easily pass undetected through a 500-foot gap between monitoring wells. The monitoring plan apparently relies on the great number of leaks expected. But even if samples from a monitoring well revealed a leak, the magnitude of hundreds of other leaks would not be disclosed. Well Contrived After the City filed its application for a permit to construct a landfill, but before DER had issued its notice of intent to grant the application, four wells were put in on the McCormick property, within three feet of the southern boundary of the City's property, and within 205 feet of the proposed Class III disposal area. The wells are more than 500 feet from the lined, Class I disposal area. Spaced at 1,000-foot intervals, within a 125- foot-wide utility easement in favor of the City of Jacksonville Beach, three of the wells are 25 feet deep and one is 28 feet deep. McCormicks' Exhibit No. 7. Each consists of a length of PVC pipe, 1 1/4" in diameter, leading to a red pitcher pump mounted on a wooden platform supported by four fence posts. City's Exhibit No. 194. Pumps of this kind must "periodically be pumped and primed or they have to periodically be taken apart and have the internal seals and leather valves replaced." T.2005. On April 7, 1988, the St. Johns River Water Management District issued a warning notice to "Haden McCormick" alleging that the wells had not been grouted, had been dug without necessary permits, and had not been the subject of required well completion reports. The next day, the St. Johns County Environmental Protection Board, apparently in response to applications inspired by the warning notice, issued a permit for each well designating the "usage" of each as irrigation. McCormicks' Exhibit No. 7. Well completion reports dated April 14, 1988, reported that the wells had been grouted. McCormicks' Exhibit No. 3. Asked the purpose of the wells in a deposition on April 25, 1988, J. T. McCormick said, "We need to monitor what [the landfill is] doing . . . [W]e need to . . . prepare ourselves for having people live in this area, to occupy it, to monitor it." T. 2227-8 A week earlier J. C. Williamson, Jr. had requested on behalf of B.B. McCormick and Sons, Inc. that the St. Johns County Environmental Protection Board amend the permits to show well usage as "Private Potable" instead of "Irrigation". This request was granted on April 27, 1988. McCormicks' Exhibit No. 2. On May 2, 1988, St. Johns River Water Management District's chief hydrologist wrote a lawyer for the McCormicks that "the completion reports submitted by a licensed driller, and the St. Johns County permits fulfill the requirements of the District." McCormicks' Exhibit No. 1. Analysis of samples of water taken from the wells on February 27 and 28, 1989, revealed total coliform levels acceptable for private wells. John Haydon McCormick explained the decision to put the wells in: [D]uring that week the City had filed their application with the DER which, in a sense, fixed their design . . . and when we became aware that this Class III landfill was as close as it is to our border, we became concerned about the future use of potable drinking water, and after consulting with counsel we were informed that we could legally install wells along that border. T. 2242. No owner of the property where the wells are located lives on the property nor, as far as the record shows, has an owner or anybody who does live on the property ever drunk water from the wells. About a half mile from the City's property are two other wells near a house on the McCormick property. When an owner's son drank water from one or more of the wells, as recently as the fall of 1988, he had to take water to the site with him in order to do it. The hand pumps require priming and nobody has bothered to store water near them for that purpose. On February 26, 1989, when the City's expert arrived for "splitting samples to submit to different laboratories," (T.1007) The "pumps were in a 20-gallon washtub in the back of . . . one of Mr. McCormick's employee's trucks. They were all removed from the well heads . . . [apparently] being soaked to generally recondition the seals in the pumps and to sanitize the pumps." T.2008 Two "of the old leather seals from the pumps [were] on the ground." T.2009. Within the shallow aquifer, groundwater flows from the wells northerly underneath the proposed Class III disposal area in the direction of Durbin Swamp. Use of the four existing wells "would in no way modify the groundwater flow system." T. 2045. But a well or wells could be so constructed on the McCormick property that continuously pumping from them would reverse some of the groundwater flow under the proposed Class III disposal area, to the extent that water flowing from beneath the Class III disposal area could be drawn from one of the existing wells along the McCormick boundary. T. 2075-80. Nor would consumptive use permits be necessary to dig wells which could cause such a change in groundwater flows. T. 2075. When the City discovered the wells abutting the southern boundary of its property, it did not direct its engineers to alter the design of the landfill to preclude solid waste disposal within 500 feet of the wells. The total project cost, excluding legal fees, is estimated in the neighborhood of $46,000,000. Redrawing the plans now to reduce the size of the Class III disposal area, without altering the size of the Class I disposal area, would take two to three months, and cost approximately $100,000. This approach would require reducing the capacity of the Class III area from 4.1 million cubic yards to 2.5 million cubic yards and, unless construction debris, which can be disposed of without a DER permit, were diverted elsewhere, its useful life from about ten years to about six years. Tipping fees would have to be higher "to recover the capital fixed costs over fewer tons." (T. 2208) Increased design costs alone would require recouping an additional 4 cents per cubic yard (more considering the time value of money) from tipping fees for Class III debris. Operations would be less efficient and presumably more expensive. T. 2207. Alternatively, the entire facility could be redesigned to achieve the same capacity and useful life as now contemplated. Such a redesign would require four to six months' work and cost approximately $250,000. Recovering this cost through increased tipping fees for Class III wastes would add slightly more than 6 cents a cubic yard (again ignoring the time value of money.) Alternative sites for disposal of Class III waste are available to the City. Indeed the site for which the City now seeks a permit was not even among the ten sites originally considered for the project. T. 2224-5. Decreased transportation costs to another site closer to the source of such waste might more than offset increased tipping fees. But separate facilities could create other problems. Ms. Nogas explained: From an operations standpoint . . .If I run out of Class III area and . . . site a separate Class III area somewhere else, if I had a truck coming to that facility and he really should have been in a Class I area, and I say "No, go out the gate and go five miles down the road . . .[to the] Class I facility," . . . I have a much better chance of . . . him never showing up at my Class I facility. T 2208-9. On the other hand, when asked about placing a Class III facility elsewhere in Duval County, Ms. Nogas, reiterating an earlier statement, testified, "[I]f that were what we had to go to, I would have no operational problems with it." T. 221. Mr. Wells' testimony that there "are 16,000 acres of less environmentally flawed acres seven to 12 miles from the generating centroid accessible from four-lane roads and not near residential or commercial properties," (T. 1248) and that the proposed site "is the furtherest site from the generating centroid, 21 and three-quarters miles to the dump site, and will cost taxpayers an extra $3 million to $5 million a year in longer haul time" (T. 1247) was received on the issue of the decisionmakers' credibility only.
