The Issue The issue in these consolidated cases is whether the agency should grant variances from Rule 10D-6, F.A.C. regarding construction of on-site sewage disposal systems on the lots in question.
Findings Of Fact Jerry Gagliardi is the developer and engineer for an 8-lot subdivision on Merritt Island, Brevard County, Florida. Mr. Gagliardi is a self-employed civil and mechanical engineer. The small subdivision has a long, narrow configuration, extending west to east. It is bounded on the north by an existing drainage ditch and a large tract of undisturbed wetlands. Its south boundary is a finger canal, and its east boundary is Pelican Creek. With the exception of the wetlands, most of the property in the area is already developed. There are no residences built yet on the eight lots. Hook-up to an existing sanitary sewer system is available within one- quarter mile of the subdivision. The entire area, with several finger canals, is served by the sanitary sewer system. Mr. Gagliardi planned to install on-site disposal systems (septic tanks) in the subdivision. When his plan was rejected he applied for variances for lots 1 and 2 in July 1992, stating economic hardship as the basis for the request. The applications were reviewed by Gregory D. Wright, Supervisor for Brevard County Consumer Health Services and his staff. Several site visits were made and a site evaluation was completed. Mr. Wright recommended denial of the variance because the sanitary sewer system is available; the soils (mostly sand and shell) are unsuitable for on- site disposal systems; and the area, virtually surrounded by water, is environmentally very sensitive. Mr. Wright is also concerned that a variance for the two lots will establish a precedent for variances on the remaining lots in the subdivision. Mr. Wright also observed that there is an existing irrigation well on a neighboring lot within thirty feet of the proposed septic tank on lot #1. This well does not appear on Mr. Gagliardi's plans. The Department of Health and Rehabilitative Services Review Group for Individual Sewage Disposal concurred with the local agency's recommendation after consideration of Mr. Gagliardi's hardship argument. The request was not considered to be a minor deviation from the minimum requirements of the law and regulations. For approximately three years Jerry Gagliardi has been providing information on his development plans to the local county staff. He has become extremely frustrated with the process. However, he has still failed to produce the evidence which he must have to justify the variances he is seeking. At the hearing, Mr. Gagliardi claimed that hook-up to the existing sanitary sewer system is impossible because there is insufficient elevation for gravity feed and there is not enough room on Banana River Drive for another sewer line easement. He did not submit evidence to support that claim and it is unclear whether he has made that claim to the local staff for their verification. He has consistently claimed that hook-up to the existing system is prohibitively expensive. He has estimated that the cost of installing hook-up to the existing system would be $52,642 for the entire subdivision, or $6580.25 per lot. He has estimated that installation of aerobic on-site septic systems would cost $28,000.00 or $3500 per lot. This estimate does not include the cost of culverting the ditch along the north boundary of the property. The culvert may be necessary to meet the water body set-back requirements and, assuming that a permit would be granted for its construction, the culvert would substantially increase the cost of the septic tank project. As recently as three weeks prior to hearing, Mr. Gagliardi provided information to the staff that the value of the lots in the subdivision is $60,000.00 each, for lots #1 through #6; and $115,000.00 and $120,000.00, for lots #7 and #8, respectively. At hearing he repudiated that information as being based on three year old appraisals. He now asserts that the value of the lots is closer to $40,000.00 each. Petitioner's exhibit #2 is a cover letter dated January 4, 1993, to Mr. Gagliardi from the Brevard County Property Appraiser. Attached to the letter are four property management print-outs reflecting the value of two lots as $35,000.00, and two others as $65,000.00. The record does not reflect which lots those are in the subdivision and there is no explanation for the inflated values provided to the staff after the printouts were received. It is impossible from the confused and conflicting evidence provided at hearing to determine that the petitioners are entitled to a variance.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final orders denying Petitioners applications for variances. DONE AND RECOMMENDED this 11th day of May, 1993, in Tallahassee, 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 11th day of May, 1993. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Jerry Gagliardi, Agent for Phil Sperli and Gail Bobzein Post Office Box 541061 Merritt Island, Florida 32954 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether WACOC has given reasonable assurance that the landfill it proposes to build would comply with applicable requirements of Chapter 403, Florida Statutes (1987), and rules promulgated thereunder?
Findings Of Fact A mile east of the intersection of U.S. Highway 90 and State Road 393, south of Dorcas in eastern Okaloosa County, WACOC has assembled some 1,760 acres on U.S. Highway 90 --- only 160 acres shy of three square miles. WACOC proposes to use as much of the land as possible for the disposal of solid waste, and "would like to use the proposed landfill as a regional landfill." Prehearing Stipulation, p.8. (T.68) The company does not own all the land outright but, with the conveyance of a parcel on the morning the final hearing began (T.77), WACOC had obtained (an encumbered) fee interest in the 55 acres on which it proposes to put Phase I, "a hole-in-the-ground landfill which can come into contact with the groundwater table," (T.737) and the subject of the pending application. WACOC has a "whole lot of option money out there," (T.86) although none of WACOC's stockholders has previous experience in the landfill business. Private Enterprise Chris Cadenhead owns stock individually and "is 100 percent owner of SRD, Incorporated" (T.93), itself an owner of WACOC stock. Serving with Chris Cadenhead and Larry Anchors on WACOC's board of directors, at the time of the hearing, was James Ward, formerly a legislator and chairman of the House Natural Resources Committee. (T.48) Like Mr. Anchors, Mr. Ward originally owned 24% of WACOC's stock. The only shareholder who testified at the hearing was Arthur Frederick Schneider. Before he succeeded Mr. Cadenhead as president of WACOC, Mr. Schneider had had a distinguished career as a naval officer, and later tried his hand at farming, but this venture ended in bankruptcy. "SRD has been funding this thing." (T.86) Where SRD, Inc. obtained more than three-quarters of a million dollars is not clear from the record. As far as the evidence showed, Chris Cadenhead's father, Rhett, had no interest in WACOC, although he did appear on behalf of the company at a county commission meeting in June of 1987. Larry Anchors, a WACOC shareholder and formerly an Okaloosa County Commissioner, contributed $35,000 a few days after the Okaloosa County Commission awarded the waste disposal contract. (T.87) Nothing has been paid the company under the agreement WACOC entered into with Okaloosa County on June 18, 1987, Citizens' Exhibit No. 1, which was reduced to writing on or before July 10, 1987. WACOC's Exhibit No. 1, App. 1. Under the contract, WACOC undertakes to move solid waste from transfer points in the southern part of the county and deposit them in the landfill it proposes for a per ton "tip fee of $17.70 (Present value as of 6/16/87)," WACOC's Exhibit No. 1, App. 1, p. 13 (emphasis in original), which is to be "adjusted automatically upward or downward to reflect the change in Consumer Price Index." Id. The County guarantees WACOC 275 tons per day and pledges to "exercise its best efforts to insure that all the Solid Waste generated within the County will be delivered to one of the designated transfer stations or the landfill," WACOC's Exhibit No. 1, App. 1, p. 8, for the next thirty years. At present, the County generates "including the municipality . . . about 525-550 tons a day." (T. 61) The County agrees to cooperate "to obtain financing of the real property and equipment necessary [for WACOC] to perform . . . by a proposed bond issue." WACOC's Exhibit No. 1, App. 1, p. 14. To this end, the county commission adopted a resolution authorizing issuance of industrial revenue bonds in accordance with Chapter 159, Florida Statutes, in an amount not to exceed $8,000,000. Alternatively, and perhaps more in keeping with current tax law, "it's going to one of the larger financial institutions like Merrill Lynch Pierce Fenner & Smith or someone like that and actually a bond issue through them, non-industrial," (T.74) or so WACOC intends. Phase I Designed to receive Okaloosa County's solid waste for five years, Phase I is to occupy a site on the eastern slope of a small hill between the east and west branches of Mare Creek, which converge in Fawn Lake, north of the property on which WACOC has options. Water flows out of Fawn Lake into a no longer bifurcated Mare Creek (which was dammed to create the lake), and ultimately into the Shoal River, more than 3,000 feet from the site. By rule, DER has designated Shoal River outstanding Florida waters. Fawn Lake and Mare Creek are Class III surface waters. The Phase I site is "zoned for agricultural uses, which was determined by the Okaloosa County attorney to be appropriate for a landfill." Prehearing Stipulation, p. 7, No. 5. "The county attorney's determination has not been ratified by the County Commissioners." Id. Site Geology "Subsurface conditions have obviously a tremendous effect on the design of the landfill." (T.592) "[A] site's geological and hydrological characteristics are relevant to its potential for contamination." Prehearing Stipulation, p.7, No.4. Throughout the 1760-acre site, beneath a thin topsoil and root mat layer, the site soils consist of clean loose sands to an average depth of about 8 feet below ground surface. . . . From a depth of about 8 feet to 18 feet, a layer of dense orange clayey medium to fine sand (with some coarse sand and fine gravel) covers most of the proposed landfill site. . . . Beneath the clayey sand unit are loose and dense . . . sands . . . . WACOC's Exhibit No. 1, Appendix B. The clayey sand unit occurring underneath the loose, Pliocene sands on the surface is part of the Citronelle formation, which "characteristically changes abruptly over very short distances." (TB. 29) The Citronelle consists "principally of quartz sand, with numerous beds, stringers and lenses of clay and gravel." CCE's Exhibit No. 21, p. 33. "The soils on the site standing alo[ne] would not be sufficient for a liner." I.T. 559 WACOC's expert reported an "average vertical hydraulic conductivity for [the upper Citronelle of] . . . 6.2 x 10-7 cm/sec (1.7 x 10-3 feet/day)." Laboratory tests on soil samples, taken more than eight and less than 18 feet below the surface of the site proposed for Phase I, demonstrated the variability of the sands making up the upper portion of the Citronelle formation on site. The percent finer than the U.S. No. 200 mesh sieve (silt and clay size fraction) . . . ranges between 17.5% to 41.7% . . . . "Vertical hydraulic conductivities for . . . [deeper] sands [on which waste disposal cell liners are to be laid] range from approximately 2.7 x 10-5 cm/sec to 5.8 x 10-4 cm/sec (0.08 to 1.62 feet/day)." Id. The variability of fines contents among samples reflects variability in hydraulic conductivity in the upper Citronelle, as well. This variability explains why an average permeability or vertical conductivity figure for the clayey sands in the upper Citronelle is of limited use in predicting how quickly rainwater will move through it, if these sands are used to cap the landfill after its completion, as proposed. Samples taken from eleven borings made throughout the entire 1,760-acre site were the basis for the applicant's average vertical hydraulic conductivity number. Only one of the borings was done on the Phase I site itself. If a ten-foot thick, continuous layer of clayey sands with a vertical conductivity of 6.2 x 10-7 centimeters per second occurred eight feet beneath the surface, the overlying Pliocene sands would hold a water table year round, given the high rainfall in the area. In fact, the applicants' consultants reported a water table on the Phase I site 21 to 30 feet down, beneath or within, but not above, the clayey sands in the upper Citronelle, in February of 1988. (T.595) The higher water tables observed in October of 1988 were also below the loose surficial sands. This demonstrates a vertical hydraulic conductivity for the upper Citronelle beneath the site proposed for Phase I well above the reported average. A borrow pit, off site but nearby, illustrates the fallacy of relying on average conductivity values to predict the movement of water. At the upper end of the excavation, a seep emerges from the sand to form a stream that flows 40 or 50 feet across red clayey materials resembling those on site, then sinks, disappearing into the earth. Even the value assigned to a particular split spoon sample may be a misleading average. B.T.126-7. Preliminary Plans Drawn In Phase I, WACOC proposes to excavate three different areas or cells for solid waste disposal "to approximately 20 feet below natural grade." (T.116) Accepting information they were furnished, the design engineers made the important (T.172) but erroneous assumption that the water table on site fluctuates only within a range "from five to fifteen feet" (T.132) below that. The plan is to fill each cell with solid waste and covering layers of various soils to a height 90 feet above existing grade. Trees growing within the 300- foot green belt planned for the perimeter of the 1,760-acre site would shield the landfill from the view of motorists on U.S. Highway 90. Separated from each other by berms, cells 1 (520' x 520') and 2 (520' x 650') would abut each other south of cell 3 (480' x 1170'), with another set of berms circumscribing all three cells. The bottom of each cell is to have a gradual V-shape, sloping "approximately one percent in the longitudinal direction and two percent in the traverse direction[s]," (T.116) toward the centerline. The plans call for compaction of the soils, once excavation has been accomplished, and for "root pickers" to remove rocks, roots and any other sharp objects. The plans do not contemplate the use of sieves. WACOC proposes to line these pits by covering the naturally occurring, compacted soils with a 1.5 millimeter (60 mil) layer of high density polyethylene, a plastic which has been manufactured for use in land fill liners at least since 1982. (T.401) The purpose of lining landfills is to contain contaminated water that would otherwise escape into the environment. Rain percolating through solid waste, together with moisture already in the solid waste at the time it is deposited in the landfill, leaches chemicals from the waste, producing a toxic solution called leachate. Products of industry make their way into household garbage and the municipal waste stream. About two percent of waste that reaches municipal sanitary landfills consists of materials which, if generated industrially in quantity could not lawfully be disposed of, except as hazardous waste. Scientists have "found municipal waste landfill leachates that were as toxic as those from Love Canal." (IT.696) Gundle Liner WACOC has decided to obtain a liner which meets minimum requirements of the National Sanitation Foundation Standard Number 54, Flexible Membrane Liners, November, 1983, from Gundle Lining Systems, Inc. (Gundle). "All Gundle materials are available in 22 1/2' widths with no factory seams " WACOC's Exhibit No. 7. Gundle's own employees would unroll the plastic, position it using "tack welding" to form a continuous sheet, join the strips with extrusion welds, inspect the seams visually, perform destructive "shear and peel tests . . . by random selection no less than the [to be] agreed [but unspecified at hearing] frequency . . . . [and conduct v]acuum testing [which] follows no specific standard." WACOC's Exhibit No. 7, Enclosure 6. (T.403, 411- 2) As a condition of the permit (No. 26), DER would require that an independent third party, a registered professional engineer, participate in quality assurance. High density polyethylene's "chemical resistance and durability. . . . enable[ Gundle] . . . to offer a 20-year warranty . . . for both the product and installation." (T.404) Gundle's liability under the warranty depends on how many years remain under warranty and "shall in no event exceed the amount of the sale price." (IT.434) The warranty excludes "any liability for consequential damages arising from the loss of . . . product owing to the failure of the material or installation," id.; CCE's Exhibit No. 3, and any liability whatsoever in the event of acts of God, including floods, and "excessive pressure or stress from any source." CCE's Exhibit No. 3; (IT.432). While the material may well outlast the warranty, perhaps by decades, in "geological time," it will inevitably fail. In the short term, too, the integrity of liners like that proposed is highly problematic. Past problems have included "mechanical damage . . . of one form or another such as with the bulldozer, or if somebody drops something." (IT.429) Here, before the first lift of solid waste (which would not include construction or demolition debris) is placed, four feet of sand (stockpiled during excavation) would be piled on top of the disposal cell liner. A bulldozer's gash might not go unnoticed, but small holes along seams can be missed, despite rigorous quality control measures. At the Ocean County landfill in New Jersey, "there was more liquid . . . than would have been true from the calculated moisture vapor transmission data," (IT.427) but Gundle's chemist testified this might have been "condensation on the soils on the back side of the liner." Id. Leachate Collection Embedded within the sand layer, in the crotch of the V, six-inch, perforated, schedule 80 PVC pipe, wrapped in filter cloth, is designed to collect leachate. The top of the pipe is to be eight inches above the liner, according to the leachate underdrain detail on sheet 15 of WACOC's Exhibit No. One pipe running the length of cell 3 and another running through cells 1 and 2 would move leachate to the leachate trunk line, another (intact) PVC pipe which would, in turn, empty into a paved flume in the leachate collection pond. The pond has been sized to contain the amount of leachate WACOC's consultants originally predicted a 25 year return 24-hour storm would generate, together with the rainfall such an event would deposit in the leachate collection pond, and still leave a foot of freeboard. "You have room below that major storm elevation that holds 60 to 70,000 cubic feet of leachate." I.T. 127. Except for the flume, the leachate pond is to be lined, like the disposal cells, with high density polyethylene. In the leachate collection pond, only 18 inches of sand would overlie the synthetic liner. From time to time, leachate would be pumped from the pond into tank trucks for removal to the Garnier wastewater treatment plant, which has a capacity of 6,500,000 gallons per day. Garnier is specifically permitted to receive only domestic wastewater, but the permit does not forbid industrial wastewater, and the plant now accepts leachate from the Wright landfill. DER has not classified landfill leachate either as domestic or as industrial wastewater. Before accepting it for treatment, the plant might require pretreatment of the leachate, whether on account of its anticipated acidity or for other reasons. If leachate causes sludge from Garnier to exceed standards for heavy metals, the sludge can be deposited in a Class 1 landfill like the one proposed here. WACOC has not yet entered into a contract with Garnier's operator for treatment of leachate. Not until leachate is removed from the leachate collection pond are pumps to be employed. Leachate would have to accumulate on the waste disposal cell liners and enter a pipe, in order to leave the cells. The design specifies perforations along the whole length of leachate collection pipe, around the bottom of the pipe. If the pipes clogged west of the cell walls, leachate could flow through sand and reenter the pipe further downslope. Outside the waste disposal cells, manholes have been planned, to afford access for cleaning the pipes out. The applicant did not demonstrate with calculations that gravity would induce flow through the pipes at a rate sufficient to remove leachate deeper than 12 inches. In the leachate collection pond, which is to be roughly 200 by 500 feet, leachate might attain a depth of several feet, before being pumped into a tank truck. The pond sides are to be lined with high density polyethylene to a height nine feet above the pond bottom. As far as the evidence showed, the depth of leachate in the pond would never fall below 18 inches anywhere on the pond bottom, once leachate began filling the leachate collection pond. Only if leachate were extracted from the sand covering the liner could the leachate head in the pond fall below one foot. The plan is for tank truck operators to place their hoses on "a concrete flume on top of that sand." I.T. 127. Stormwater Management Berms encircling the solid waste disposal cells, together with a series of ditches and culverts, are intended to direct stormwater away from the solid waste to a retention pond for temporary storage and treatment, before discharge offsite. To the extent stormwater which would otherwise flow into solid waste disposal cells can be diverted elsewhere, the volume of leachate can be diminished. The berms also serve to prevent rain falling on solid waste from reaching the stormwater retention pond, or polluting stormwater that does. Lined with relatively impermeable soils, the stormwater retention pond, "a football field wide and two and a half football fields long," (T.201) is designed to be big enough to hold the runoff from a 100 year return storm, leaving two feet of freeboard. In practice, some stormwater would percolate into the ground through unlined ditch bottoms, never reaching the pond. Stormwater that did reach the pond would either evaporate or drain through sidedrains, which are to consist of perforated six-inch PVC pipe, encased in gravel and covered with permeable sand excavated on site. Lining most of the pond's perimeter, this sand would filter water seeping through it from the pond into the side drains. After collecting in an outfall pipe, water draining from the pond would travel 300 or 400 feet, before discharging above grade, near the east branch of Mare Creek. If, as would be likely, sea gull droppings regularly end up in the stormwater retention pond, phosphorous and nitrogen levels in the east branch of Mare Creek and downstream would increase in time. Other Measures Decomposing solid waste produces methane gas. When cell I is completed, vents are to be installed to direct methane gas into the atmosphere above the center of the cell. I.T.140; WACOC's Exhibit No. 1, p.23 and No.9, p.15. "[T]he wind will disperse any gas within the site." I.T.191,221. If sufficient quantities were generated, a gas collection system would be installed. I.T.140. 