Recommendation It is, accordingly, RECOMMENDED: That DER deny the City's request for variance. That DER deny the City's application for a permit to construct a landfill. That DER deny the City's application for a dredge and fill permit. That DER grant the City's application for a permit for management and storage of surface waters, on conditions proposed in the intent to issue, unless modified by agreement of all parties. DONE AND ENTERED this 16th day of October, 1989, in Tallahassee, Leon County, Florida. Robert T. Benton, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the division of Administrative Hearings this 16th day of October, 1989. APPENDIX A Petitioner St. Johns County's proposed findings of fact Nos. 1-4, 6, 10-12, 14, 16, 18, 21,23, 24-28, 33, 35, 37, 38, 41-45, 47-48, the first sentence of No. 51, Nos. 52-56, 57 except for the first sentence, which is rejected, 58, 59, 62, 64, 66, 68-74, 95-103, 106-109, 111- 116, 118, 131, 132, 133 except for subpart 7, 134, 136 and 137 have been adopted, in substance, insofar as material. With respect to petitioner St. Johns County's proposed finding of fact No. 5, and the second sentence of petitioner St. Johns County's proposed finding of fact No. 51, the design rate is not the same as the current rate of deposition. Petitioner St. Johns County's proposed findings of fact Nos. 7, 8, 9, 13, 15, 17, 22, 75, 110 and 138 relate to subordinate matters. Petitioner St. Johns County's proposed finding of fact No. 19 accurately recites the testimony. Petitioner St. Johns County's proposed finding of fact No. 20 is immaterial. With respect to petitioner St. Johns County's proposed finding of fact No. 29, the City's evidence that leakage of this kind was insignificant went unrebutted. Petitioner St. Johns County's proposed findings of fact Nos. 32 and 120-123 are immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 30, the City's estimates were unreasonably low. With respect to petitioner St. Johns County's proposed finding of fact No. 31, the evidence showed that nine gallons a day was at the upper limit, not that it would actually occur. With respect to petitioner St. Johns County's proposed finding of fact No. 34, at least 13 substances occur in concentrations that exceed health-based standards. Petitioner St. Johns County's proposed findings of fact Nos. 36 and 63, 117, 119 and 135 are proposed conclusions of law. With respect to petitioner St. Johns County's proposed finding of fact No. 39, the probability of a leak on the edge of the disposal area was not established. With respect to petitioner St. Johns County's proposed finding of fact No. 40, the evidence did not show that when "two or more toxic substances are combined" they necessarily have synergistic impacts. With respect to petitioner St. Johns County's proposed finding of fact No. 46, the City's assumption of no attenuation was an appropriately conservative approach that is not inconsistent with the City's unrefuted testimony that attenuation would occur. With respect to petitioner St. Johns County's proposed finding of fact No. 49, the evidence did not prove that the City would allow four feet of leachate to stand on the liner. Petitioner St. Johns County's proposed findings of fact Nos. 50 and 60 immaterial to the present application. With respect to petitioner St. Johns County's proposed finding of fact No. 61, the evidence did not establish the contentions following the clause ending "and into Durbin Creek,". With respect to petitioner St. Johns County's proposed findings of fact Nos. 65 and 67, the McCormick wells have served ornamental and talismanic purposes, but they were not shown to be potable water supply wells, within the meaning of the rule. At the time of hearing the pumps did not function and were not mounted on the wells. Petitioner St. Johns County's proposed finding of fact No. 76 has been adopted, in substance, insofar as material, except that there was at least one effort to collect toxic wastes in Jacksonville. With respect to petitioner St. Johns County's proposed findings of fact Nos. 77 through 94, proposed permit conditions are not proposed findings of fact. With respect to petitioner St. Johns County's proposed finding of fact No. 124, the evidence was clear that more wetlands were to be destroyed than were to be created. Petitioner St. Johns County's proposed finding of fact No. 125 is rejected as against the weight of the evidence. With respect to petitioner St. Johns County's proposed findings of fact Nos. 126, 127 and 128, mitigation , particularly as regards the wood stork, if the landfill is built. Petitioner St. Johns County's proposed finding of fact No. 129, Durbin Creek enters Julington Creek, shortly before the latter reaches the river. Findings of fact proposed by petitioners J.T. McCormick and the Estate of Benjamin R. McCormick (McCormicks) Nos. 1-4, 6-10, 13, 15-17, 20, 21 and 23 have been adopted, in substance, insofar as material. With respect to McCormicks' proposed finding of fact No. 5, a preponderance of the credible evidence did not establish that the wells would be used to supply potable water in the future, even if the pumps are repaired to make it possible. Nor did the evidence establish any such authentic, "non-forensic," use in the past. With respect to McCormicks' proposed finding of fact No. 11, evidence was adduced that other sites had been considered by engineers the City engaged. T. 2224-5. With respect to McCormicks' proposed finding of fact No. 12, testimony put the delay at two to three months. T. 2139. The City could have avoided this delay. McCormicks' proposed finding of fact No. 14 has been adopted, in substance, insofar as material, except that the proportion of the Class III waste stream construction and demolition debris comprises is not stated at T. 2149. With respect to McCormicks' proposed findings of fact Nos. 18 and 19, the four and six cents per ton computations ignore the time value of money, among other things. McCormicks' proposed finding of fact No. 22 is immaterial. McCormicks' proposed finding of fact No. 24 is properly a proposed conclusion of law. Findings of fact proposed