31 Spotters will try to divert hazardous or infectious waste, and should succeed in the event a hauler tries to dispose of an accurately labelled 55- gallon drum of a hazardous liquid or red-bagged waste from a hospital, but small quantities of gasoline, paint, paint thinners, cleaning fluids and other hazardous materials cannot practically be diverted. At the end of every working day, solid waste is to be covered with a six inch layer of soils from the site. Fences are planned downwind from the working face to collect windblown debris. Closure A landfill is a long-term proposition. Pollutants still leak from Roman landfills dating to 400 A.D. Contemporary landfills and their regulators recognize the importance of capping landfills to minimize infiltration by rainwater (and so production of leachate.) Even though the plans may be revised later, DER requires applicants for landfill construction permits to make plans for closure, before a construction permit is issued. Landfill operators must also make annual contributions to a trust fund to be used to close the landfill and to bear post-closure expenses, which include trucking leachate and monitoring groundwater. WACOC has already established the trust fund and deposited $100. As a condition of operating the landfill over the five years it proposes, WACOC must deposit one fifth of estimated closure and post-closure costs in the trust fund 60 days before beginning to fill, and another fifth annually (30 days after the anniversary date of the initial payment). The cost estimates are subject to revision annually. (I.T. 384, 843-4) Before closing a landfill, the operator must obtain a closure permit. The trust fund is not expected to absorb the costs of cleaning up polluted groundwater, if that should prove necessary. Local governments, which operate many landfills themselves, sometimes step in when problems with privately run landfills develop. ...A leak develops or something that would cost millions of dollars to address it and you don't have the insurance, you're out of business instantly. ...[WACOC's ability] to address a catastrophic situation that could develop with this is limited to how much capital they have. * * * ...[I]f you don't have some insurance, even if its $500,000 deductible,...if the problem occurs, you're gone. And if you don't have the capital to handle it, it will fall back in the taxpayer's lap which is typically what happens... . (II.T. 70-71) As WACOC's proposed finding of fact No. 12 concedes, WACOC's "liabilities are considerably in excess of its assets." Landfill operators are under no obligation to contract for environmental liability insurance, which is not readily available, in any event. WACOC proposes to cap Phase I with clayey sands excavated on site. The clay required to cap Phase I amounts to "ten acres of the surface by four feet deep, or one acre 41 feet deep." (II.T. 36) WACOC proposes to spread this quantity over all three cells, covering them with an 18-inch clayey sand blanket. On top of that, WACOC would place 18 inches of surficial sand and, finally, six inches of topsoil. The sands are readily available on site, but there is no topsoil to speak of. The clayey sand WACOC proposes to use as a foundation for the cap is too permeable to constitute an effective barrier. (B.T. 149,158), but WACOC could mix it with clay from off site or some other agent to render it less conductive of rainwater. The present plans do not call for mixing, however. High Density Polyethylene WACOC is proposing the synthetic liner underneath waste disposal cells and the leachate collection pond not as one component of a composite liner, (T.158) but as "the state of the art," (T.153) in and of itself. But "flaws in liners are a common occurrence." (IT. 698) After a liner has been laid down and covered with sand, "inadvertent cuts and nicks of unexplained origin" (IT.699) can and do occur. However conscientious, laborers hired as "root pickers" may miss an occasional rock. The plans only call for removal of objects larger than a quarter inch. High density polyethylene is a plastic. If laid over stone or other protuberances, "the plastic will flow away from that pressure point and eventually you will have a hole in the plastic." Id. An investigator examining 60 mil high density polyethylene used as landfill liner "found six pin-holes per acre, mostly associated with the seams, [an] average of 9.4 cuts [per acre] of unexplained origin, [and] 110 [perforations attributable to] rock protu[bera]nces per acre." (IT.705) In an EPA sponsored study, a liner manufacturer installed and third parties "did a careful job of inspecting," id., twelve "rather small" (IT.706) waste disposal cells. Eight of the twelve leaked. Even if holes did not let leachate escape, several carcinogenic, teratogenic, and mutagenic organic constituents of municipal waste leachate dissolve in liners like the one WACOC proposes, "diffuse through and are released on the other side." (IT.699) High density polyethylene is practically impervious to water: water vapor can move through it only at a rate of 1 x 10- 13 centimeters per second. But certain hydrophobic substances, including chlorinated hydrocarbons such as trichloroethylene and vinyl chloride, move readily through high density polyethylene, itself a "very hydrophobic material." (T.807) William T. Cooper, a chemistry professor who participated in developing DER's drinking water standards, appearing in this case as a witness for the objectors, testified: [O]ne of the major problems in doing this work [concerning organic pollutants in groundwater] is establishing . . . standards. In other words, we had to pollute water in a well defined way so that our machines would tell us there was a certain amount of pollution in the water. . . . . . . [W]e started using [p]olyethylene tubes into which we would put several different organic molecules for the very reason that these molecules diffuse so readily through the [p]olyethylene tubes that we could control the rate in which we were contaminating water for laboratory purposes. (IT.806) In order to calibrate their instruments, the scientists who developed drinking water standards for Florida relied on polyethylene containers' ability to transmit organic pollutants in solution inside a container to the water outside at a steady, predictable rate. Chemists think of polyethylene "as a condensed liquid . . . . [because] it has the ability to absorb molecules." (T.807) Water and polyethylene do not mix, however, just as oil and water do not; they are said to be immiscible and to form separate phases. When a third substance is dissolved in either of two immiscibles occurring together, the additive's molecules move between the two phases until equilibrium is reached. The concentration in one phase will differ from the concentration in the other, and both concentrations will depend on the amount of the additive introduced (until saturation), but the ratio of the two concentrations (the "distribution ratio" or "partition coefficient") will always be the same, at equilibrium. A chemist in Gundle's employ testified that any "organic solvents in the leachate . . . would tend to float on the aqueous phase." (T.406) But some hydrophobic organics, including trichloroethylene, are denser than water and would not float. (IT.831) Mr. Cadwallader, Gundle's chemist, conceded that organic materials are soluble in water "to a point of saturation, which typically is not very high . . . ." (T.425) The leachate's nonaqueous phase would occur to some extent, perhaps entirely, within the polyethylene liner. In this connection, the objectors' chemists' opinion, which Dr. Brown also shared, has been credited. For the same reasons Mr. Cadwallader "agree[d] that a liner would gain weight when it is immersed in a pure organic solution," (T423) the liner would swell, as a variety of organic pollutants diffused into it from the leachate. Such swelling has been reported in low density polyethylene. WACOC's Exhibit No. 18. With groundwater in contact with the outside of the liner, the organic pollutants with which the liner was swollen would diffuse into the groundwater, until groundwater touching the liner acquired organic pollutants in the same concentrations in which they occurred in the aqueous phase of the leachate standing on the liner. It is even possible that concentrations of certain hydrophobic organics would be higher outside the liner than inside. (IT.818) If indeed a nonaqueous phase floated on top of the leachate, it would serve to replenish the aqueous phase, as hydrophobic organics diffused into the liner to replace those diffusing out of the liner into the groundwater or soils on the other side. (IT.831) Site Hydrogeology Groundwater flow "mirrors the topography of the site." WACOC's Exhibit No. 1, Appendix B, p.6. On the Phase I site, it flows to the north and the northeast, toward the east branch of Mare Creek. At monitoring well 1, the flow is "about a 45-degree angle down and to the east northeast." B.T.119. Lining the disposal cells and the leachate collection pond with high density polyethylene would curtail recharge (and evapotranspiration) under the cells and the pond. The plan is to line the stormwater retention pond with the same clayey sands that fail to hold a water table. B.T.175 Percolation from stormwater ditches or, despite its lining, even from the retention pond might cause slight mounding of the groundwater under those structures. But construction of Phase I would not appreciably alter the general direction of the groundwater flow. To the extent mounding occurs beneath the stormwater retention pond, groundwater table elevations under proposed cell 3 would be higher than they otherwise would have been. Elsewhere, the cell liners should have the effect of lowering groundwater elevations below what they would otherwise have been, ignoring infiltration from stormwater ditches. Any changes may be very slight, since groundwater from recharge areas upslope apparently flows under the site. In February of 1988, piezometers were used to measure water table elevations on the Phase I site. Distance between elevations proposed for liners and the February 1988 water table varied, but were no less than nine feet at any point measured. Based on the February 1988 measurements, the design engineers assumed an unsaturated zone 25 to 30 feet thick. But, on October 11, 1988, the second day of hearing, the same piezometers (B.T. 19) disclosed much higher water table elevations. Near the creek, the water table had risen only 4.92 feet higher than it had been in February, but in the wells closest to cell 1, the October water table exceeded the February elevations by 11.33 and 11.41 feet. (B.T. 40) On October 11, 1988, the water table was "above the bottom of the liner of the proposed landfill in cell two, portions of cell two, a lot of it, portions of cell one and a corner of cell three," (B.T. 44) with "about two feet of water above the proposed liner in the corner of cell two." Id. The levels may have been considerably higher in September. Since periodic measurements have not been taken over the requisite year or two, the seasonal high water table on the Phase I site has not been determined. The height of the groundwater table depends on how quickly rainwater percolates down to the water table to replace groundwater lost to evapotranspirtation or subterranean flow offsite. Groundwater under the Phase I site discharges into the east branch of Mare Creek. The timing as well as the amount of rainfall figure in, because once the soils are saturated, rain runs off instead of infiltrating. Still monthly rainfall is a good indicator of how much water has percolated down to recharge an aquifer. No records of rainfall on the site itself exist, but statistics from sites not far away show that extraordinarily high rainfall in September of 1988 contributed to the groundwater elevations measured on October 11, 1988. At one or more wells on site, the water table dropped another foot between October 18 and October 26, 1988. CCE's Exhibit No. 36. Rainfall data suggest that in most years, "the actual peak high for a water table probably would be towards the end of August." (B.T. 95) At present, the surficial aquifer beneath the proposed landfill site contains potable water. People living in the area draw water from the surficial aquifer for drinking water purposes, in one case from a well only some 30 feet deep. The nearest well to Phase I is 3,000 feet away, on the other side of the east branch of Mare Creek. The surficial aquifer goes all the way down to the Alum Bluff group, 75 feet below ground. Saltwater intrusion threatens in southern Okaloosa County. By 1995, if its growth continues at the present rate, the City of Destin will require another, supplementary water supply. Plans to tap the Floridan in northern Okaloosa County include well fields in the Eglin Air Force Base area and north of Freeport. But the Floridan "won't supply all the future projected needs." (II.T. 16) Desalinization is expensive. Eventually Okaloosa County is "going to have to look further toward the use of surficial water," (II.T. 13) as a public water supply. Leachate Characteristics Leachate from municipal landfills has high biological oxygen demand, high salt content, and significant concentrations of metals and organics. (I.T. 699) Cleaning solvents, oil-based paint, furniture polish, spot removers, xylene, toluene and benzene are among common constituents of municipal waste. Lisa Stewart, who picks up garbage in northern Okaloosa County four days a week, has noticed "containers containing a substance" (II.T.137) bearing such labels as naphtha, methylene chloride, toluol, burnt motor oil, insecticides, fungicides, trichloroethane, oxalic acid, xylol, petroleum distillates, polyglycol ether, plasticizers, sulfuric acid, methanol, ethanol and sodium hydroxide. Scientists have found every chemical DER lists on its "primary or secondary water quality standard numeric list" (I.T. 697) in municipal leachate, as well as "about 20 chemicals that are known to [b]e carcinogenic, mutagenic or teratogenic which are not on that list." Id. At least some of this latter group can be anticipated at the proposed landfill, if it is built. The organic materials degrade only slowly; they have half-lives ranging from 20 to 50 years. (I.T. 698) Biochemical oxygen demand accounts for most of the stench to be expected from leachate standing in the leachate collection pond. The "combination . . . of hazardous waste from small quantity generators and from households we would expect to be somewhere in the range of five to 10,000 tons per year." (T.T.148) In order to predict the amount of leachate to expect, experts on both sides resorted to a mathematical model, known acronymically as HELP, for "Hydrological Evaluation Landfill Program." (T.689) These experts made assumptions about annual rainfall, the permeability of the cap materials which, after their initial excavation and stockpiling are destined to do double duty as a final cover for the landfill, and other factors, in order to calculate the amount of leachate likely to accumulate above the liner. WACOC's consultants calculated a head of 2.4 inches, assuming annual rainfall of 68 inches, and an unrealistically low permeability for the clayey sands under the Phase I site which are to be used for capping the Phase I cells as they attain their design heights of 90 feet above grade. Using WACOC's average vertical conductivity figure for the clayey sands of 6.2 X 10-7, without changing any other assumptions WACOC made in running the HELP model, yields a leachate head of 8.5 inches. Even if it were appropriate to use an average, this figure is low, because the permeability of materials recompacted in a laboratory is ordinarily ten times less than when the same material is compacted in the field. Here compaction "in the field" would occur on top of a mound of garbage. "[T]he system will be spongy." (I.T. 752) The HELP model makes no allowance for cracks in the cap, which are bound to occur, if WACOC closes the landfill as it proposes. As garbage degrades, it settles and sinks. This would cause shear planes or faults in the clayey sand cap, which cannot readily be detected, buried beneath sand, topsoil and vegetation. Estimating conservatively, "we could be dealing with twice as much water as we're calculating from the HELP model due simply to cracks in the facility." (I.T. 692) During those periods when the groundwater table is above the bottom of the disposal cell liners, groundwater infiltration through such imperfections as exist in submerged portions of the liners will increase leachate volume. Ignoring groundwater intrusion, cell 1 alone should produce 5,000 gallons a day of leachate the first year after closure. (I.T. 510-1). The applicant's own revised HELP model calculations put the leachate head at more than eight inches in a year in which rainfall on the site exceeded the annual average at Crestview by only eight percent (68 inches vs. 63 inches). A foot or more of head annually can be expected, taking into account cracks in the clay cap. Water Quality Monitoring WACOC's groundwater monitoring plan calls for a single well south and upgradient of the Phase I site to monitor "background" groundwater conditions, and a series of monitoring wells east and north of the site designed to detect any groundwater contamination the landfill may cause. WACOC's Exhibit No. 9, Sheet 11. Four of these downgradient wells would be placed by the eastern perimeter of the zone of discharge to measure compliance with DER's numeric water quality standards at that edge of the zone. Four other wells are planned within the zone of discharge. In addition, surface waters are to be monitored at seven points, five on the east branch of Mare Creek and two on the west branch, but none further south than the berm separating cell three from cells one and two. WACOC's own employees would take samples, arrange for their analysis and report the results to DER. Among the specified parameters are iron and chloride. As far as the record reveals, testing for sodium in addition would not make for earlier or more reliable leak detection. CCE's Exhibit No. 20. The suggestion that groundwater be tested for calcium assumed montmorillonite in the clayey sands, which the evidence did not show to be present. I.T. 988. According to a DER chemist, however, groundwater samples near landfills should be tested for volatile organic compounds (VOCs) by EPA method 601/602. Since VOCs always appear to be present in landfill leachate and they can be detected in the subparts per billion (ppb) range, the test is a particularly sensitive indicator for the presence of organics in landfill leachate. (CCE's Exhibit No. 20, p.2.) Also among the specified parameters is fecal coliform, which makes any other routine testing for bacteria superfluous. Given the economic consequences for WACOC if a leak is discovered, it might be well to require WACOC to contract with an independent third party to monitor, in the event the landfill is built. Since groundwater flow on site has a vertical as well as a horizontal component, monitoring requires appropriate placement not only of wells, but also of screens. One approach is to cluster wells so that a succession of screens covers the entire thickness of the aquifer. Monitoring well screens should not exceed 15 feet in length, in order to avoid dilution that might render contaminants indetectable. CCE's Exhibit No. 2. But a hydrogeologist with sufficient information could place screens within transmissive zones through which groundwater flowing underneath the disposal cells or the leachate pond is likely to move. B.T. 136 With respect at least to leachate constituents that do not diffuse through liners, monitoring groundwater to detect pollution is more difficult if a landfill is lined than if it is not, because contaminant plumes are larger if they emanate from larger sources. CCE's Exhibit No. 19. Unless monitoring wells were sunk at ten-foot intervals east and north of where leachate is to collect, it would be easy to miss the plume from a small leak, which might be destined to become a large leak. But even the objectors' experts do not "consider that very practical financially." (B.T. 135) Groundwater Pollution Both through imperfections in the synthetic liner and, as regards hydrophobic organic pollutants with low molecular weights, by diffusion directly through even flawless portions of the liner, pollutants in the leachate will escape into the environment, if WACOC builds the landfill it has proposed for Phase I. As far as can be told from the evidence, the groundwater table would never reach the bottom of the leachate collection pond, so that adsorption and diffusion in soils underneath the pond would attenuate the effect of any leakage there, before it could enter the groundwater. But the soils on site have very low adsorption capacity and very low biological activity. I.T.719 Leachate leaving unlined, northwest Florida landfills five feet above the water table have caused serious pollution problems. The evidence showed that the groundwater table would rise above portions of the lined bottoms of all three waste disposal cells, on which leachate will also be standing. This may occur infrequently, would not necessarily happen every year, and would last for only a few weeks and days at a time, but it was the condition that obtained at the time of the hearing, two months later than seasonal high groundwater should normally occur. When it does happen, "it's entirely possible the leachate will be the same concentration as the groundwater in contact with the bottom of the liner." I.T. 701. In any case, carcinogenic, mutagenic or teratogenic agents (I.T. 697), including up to 20 for which DER has not established numeric limits, would occur in the leachate, and some would enter the groundwater, violating the DER "free from" requirement. I.T. 777. Precise concentrations have not been forecast but, at least at times, over the course of the landfill's existence, the leachate would contain certain mutagenic substances for which no safe lower limit has been established. Nor did the evidence give reasonable assurance that violations of DER's numeric standards pertaining to the trichloroethylenes, the tetrachloroethylenes and vinyl chloride would be unlikely outside the zone of discharge. I.T. 771,781-2. It depends in part on the volume or rate at which leachate or these constituents leak. B.T. 94. The evidence showed they will leak at some rate, even where there are no flaws in the liner. In a test involving higher concentrations of trichlorethylene and other organics than are anticipated here, experimenters observed a "flow rate . . . on the order of 125 gallons per acre per day from concentrated organics." I.T. 702. In 27 acres of plastic, flaws are to be expected. Good intentions notwithstanding, the evidence showed holes in the synthetic liner should be anticipated, and taken into account in designing a landfill. The rate at which leachate will leak through these imperfections depends on their number, shape and size; and, as to each, the depth of the leachate above it and the permeability of the medium below it. A circular hole with a diameter of one- sixteenth of an inch will discharge liquid, standing on top of it a foot deep, at the rate of 70 gallons a day, into air, gravel or porous sand. The rate for a similar hole with a diameter of one-eighth of an inch is 192 gallons per day. In the event of a leak above or near an area like the one into which the seep sank in the borrow pit, the soil would not slow the rate of leakage. (I.T. 718) Otherwise, for a given leachate head, the conductivity of the soil (if unsaturated) would determine the leakage rate. "[T]here will be less depth higher up the liner." I.T.760. But where the liner is lowest and the leachate deepest, the liner will lie over the loose sands that occur beneath the clayey sands. Rating tests demonstrated considerable variability in the hydraulic conductivity of all of the sands tested. Piezometer readings on October 18 and 26, 1988, showed how they transmit water as a unit. In eight days the water table (which is only at atmospheric pressure) fell a foot. The clayey sands would not prevent leachate's leaving the waste disposal cells and entering the groundwater, although in some places (where the leachate has less depth), they would slow the rate of leakage. "We could get tens of thousands of gallons [annually] leaking out of a 27-acre site which this is through holes." (I.T. 707) With groundwater in contact with portions of the liners, the leakage rate there would depend on the relative elevations of the groundwater table and the leachate standing on the liners. If the groundwater table were higher, upward pressure might push groundwater into the disposal cells, disminishing or even preventing leachate leakage until the water table fell below the height of the surface of the leachate. But, when that happened, direct discharge of undiluted leachate can be expected, directly to the groundwater, as long as groundwater abutted a flaw in the liner. DER's rules do not apply the numeric standards underneath or within 100 feet of waste disposal cells, which the rules denominate a "zone of discharge." Whether numeric standards are violated at the edge of the zone of discharge depends not only on the leakage rate, but also on where the leak occurs, on the velocity of the groundwater, and on pollutant concentrations in the leachate. Calculations taking all these factors into account have not been done for WACOC's Phase I. But credible expert testimony predicted such violations would eventually occur outside the zone of discharge. I.T.771. Synthetic liners like the one WACOC proposes are usually placed on top of three feet of highly impermeable, mineralogically suitable clay. "A clay liner...will retain organics to a greater extent than a synthetic liner." I.T. 823. Using it as proposed here, where it would come into direct contact with groundwater, does not give reasonable assurance that groundwater pollution will not occur.
Recommendation It is, accordingly, RECOMMENDED: That DER deny WACOC's application for a permit to construct a class I landfill in Okaloosa County. DONE AND ENTERED this 14th day of April, 1989, in Tallahassee, 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 14th day of April, 1989. APPENDIX DER's proposed findings of fact Nos. 1, 7, 11, 12, 14, 15, 17, 18, 21, 22 except for the last sentence, which is rejected, 23, 24, 25, 32 except for the last sentence, which is rejected, 38, 45, 46, 48, 49 except for the last sentence, which is rejected, 50, 52, 54, 56 except for the last sentence, which is rejected, 57, 58, 59, 60, 62 except for the sentence "DER has no rule prohibiting contact of the liner with ground water," 63, 65, 66 except for the second clause which is rejected, 67, 69, 72, 73, 78, 79, 80, 81, 83 and 85 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 2, the intent to issue is dated April 1, 1988. With respect to DER's proposed finding of fact No. 3, financial feasibility was not demonstrated but is not material under the rules. With respect to DER's proposed findings of fact Nos. 4, 5 and 6, closure cost estimates assume the suitability of the clayey sands on site as a cap, which the weight of the evidence did not establish to be the case. With respect to DER's proposed finding of fact No. 8, the use of a high density polyethylene membrane, without more, to keep hydrophobic organic materials out of abutting groundwater is not proven technology, as far as the evidence showed. With respect to DER's proposed finding of fact No. 9, the rules do not require environmental liability insurance. DER's proposed findings of fact Nos. 10, 19, 20, 26, 35, 37, 44, 55, 61, 71, 74, 75, 77, 82, 86 and 87 are rejected as unsupported by the weight of the evidence, without comment. With respect to DER's proposed finding of fact No. 13, the fact that a synthetic liner separates solid waste from the groundwater does not make it permissible to deposit solid waste in groundwater. While the October readings did not prove that groundwater would rise above the sand in which the leachate will collect to touch the solid waste itself, September's rainfall, the rate at which the water table dropped between October 18 and 26, 1988, and the probability of defects in the liner showed that this was a realistic possibility. With respect to DER's proposed finding of fact No. 16, two percent of the materials disposed of in municipal sanitary landfills are hazardous in a chemical, if not legal, sense. With respect to DER's proposed finding of fact No. 27, the "state of the art" use of high density polyethylene liners is as one component of a composite liner, or even as part of a double liner system, at a hydrogeologically suitable location. This material works well for some purposes and not at all for others. With respect to DER's proposed finding of fact No. 28, there was no showing that any other Florida landfill has been placed so as to come into contact with the groundwater table, or that a synthetic liner has ever been used for a landfill without clay; synthetically lined landfills have only recently been installed in Florida, and detection of leaks from lined landfills is difficult. With respect to DER's proposed finding of fact No. 29, since uncontaminated water is not a pollutant, it is not a permeant of concern. With respect to DER's proposed finding of fact No. 30, the evidence showed that under ideal, test conditions, 8 of 12 liners leaked. Under actual field conditions leaks exceeded 100 per acre. The weight of the evidence makes it unreasonable to conclude that 27 acres of plastic can be laid down in Okaloosa County without any flaws. With respect to DER's proposed finding of fact No. 31, the rate of 192 gallons per day assumed gravel or porous sand which offers essentially the same resistance as air; there is no sandy clay anywhere on site, as far as the evidence showed; more than 18 feet below the surface, where most of the liner is to be laid, there are not even clayey sands, according to WACOC's own expert; the sands that do occur there include loose sands with a permeability greater than 4.9 X 10-4; and include numerous gravel beds; the .00022 gallons per day calculation assumes a hole a quarter as large (half the radius of Dr. Brown's) and ignores horizontal hydraulic conductivity. The fact that the water table dropped a foot in about a week demonstrates that the soils cannot be counted on to contain the leachate underneath flaws in the liner. With respect to DER's proposed findings of fact Nos. 33 and 34, Haxo's results were consistent with their conclusions but explicitly not the only basis for them. Gundle's chemist conceded that hydrophobic organic materials diffuse through high density polyethylene. His opinion that an accumulation in the soils on the other side would equalize concentrations and stop further diffusion did not take into account groundwater abutting the liner, and flushing the soils. The liner absorbs materials; but adsorption does not take place there. Transportation and dispersion need not be known as to "free froms." On page I.T. 777, Dr. Brown testified that diffusion would cause violations of DER's regulations, and this testimony has been credited. With respect to DER's proposed finding of fact No. 36, the swelling of the liner with organic materials is evidence of the diffusion which would result in organic materials' entering the groundwater. With respect to DER's proposed findings of fact Nos. 39 and 41, one inch of leachate in all three cells amounts to 2.25 acre feet, which is more than a "little." Calculations have not been done. With respect to DER's proposed findings of fact Nos. 40 and 42, no allowance was made for cracks in the cap material (which cannot be seen under the vegetation, topsoil and drainage sand layer.) With respect to DER's proposed finding of fact No. 43, a much greater leachate head than within the waste disposal cells may occur depending on where the marker is placed, but hydrophobic organics diffusing through the liner and absorbing in the soils would not be flushed out by groundwater. Except for the last sentence, this proposed finding of fact reflects the weight of the evidence. With respect to DER's proposed finding of fact No. 47, some water will evaporate. With respect to DER's proposed finding of fact No. 51, monitoring wells 8 and 9 are both more than 100 feet from waste disposal areas. The evidence did not show that the monitoring wells "can be expected to detect any contamination." With respect to DER's proposed finding of fact No. 53, DER's experience also suggested testing for volatile organic chemicals. With respect to DER's proposed finding of fact No. 64, the rate of decline also suggests that the water table was as higher elevations than those measured. An applicant must give reasonable assurance that pollution in violation of DER rules will not occur under foreseeable, recurring conditions, including during those times the liner is submerged. With respect to DER's proposed finding of fact No. 65, the proposed finding is adopted, as regards physical tears. With respect to DER's proposed finding of fact No. 68, the proposed finding is adopted, except for leakage through the liner, sometimes directly to groundwater. With respect to DER's proposed finding of fact No. 76, clayey sands were not reported below 18 feet. The difficulty with the groundwater monitoring plan is not the soil characterization, but the number of wells. Because synthetic liners leak, clay mineralogy is important to know. No clay is proposed here, however. With respect to DER's proposed finding of fact No. 84, effective odor control would also entail emptying the leachate pond regularly. WACOC's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 17, 19, 23, 24, 25, 26, 27, 31, 32, 33, 34, 35, 36, 37, 38, 42, 43, 45 50, 58, 61, 64, 66, 70, 71, 72, 75, the first sentence of No. 76, Nos. 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 90, 92, 93, 94, 96, 97, 99, 100, 101, 102, 103, 104, 105, and the first sentence of 113 have been adopted in substance, insofar as material. With respect to WACOC's proposed finding of fact No. 11, the current tonnage figures appear in the application but their accuracy has not been established by competent evidence. With respect to WACOC's proposed finding of fact No. 12, projected profits depend on various problematic assumptions. With respect to WACOC's proposed finding of fact No. 16, the initial payment was $100. With respect to WACOC's proposed finding of fact No. 18, the cost estimate's reasonableness depends largely on what it would cost to obtain suitable material for a cap, which is not clear. With respect to WACOC's proposed finding of fact No. 20, Scott had independent knowledge of the availability and cost of clay. With respect to WACOC's proposed finding of fact No. 21, the proposed finding accurately reflects the evidence, with the qualification that the layer of dense orange clayey medium to fine sand also contains some coarse sand and fine gravel. With respect to WACOC's proposed finding of fact No. 22, the water table will be below the liner most, but not all, of the time. With respect to WACOC's proposed finding of fact No. 28, see the discussion of DER's proposed finding of fact No. 13. WACOC's proposed findings of fact Nos. 29, 59, 63 and 78 are rejected as contrary to the weight of the evidence, without comment. With respect to WACOC's proposed finding of fact No. 30, hazardous materials will end up in the landfill. With respect to WACOC's proposed finding of fact No. 39, the liner's permeability depends on the permeant. Although it is almost impervious to water, hydrophobic organics move readily through. Clay is a much better liner for those materials. With respect to WACOC's proposed finding of fact No. 40, the Gundle liner by itself is not the state of the art in Florida or anywhere else for municipal sanitary landfills. Proposed conclusions of law are addressed elsewhere. With respect to WACOC's proposed finding of fact No. 41, in the puncture test, the liner withstood a probe exerting 270 ponds of pressure. With respect to WACOC's proposed finding of fact No. 44, there are no clayey sands at the depth proposed for the deeper portions of the waste disposal cell liners, as WACOC's proposed findings of fact Nos. 21 and 27, taken together reflect. With respect to WACOC's proposed finding of fact No. 46, as the manufacturer's representative said, "these liners are a part of the quote unquote state of the art requirement for lined hazardous waste facilities." I.T. 404 (emphasis supplied). The other part is three feet of clay, not sand, underneath. With respect to WACOC's proposed finding of fact No. 47, it depends on the hazardous waste facility. A DER chemist, Mr. Watts, recommended monitoring groundwater near a municipal landfill for volatile organic chemicals. While most municipal garbage is not toxic, leachate from municipal waste is toxic. With respect to WACOC's proposed finding of fact No. 48, the testimony was that the groundwater pollution at Wright landfill was "most likely" from unlined cells. No lined landfill in DER's Northwest District has been built below the groundwater table as far as the evidence showed. With respect to WACOC's proposed finding of fact No. 49, While municipal leachate constituents should not corrode the liner, many can diffuse through it. With respect to WACOC's proposed finding of fact No. 50, some two percent of the waste stream will still be hazardous materials. With respect to WACOC's proposed finding of fact No. 51, some organic materials will sink, rather than float. The sand within which the leachate will accumulate will not extract or absorb organic constituents of the leachate, as far as the evidence showed. With respect to WACOC's proposed finding of fact No. 52, removal is first to the leachate collection pond, also lined with high density polytheylene. With respect to WACOC's proposed finding of fact No. 53, it is wholly improbable that 27 acres of plastic will be installed "without physical flaws." Leakage could exceed 10,000 gallons a year. With respect to WACOC's proposed finding of fact No. 54, not all organic materials diffuse though high density polyethylene. Dr. Haxo's views on WACOC's proposal are not a matter of record. The 448-page EPA Study discusses containment techniques. With respect to WACOC's proposed finding of fact No. 55, the Haxo studies are pertinent although they do not purport to replicate a landfill precisely. In some studies he used concentrations of a single organic that were comparable to the concentrations of organics as a whole in municipal leachate. With respect to WACOC's proposed finding of fact No. 56, direct discharge of leachate into the groundwater, even in small quantities could violate the "free from" standards as could diffusion into the groundwater of carcinogenic, teratogenic or mutagenic, hydrophobic organic materials. With respect to WACOC's proposed finding of fact No. 57, CCE's experts' views about synthetic liners coincided in important respects with those of Gundle's chemist. There is no clayey layer where much of the waste disposal cells' liners are supposed to go. Given the certainty of leakage directly to the groundwater, it is the applicant's burden to do quantative analysis. With respect to WACOC's proposed finding of fact No. 60, there are no data for the site itself. The available data are incomplete. With respect to WACOC's proposed finding of fact No. 62, the February water level is likely to be more common than the October water level. The weight of the evidence did not establish that "under normal conditions the water level should fluctuate no more than five feet." With respect to WACOC's proposed finding of fact No. 64, the proposed finding reflects the evidence except for the final sentence. *** With respect to WACOC's proposed findings of fact Nos. 67, 68 and 69, it is inappropriate to schedule pumpout times at this stage. But it is appropriate to consider above average annual rainfall. Annual leachate production differs from the amount of head at any one time. With respect to WACOC's proposed finding of fact No. 73, the design engineer suggested Roto-Rooter. With respect to WACOC's proposed finding of fact No. 74, intersection should not occur. With respect to WACOC's proposed finding of fact No. 77, municipal landfills are not viewed as hazardous waste generators under federal law. With respect to WACOC's proposed finding of fact No. 82, the second sentence was not proven. With respect to WACOC's proposed finding of fact No. 84, there may be some infiltration. With respect to WACOC's proposed finding of fact No. 89, it would be very expensive to place enough monitoring wells to assure detection of any leaks. Placement of screens should be less of a problem than sinking enough wells. With respect to WACOC's proposed finding of fact No. 91, the Watts memo's suggestion of testing for volatile organic chemicals should give additional assurance. With respect to WACOC's proposed finding of fact No. 95, two percent of the waste stream can be anticipated to consist of hazardous materials. With respect to WACOC's proposed findings of fact Nos. 106, 107, 108 and 109, the proposed clayey sand materials used in the thickness proposed would not create the barrier claimed. Modifications not proposed in the application are possible. With respect to WACOC's proposed findings of fact Nos. 110, 111 and 112, WACOC has not given reasonable assurance that pollution of the groundwater in violation of DER water quality standards would not occur; or that no more than a foot of leachate would stand on the liner. COPIES FURNISHED: Herbert H. Huelsman Anna