by Florida Wildlife Federation, Inc., St. Johns County Audubon Society, Sierra Club, Inc., Coastal Environmental Society and River Systems Preservation, Inc. came in two unnumbered installments. Findings of fact have addressed the substance of each. Without numbering, it is difficult to treat the material. Petitioner STOP's proposed findings of fact Nos. 5-7, 9-10, 12-18, 20, 22- 24, 26-27, 29, 32-47, 49, 50, 52, 55-57, 59-60, 62, 63, 66, 67, 69, 70, 72 and 73 have been adopted, in substance, insofar as material. Petitioner STOP's proposed findings of fact Nos. 1-4, 30, 31, 65, 71, 75 and 76 are properly proposed conclusions of law in part and relate otherwise to DER's preliminary analysis, which is technically immaterial. With respect to petitioner STOP's proposed findings of fact Nos. 8 and 58, Mr. Kappes said he had seen alligator on site but, when asked for specifics, testified to tracks they had left in the southeast corner of the site. Equally ambiguously, the City stated in its draft application that alligator had been "noted" on the property. The evidence did not show that ospreys are protected or listed in Duval County. Petitioner STOP's proposed findings of fact Nos. 11 and 74 relate to subordinate matters. With respect to petitioner STOP's proposed finding of fact No. 19, the inference that all commensals is present is problematic here, since the gopher tortoises were relocated by man from a site many miles away. With respect to petitioner STOP's proposed finding of fact No. 21, 80 to 82 of 105.7 acres of gopher tortoise habitat would be destroyed. Petitioner STOP's proposed finding of fact No. 25 is immaterial to this application. With respect to petitioner STOP's proposed finding of fact No. 28, Mr. Wiley so testified. With respect to petitioner STOP's proposed findings of fact Nos. 48, 51 and 64, although the conservation easement on uplands would not result in additional habitat, it would preclude further diminution. With respect to petitioner STOP's proposed findings of fact Nos. 53 and 54, no eagles are currently nesting on site, and Eagle Nest Island, where eagles nested until 1983, is off site. With respect to petitioner STOP's proposed finding of fact No. 61, the evidence did not establish that Mr. Kappes saw the red-cockaded woodpecker on site, even though he found six active nests within three miles of the site. With respect to petitioner STOP's proposed finding of fact No. 68, Dr. White so testified. DER's proposed findings of fact Nos. 1-9, 11-15, 17, 24, 26, 33, 37, 39, 41-45, the first three sentences of No. 50, Nos. 52-56, 62-64, 66, 67, except as regards inherent legislative facts, 70-87, 89-92 and 95 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 10, 0.9 acres of wetlands contiguous to Durbin Swamp and within the jurisdiction of the St. Johns River Water Management District would be used for a storm water retention basin. DER's proposed findings of fact Nos. 18 and 20 have been adopted, in substance, except that these steps do not ensure or guarantee a quick return of water quality functions. DER's proposed findings of fact Nos. 21, 32, 35, the last sentence of No. 50, Nos. 51, 88 have been rejected as against the weight of evidence. With respect to DER's proposed findings of fact Nos. 22 and 28, mitigation areas with deep ponds in the middle will permit fish to avoid the conditions under which wood storks feed. With respect to DER's proposed finding of fact No. 23, the steep sided ponds, sparser canopies and lesser extent of created isolated wetlands offset their "higher quality." With respect to DER's proposed finding of fact No. 25, the mitigation proposed does not amount to a one to one ratio. While significant, the easements preserve the status quo and do not compensate for lost wetland functions. With respect to DER's proposed finding of fact No. 27, the evidence suggested no reason why bears would not forage in isolated, as well as contiguous wetlands. With respect to DER's proposed finding of fact No. 29, to the extent possible, existing trees would be transplanted; if they all survived, the number of perches would be undiminished, except for branches broken in the process. With respect to DER's proposed finding of fact No. 30, sightings nearby and habitat on site amount to evidence of use of the site. As regards the indigo snake, testimony that these animals were introduced to the site was uncontroverted. With respect to DER's proposed finding of fact No. 31, alligator tracks were found in the southeastern part of the site. With respect to DER's proposed finding of fact No. 34, no southeastern kestrel nests were found on site. With respect to DER's proposed finding of fact No. 36, it is not in the public interest to issue a permit for a lined landfill that would cause pollution in violation of DER's water quality standards. If a landfill were properly permitted, it would be in the public interest to have access. With respect to DER's proposed finding of fact No. 38, the first sentence (which seems to contradict the fourth) has been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 40, there was no evidence of cumulative impacts to Durbin Swamp, as opposed to Durbin and Julington Creeks. With respect to DER's proposed findings of fact Nos. 46-48, the clayey sand, placed in two six-inch lifts, would have much greater permeability as a unit than samples of the same material screened for certain imperfections and tested in the laboratory. In the field, it would not be possible to remove all clods and other materials that make for greater vertical hydraulic conductivity of the unit. Subgrade mixing would occur, in putting down the first of the two lifts. A 12-inch layer would be many more times transmissive than a liner of the same material put down in six six-inch lifts to attain the three feet DER requires, when no synthetic liner is used. Mr. Fluet did not testify that a 12-inch layer would achieve a permeability of 1 x 10-7 centimeters per second. He testified that nobody who had studied 12-inch layers had reported permeability of less than 1 x 10-5 centimeters per second for a clayey layer of that thickness. With respect to DER's proposed finding of fact No. 49, the geomembrane is subject to the effects of pressure and temperature variation would contribute to wrinkling. With respect to DER's proposed finding of fact No. 57, leachate leakage would diminish after closure, but would not stop altogether. With respect to DER's proposed findings of fact Nos. 59 and 60, the working hypothesis is that even a single molecule of certain leachate constituents may initiate cancer, although concentrations below the levels identified are said to pose no more than an acceptable risk of doing so. DER's proposed finding of fact No. 61 describes the methodology correctly, but the particular results have not been accepted. With respect to DER's proposed finding of fact No. 65, predicted concentrations depend on the leakage rate assumed. With respect to DER's proposed finding of fact No. 68, data showing the composition of discharges to ground water from other Class III landfills were