M. Huelsman 608 Ironwood Drive Fort Walton, FL 32548 Debra Swim, Esquire 1323 Diamond Street Tallahassee, Florida 32301 Bruce A. McDonald, Esquire Post Office Box 887 Mary Esther, Florida 32569 William L. Hyde, Esquire Roberts, Baggett, Laface & Richard Post Office Drawer 1838 Tallahassee, Florida 32302 Chris McGuire, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue Should Petitioner's application for variance from the standards for onsite sewage treatment and disposal systems be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, through its local health units, is the agency in the State of Florida responsible for permitting or granting variances from permitting standards set forth in Chapter 64E-6, Florida Administrative Code, for Onsite Sewage Treatment and Disposal Systems (OSTDS). Sometime around 1970, Petitioner purchased a mobile home park (Park) in Winter Haven, Florida. The Park presently contains 68 spaces for mobile homes, all of which are occupied. The Park is situated due south of Lake Shipp. There are two canals running approximately east and west through the interior of the Park. Another canal borders the Park on the north side. Included with the purchase of the Park was a Sewage Treatment System (STS) which is permitted and regulated by the Department of Environmental Protection and is presently operating at its maximum capacity serving the 68 mobile homes located in the Park. Sometime around 1980, Petitioner purchased a parcel of land (Property) immediately north of, and across a canal (this is the canal that borders the north side of the Park) from, the Park. The Property borders a basin to Lake Shipp. The Property is zoned for mobile home usage and such is the purpose for which Petitioner purchased the Property. Petitioner has designed the Property such that it will accommodate three mobile home lots (Lots numbered 69, 70, and 71) which Petitioner intends to operate as part of the Park. Initially, Petitioner requested approval of the Department of Environmental Protection to connect the new lots to the existing STS. However, since the existing STS was already at capacity, the Department of Environmental Protection denied Petitioner's request to connect the additional three lots to that system. However, the Department of Environmental protection advised Petitioner that it would have no objection to the installation of septic tanks approved by the Department of Health to serve the additional lots. Subsequently, Petitioner proceeded to obtain the necessary approvals from the local governing authorities and a permit from the Department for the installation of septic tanks on the Property. Petitioner was successful in obtaining the necessary approvals from the local governing authorities but was not successful in obtaining a permit for the installation of septic tanks on the Property from the Department. By letter dated July 16, 1997, the Polk County Health Department denied Petitioner's Application for Onsite Sewage Treatment Disposal System Permit for the following reason: "Domestic sewage flow exceeds 10,000 gallons per day." The denial letter also advised Petitioner that she could request a variance through the Variance Review Board or request an administrative hearing pursuant to Chapter 120, Florida Statutes, on the Department's denial of her application for a permit to install septic tanks on the Property. Petitioner elected to file an application for a variance from Section 381.0065(3)(b), Florida Statutes, with the Variance Review Board. By letter dated August 7, 1997, the Department denied Petitioner's application for variance for the following reasons: The Variance Review and Advisory Committee for the Onsite Sewage Treatment and Disposal Program has recommended disapproval of your application for variance in the case of the above reference property. The granting of variances from established standards is for relieving hardships where it can be clearly shown that the public's health will not be impaired and where pollution of groundwater or surface water will not result, where no reasonable alternative exists, and where the hardship was not intentionally caused by the action of the applicant. The advisory committee's recommendation was based on the failure of the information provided to satisfy the committee that the hardship was not caused intentionally by the action of the applicant, no reasonable alternative exists for the treatment of the sewage, or the discharge from the system will not adversely affect the health of the public. I concur with the advisory committee's recommendation and hereby deny your variance request. Subsequently, Petitioner requested and was granted a formal hearing pursuant to Chapter 120, Florida Statutes, on the denial of Petitioner's application for a variance. The Petitioner intends to locate the OSTDS on the Property. The tank and drain field for the OSTDS will be located approximately 125 feet from the basin. The City of Winter Haven's Sewage System is not available to the Property. The Park's existing STS does not have adequate capacity to accept the sewage that will be generated by the Property. There is no publicly-owned or investor-owned sewage system capable of being connected to the plumbing of the Property. Petitioner testified that the estimated cost of increasing the capacity of the Park's Sewage System to accommodate service to the three additional lots was $30,000.00 - $40,000.00. However, Petitioner presented no evidence as to how the estimate was determined. The projected daily domestic sewage flow from the Property is less than 1,500 gallons per acre per day. The Property contains 1.78 acres and there will be less than four lots per acre. In a letter dated October 17, 1997, from W. R. Cover, a professional engineer with Cover Engineering, Inc., Mr. Cover expresses the following opinion: The location of these proposed mobile homes is such that a septic system will not cause adverse effects or impacts on the environment or public health. The unit will be located so as not to significantly degrade groundwater or surface waters. There is no reasonable alternative for the treatment of the sewage in view of the fact that it would be an additional financial burden to attempt to connect these units to the existing sewage treatment plant Mr. Cover did not testify at the hearing. However, the letter was received as evidence without objection from the Department. Petitioner has failed to present sufficient evidence to show that: (a) no reasonable alternative exists for the treatment of the sewage, and (b) the discharge from the Onsite Sewage Treatment and Disposal System will not adversely affect the health of the applicant or the public or significantly degrade groundwater or surface waters.
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 application for variance from the requirements of Section 381.0065, Florida Statutes and Chapter 64E-6, Florida Administrative Code. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Robert J. Antonello, Esquire Antonello, Fegers and Cea Post Office Box 7692 Winter Haven, Florida 33883-7692 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-0293
Findings Of Fact This proceeding concerns an application for authority to construct and operate a 20-acre Class I, Class III, and an asbestos municipal solid waste landfill, as well as to close an existing 25.5-acre Class I municipal solid waste landfill located in Holmes County, Florida. This facility would function as a new regional landfill, in part, to replace the existing landfill in Holmes County. The applicant, EPAI, is a Florida corporation formed for the purpose of constructing and operating the proposed facility. EPAI has an option to purchase the site involved from its present owner, which will be accomplished after the facility is permitted, if it is, and all necessary permits for construction and operation have been obtained, then the applicant will sell stock in its corporation to City Management Corporation (City) domiciled in Detroit, Michigan. EPAI will then continue to exist as a wholly-owned subsidiary of City and will proceed to construct and operate the new landfill and initiate and complete all closure operations for the existing landfill. The Department of Environmental Regulation is an agency of the State of Florida subject to the provisions of Chapter 120, Florida Statutes, and charged with enforcing the provisions of Chapter 403, Florida Statutes, and Chapter 17- 701, FAC, as pertinent to this proceeding. It is thus charged with regulating solid waste management facilities, including permitting their construction, operation, and closure. It is charged with reviewing applications for such projects and issuing permits therefor if the statutes and rules it is charged with enforcing are found to have been complied with by a permit applicant. It has performed that function in this case up until the point that jurisdiction of the permit application dispute engendered by the filing of the subject petition resulted in transfer of the matter to the Division of Administrative Hearings. The Petitioner, CVA, is a group of Holmes County citizens opposing issuance of the landfill permit at issue. Based upon rulings on the motions to dismiss and extant law, CVA was required to present proof of its standing at the final hearing held in this cause. CVA called two witnesses, neither of whom presented evidence relevant to the issue of standing. CVA did not present any evidence, either through testimony or exhibits, to identify its members, to establish that a substantial number of its members would be affected by the issuance of the permit and the construction and operation of the landfill nor evidence which would identify members whose substantial interests will be affected by the construction and operation in a way different from any effect on the interests of the public at large. Project Background Holmes County currently leases a site on which its existing landfill is located. The site consists of 84 acres owned by Stone Container Corporation, the successor in interest to International Paper Company. The existing landfill itself covers approximately 25.5 acres. The proposed facility to be located on the same tract would serve as a new regional landfill to meet the solid waste disposal needs of Holmes County, as well as surrounding counties. The proposed facility would consist of approximately 20 acres divided into Class I, Class III, and asbestos landfill facilities. The project will be located on To Shoo Fly Bridge Road, lying approximately 3.3 miles northwest of the City of Bonifay in Holmes County. The northern portion of the present landfill is an unlined cell operated by the county which began receiving waste in 1979 and ceased depositing waste sometime in 1987. The southside cell of the landfill is clay lined with a leachate collection system. That portion of the county facility ceased accepting waste sometime in 1990. Holmes County is unable to properly operate or to close the existing landfill. Consequently, in June of 1989, the county and the Department entered into a consent order whereby the county agreed to meet certain operational, groundwater monitoring, landfill cell design, administrative and other requirements within certain time periods. The county attempted to meet the terms of that consent order but was unable to do so, primarily for financial reasons. In 1990, the county applied to the Department for a permit to close the existing landfill in accordance with the pertinent provisions of Chapter 403, Florida Statutes, and Chapter 17-7, FAC. The closure permit application was denied by Department order of May 22, 1991. Waste disposal at the Holmes County landfill had ceased in 1990, but it has not been properly closed pursuant to law and Department rules. Currently, it only has a temporary cover of soil and seeded grass in order to stabilize its slopes on the portion of the landfill commonly known as the "highrise". The closure costs for the existing landfill were estimated at approximately $700,000.00, which is beyond the resources of the county. Residents of unincorporated Holmes County currently are disposing of their solid waste by hauling it to the regional landfill in Campbellton in Jackson County nearby or by dumping it in unauthorized disposal areas, such as streams or roadsides. The City of Bonifay disposes its solid waste in the Campbellton landfill, as well. The Campbellton landfill, however, does not accept several solid waste components, such as yard trash. Since the county was unable to obtain the necessary permits to either operate or to close the existing landfill and was unable to meet State-mandated solid waste disposal and recycling requirements, it entered into an agreement with EPAI in May of 1990, whereby that entity assumed financial and legal responsibility for closure of the existing landfill, including obtaining the necessary permits from DER to close it, upon issuance of DER permits necessary to construct and operate a new Class I, Class III, and asbestos landfill at the same general site. The May 21, 1990 agreement between EPAI and the county authorized EPAI to so proceed before DER. Once EPAI obtained the permits necessary, the agreement provided that the county would surrender all right, title and interest in the 84-acre site to EPAI, convey all structures, equipment and appurtenances theretofore used by the county for its landfill operation to the corporation and to assign EPAI any legally assignable benefits which the county would receive under the 1988 Solid Waste Management Act, including recycling grants, if applicable. EPAI, the applicant, has an option to purchase the 84-acre site from Stone Container Corporation. After the issuance of any permits for closure and for construction and operation of the new facilities, the option would be exercised and the property would be conveyed by Stone Container Corporation to EPAI. Once it has purchased that property and the county has abandoned its lease on the property, pursuant to the May 21, 1990 agreement, EPAI would then hold fee title ownership and possession rights to the site. Once it obtained the necessary permits for construction and operation of the new landfill, EPAI will sell its stock to City. EPAI would then continue to exist as a wholly- owned subsidiary of City and will construct and operate the new landfill and close the existing landfill. City is a wholly-integrated waste management corporation based in Detroit, Michigan. It has been operating in the solid waste management field since 1961 and has extensive experience in landfill construction, operation and closure. It operates seven regional landfills, approximately ten transfer stations, and 30-40 residential and commercial solid waste collection companies in Michigan. It also operates hazardous waste facilities in Michigan and in Tampa, Florida. Through construction and operation of its regional landfill and hazardous waste facilities, it is familiar with and accustomed to compliance with all pertinent state and federal regulations applicable to such facilities. City holds a DER permit for its hazardous waste facility in the Tampa, Florida, area and has had a history of no major violations of applicable laws and rules. The corporation was shown to be financially sound. EPAI will operate the proposed facility, should it be permitted, as a regional landfill serving neighboring counties between Okaloosa and Jackson Counties, south to the Gulf of Mexico, and north to the Alabama border. The economic feasibility, however, was not shown to depend on interstate transport or disposal of out-of-state wastes in the landfill. Section 17-701.030, FAC, sets forth the permit submittal requirements for solid waste management facilities. CVA stipulated that EPAI met all applicable permit application submittal requirements in this section, except those in Sections 17-701.030(5)(h) & (i) and 17-701.030(7), FAC. EPAI has an option to purchase the landfill site from Stone Container Corporation, the current owner. EPAI has met the ownership requirement in Section 17-701.030(5)(h), FAC. The applicant will establish an escrow account to insure financial responsibility for closing and long-term care and maintenance of the landfill. A specific condition has been agreed to be placed in the permit requiring the applicant to submit written proof of having established financial assurance for closure and long-term care of the entire site 60 days prior to the acceptance of any solid waste at the facility and within 30 days after permit issuance for operations at the existing landfill. City has the financial ability to establish the escrow account and to provide the necessary financial assurance within 30 days after permit issuance. The applicant has thus satisfied the requirements of 17-701.030(5)(i), FAC, with regard to financial responsibility. Section 17-701.030(7), FAC, requires DER to forward a copy of the permit application to the Water Management District within seven days of receipt of the application. The Water Management District would then prepare an advisory report for DER on the landfill's potential impact on water resources with recommendations regarding disposition of the application. The Department sent the application to the Northwest Florida Water Management District, but the District did not prepare an advisory report. The administrator for the waste management program for the Department's northwest district office, who oversees solid waste facility permitting, testified that, as a matter of course, the District does not prepare an advisory report. Moreover, because the reports are advisory only, DER is not required to respond to any comments or follow any recommendations which may be made by the District in such a report. The Department normally issues solid waste facility permits as a matter of policy without having received a water management district report. 1/ Location and Site Requirements An aerial photograph of this area was prepared, as required by Section 17-701.050(4)(a), FAC. It shows the land uses, zoning, dwellings, wells, roads, and other significant features within one mile of the proposed landfill. This map shows several dwellings located within a mile of the site. The closest dwelling, as determined by aerial photograph and performance of a "windshield" survey, is approximately 2,400 feet from the site. The closest potable water well is at the dwelling located approximately 2,400 feet from the site. There are no existing or approved shallow wells within 500 feet of the proposed waste disposal areas at the landfill. Accordingly, the proposed landfill satisfies the condition in Section 17-701.040(2)(c), FAC, that solid waste not be disposed of within 500 feet of an existing or approved shallow water well. The surficial aquifer is located approximately 30 feet from the ground surface at the landfill site. The sediments in the area in which waste is to be disposed of consists of layers of clay and sandy clay having a very low vertical conductivity. The waste disposal cells will not be excavated down to the surficial aquifer. Therefore, waste will not be disposed of in ground water. Waste will not be disposed of in a sinkhole or in a limestone or gravel pit, as prohibited by Sections 17-701.030(2)(a) and 17-701.040(2)(b), FAC. The 100-year flood zone is located at approximately 120 feet national geodetic vertical datum (NGVD). The proposed landfill will be located at approximately 125 feet NGVD elevation and within a perimeter berm system. Therefore, waste will not be disposed of in an area subject to periodic and frequent flooding, as prohibited by Section 17-701.040(2)(e), FAC. The waste disposal areas are over 200 feet from Long Round Bay, the closest water body. Therefore, the 200-foot setback requirement is met. See, Section 17-701.040(2)(g), FAC. To Shoo Fly Bridge Road, on which the landfill is located, is not a major thoroughfare. There are no other major thoroughfares in the vicinity from which the landfill is visible. Accordingly, waste will not be disposed of in an area open to public view from a major thoroughfare. See, Section 17- 701.040(2)(h), FAC. The landfill site is not located on the right-of-way of a public highway, road or alley, and is not located within the bounds of any airport property. The landfill will not be located within a prohibited distance from airports, as proscribed by Section 17-701.040(2)(k), FAC. See also, Sections 17-701.040(2)(j) and (2)(i), FAC. There are no Class I surface waters within 3,000 feet of the landfill site so the setback provisions in Section 17-701.040(7), FAC, are satisfied. No lead-acid batteries, used oil, yard trash, white goods, or whole waste tires will be accepted at the Class I landfill cell. Only trash and yard trash will be accepted at the Class III cell. Therefore, the prohibitions in Section 17- 701.040(8), FAC, are not violated. A ground water monitoring plan has been developed for the landfill site, pursuant to Section 17-28.700(6), FAC, as required by Section 17- 701.050(3)(a), FAC. The original ground water monitoring plan was prepared by Post, Buckley, Schuh, and Jernigan, Inc. and submitted as part of the initial permit application. This plan addresses monitoring well placement, monitoring, and monitoring plan requirements. It proposes corrective action, as required by Section 17-28.700(6), FAC. Subsequent modifications to that plan were developed by Dr. Thomas Herbert, an expert in geology, hydrogeology, well installation and water quality monitoring. These modifications particularly address monitoring well location and provide additional assurances that the ground water monitoring plan complies with Section 17-28.700(6), FAC. These proposed modifications were submitted to DER prior to hearing. A site foundation analysis using appropriate ASTM methods to determine stability for disposal of waste, cover material, and structures constructed on site was performed and the results were submitted to DER as part of the initial application. Additional foundation stability information and the results of another field investigation regarding sinkhole development potential at the site was submitted to the Department. The field investigations and reports in evidence provide assurance that the disposal site location will provide adequate support for the landfill, as required by Section 17-701.050(3)(b), FAC. The landfill site is easily accessible by collection vehicles and other types of vehicles required to use the site. The site design provides for all weather roadways to be located throughout the site for ready ingress, egress, and movement around the site. The proposed landfill is located to safeguard against water pollution originating from disposal of solid waste. See Section 17-701.050(3)(c)2., FAC. The bottom of the waste disposal cells will be located at least six feet above the top of the surficial aquifer. To ensure that ground water is not polluted by waste disposal, the Class I cell will be lined with a composite liner system comprised of a lower unit consisting of 24 inches of compacted clay having a maximum permeability of 1 X 10-7 centimeters per second, and an upper synthetic liner unit consisting of a high density polyethylene (HDPE) of 80 mil thickness. Leachate generated by the waste in the landfill will be collected by a leachate collection and removal system. The leachate control system consists of a two- foot thick layer of sand having a minimum permeability of 1 X 10-3 centimeters per second, with a permeable geotextile filter cloth layer and a highly permeable geonet layer to collect and direct the leachate into a drainage system consisting of a collection pipe system to transfer the leachate to a containment lagoon. Once in the leachate lagoon, the leachate will be evaporated, recirculated over the working face of the landfill, or transported off site for treatment at a waste water treatment plant. The waste disposal areas are located at approximately 125 foot NGVD elevation. This is well above the 100- year flood plain and they are not located in water bodies or wetlands. An adequate quantity of acceptable earth cover is available on site. See, Section 17-701.050(3)(c)3., FAC. The soil for cover will be obtained from the northeast portion of the site located across To Shoo Fly Bridge Road from the landfill site. The landfill site was shown to conform to proper zoning, as required by Section 17-701.050(3)(c)4., FAC. The 1991 Comprehensive Plan Future Land Use Element for Holmes County designates this site for "public/semi- public/educational" land uses. The "public facilities land uses" designation includes "utilities and other service facilities" of which municipal solid waste landfills are an example. No other land use designation in the Holmes County 1991 Comprehensive Plan expressly includes landfill uses. CVA adduced testimony from Hilton Meadows, its expert witness, as to plant species he observed in the vicinity of the site. He observed plants that he identified as being species that grow on the edge of or in wetlands, but none of these species were shown to exist on the landfill site itself. Mr. Meadows observed them in locations outside the perimeter berms of the landfill site but did not identify their specific locations other than a general direction from the perimeter berms outside of which he observed the plants. He did not quantify the wetland species he observed so as to establish their dominance and did not conduct a jurisdictional wetland survey, as envisioned by Chapter 17- 301, FAC. Landfill Design Requirements As required by Section 17-701.050(4)(a), FAC, an aerial photograph was submitted with the permit drawings. Plot plans were submitted with the permit application, in evidence as EPAI exhibit 1, showing dimensions of the site, location of soil borings, proposed trenching or disposal areas, original elevations, proposed final contours, and previously-filled waste disposal areas. Topographic maps were also submitted with the correct scale and contour intervals required by Section 17-701.050(4)(c), FAC, which show numerous details such as proposed fill areas, borrow areas, access roads, grading, and other details of the design and the site. The design plans also include a report on the current and projected population for the area, the geographic area to be served by the landfill, the anticipated type, quantity and source of the solid waste, the anticipated useful life of the site, and the source and characteristics of cover materials. The landfill will be a regional facility serving the residents of Holmes and surrounding counties. The current population of the area to be served is approximately 63,183 with the projected population for the year 2000 being 76,792. The landfill will receive municipal sanitary solid waste, asbestos, petroleum-contaminated soils, and yard trash. It will not receive used oil, lead-acid batteries, biomedical wastes, hazardous wastes, or septic sludge. The permit application was shown to satisfy all design requirements of Section 17-701.050(4), FAC. Geology, Hydrogeology, and Foundation Stability Dr. Thomas Herbert, a registered professional geologist and licensed well driller in Florida testified of geologic and hydrogeologic investigations and analyses he performed. Mr. Herbert has over 25 years experience in the fields of geology and hydrogeology and was tendered and accepted as an expert in those fields. Dr. Herbert drilled shallow and deep core borings, which were converted into monitor wells to monitor ground water in the surficial and deep aquifers under the landfill site. In addition, he drilled several medium-depth borings along the western boundary of the site to analyze geologic and hydrogeologic conditions in this area, which is the portion of the site closest to Long Round Bay. Dr. Herbert used a hollow stem auger to take the soil borings and install the monitoring wells. This is a device which allows sampling tools to be placed down a hollow drill barrel for more accurate sediment sampling. Dr. Herbert used a continuous sampling system wherein a five-foot core barrel sampled the soil conditions ahead of the turning drill auger. Continuous sampling is preferable to other types of soil sampling equipment because it provides a detailed representative sample of the soil on the site and enables the sampler to precisely determine whether soil materials occur in small thin layers or bands on the site or whether there is a massive deposit of relatively uniform soils. The continuous sampling method also minimizes mixing of soils and creates an undisturbed profile that can be examined once the core barrel is opened. This type of sampling yields a very accurate picture of soil conditions on the site. In addition to the borings taken on the site by Dr. Herbert, other core borings were taken on site by Ardaman & Associates, a geotechnical engineering firm, for the purpose of analyzing the site foundation to determine the site's stability and potential for developing sinkholes. These core boring profiles were analyzed, along with those performed by Dr. Herbert, in determining the site geologic and hydrogeologic conditions. In addition to the core borings, Dr. Herbert reviewed studies on the geology and hydrogeology of the area, as well as the field investigations reported by Post, Buckley, Schuh, and Jernigan, as part of the original permit application submittal. In order to gather additional information on the geology and hydrogeology of the site, gamma ray logging was performed on the wells installed by Dr. Herbert, as well as on the existing wells at the site. Gamma ray logging measures natural gamma radiation from the sediments and permits identification of soil type based on the amount of gamma radiation coming through the soils. Generally, the higher the clay content, the higher the gamma ray count. Gamma ray logging provides an accurate means for determining clay, sand, or sandy clay soils. By examining gamma ray logs of wells he installed and sampled, as well as for wells already existing on the site, Dr. Herbert was able to obtain extensive information about the subsurface soil conditions at the site. Based on these information sources, the geology of the site was determined. The sediments ranging from the surface of the site down to more than 100 feet below the surface are part of the citronelle formation, which consists of consolidated to partially cemented sand, silt, and clay sediments, called clastics, deposited in the Plio-Pleistocene age, between one and four million years ago. The citronelle formation at the site is predominantly clay, with some thin sand lenses running through the clays. The sand lenses or "stringers" grade laterally into the clays or silts. A surficial aquifer is located between 30 and 40 feet below the land surface at the site and is confined immediately above and below by dense, dry clay layers. The top confining unit is estimated to be approximately 10 feet thick. The lower clay confining unit, down to approximately 100 feet below the land surface, consists of dense, dry clays with thin units of sandy or silty clays or clayey sands. Below the citronelle foundation, at approximately 100 feet below land surface, there is a sequence of weathered carbonate rock or mud, termed "residuum". This material is too fine-grained to yield water in usable quantities. Competent limestone is first encountered below the carbonate "residuum" at approximately 262 feet below the surface. This limestone is likely part of the lisbon- tallahatta formation, which is part of the Claiborne Aquifer. In order to investigate an area in the western portion of the site depicted in the Post, Buckley report as being sandy, Dr. Herbert installed a deep core boring and analyzed the soils in that area. He thus determined that rather than being solid sand, as depicted in the Post, Buckley report, the sediments in this area are actually sands interbedded with clay and silt stringers, which decrease the sediments' horizontal and vertical conductivity. He determined that the area is a sandy channel bounded laterally and below by dense clays. As with the rest of the site, the surficial aquifer also is confined in this area. As part of his ground water monitoring plan recommendations, Dr. Herbert recommended installation of an additional monitor well in this area. The core borings and gamma ray logging allowed accurate determination of the site hydrogeology. Transient surface water, termed "vadose" water, percolates down from the land surface through layers of clay, sand, and silt. Within these sediment layers, there are lenses of clay ranging from a few inches to a foot thick. Vadose water is trapped on top of the clay layers, creating shallow saturated zones called "perched" zones, ranging from one to a few inches thick. The vadose water and perched zones are not connected to any ground water systems. Below these perched zones, dense, dry clay layers create a confining layer above the surficial aquifer. The surficial aquifer occurs in discontinuous sandy layers 30 to 40 feet below the land surface. Beneath the surficial aquifer, dense, dry clay layers form a lower confining unit. These confining clay layers overlying and underlying the surficial aquifer create pressure or hydraulic "head", on the water in the surficial aquifer. When a core boring or well penetrates through the upper clay confining layer, the water in the surficial aquifer rises up the well or core casing, due to the hydraulic head, to a level called the potentiometric surface, which is at a higher elevation than the elevation at which the surficial acquifer is actually located. Based on the confined nature of the surficial aquifer, it was determined that water table elevations reported in the hydrogeologic report initially submitted as part of the application are actually potentiometric surface elevations. This is consistent with the information provided in the additional information submittal as part of the permit application which indicates that the potentiometric surface at the landfill site may be five to seven feet below the bottom of the liner. This was confirmed at hearing by Mike Markey, a professional geologist with the Department, who reviewed the permit application and hydrogeologic report submitted by Dr. Herbert and prepared a memorandum dated September 2, 1992, stating that his "previous concern regarding separation of the 'water table' aquifer and HDPE liner is no longer an issue because the 'water table' aquifer was not found" by Dr. Herbert. The surficial aquifer on the landfill site cannot yield enough water to support long-term use as a potable water source. Due to the high clay content in the aquifer, the water has a high sediment content and low water quality, rendering it unusable for domestic purposes. The overall horizontal conductivity for the surficial aquifer on a site-wide basis is estimated to be low due to the discontinuous sand layers comprising the surficial aquifer on the site. While some zones within the aquifer may have high horizontal conductivity, these zones have limited lateral extent and change rapidly into zones of low horizontal conductivity. The steep hydraulic gradient from the highest to lowest areas of the site further indicates that the surficial aquifer has low horizontal conductivity. If water were rapidly moving through the surficial aquifer across the site, the hydraulic gradient would be much less steep. The presence of the hydraulic gradient across the site indicates that the clay in the surficial aquifer system is so pervasive that the water in that system essentially is stagnant. Based upon his extensive experience and familiarity with the clastic sediments like those found at the landfill site, Dr. Herbert estimated the vertical permeability of the sediments comprising the upper and lower confining layers of the surficial aquifer to be in the range of 1 X 10-6 to 1 X 10-8 centimeters per second. These projected permeability values are very low, thus, very little water is moving vertically through the surficial aquifer to deeper depths. The original hydrogeology report on the site submitted as part of the application indicated that the ground water flow is to the west, southwest, and northwest based upon monitoring well and piezometric data. Dr. Herbert's subsequent field investigations confirmed the ground water flow direction as reported in the permit application. Dr. Herbert estimated that the surficial aquifer will be located between 8 and 15 feet below the finished bottom elevation of the Class I waste disposal cell. The intermediate aquifer system is located beginning 80 or 90 feet below the landfill site and is defined as all strata that lie between and retard the exchange of water between the surficial aquifer and the underlying Floridan aquifer, including the lower clay confining unit directly underlying the surficial aquifer. In this part of west Florida, the intermediate system is estimated to be 50 to 60 feet thick and acts as an "aquatard", which means that it retards the passage of water from the surficial aquifer to lower levels. The standard penetration test (SPT), which is an engineering test of soil density, yielded values of 40 to 50 blows per inch for soils sampled in the top 20 feet of the intermediate system throughout the site. These SPT values indicate the soils in the intermediate system are extremely dense, over-compacted clay materials. Below the clays, the lower portion of the intermediate system consists of a weathered limestone residuum. Due to the extremely fine grain size of the residuum, it will not yield water in quantities sufficient to support a well. The deep core borings taken at the site indicate that the Floridan aquifer limestone underlying the landfill site has undergone paleokarst evolution. The underlying limestone has been dissolved away over a long period of time, creating the limestone residuum detected in the deep core borings. Based on the deep core borings taken at the site, Dr. Herbert concluded there is no competent Floridan aquifer limestone capable of supporting wells underlying the landfill site, and the Floridan aquifer either is not present under the site or exists only as a relict or remnant of the limestone formations that make up the Floridan aquifer system in other parts of Florida. The core borings taken on site indicate that the paleokarst terrain underlying the landfill contains no cavities, large openings, sinkholes or other features in the rock that could cause the landfill foundation to collapse. All karst features in this area are filled in and "healed" by the carbonate residuum overlying the limestone under the landfill. Dr. Herbert also investigated the geologic nature of Long Round Bay. In addition to reviewing literature regarding the geology of west Florida in the vicinity of Holmes County and topographic maps depicting the site, Dr. Herbert took at least one sediment core boring in Long Round Bay and also circumnavigated the perimeter of the Bay. Based on information from these sources, Dr. Herbert opined that Long Round Bay, like many other drainage basins in the area north of Bonifay, is a collapse feature of the paleokarst sequence in the vicinity, and is a topographic depression caused by weathering away of the limestone over time. The sediments underlying Long Round Bay consist of deep citronelle clays washed into the collapse feature. Long Round Bay is relatively flat with poorly defined outlets and receives surface drainage from the surrounding area. Because there are no defined channels connecting Long Round Bay to Wright's Creek, water movement from Long Round Bay into Wright's Creek is extremely slow. Long Round Bay is likely not an aquifer recharge area because there is no direct karst connection between Long Round Bay and any aquifer. Clays have run off the surrounding area and accumulated in Long Round Bay for thousands of years sealing off any connections between it and any underlying aquifer. In addition to Dr. Herbert's determination of the potential for active karst formation under the landfill site, Ardaman & Associates performed the foundation analysis of the site, as required by Section 17-701.050(3)(b), FAC. The foundation analysis was supervised by William Jordan, a registered professional engineer. He has an extensive education in geotechnical engineering, as well as 11 years of experience in that field. He was tendered and accepted as an expert in geotechnical engineering and materials testing. As part of the foundation analysis, Ardaman & Associates performed two deep core borings to determine the potential for development of sinkholes at the site. Both borings were taken on the western side of the landfill site, closest to Long Round Bay. One of the borings was performed in an area having a relatively high sand content in the soil, as identified in the hydrogeology report submitted in the permit application. The borings were drilled down to approximately 160 feet below the surface, to the top of the weathered limestone horizon. In Mr. Jordan's extensive experience in foundation testing and analysis, presence or potential for sinkhole development is usually evident at the horizon of the limestone or within the top 15 feet of the limestone. The core borings did not reveal any joints, open seams, cavities, or very loose or soft zones at the horizon or on top of the limestone. In addition, the sediments overlying the limestone horizon were determined to consist of medium dense to dense and medium stiff to stiff sediments, which indicate lack of sinkhole activity or potential. No indication of active or imminent sinkhole conditions were found on the site, either through the core borings or from surficial observation. In addition to the deep core borings, Ardaman & Associates, under Mr. Jordan's supervision, also performed four other core borings to a depth of 60 feet below the land surface. These borings indicated the sediments at the site are composed of clayey sands, very clayey sands, "lean" sandy clays, and sandy "fat" clays. The SPT tests performed on the soils indicate the site soils range from medium to high density and are stiff to very stiff and hard. Mr. Jordan performed a settlement analysis of the landfill based on the types of sediments present on site and assuming a compacted unit weight of 37 pounds per cubic foot for the landfill waste. This unit weight is a typical weight value for compacted municipal waste. For settlement analysis, Mr. Jordan used the SMRF elastic compression and consolidation methods, both of which are professionally accepted standard methods for determining settlement of large structures, including landfills. Using these methods, he determined that the total settlement for the landfill over its total life would be between three and five and one-half inches. Based on the uniformity of the subsurface conditions and density of the soils on the site, any settlement would be uniform and thus would not result in tearing or other failure of the landfill liner. Mr. Jordan performed a bearing capacity analysis of the site. Based on the sediments on site, he estimated the safety factor against bearing capacity to be in excess of 10. The minimum acceptable safety factor for large habitable structures, such as buildings, is in the neighborhood of two to three. Thus, the safety factor determined for the landfill site far exceeds the minimum standard for bearing capacity. Mr. Jordan performed an embankment slope stability analysis for the perimeter berm of the landfill. The inside slope of the perimeter berm has a 3:1 slope and the outside slope has a 4:1 slope. Mr. Jordan's stability analysis was performed on the inside slope of the berm which is steeper and, therefore, less stable. Due to the stability