not presented. Supposed "legislative facts" do not constitute evidence. With respect to DER's proposed finding of fact No. 69, the evidence did not show what concentrations of biocides or other chemical constituents were likely to be. With respect to DER's proposed finding of fact No. 93, the phrase "monitoring well" was not used. With respect to DER's proposed finding of fact No. 94, wells Nos. 21 and 22 were between 25 and 35 feet deep. Haydon McCormick testified that a shallow well near the house was for potable water supply. DER's proposed finding of fact No. 96, has been adopted, in substance, except that additional time might not be required for permitting. With respect to DER's proposed findings of fact Nos. 97 and 99, balancing of social and economic interests is appropriate only if hardship is proven, and immaterial otherwise. The City's proposed findings of fact Nos. 1-9, 16-18, 20-25, 30, 33, 35-38, 42, 44, 46, 49, 50, the first two sentences of No. 55, Nos. 58-62, 65, 73, 74, except for the last sentence, Nos. 75, 77-83, 88-92, 94-100, 104, 107, 108 and 110 have been adopted, in substance, insofar as material. With respect to the City's proposed finding of fact No. 10, despite timbering of the uplands the site was characterized as "relatively unaltered." With respect to the City's proposed finding of fact No. 11, no decline in water levels was shown to be irreversible. With respect to the City's proposed finding of fact No. 12, the study was of "trivial value." With respect to the City's proposed finding of fact No. 13, bald eagles and wood storks do make use of the site and indigo snake(s) were set loose there. With respect to the City's proposed finding of fact No. 14, a witness testified to his "confidence" (T.2918) that the kestrel he spotted was a Southeastern kestrel. Signs of alligator were found near the southeast corner of the property. With respect to the City's proposed finding of fact No. 15, hunting was mentioned. The City's proposed findings of fact Nos. 19, 54, 56 and 84 pertain to subordinate matters. With respect to the City's proposed finding of fact No. 26, the witness so testified. With respect to the City's proposed finding of fact No. 27, it was not proven that noise would be "minimized." With respect to the City's proposed finding of fact No. 28, bears could move through the culvert, but elsewhere the access road (particularly during the day), fences and human activity on site would indeed "impede black bear movement in the area." The City's proposed findings of fact Nos. 29, 48, the last sentence of 55, Nos. 57, 71, 72, 85, 87 and the last sentence of 101 have been rejected as being against the weight of the evidence or as unsupported by the preponderance of evidence. With respect to the City's proposed finding of fact No. 31, mobility will not assure successful relocation if existing populations are fully utilizing habitat in the vicinity. The City's proposed findings of fact Nos. 32, 86 and 93 are properly proposed conclusions of law. With respect to the City's proposed finding of fact No. 34, groundwater was shown unlikely to reach solid waste on site. With respect to the City's proposed finding of fact No. 40, the maximum head would not be less than one inch. With respect to the City's proposed finding of fact No. 41, such sand might not be available on site. With respect to the City's proposed finding of fact No. 43, some leachate would leak through the liner. With respect to the City's proposed finding of fact No. 45, some rainwater would infiltrate. With respect to the City's proposed finding of fact No. 47, the evidence did not show that the clayey sand layer would attain so low a vertical hydraulic conductivity. If these liners have performed well, it has not been without leakage, both through flaws and by permeation. With respect to the City's proposed finding of fact No. 51, the subgrade would be inspected, in an effort to assure complete removal of sharp objects. With respect to the City's proposed findings of fact Nos. 52 and 53, permeability is specific to the permeant. The values quoted are for water. High density polyethylene is highly permeable to aromatic hydrocarbons. That liners leak is not speculation. With respect to the City's proposed finding of fact No. 63, the design engineer envisioned circumstances that would require backing leachate up in the landfill. With respect to the City's proposed finding of fact No. 64, violations were proven, in the absence of sufficient attenuation in the vadose zone, and attenuation there was not quantified. With respect to the City's proposed findings of fact Nos. 66 and 67, these evaluations assumed unrealistically low leachate leakage rates. With respect to the City's proposed finding of fact No. 68, this elaborate house of cards bears little relationship to the language of the free from rule. But this approach, too, shows violations, if realistic leakage rates are used. With respect to the City's proposed finding of fact No. 69, credible and credited evidence of dramatically higher leachate leakage rates than they assumed contradicted their conclusions. With respect to the City's proposed finding of fact No. 70, the witness so testified. With respect to the City's proposed finding of fact No. 76, the precise constituents of the Class III leachate were not proven. With respect to the City's proposed finding of fact No. 102, the witness so testified. With respect to the City's proposed finding of fact No. 103, the well that Haydon McCormick jetted in was 25 to 35 feet deep. With respect to the City's proposed findings of fact Nos. 105 and 106, wells could be placed so that enough water drawn from them would reverse the gradient and cause pollutants to move toward the McCormick property. With respect to the City's proposed finding of fact No. 109, the evidence about the effect on operations was ambiguous. With respect to the City's proposed finding of fact No. 111, it is unlikely that the McCormicks would take steps to reverse the flow of groundwater. APPENDIX B Three methods of calculating per defect leachate leakage rates (in cubic meters per second) were proven at hearing, each expressed as an equation or formula requiring values for three variables, for their solution, viz.: h = height of leachate head over defect (in meters) a = area of defect (in square meters) Ks = permeability (vertical hydraulic conductivity) of clayey sand layer beneath defect (in meters per second) The method advocated by the City, published by the EPA, and shown (by the author) to reflect ideal contact between liner components, which does not obtain in practice, is: Q = (0.7) x (h) x (a0.1 x Ks0.88). The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect good contact between liner components, shown likely to occur in places, is: Q = (0.21) x (h0.9) x (a0.1 x Ks 0.74) The method advocated by the County, endorsed by the author of the formula EPA published, and shown to reflect poor contact between liner components, shown likely to occur in places, is: Q = (1.15) x (h0.9) x (a0.1 x Ks 0.74) In each case, Q represents the flow of leachate