of the clay sediments composing the subgrade of the perimeter berm, and based on his extensive experience in slope stability analysis, Mr. Jordan determined there is no danger of deep circular arc failure of the landfill berm. He used a professionally accepted standard slope stability evaluation method called the "infinite slope" method, to analyze the probability for shallow circular arc failure of the berm. He determined a safety factor of 2.0 to 2.4 for the embankment slope, which is between 1.5 and 2.0 times greater than the minimum accepted safety factor of between 1.3 and 1.5 for embankment slopes. Mr. Jordan also performed an analysis of the site subgrade stability for compaction. Mr. Jordan's analysis showed that the stiff or medium dense silty to clayey sands and clays on the site provide a stable base against which compaction over the life of the landfill can safely occur. Based on the foundation analysis performed by Mr. Jordan on the landfill site, it is evident that the landfill will not be located in an open sinkhole or in an area where geologic foundations or subterranean features will not provide adequate support for the landfill. (See Section 17-701.040(2)(a), FAC). The foundation analysis indicates the landfill will be installed upon a base or in a hydrogeologic setting capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement compression, as required by Section 17- 701.050(5)(b)2., FAC. The foundation analysis further indicates the site will provide support for the landfill, including the waste, cover and structures built on the site (See Section 17-701.050(3)(b), FAC). Section 17-701.050(5)(d)1.a, FAC, requires the lower component of the landfill liner to consist of a compacted soil layer having a maximum hydraulic conductivity of 1 X 10-7 centimeters per second. Mr. Jordan analyzed nine additional core borings to determine if the native soils on the site meet the conductivity standard in the rule or if off-site soils must be blended with on- site soils to achieve the standard. To test whether the on-site soil will meet the conductivity standard, soils were compacted to approximately 95% of the standard maximum for density, which is the industry standard compaction for soil permeability testing. The soils from eight of the nine borings taken at the site exhibited conductivity values of approximately 4.8 X 10-8 centimeters per second. This value is five times less conductive than the value required by the above-cited rule. Only one boring exhibited a conductivity value in excess of the maximum value established in the rule. Based on the conductivity values determined at the site, it is likely the native soils on the landfill site will meet or exceed the maximum conductivity value mandated in the above-cited rule. If the on-site soils do not meet this standard, then bentonite or another material from off site will be blended with the on-site soils to achieve the conductivity standard mandated by the rule. Ground Water Monitoring and Water Quality As required by Section 17-701.050(3)(a), FAC, a ground water monitoring plan for the landfill site was completed in accordance with Section 17-28.700(6), FAC. The original ground water monitoring plan was submitted as part of the application. This plan was incorporated into the notice of intent and the attached draft permit for the landfill, as part of specific condition The ground water monitoring plan subsequently was modified and supplemented by Dr. Herbert to include monitor wells required to be installed by Holmes County on the site, pursuant to the consent order entered into by the county and DER on June 26, 1989, as well as the wells installed by Dr. Herbert as part of his hydrogeologic investigation. DER established a zone of discharge for the landfill site, as required by Rule 17-28.700(4), FAC. The horizontal boundary of the zone of discharge extends to the ground water monitoring compliance wells located at the western, northern, and southern portions of the site and to a line coextensive with the eastern property line for the southeastern portion of the property. The horizontal zone of discharge boundary is located inside the western, northern, and southern property boundaries. The vertical zone of discharge extends from the land surface down to the top of the clay layer underlying the site at approximately +50 to +60 feet NGVD. These zones are established in compliance with Section 17-28.700(4), FAC. The groundwater monitoring plan provides for 15 monitor wells to be located in close proximity to the waste disposal areas and the site boundaries to monitor compliance with all applicable ground water quality standards in Sections 17-3.402, 17-3.404, and 17-550.310, FAC. Four of these wells will be located near the western property boundary to closely monitor water quality to insure contaminants do not seep into Long Round Bay. To detect contamination that may violate applicable surface water quality standards in Sections 17-302.500, 17-302.510, and 17-302.560, FAC, at the edge of and beyond the zone of discharge, the ground water monitoring plan provides for several surface water sampling points on the landfill site near the edge of the zone of discharge. If contaminants are detected in the surface water monitoring system, remediation activities can be implemented to insure the surface water quality standards set forth in the above-cited rules are not violated outside the zone of discharge. As required by Section 17-28.700(6)(g)1., FAC, the ground water monitoring plan provides for a well to be located to detect natural, unaffected background quality of the ground water. The monitoring plan also provides for a well to be installed at the edge of the zone of discharge downgradient from the discharge site, as required by Section 17-28.700(6)(g)2., FAC, and for installation of two intermediate wells downgradient from the site within the zone of discharge to detect chemical, physical, and microbial characteristics of the discharge plume, in excess of the requirement for one such well contained in Section 17-701.050(6)(g)3., FAC. The location of the other wells in the ground water monitoring plan was determined according to the hydrogeologic complexity of the site to insure adequate reliable monitoring data in generally accepted engineering or hydrogeologic practice, as required by Section 17-28.700(6)(g)4., FAC. Due to the essentially stagnant nature of the ground water in the surficial aquifer system, and given the location of the intermediate monitoring wells, any contamination detected at the site can be remediated through recovery wells before it reaches the edge of the zone of discharge. Moreover, due to the confined nature of the surficial aquifer system, there is very little free water in the aquifer. Accordingly, any contamination could be quickly removed by recovery of ground water and de-watering of the area in which the contamination is detected through remediation wells. Also, given the location of the monitoring wells on the site, the northerly direction of the surficial aquifer ground water flow on the northern portion of the site near the existing landfill, and the essentially stagnant nature of the ground water in the surficial aquifer, contamination emanating from the existing cell could be discerned from that emanating from the new cell and recovery and remediation operations directed accordingly. The DER intent to issue and draft permit specify an extensive list of parameters which must be sampled at the ground water monitoring wells and surface water sampling points on the landfill site, as required by Sections 17- 3.402, 17-302.510, 17-302.560, and 17-550.310, FAC. These parameters must be sampled and reported to DER on a quarterly basis. In addition, annual water quality reports must be submitted to DER for the site. Based on the large amounts of clay content and the low horizontal and vertical conductivity values of the on-site sediments, the stagnant nature of the surficial aquifer system, the virtual absence of the Floridan aquifer under the site, and the location of the monitoring wells, the ground and surface water monitoring program provides reasonable assurance that the applicable water quality standards in the rules cited above will not be violated within and outside the zone of discharge. Liner Design, Performance, Quality Control, and Installation Section 17-701.050(5)(d)1., FAC, requires that a composite liner and leachate collection and removal system be installed in a landfill such as that proposed. Mr. Leo Overmann, is a registered professional engineer specializing in landfill engineering. He has over 10 years experience in landfill engineering, design, and construction and has worked on the design and construction of over 50 landfill facilities and 250 landfill disposal cells. He was tendered and accepted as an expert in liner design, quality control plans, and leachate control systems design and performance. It is thus established that the composite liner will have an initial 24-inch layer of compacted clay having a maximum hydraulic conductivity of 1 X 10-7 cm/sec. The 24-inch clay layer proposed by the applicant exceeds the 18- inch minimum thickness provided in the above-cited rule and will be placed in the field in layers or lifts of six inches or less. Each lift will then be treated and compacted to proper specifications in accordance with sound engineering practice in order to insure a tight bond between the clay layers. In the process of placing the clay lifts on the site, any roots, holes, channels, lenses, cracks, pipes, or organic matter in the clay will be broken up and removed, as required by the above-cited rule. In order to insure conductivity of the clay liner component does not exceed the above figure, testing will be done at the site or off-site by constructing a "test pad". A test pad is a site at which the liner construction techniques are tested using the clay material that will comprise the lower liner unit. Once the pad is constructed, the hydraulic conductivity of the clay can be tested to determine the most suitable construction methods in order to meet the above-mentioned conductivity standard and the other design and performance standards in the rule section cited last above. The applicant's liner quality control plan provides for testing of the clay liner hydraulic conductivity and compliance with the other liner design and performance standards in the rule (See Section 17- 701.050(5)(c), FAC). A synthetic geomembrane liner consisting of high density polyethylene (HDPE) will be placed directly on top of and in contact with the clay liner. If the geomembrane should leak, the clay will then retard leachate migration. Although Rule 17-701.050(5)(d)1.a., FAC, only requires a 60-mil thickness liner, the applicant has proposed to use a 80-mil liner. The thicker HDPE liner is less susceptible to stress and wear and tear in the daily landfill operation than is the thinner 60-mil liner required by the rule. The water vapor transmission rate of the 80-mil liner will be approximately 1 X 10-12 cm/sec, which is 10 times less transmissive than the maximum water vapor transmission standard of 1 X 10-11 cm/sec established in Rule 17-701.050(5)(d)1.a., FAC. The design also provides for a drainage layer and primary leachate collection and removal system to be installed above the HDPE liner, as required by the above-cited rule. The drainage layer above the liner consists in ascending order, of a layer of geonet material having an equivalent permeability of approximately three cm/sec; a layer of non-woven, needle-punched geotextile cloth, and a two-foot thick layer of sand. The sand provides a permeable layer which allows liquid to pass through it while protecting the underlying synthetic components of the drainage system and liner. The geotextile cloth component of the drainage layer filters fine particles while allowing liquid to pass through it to the geonet layer. The geonet layer is approximately 3,000 times more conductive than required by Section 17-701.050(5)(f), FAC, so as to allow rapid drainage of leachate off of the HDPE liner. The drainage layer is designed to reduce the leachate head or hydraulic pressure on the liner to one inch within one week following a 25-year, 24-hour storm event. This was determined by use of the Hydrologic Evaluation of Landfill Performance (HELP) model. This model is the standard computer model used in the landfill design and construction industry to determine leachate depth over the synthetic liner in lined landfills. The HELP model calculations submitted in the permit application were prepared by Pearce Barrett, the EPAI landfill design engineer, an expert witness. The HELP model analyzes water and rainfall that falls on active waste disposal cells and percolates through the waste, and the model helps determine the amount of leachate that will accumulate on top of the liner. To determine this amount, the HELP model uses several parameters, including rainfall amount, landfill size, and the number of waste and protective cover layers. The HELP model in this instance involved employment of Tallahassee-collected rainfall data because long-term, site-specific data for the landfill site was not available. The Tallahassee rainfall average is greater than the rainfall average for Chipley, which is closer to the landfill site and, therefore, provides a more conservative, "worst-case" rainfall figure for employment in the HELP model calculations. The HELP is itself a very conservative model, generating a worst-case determination of the amount of leachate that will end up on top of the landfill liner. The model's analysis and calculations indicate that the leachate will be reduced to a one-inch depth on the liner within one week after a 25-year, 24-hour storm event. The landfill project design specifications, in the permit application, provide that all materials in direct contact with the liner shall be free of rocks, roots, sharps, or particles larger than 3/8 of an inch. The geonet and geotextile material are in direct contact with the top of the HDPE liner and the clay liner is located directly below the HDPE liner. The project design specifically provides that the clay material comprising the clay liner component will not contain roots, rocks, or other particles in excess of 3/8 of an inch. No waste materials thus will come into contact with the clay liner. The design specifications also provide additional protection for the liner by requiring that the initial waste placed in the landfill be select waste that is monitored and screened for such things as metal objects, wooden posts, automobile frames and parts, and other sharp, heavy objects which could tear the liner. The liner design contained in the application meets the design requirements of Rule 17-701.050(5)(d), FAC. Section 17-701.050(5)(b), FAC, requires that the liner be constructed of materials having appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients, physical contact with the waste or leachate to which they are exposed, climatic conditions, stress of installation, and daily operations. The liner is constructed of HDPE, which is superior to other types of plastic for use as municipal and hazardous waste landfill liners due to its physical and chemical properties. It is a material composed of long polymeric chain molecules, which are highly resistant to physical failure and to chemical weakening or alteration. The liner is of sufficient strength and thickness to resist punctures, tearing, and bursting. The liner has a safety factor of over seven, which is three and one-half times greater than the minimum acceptable safety factor of two, required in the Department's rules for landfill liners. The liner proposed in this instance will not fail due to pressure gradients, including static head or external hydrogeologic forces. Mr. Overmann evaluated the effects of a hydrologic head of one foot over the HDPE liner and the clay liner component and determined that the protective sand layer will insure the HDPE liner does not fail. Mr. Overmann relied on the testimony of Dr. Herbert with respect to hydrogeologic site characteristics in concluding that hydrogeologic forces will not cause liner failure. The 80-mil liner proposed by EPAI will be more resistant to the stresses of installation and daily operation than will a 60-mil liner. The two-foot sand layer above the drainage layer and the HDPE liner will also help protect the liner from stresses of daily operation. Mr. Overmann analyzed the liner's potential for failure between the point at which it is anchored on the edge of the landfill and the base of the landfill where settlement is greatest due to waste deposition. He determined that the HDPE liner would elongate on the order of one percent of its length. This is far less than 700 to 800 percent elongation required to break the liner material. Based on the site foundation analysis and the proposed liner design for the landfill, the liner will not fail due to hydrogeologic or foundation conditions at the site. The liner meets the performance requirements set forth in Rule 17-701.050(5)(b)2., FAC. The liner meets requirements that it cover all of the earth likely to be in contact with waste or leachate. The liner extends beyond the limits of the waste disposal cells to an anchor trench where the HDPE liner is anchored by soils and other materials to hold it in place during installation and operation. The liner design provides reasonable assurance that the liner performance standards contained in the above rule will be satisfied. There are no site- specific conditions at the Holmes County landfill site that would require extraordinary design measures beyond those specified in the rule cited above. The permit application includes a quality control and assurance plan for the soil and HDPE liner components and for the sand, geotextile, and geonet components of the drainage layer. A quality control plan is one in which the manufacturer or contractor monitors the quality of the product or services; a quality assurance plan is one in which an independent third party monitors the construction methods, procedures, processes, and results to insure they meet project specifications. The quality control/quality assurance plan requires the subgrade below the clay liner to be prepared to insure that it provides a dry, level, firm base on which to place the clay liner. The plan provides that low- permeability clay comprising the liner will be placed in lifts of specified thickness and kneaded with a sheepsfoot roller or other equipment. Low- permeability soil panels will be placed adjacent to the clay liner and scarified and overlapped at the end to achieve a tight bond. Each clay lift will be compacted and tested to insure it meets the specified density requirements and moisture specifications before a subsequent lift is placed. Lined surfaces will be graded and rolled to provide a smooth surface. The surface of the final low- permeability soil layer will be free of rocks, stones, sticks, sharp objects, debris, and other harmful materials. If any cracks should develop in the clay liner, the contractor must re-homogenize, knead, and recompact the liner to the depth of the deepest crack. The liner will be protected from the elements by a temporary protective cover used over areas of the clay liner exposed for more than 24 hours. The plan also provides specifications for visual inspection of the liner, measurement of in-place dry density of the soil, and measurement of hydraulic conductivity on undisturbed samples of the completed liner. These tests will be performed under the supervision of the professional engineer in charge of liner installation to insure that performance standards are met. There will be a quality control plan for installation of the HDPE liner in accordance with the DER approved quality control plan that incorporates the manufacturer's specifications and recommendations. The quality assurance and quality control plan calls for the use of numbered or identified rolls of the HDPE liner. The numbering system allows for identification of the manufacturing date and machine location, so that the liner quality can be traced to insure that there are no manufacturing anomalies, such as improper manufactured thickness of the liner. The plan also addresses in detail the installation of the HDPE liner. The liner is installed by unrolling it off spools in sections over the clay liner. As it is unrolled, it is tested for thickness with a micrometer and is visually inspected for flaws or potential flaws along the length of the roll. Flaws detected are marked, coded, and repaired. Records are prepared documenting each flaw. If flaws appear frequently, the HDPE is rejected and removed from the site. As the sheets are installed, they are overlapped and bonded together by heat fusing to create a watertight seam. As the sheets are seamed, they are tested in place by nondestructive testing methods to insure seam continuity and detect any leaks or flaws. If flaws are detected, they are documented and the seam is repaired. The seams are also subject to destructive testing, in which a sample of the seam is removed in the field and tested in the laboratory for shearing or peeling apart of the sheets. If destructive testing reveals seam flaws, additional field and laboratory testing is performed and necessary repairs are made. All tests, repairs, and retests are carefully documented, and a map depicting the location of all repairs is prepared for quality control and performance monitoring. The plan for the installation of the geonet, geotextile, and sand layers provides specifications for storage, installation, inspection, testing, and repair of the geonet and geotextile layers. The liner construction and installation will be in conformance with the methods and procedures contained in EPA publication