through each defect. COPIES FURNISHED: Carlos Alvarez and Carolyn S. Raepple Hopping, Boyd, Green and Sams Post Office Box 6525 Tallahassee, Florida 32314-6526 Harrison D. Upchurch and Frank D. Upchurch, III Upchurch, Bailey, and Upchurch, P.A. Post Office Box 170 St. Augustine, Florida 32085-0170 Joseph M. Glickstein, Jr. Glickstein and Glickstein 444 Third Street Neptune Beach, Florida 32233-5111 David S. Dee and Allan Wagner Carlton, Fields, Ward, Emmanuel Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 C. Rufus Pennington, III Margol and Pennington, P.A. Suite 1702, American Heritage Tower 76 South Laura Street Jacksonville, Florida 32202 Debra Swim 1323 Diamond Street Tallahassee, Florida 32301 Sidney F. Ansbacher Turner, Ford and Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32207 Dan Brooks Hendrickson and 104 Sixth Avenue 4620 Arapahoe Avenue Pass-A-Grille, Florida 32706 Jacksonville, FL 32208 Frank X. Friedman, Jr. T. R. Hainline, Jr. G. Stephen Manning Marcia P. Parker Rogers, Towers, Bailey, Jones & Gay 1300 Gulf Life Drive Jacksonville, Florida 32207 William H. Congdon and Chris McGuire 2600 Blairstone Road Tallahassee, Florida 32399-2400 Kathryn L. Mennella Post Office Box 1429 Palatka, Florida 32078-1429 Larry Gilmore 9131 Fort Caroline Road Jacksonville, FL 32225 Larry A. Wells 237 Pablo Road Ponte Vedra Beach, FL 32082 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact Petitioners purchased property in New Smyrna Beach, Florida to build a home. The property, which was platted in the 1940's measures 50 feet by 200 feet. The east side of the property (50') is located on Engram Road. The northern 200 feet and western 50 feet of the property is waterfront, situated on a tidal inlet from the Indian River. The Indian River contains the last remaining Class II waters in Volusia County. Class II waters in Florida are waters in which the state allows shellfish harvesting for public consumption. As the last remaining Class II waters in the county, the area requires special protection from all possible sources of pollution and negative environmental impact, including sewage outflow. According to the Petitioner, the seller of the property indicated to Petitioners that the property had been approved for constructing a home. The seller substantiated his assertion with a letter from the Volusia County Planning and Zoning Department stating that a county variance had been granted to construct a single family dwelling on this property, subject to certain conditions. The county approval letter specified the required use of an aerobic wastewater treatment system. The Petitioners were unaware of the state regulations and standards for onsite sewage disposal systems. The Petitioners hired a builder who applied to the HRS Volusia County Public Health Department for a septic tank permit. The permit was denied because the proposed septic tank system violated 50 foot set back required of sewage treatment systems from Class II waters. The proposed drainfield was located within 28 feet of the mean high water line, and because of the configuration of the lot and its depth of only 50 feet the proposed site cannot meet the state standard. The Petitioners' builder subsequently applied to the state Department of Health and Rehabilitative Services for a variance from the code standards in order to obtain the septic tank construction permit. The state denied the variance stating that the "request was not considered to be a minor deviation from the minimum requirements". The Petitioners received no notification of the time and place of the Variance Review Board's meeting because the variance application was submitted by their builder. Petitioners had no opportunity to personally address the Variance Board when their application was being considered. A sewer line is located within 1000 feet of the property and a sewage grinding and pumping system could be installed to pump sewage from the site to the sewer line. Such a system, costs approximately the same amount as an onsite system. A grinding and pumping system is an economically reasonable alternative to permit development of the lot.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, the arguments of the parties, it is therefore RECOMMENDED: That the request for a variance be DENIED. DONE and ENTERED this 2nd day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 132 Winewood Boulevard Tallahassee, FL 32399-0700 Jerome and Bernice Massel 6426 Engram Road New Smyrna Beach, FL 32169 Charlene J. Petersen, Esquire HRS-District 4 P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue Schofield Corporation of Orlando has applied to the Department of Environmental Regulation for a permit to construct and operate a Class III trash/yard trash landfill in Orange County, Florida. The issues are whether the applicant is entitled to the permit and, if so, what conditions should attach. Also at issue is Schofield Corporation's motion for attorney's fees and costs, pursuant to Section 403.412(2)(f), F.S.
Findings Of Fact The applicant, Schofield Corporation of Orlando (Schofield), owns the proposed landfill site and existing permits for the site. The proposed site is located in West Orange County, southwest of the intersection of State Road 545 and Schofield Road on the west half of the northwest quarter of section 32, township 23 south, range 27 east, comprising approximately sixty acres within a larger eighty-acre parcel. In some undetermined distant past the site was cultivated in citrus. It is currently being excavated as a borrow pit. The materials proposed to be placed in the landfill include trash, yard trash, construction and demolition debris and clean debris, as defined in DER Rule 17-701.020, F.A.C. The northern half of the site is flat and will be used first for the composting operation. The southern excavated portion of the site will receive the permitted fill material until it is flattened. Then, the two functions will alternate; the composting will occur on the south, and the north end will be excavated to receive fill. The proposed facility will be operated by Chambers Corporation, a nationally recognized waste management company with approximately 20 years of experience in solid waste management. The landfill site will be completely fenced, with a gate entrance mid-site between the landfill and compost area. The gate will be locked when the facility is not in operation, and will be patrolled by security personnel 24 hours a day. "Spotters", or inspectors will be employed to examine incoming waste loads at the gate, from a high gantry, and at the place where the waste is deposited. The loads will be monitored by a television camera, and all haulers will be under contract. The landfill will not accept loads from trucks coming off the road looking for a place to dump. Receptacles will be maintained on site to receive errant non-permitted waste that is found in a load, and that waste will be properly disposed of elsewhere. Schofield has several permits related to its proposed operation. These include a type III landfill permit from Orange County, a compost facility