EPA/600/2-88/052, Lining of Waste Containment and Other Impoundment Facilities, as required by Section 17-701.050(5)(a), FAC. The quality assurance and quality control plan proposed exceeds the requirements contained in Section 17-701.050(5)(c), FAC. Leachate Collection and Removal System The landfill design includes a leachate collection and removal system. See Section 17-701.050(5)(e)&(f), FAC. The leachate collection and removal system meets the requirements in the above rule by providing that the design incorporate at least a 12-inch drainage layer above the liner with a hydraulic conductivity of not less than 1 X 10-3 cm/sec at a slope to promote drainage. The drainage layer consists of a geonet layer, a geotextile layer, and a two- foot sand layer. The geonet has a hydraulic conductivity of two to three cm/sec, many times more permeable than required by the rule; and the sand layer will have a hydraulic conductivity of approximately 1 X 10-3 cm/sec. The leachate collection and removal system meets regulatory requirements contained in the above-cited rule that the design include a drainage tile or pipe collection system of appropriate size and spacing, with sumps and pumps or other means to efficiently remove the leachate. The design provides that the Class I cell will be divided into operating disposal cells. The design includes a piping system consisting of a 6-inch diameter pipe to be placed down the center of each of the operating cells and encased in a granular river rock medium. The HELP model calculations included in the permit application and evidence indicate that the leachate will be removed efficiently and effectively and that the leachate head will be maintained in compliance with the performance standards in the rule. The piping system is on a slope that drains to a central location or sump. Based on a design preference of City, the piping design will be slightly modified in the construction drawings to provide that rather than going through the HDPE liner, the leachate piping will run up the side of the cell wall and leachate will be pumped out of the cell into the leachate lagoon. The leachate collection and removal system design provides for a granular material or synthetic fabric filter overlying or surrounding the leachate collection and removal system to prevent clogging of the system by infiltration of fine sediments from the waste or drainage layer. A layer of non-woven, needle-punched geotextile will be wrapped around the granular river rock material surrounding the piping system to filter out fine particles. The design also provides a method for testing whether the system is clogged and for cleaning the system if it becomes clogged. A clean-out tool can be run through the openings in the leachate collection piping system to monitor and pressure clean the pipes if they become clogged. Thus, the leachate collection and removal system will satisfy the leachate system design requirements of Section 17-701.050(5)(f), FAC. The leachate collection and removal system will meet the performance standards in paragraph (e) of that rule, as well. The leachate collection and removal system will be located immediately above the liner and will be designed, constructed, operated, and maintained to collect and remove leachate from the landfill. The HELP model analysis and calculations indicate that the leachate depth will not exceed one foot on top of the liner. The leachate collection and removal system will be constructed of materials which are chemically resistant to the waste disposed of in the landfill and leachate expected to be generated. The geonet will be comprised of HDPE, which is chemically resistant to waste and leachate due to its molecular structure. The collection piping system also will be composed of HDPE. The geotextile layer will be composed of a non-woven polyester or polypropylene fabric, which has been determined to be resistant to and compatible with municipal solid waste leachates. The sand layer will consist of non-carbonate materials that are chemically resistant to or compatible with leachate. The evidence shows that the system will be of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying waste, cover materials, and equipment used at the landfill. Geonet drainage layers, HDPE piping, geotextile fabric, and sand layers such as those proposed are routinely and effectively used in landfills, including those that are deeper than the landfill proposed in the instant situation. The leachate collection and removal system meets requirements in paragraph (e) of the above rule, as well, that the system be designed and operated to function without clogging through the active life and closure period of the landfill. The geonet and geotextile layers will prevent the piping system from clogging. If clogging occurs, the system is designed to allow cleaning of the pipes. The collection and removal system will be designed and constructed to provide for removal of the leachate within the drainage system to a central collection point for treatment and disposal. The leachate will drain by gravity from the sump into the leachate lagoon, but will be altered during construction to provide for pumping of leachate out of the system into the lagoon in order to prevent having to penetrate the HDPE liner with piping. Once the leachate is pumped into the lagoon, it will be recirculated over the landfill face, evaporated from the lagoon, or removed off site for treatment and disposal at a waste disposal and treatment plant. Surface Water and Storm Water Management System The storm water management system for the landfill is designed and sized according to local drainage patterns, soil permeability, annual precipitation calculations, area land use, and other characteristics of the surrounding watershed. (See Rule 17-701.050(5)(h), FAC). The engineering expert for the applicant, Mr. Barrett, designed the storm water management system. He considered the presence of dense clay soils on the site which do not provide good percolation because of low permeability, with regard to storm water falling on the site. He also took into account existing drainage patterns, as well as the annual precipitation. The retention and detention ponds and drainage ways designed into the system consist of three detention basins located at the north, southeast, and southwest quadrants of the site and one retention basin located on the western portion of the site. The site is divided into watersheds and is drained by an on-site gravity system consisting of runoff collection pipes to intercept the overland flow and convey the runoff into the retention and detention facilities. Runoff from the northern watershed is treated in detention basin 1, that from the southeast watershed in basin 3, and runoff from the southwest watershed area in detention basin 4. Runoff from the western area or watershed is treated in retention basin 2. A computer model was used by Mr. Barrett in determining the appropriate design for the storm water management system. The model is called the hydrologic engineering center-1 model developed by the U.S. Army Corps of Engineers. It is a model routinely and widely accepted in the storm water engineering design profession and discipline for designing such systems. It has historically been accepted by the Florida Department of Transportation, DER, the Corps of Engineers, and a number of counties and municipalities. A number of parameters, such as total runoff area, watershed characteristics, rainfall amount, time of concentration, lag time, and route description, were put into the model to develop the storm water management system design. Because no actual runoff data was available to calibrate the model, the model was run using data for two hypothetical storm events, the 25-year, 24-hour storm and the 10- year, 24-hour storm. Total rainfall amounts for these events were obtained from rainfall intensity duration-frequency curves developed by the Florida Department of Transportation (FDOT) for this geographical area. The detention basins are wet treatment facilities having permanent pools of water. Wetlands vegetation grows on the littoral slopes of the detention basins and removes pollutants from the storm water by natural uptake of pollutants contained in the water through the roots, stems, and leaves of the plants. Based on the HEC-1 model, the detention basins are designed to store one inch of runoff over the permanent pool control elevation and to retain the first one-half inch of rainfall, as required by Section 17-25.040(5), FAC, for projects having drainage areas of less than 100 acres. Each basin has several pipes to allow outflow when the water level exceeds the one-half retention level. As water rises to the outflow pipe level, it flows out of the basin and eventually discharges off site. The outflow pipes are two to three inches in diameter, allowing discharge of a controlled volume of water at a controlled rate. The discharge structures will be constructed in accordance with construction drawings that will include erosion control devices, such as rip- rap. The basins also have vertical riser pipes that discharge if water reaches a higher set elevation, specified in the permit application. Only if the water level rises to an elevation exceeding the 25-year, 24-hour storm elevation would the water flow over the berm. As required by Section 17-25.025(8), FAC, the storm water management system design provides for skimmers to be installed on discharge structures to skim oil, grease, and debris off water discharged from the basins. No more than one-half of the volume will be discharged in the first 60 hours following a storm event. The detention basin slopes that exceed a four to one slope down to a depth of two feet below control elevation will be fenced for safety purposes. See Rule 17-25.025(6), FAC. The retention basin is designed to retain the first one-half inch of rainfall with filtration of the first one-half inch through a sand filter bed in the bottom of the basin within 72 hours following the storm event. The sand filter bed will consist of clean well-graded sand having a minimum horizontal and vertical conductivity or percolation rate of six inches per hour. The retention basin has vertical risers, as provided in the application. Erosion and sediment control "best management practices" will be used during construction to retain sediment on site, as referenced in Rule 17-25.025(7), FAC. Other best management practices, such as sodding embankments or stabilizing slopes with geomats or sand bags will be used. The system is designed to minimize mixing of the storm water with the leachate. (Rule 17-701.050(5)(h)3., FAC). As waste is placed in the landfill, berms are constructed laterally across the cell face to segregate the waste disposal areas from other areas in the cell not yet receiving waste. Storm water coming into contact with waste flows down through it and eventually is collected and removed from that cell by the leachate collection and removal system described above. Storm water falling in a portion of a cell in which waste has not been deposited is collected by piping and pumped to the storm water management system for treatment of storm water because it does not constitute leachate, not having traversed on or through waste. Storm water will not come into contact with the waste within the system as designed. There are not any pipes connecting the waste disposal cells to the storm water system or basins. The storm water system in the permit application was designed in accordance with the criteria enunciated in the above-cited rule. This fact was established by the unrefuted expert testimony of Mr. Barrett and was independently confirmed by three other engineers, including the storm water program engineer of DER, each of whom reviewed the storm water system design. The storm water program engineer inspected the site and determined that the proposed management system will not pose any risk to downstream property, as required by the statute and rules enforced by the Northwest Florida Water Management District (NWFWMD). CVA adduced the testimony of Mr. Hilton Meadows in an effort to demonstrate that the storm water management system design in EPAI's application, and case-in-chief, does not meet applicable criteria in Chapters 17-701 and 17- 25, FAC, referenced above. Mr. Meadows attempted to demonstrate, by calculations determined using the "rational formula", that storm water will be discharged off the landfill site at a rate of 16.11 acre feet per minute during a 25-year, 24-hour storm event. An acre foot of water is a depth of one foot of water covering a surface acre in area. According to Mr. Meadows, all storm water would be thus discharged off site at a single discharge point creating a "blowout" of the storm water management system structure at that point which would flood and erode Long Round Bay off the site. In rebuttal, however, Mr. Barrett explained that Mr. Meadows' calculations merely determined the total amount of water that would fall on the landfill site during a 25-year, 24-hour storm event and failed to consider the time-volume reduction of storm water off the site over a 24-hour time period. Mr. Barrett clearly established that 16.11 acre feet of water would not be discharged per minute off the site during the 25-year, 24-hour storm event. It was further demonstrated that Mr. Meadows did not perform any computer modeling in analyzing site-specific compliance of the proposed storm water management system design against the framework of the applicable design and performance standards in Chapters 17-25 and 17-701, FAC. CVA did not adduce any preponderant evidence which would demonstrate that the storm water management system proposed will not meet the design performance standards contained in the rules and rule chapters referenced above. In view of the more extensive background, education, knowledge, and training acquired both through education and experience; in view of the more extensive and detailed investigation and calculations underlying his design, including the computer modeling effort referenced above; and in view of his corroboration by three other witnesses within the storm water engineering discipline, the opinions of Mr. Barrett, and the witnesses corroborating his testimony, are accepted over that of Mr. Meadows. Gas Control System The gas control system for the landfill will meet the design requirements contained in Rule 17-701.050(5)(j), FAC. It will be a passive system, meaning that no mechanical methods are necessary to withdraw gas from the landfill. A ventilation system will be installed as the final cap is placed on the landfill and will consist of perforated PVC pipes placed vertically down through the soil cover layers, to reach the solid waste disposal areas. The pipes are wrapped in geotextile fabric in order to prevent them from being infiltrated by fine soil particles which could cause clogging of the system. The pipes will run laterally across the top of the waste disposal areas to transfer gas to the vertical vents which vent the gases to the atmosphere. If gas production should exceed the capacity of the passive ventilation system, vegetation will be damaged and odor will become objectionable. If that occurs, a pump can be connected to the system to extract gases mechanically and vent them into the atmosphere or flame them off as a more positive control method. The proposed gas system is typical for landfills of this size and has been well tested for efficiency at other such facilities. The gas control system will not interfere with or cause failure of the liner or the leachate control systems. The gas control system is designed to prevent explosion and fires due to methane accumulation, damage to vegetation on the final cover of the closed portions of the landfill or vegetation beyond the perimeter of the property. It will control any objectionable odors migrating off site. The system, as proposed and proven in this case, meets the design requirements contained in the above-cited rule. Landfill Operation Paul Sgriccia, vice president of City, is a registered professional engineer specializing in landfill design, operation, and management. He has extensive professional experience in (and supervises a 20-person staff) designing landfills, obtaining permitting, and overseeing daily operation, environmental regulation compliance, compliance monitoring, hydrogeology, and groundwater monitoring with regard to landfill projects proposed, being constructed, or operated by City. Additionally, he is trained as an engineer. He was tendered and accepted as an expert in the fields of landfill operations and landfill management. The above-cited rule chapter requires landfills to have a ground water monitoring system that complies with monitor well location, construction, and sampling requirements of Sections 17-3.401, 17-4.26, and 17-28.700, FAC, and ground water sampling and testing in accordance with those sections, as well as Section 17-22, Parts III and IV, FAC. Mr. Sgriccia's testimony shows that the ground water monitoring plan proposed and considered in conjunction with the hydrogeologic investigation and ground water monitoring recommendations made by Dr. Herbert will meet these regulatory requirements. The recommendations made by Dr. Herbert concerning ground water monitoring should be incorporated as conditions on issuance of the permit. The applicant has voluntarily agreed to notify DER one year in advance of its ground water monitoring schedule so that DER can be present to collect "split samples", as referenced in Rule 17- 701.050(6)(a)3., FAC. Any grant of a permit should also be conditioned on this policy being strictly followed. The application also contains an operation plan, as required by the above-cited rule at paragraph (6)(b). The operation plan provides that EPAI will be the entity responsible for the operation and maintenance of the landfill. The plan provides that in the event of a natural disaster or equipment failure that would prevent waste from being deposited at the landfill, the waste will be disposed of at the Springhill landfill in adjacent Jackson County, pursuant to an agreement between EPAI and Waste Management, Inc., the operator of that landfill. The operation plan contains detailed procedures to control the type of waste received at the facility. Hazardous waste, biomedical waste, lead-acid batteries, white goods, used oil, and waste tires will not be accepted for disposal at the proposed landfill. Asbestos will only be accepted if it is in the proper regulatory approved containers. The operation plan specifies inspection procedures and procedures to be followed if prohibited wastes are discovered. All vehicles hauling waste to the landfill will be weighed and inspected by the operator or appointed attendants at the entry to the landfill. A load inspection will be performed to determine if the waste conforms to the approved waste description before the waste can be disposed. Paperwork, checks, controls, and records maintenance will be performed, as well as random load inspections for municipal solid waste generated by households. Spotters will observe the actual unloading of each vehicle at the active cells. Unacceptable waste will be rejected and cannot be disposed of at the site. Unacceptable waste that is already unloaded inadvertently at the site will be required to be removed immediately. DER will be notified of attempts to dispose of unacceptable waste at the landfill site. The operation plan provides for weighing and measuring of incoming waste and vehicle traffic control and unloading control. All these vehicles will be weighed and inspected before proceeding to disposal cells. The operation plan provides a method and sequence for filling waste into the disposal cells. Waste disposal will begin in the southwest corner of cell one and waste will be disposed in that cell up to an established final grade and the final capping process will be commenced before beginning disposal in another cell. Waste will be compacted on a daily basis when a load is received. Compaction equipment operates continuously over disposed waste loads to obtain maximum compaction. A daily cover of six inches of clean soil will be applied at the end of the day unless more waste will be disposed on the working face within 18 hours. Daily cover helps reduce disease-vectors, such as flies and rodents, as well as to reduce windborne litter. The gas control system will be maintained to insure that riser pipe vents are not dislodged and will be monitored to insure that explosive limits of methane are not reached. When leachate levels in the lagoon reach a certain level, the leachate will be withdrawn and recirculated back over the working face of the disposal area or else hauled off site to a waste water treatment facility for treatment and disposal. Leachate recirculation is becoming an accepted treatment method by regulatory agencies and is considered an effective industry standard treatment method. Leachate is recirculated by application to the active working face of the disposal cell by a watering truck and is dropped on the cell through a distribution bar or open valve pipe at the back of the truck. Leachate will not be applied during rainfall nor will it be aerially sprayed on the cell. Municipal solid waste has significant absorption capacity, so that large quantities of recirculated leachate are absorbed by the waste. The leachate that does eventually run through the waste is collected in the leachate collection and removal system and does not mix with runoff going into the storm water management system. The leachate lagoon is surrounded by a containment dike area with a loading station inside the dike for removal of leachate by truck for off-site treatment at a waste water treatment plant. A hose is hooked to a tank truck and leachate