permit from DER, a general construction and demolition debris landfill permit from DER, a surface water management permit from the South Florida Water Management District, and a permit to excavate or mine from the Florida Department of Natural Resources. Schofield also has a contract to receive yard waste from Orange County. The initial term of contract requires at least ten percent of the yard waste to be composted or recycled, with the percentage amount to be renegotiated in subsequent contract renewals. In the hierarchy of landfills, DER considers Class III the least environmentally sensitive. Problems with unauthorized waste and with water quality occur more frequently with Class I landfills, defined as accommodating more than twenty tons a day of residential garbage. In this case DER has proposed to grant Schofield its Class III permit without the requirement of a bottom liner or a leachate or gas control system because of the nature of the waste that will be accepted and because of the rigorous controls, described above, to avoid receiving unauthorized or hazardous waste. The Petitioners are an individual and a homeowners' association representing a residential area approximately a half mile south of the proposed site. Petitioners contend that the applicant's data is insufficient to provide reasonable assurances that water quality standards will not be violated. Petitioners contend that the landfill, if approved, should be required to have a liner to prevent leachate from polluting the groundwater. They further contend that the groundwater monitoring plan submitted by the applicant is inadequate to detect vertical movement of contaminated leachate into the Floridan aquifer, a major source of water supply in Orange County. Hydrogeology The site of the proposed landfill is within a high recharge area. Water percolates rapidly though the soil, moving downward into the aquifer, and laterally off site. The site is considered Karst terrain, underlined with limerock. There is evidence of relic sinkholes, thousands of years old, but there is a low probability of future open sinkhole development. The geology in the area of the site provides adequate structural support for the proposed facility. An aquifer is generally defined as a unit of material which contains water and can give up a sufficient amount of yield to provide some productive flow for pumpage. Below the site there are two aquifers: the shallow water table, or surficial aquifer, containing clean well-drained fine sands, about 70 feet down; and the Floridan, primarily limestone, encountered at a depth of approximately 115 feet. The two are separated by a confining layer of less permeable sands and clay. Flow in the Floridan at the site is primarily from the west to east. Flow in the surficial is also generally from west to east, but the Petitioners theorize, and have presented competent supporting evidence, that there are fissures in the confining layer, allowing some internal drainage within the site, causing surficial water to flow vertically into the Floridan, rather than laterally off-site in an eastward direction. Based on recent data taken from two piezometers installed near the middle of the site, the applicant's hydrogeologist, James Golden, concedes that "mounding" exists along the eastern boundary of the site, reflecting some flow westerly back into the interior of the site. Petitioners' theory regarding internal draining of the site is based in part on data as to groundwater elevation. Groundwater elevation or high groundwater table is the elevation at which water stands on a continuous surface under the site. Jammal and Associates is a consultant firm which has done field studies of this and neighboring sites in the past, for various purposes. Some open bore readings taken by Jammal and Associates in a 1983 study for the Orange County Rapid Infiltration Basin project indicate groundwater table levels on site up to 126 feet, National Geodetic Vertical Data (NGVD). Open bore readings are less reliable than cased hole readings; due to collapses within the hole, artificially high readings are sometimes obtained. Data from the applicant's consultants reveals groundwater tables at 96-98 NGVD. This data was most recently obtained in December 1991 from sealed and surveyed piezometer casings, but not from the area of the site where Jammal's higher readings were obtained. Although it may be conjectured that Jammal's high readings are anomalous, additional sealed borings need to be obtained before the anomaly is confirmed. Groundwater elevations are significant also to determine the depth to which the landfill may be excavated. Based on its December 1991 readings, obtained after the application for permit was filed, the applicant agreed to raise the proposed bottom of the landfill to approximately five feet above the level of the estimated high (wet weather) groundwater table in the area. Water Quality and Monitoring Specific conditions of the proposed permit include DER's requirements that Class GII water quality standards be met at the boundary of the zone of discharge, in accordance with Rule 17-3, F.A.C. The zone of discharge for this facility is a three-dimensional volume defined in the vertical plane as the top of the ground to the base of the most surficial aquifer, and horizontally 100 feet from the edge of the waste-filled area, or the property boundary, whichever is less. The groundwater monitoring plan proposed by the applicant includes one upstream monitoring well on the west side of the site and five wells along the east side of the site, with an additional well at the south, between the project and the Petitioners' residential area. The wells extend down into the upper zone of the surficial aquifer, but not into the deeper limestone Floridan. The downstream wells should detect any contamination in the surficial aquifer flowing from west to east at the zone of discharge. However, they will not pick up contamination draining internally within the site and into the Floridan. Such contamination is possible, even though leachate from Class III- type wastes is expected to be relatively benign. Volatile organic carbons (VOCs) have not typically been a problem in Class III landfills, unless those landfills were previously operated as Class I sites. Secondary drinking water standards for certain metals have been violated at some Class III sites, but such violations are often related to the problem of sampling newly-installed wells. From DER records, Petitioners presented evidence of consistent drinking water quality standard violations in Class III landfills. That such violations can occur in Class III landfills is clearly established. It is not so clear that such violations will occur in this facility, given the proposed controls on load content. However, even acceptable materials will not avoid the production of leachate or gas. Within demolition waste there are chemically bound components which are inseparable, for example, creosote and other preservatives, glues, paints, resins, varnishes and stains. The lignin, tannins and volatile organic acids which are produced when wood decomposes alter the pH of the groundwater. As the water becomes more acidic, heavy metals that were typically bound up in the waste or in the soil, are released in soluble form and travel with the water. The decomposition process occurring in the construction and demolition waste is enhanced by the addition of yard trash which becomes the food source for the biodegradation. Summary of Findings and Proposed Permit Conditions If, as applicant suggests, all groundwater moves primarily from west to east within the site, given the proposed operational controls and the proposed monitoring plan, reasonable assurances have been provided that water quality standards will not be violated beyond the zone of discharge. That is, any contamination likely to occur will be contained within the surficial aquifer and within the 100 feet or property line horizontal boundary. Transmissivity of the surficial aquifer is low enough to allow mixing of the leachate before it reaches the zone of discharge. The Petitioners, however, have presented credible evidence sufficient to question the groundwater flow premise and sufficient to require additional conditions on the permit. If leachate reaches the Floridan through fissures in the confining layer, it will move rapidly off site. In its proposed recommended order DER has suggested additional permit conditions and in its adoption of the proposed recommended order, the applicant has accepted those additional permit conditions. Those permit conditions recognize the fact that data presently provided by the applicant is insufficient to overcome the evidence by Petitioners as to the hydrogeological characteristics of the site with the possibility of internal drainage and vertical intrusion of contaminated water into the Floridan aquifer. The proposed recommended order provides this finding: ...that the ground water monitoring plan as proposed in this proceeding is adequate, provided that there be added to the permit conditions that the permittee conduct appropriate water table testing with cased piezometers during the next wet season to determine whether ground water flow is internal within the site and therefore not intercepted by the present ground water monitoring wells. The permittee shall consult with DER and get approval for the location and construction of these wells prior to their installation. The results shall be immediately submitted to the DER. The ground water monitoring requirements should be modified if necessary at that time pursuant to Rule 17-28.700(5) to assure proper monitoring at this site. (DER proposed Recommended Order, p. 17) The ground water monitoring plan modification suggested by DER is that deeper monitoring wells, into the Floridan aquifer, be required if the additional testing reveals the likelihood of internal on-site ground water drainage. These conditions are still inadequate since they lack specificity with regard to the extent of testing, the location and construction of the wells, and the amendments to the monitoring program to be required if internal drainage is confirmed. Moreover, the proposed conditions fail to address the possibility that the permit should require a liner for the landfill if the data to be obtained reveals the likelihood that contaminates will penetrate into the groundwater of the Floridan. Monitoring programs, however effective, only predict or detect problems; they do not remediate them. Groundwater contamination by landfills is not quickly and easily reversed. Unlike discharges from other facilities such as spray application or deep well injection, the leachate from a landfill is not "turned off". Without the additional data which all parties agree is needed, it is impossible to determine what additional conditions, if any, should be required or what amendments, if any, need to be made to the applicant's proposed monitoring plan.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Environmental Regulation issue its Final Order denying the application for Class III land fill permit. DONE AND RECOMMENDED this 17th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraph 1. Adopted in substance in paragraph 10. 3.-11. Rejected as unnecessary. 12.-23. Rejected as argument or summary of testimony, rather than findings of fact. 24. Rejected as unnecessary. 25.-30. Rejected as argument or summary of testimony, rather than findings of fact. 31. Rejected as unnecessary. 32.-41. Rejected as argument or summary of testimony, rather than findings of fact. Rejected as unnecessary. Adopted in substance throughout the recommended findings. 44.-50. Adopted in Preliminary Statement and paragraph 4. 51. Rejected as unnecessary. 52.-53. Adopted in paragraph 2. 54.-55. Rejected as statement of testimony rather than finding of fact. Adopted in paragraph 3. Rejected as unnecessary. 58.-97. Rejected as argument or statement of testimony, rather than findings of fact. Subparts a), b), c) and e) are rejected as unsupported by competent evidence. The evidence suggests that violations might occur and that insufficient data has been produced. Subpart d) is adopted, by implication in paragraph 18. 99.-101. Adopted in summary in paragraph 20. Respondent's Proposed Findings of Fact Addressed in Preliminary Statement. Adopted in paragraphs 1, 2 and 5. 3.-4. Adopted in paragraph 4. Adopted in summary in paragraph 11. Adopted in paragraph 13. Rejected as unnecessary or irrelevant, given the stipulation related to Section 403.412, F.S. standing. Rejected as cumulative. Adopted in paragraph 10. Adopted in paragraph 9. Adopted in substance in paragraph 9. 12.-13. Adopted in paragraph 13. Adopted in substance in paragraph 16. Rejected as unsupported by the evidence. If internal drainage is shown to exist, conditions other than additional monitoring wells may be required. Adopted in paragraph 17. 17.-18. Adopted in paragraph 3. 19.-21. Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 12. 24.-26. Adopted in general in paragraph 14. 27. The unlikelihood that unauthorized waste will be dumped is adopted in paragraph 3. Whether there will be a violation of ground water quality standards at the zone of discharge was not established, given the need for additional data on internal draining. COPIES FURNISHED: Thomas B. Drage, Jr., Esquire P.O. Box 87 Orlando, FL 32802 Irby G. Pugh, Esquire 218 Annie Street Orlando, FL 32806 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit in consideration of the statutes and rules relating to approval of permits cited and discussed herein, or whether they are entitled to a variance from the strict requirements of those statutes and rules so as to allow the installation of the OSDS on their property near the Suwannee River. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners purchased real property located in Levy County, Florida, in 1967. That property is located in the unincorporated community of "Fowlers Bluff" on the east bank of the Suwannee River. The property is more particularly described as the west one-half of Lot 13, and the east three- quarters of Lot 14, Treasure Camp Addition, Unit 3. The lot in question is approximately 100 feet by 125 feet by 197 feet in size. There is adequate unobstructed area available for the subject system's installation, according to Respondent's Exhibit NO. 1 in evidence. The lot is part of a subdivision which was platted prior to 1956. The subject lot has available a potable water source from the public water system. Consequently, the lot is of sufficient size to meet the quarter-acre minimum requirement for the installation of septic tank and drain-field systems in situations where lots have potable water available from a public water system, which is the case in this circumstance. The effective soil depth at the drain-field installation site is greater than 42 inches below the bottom surface of the proposed drain-field trench or absorption bed location. That is, 72 inches of sand, which is a "slight limited soil" and appropriate for such installations, exist at the site. The wet season water table was shown to exist at 26 inches below the grade level. The wet season water table, pursuant to Rule 10D-6.047(2) Florida Administrative Code, must be at least 24 inches below the bottom surface of the drain-field trench or absorption bed. Consequently, the wet season water table in this situation is not sufficient in depth for the proposed installation to meet this provision of the Respondent's rules. The Petitioners seek to gain approval for a system to serve a single- family residence of approximately 2,000 heated and cooled square feet, with a "standard" 350 gallons per day sewage flow. The residence would contain three bedrooms, as presently envisioned. The Petitioners' Exhibit NO. 1 establishes a benchmark elevation for the grade level of the proposed OSDS installation site of 7.48 feet above mean sea level ("MSL"). The actual grade elevation is 0.8 feet below that benchmark elevation. That is, the elevation of the grade of the property is 6.72 feet above MSL at the proposed installation site., The ten-year flood elevation for the proposed installation site, however, is 9 feet above MSL, as verified by a report prepared by the Suwannee River Water Management District, admitted into evidence and which was submitted to the Respondent by the Petitioners in the application process. The property also lies within the regulatory floodway of the Suwannee R for purposes of Rule 10D-6.047(6), Florida Administrative Code. Testimony by Mr. Parker, as well as the Respondent's evidence through Mr. May, establishes that the property in the past has had approximately 30 inches of fill placed on it. Because of this, the grade level elevation is in fairly-close proximity to the ten-year flood elevation and because of the prevailing slight limited soil type down to a depth of six feet, the property was shown to be generally amenable to installation of a mounded septic tank and drain-field disposal system, which mounding could raise the property so that the bottom of the drain-field trench or absorption bed would not be within the ten- year flood elevation. As Mr. May indicated by letter dated March 1, 1990 to Mr. Parker, the lot could be filled utilizing slight limited soil so that a mound to contain the septic tank and drain field of no more than the required 36 inches, pursuant to Rule 10D-06.0493(b), Florida Administrative Code, might be utilized. That letter, in evidence, also indicates that if the lot, or a portion of it, is filled, the fill shall extend a minimum of 20 feet in all directions beyond the perimeter of the mound base. The lot was shown to be of sufficient size to accommodate such a perimeter area of fill. In that same letter, Mr. May advised Mr. Parker that he had the right to request a variance from the provisions of Chapter 10D-6 Florida Administrative Code, since his property, in Mr. May's view, did not meet the criteria in that regulatory chapter for the issuance of an actual permit. The record does not reflect that an actual variance application had been filed, however. It would thus seem that this property is amenable to a reasonable alternative solution to a conventional, subterranean septic tank and drain-field system by the use of the "mounding process". That alternative, however, pursuant to Rule 10D-6.047(6), Florida Administrative Code, would require the certification of a registered professional engineer to the effect that the installation of such a mound could be done ,in such a way as not to raise the "base flood" level. This is because the property lies within the regulatory floodway of the ,Suwannee River; and under the rule section cited last above, a `certification must be made that the base flood level will not be raised by such a mounded system installation for property lying in the regulatory floodway. The Petitioners adduced no such engineering testimony or evidence to establish that if the system were installed with the mounding process, the base flood level would not be raised. In addition to the evidence culminating in the above Findings of Fact, the Petitioners offered general testimony to the effect that they had purchased the property in question for purposes of both having a "retirement rest egg" and a place to live should they choose to live on the property. The Petitioners established that they, like numerous other OSDS permit applicants in similar proceedings, are undergoing a hardship because they purchased the property for residential purposes or for re-sale for residential purposes and cannot construct a residence and live on the property or sell it for that purpose because of the inability to obtain a permit. The Petitioners' proof, in terms of the variance criteria noted below, is inadequate to show that there are no alternative systems available which will adequately dispose of and treat the sewage to be expected, nor did the Petitioners establish that installation of the system presently proposed would only constitute a minor deviation from the requirements of the Respondent's OSDS permitting rules, in terms of having no adverse effect on the health of the Petitioners, the general public, or upon the surface or ground waters involved in the vicinity of the site. Although the Petitioners did not formally apply for a variance, no adequate proof in these two particulars was offered so as to justify the grant of a variance; however, it was established that the property was platted prior to 1972 for purposes of the relaxed consideration embodied in the variance rule and statute for this circumstance. The Respondent now asserts, however, that the Petitioners should not be accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten- year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the application for the subject permit, without prejudice to a later application for a variance or a later application for an OSDS permit based upon additional and changed facts and circumstances. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3695 The Petitioners submitted no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Arnold G. Parker P.O. Box 467 Chiefland, Florida 32626 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, Florida 32609