is pumped into the truck. Any spills during the loading process will be contained by the dike and will flow back into the leachate lagoon. The storm water management system will be operated to insure that there is no mingling of leachate with storm water runoff. The design provides for three diversion berms running the length of the Class I disposal cell which divide the cell into four smaller working cells. Any rainwater falling in the clean, unused cells will be removed to the storm water management system. The rain coming into contact with the working face is leachate and is collected and removed from the cell by the leachate control system. The operation plan addresses and satisfies each requirement of Section 17-701.050(6)(b), FAC. Rule 17-701.050(6)(c), FAC, requires certain operational design features to be incorporated in the landfill. Thus, the entire site will be enclosed by a minimum four-foot high fence with a gate that will be locked during off hours. To Shoo Fly Bridge Road is a county-maintained, all-weather road that provides main access to the landfill site. In addition, the roads on the site will be stabilized, all-weather roads. The operation plan provides for signs indicating the name of the operating authority, traffic flow, hours of operation, and any disposal charges, as well as scales for weighing the waste loads received at the site. Dust will be controlled by water spraying to avoid contaminated runoff due to chemical sprays and oils. Dust will be further minimized by use of paved roads, minimizing the areas of disturbed soil, vegetating stockpiles as soon as possible, and vegetating final and intermediate cover areas. Daily cover, use of portable fences, and cleaning operations by operating personnel will provide litter control. Firefighting equipment and facilities adequate to insure the safety of employees will be located on site. Daily cover will be used to minimize the potential for fire and fire extinguishers and water will be used to fight fires. If a fire is too large to effectively fight with on-site equipment, the Holmes County Fire Department will be called to assist. The operation plan for the landfill meets the requirements depicted in the above-cited rule at paragraph (d) in terms of personnel and facilities requirements. A certified attendant will be on site during all hours of operation and a telephone will be located on site. Equipment requirements are contained in the above-cited rule at paragraph (e). The applicant will thus maintain and operate a large bulldozer, soil scraper, front-end loader, water truck, motor-grader for cleaning roads, and portable pumps for storm water management and leachate management. In the event of an equipment breakdown, the plan provides for an agreement between the operator and a local heavy-equipment company to provide a compactor and other essential equipment within 24 hours. The equipment will have protective roll bars or roll cages, fire extinguishers on board, and windshields. The operation plan otherwise provides for protective devices and gear for heavy equipment and for personnel themselves, such as dust masks and hearing protection devices, hygienic facilities in the maintenance building and office, potable water, electric power, emergency first aid facilities and the like. Employees will be hired locally and trained in appropriate safety procedures and practices. In accordance with the provisions of Section 17-701.050(6)(j), FAC, the operation plan calls for solid waste in the Class I cell to be spread in layers of approximately two-feet in thickness and compacted to approximately one-foot thickness before the next layer is applied. Weekly compaction of the waste will be accomplished by heavy equipment at the Class III cell. The compostible materials and the yard trash at the Class III cell will be removed and composted on site. Bulky materials that are not easily compacted will be worked into the other waste materials to the extent practicable. As required by paragraph (k) of the above-cited rule, the compacted solid waste material will be formed into cells with the working face and side grades above surface at a slope of no greater than 30 degrees. The cell depth will be determined by the area in operation, daily volume of waste, width of the working face, and good safety practices. Waste will be placed into the cell beginning at the southwest corner and spread northward, eventually reaching grade level. As elevation of the cell approaches final grade, intermediate and final cover is applied to the cell. The final slope grade will be approximately 4:1 and will be terraced. The operation plan meets the requirements contained in paragraph (6)(1) of the above-cited rule that the cell working face be only wide enough to accommodate vehicles discharging waste and to minimize the exposed area and use of unnecessary cover material. The waste will not be spread across the entire cell immediately but instead will be spread on a small working face. The typical working area may be 50 feet by 50 feet or slightly larger, and will become larger as more loads of waste are received. Waste is deposited on the working face and compacted until final grade is reached, working across the face of the active cell in a terraced effect. Intermediate and final cover are applied to the portions of the cell that have reached design dimensions. The working face is kept as small as possible to minimize leachate generation, disease-vector problems, and the need for daily cover. The landfill operation meets the requirements contained in paragraph (6)(m) of the above-cited rule to the effect that initial cover will be applied to enclose each working cell except the working face, which may be left uncovered if solid waste will be placed on the working face within 18 hours. If there are adverse environmental impacts or problems with disease-vectors, initial cover will be placed on the working face at the end of each day for the Class I landfill cell and once a week for the Class III cell. The operation plan provides that an intermediate cover of one foot of compacted soil will be applied in addition to the six-inch daily cover within seven days of completion of the cell if final cover or an additional lift is not to be applied within 180 days of cell completion, as required by paragraph (6)(n) of the above-cited rule. The landfill will be closed in accordance with Sections 17-701.050(4) and 17-701.070-.076, FAC. The operation plan further provides that daily cover will control disease-vectors, such as flies, rather than employing use of pesticides. Uncontrolled or unauthorized scavenging will not be permitted at the landfill and will be controlled by fences and on-site personnel. Class III Cell The proposed Class III cell will be located over the old Class I cell last used by Holmes County. This area has a recompacted clay liner and a leachate collection system in place. Only yard trash will be deposited in the Class III cell, however. Based upon the Class III cell design and operating plan that will permit only yard trash disposal in it, any leachate generated from the Class III cell will not pose any threat to or violate applicable water quality standards in or outside the zone of discharge. Asbestos disposal is proposed at the landfill site. A separate asbestos disposal cell is proposed. The operation plan will provide that the asbestos be covered daily with a proper dust suppressant or six inches of non- asbestos material or will be disposed of in an area where proper warning signs, fences and barriers are present. Asbestos accepted for disposal at the landfill will be bagged and accompanied by shipping documents as required by EPA rules appearing in Title 40, Code of Federal Regulation. Persons working around asbestos will be specifically trained in its handling and must use appropriate protective equipment, as required by the National Emission Standards for Hazardous Air Pollutants set forth at 40 CFR 61.25 and other applicable federal regulations. The applicant proposes to dispose of petroleum contaminated soils at the landfill, as well. These soils will be mixed in with the waste on the working face. The soils will not be used as an intermediate cover or come into contact with surface water that will be conveyed to and treated in the storm water management system. Landfill Closure The application includes general plans and schedules for closure of the new and existing landfills. Once final grade is reached, an intermediate cover is applied over the daily cover if the working face will not receive any more waste or will receive final cover within 180 days. The gas control system will then be installed and the final cover consisting of an impermeable synthetic cap will be applied. The final cover will be a plastic cap constructed of polyvinyl chloride (PVC), HDPE, or some other synthetic material and covered by one foot of protective soil, topped by six inches of topsoil to promote vegetation growth. Soils for the closure effort will be obtained on site and will not be obtained by dredging in any jurisdictional wetlands. The final design provides for a terraced landfill profile for the new Class I cell. The waste levels will not exceed 10 feet in height and will be terraced at a 4:1 slope. The terraces will slope back against the cell wall and will be underlain by a subdrain to collect runoff and convey it to the storm water management system. This will prevent erosion of the final cover, waste exposure, and thus, additional leachate generation. The application contains a closure plan containing a general landfill information report and various other plans, investigations, and reports addressing all criteria and factors required to be addressed by Section 17- 701.073(6)(a)-(i), FAC. All such plans, reports and investigations were certified by Pearce Barrett, a registered professional engineer, expert witness and landfill designer for the applicant. The application contains a detailed estimate of closure costs and a monitoring and long-term care plan for the landfill meeting the requirements of Sections 17-701.075 and 17-701.076, FAC. An interest-bearing escrow account will be established for the landfill within 30 days of permanent issuance to cover the closure costs. Funds for closure, monitoring and long-term care of the landfill will be set aside as tipping fees are paid. As portions of the landfill are closed, funds in the escrow account will be available to pay for closure. This type of landfill closure and closure funding is termed "close as you go". This insures that available funds to close the landfill will be present so that funding problems such as those associated with the existing landfill will not arise. The long-term care plan provided for in the permit application and in the applicant's evidence provides for monitoring and maintenance of the landfill for a 20-year period after closure is complete. The storm water management system will be maintained and ground water monitored as part of this long-term care plan.
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 RECOMMENDED that a Final Order be entered by the Department of Environmental Regulation dismissing the petition filed in opposition to the permit application and approving EPAI's application for the permit at issue, authorizing construction and operation of a 20-acre Class I, Class III, and asbestos landfill, as well as authority to close the existing 25.5-acre Class I landfill in Holmes County, Florida, in the manner and under the conditions delineated in the application, as amended, the Intent to Issue and draft permit and the above Findings of Fact and Conclusions of Law. It is further RECOMMENDED that the motion for attorney's fees and cost be denied. DONE AND ENTERED this 6th day of April, 1993, in Tallahassee, 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 6th day of April, 1993.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to an on-site sewage disposal system permit ("OSDS") or the grant of a variance for installation of such a system on property the Petitioner owns on the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Spencer B. Miller, owns real property in Dixie County, Florida, more ill described as Lot 2, Block A, Riverbend Estates. The lot in question is approximately 1.61 acres in size and was purchased in 1973, but was not platted until 1974. On March 19, 1990, the Petitioner applied for an OSDS permit in order to become entitled to install an on-site sewage disposal septic tank and drain-field system on the subject lot for purposes of serving a single- family dwelling. There is no existing OSDS on the lot. Upon receiving the application, the Department's local public health official informed the Petitioner that he would have to obtain a benchmark elevation for the surface of his property and also establish the ten-year flood plain elevation for the property. Accordingly, the Petitioner obtained the services of Daniel M. Kroft, a registered land surveyor, who established a benchmark elevation for the subject lot of 11.34 feet above mean sea level (MSL). That benchmark is twelve inches above the actual grade level elevation of the lot, which is, therefore, 10.34 feet above MSL at the site of the proposed OSDS installation. The groundwater table cat the time of the evaluation was 36 inches below the surface of the, existing grade of the lot. Due to "mottling" coloration found in the soil, it was established that the wet season water table was 18 inches below the surface of the grade of the lot. Thus, the clearances between the water table levels and the surface of the lot are not sufficient so that the installation of drain field trenches or absorption beds into the original grade surface of the lot would leave a sufficient clearance, required by the rules cited below, between the bottom of the drain field and the water table in order for adequate treatment of the disposed effluent to occur before it communicates with the groundwater. In this connection, at some time in the past, a mound has been installed on the lot in question of approximately 36 inches elevation. On the site of the mound, it has been shown that the water' table level shown by mottling in the soil is approximately 66 inches below the surface of the mound. Thus, if the septic tank and drain field system proposed were installed in that mound, the required clearances between the bottom of the drain field trenches and the water table level could be met. However, even with the mound elevating the surface of the lot from 36 to 48 inches, the property would still be a maximum of 14.34 feet above MSL on the surface of the mound, which is beneath the ten-year flood elevation, which was established in this record to be 15 feet above MSL. Further, if the drain field trench was installed beneath the surface of the mound, the bottom of the drain field trench would be substantially less than 14.34 feet above MSL; and, thus, a significantly greater distance below the 15- foot, ten-year flood elevation. In addition to lying beneath the `ten-year flood elevation even at the top of the mound, the property lies within the regulatory floodway of the Suwannee River. This means that any mounding in order to install a system above the ten-year flood elevation would have to be certified by a registered engineer to be of such a nature that the installation of the required volume of fill dirt would not cause an elevation of the "base flood". No such engineering testimony or evidence has been adduced in this case; however, and, thus, this portion of Rule 10D-6.047(6) has not been complied with. In 1987, the Petitioner was granted a variance for the installation of the OSDS in question on Lot 2. The variance was granted for a period of one year, but was allowed to expire by the Petitioner without ever installing such a system. Thus, there is no variance applicable to the subject lot at the present time. In fact, the Petitioner has not actually formerly applied for a variance in this case, although the Department referred the matter to the Division of Administrative Hearings with a view toward such issues being raised in a formal proceeding, along with the issues concerning the permit denial itself. In this connection, the Petitioner did not establish any proof that any hardship suffered by being unable to install the OSDS could not be alleviated by the installation of reasonable alternative systems or methods of treatment and disposal. Petitioner adduced no such evidence to describe such a reasonable, alternative system, however, and failed to show, in light of the variance criteria enumerated in the statute and rules cited below, that there were no alternative systems available for adequate and safe treatment and disposal of the sewage effluent to be expected. Further, in terms of establishing entitlement to a variance, or to a permit for that matter, he did not establish that the installation of a conventional subterranean septic tank and drain field disposal and treatment system would not pose a threat to public health or an adverse impact on the quality of service and groundwaters in the vicinity of the subject property. That being the case, and the Petitioner not having demonstrated that the bottom of the drain field trenches involved, as proposed, would not be above the ten-year flood elevation, there has been no sufficient proof to establish entitlement to either an OSDS permit itself or a variance from the statutes and rules containing the permitting standards and requirements cited below. The Petitioner was not accorded the opportunity to avail himself of the Department's informal variance procedure because of the Department's interpretation of the Governor's Executive Order 90-14, which was entered January 17, 1990. The Department takes the position that that executive order precludes it from exercising its discretion to grant any such variances for properties which lie beneath the ten-year flood elevation. This led to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order entered January 17, 1990 incorporated "recommendation 36" of the "Suwannee River Task Force", which urged the prohibition of OSDA installations beneath the ten-year flood elevation. That Executive Order, incorporating the recommendation, has been interpreted by the Department to absolutely prohibit the installation of OSDS's within the ten-year flood plain. Thus, the Department has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to hear and grant or deny any variance applications for property so situated.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence of record, it is, therefore RECOMMENDED: That a Final Order be entered denying the application of Spencer B. Miller for an OSDS permit. DONE and ENTERED this 19th day of December, 1990, in Tallahassee, 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. 90-3113 Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial in this de novo proceeding. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Spencer B. Miller Post Office Box 519 Bronson, FL 32621 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
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 SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2014.
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July 1989. COPIES FURNISHED: Lee B. Sayler, Esquire 50 South U.S. Highway One Suite 303 Jupiter, Florida 33477 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon my observation of Respondent's witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Sometime prior to May 7, 1980, Petitioner, Wyatt S. Odom, applied for a permit to construct an individual sewage disposal facility for a houseboat on Drs Lake in Orange Park, Clay County Florida. By letter dated May 7, 1980, Ronald E. Bray, Sanitarian Supervisor for the Clay County Health Department, advised Petitioner that his permit application to construct an individual sewage disposal facility for a houseboat was being denied since the area of Petitioner's property was approximately 26,250 square feet2 A survey of the subject property revealed that the area is 19,890 square feet, which is of course less than one-half acre. (Respondent's Exhibit 2) (0.60 acre) with three individual sewage disposal systems already existing on the property; the land was not suitable for the installation that would allow the proper and required drainfield absorption area and setback requirement could not be maintained due to the existence of buildings, waterlines, wells, a lake and existing sewage disposal facilities which, if permitted, would be in contravention of Chapters 10D-6.23(2) and 10D-6.24(2), (3), (4) and (6), Florida Administrative Code. Supervisor Bray and Sanitarian Thomas Haley, observed the subject property and the survey, and concluded that based on the size of Petitioner's property and the existing wells and septic tanks thereon, it was unsuitable for and could not satisfy the setback requirements and the required drainfield absorption area. (Testimony of Ronald E. Bray.) As stated, Petitioner did not appear at the hearing to contest the Respondent's denial of his permit application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent's denial of Petitioner's request for a permit to construct an individual sewage disposal facility for a houseboat on Drs. Lake in Orange Park, Florida, be UPHELD. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of September, 1980. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Wyatt S. Odom P. O. Box 14735 Jacksonville, Florida 32210 Leo J. Stellwagen, Esquire Assistant District IV Counsel Department of Health and Rehabilitative Services Post Office Box 2417F Jacksonville, Florida 32231 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to the grant of a variance for the installation of an onsite sewage disposal system ("OSDS") for his property on the Santa Fe River in Gilchrist County, Florida, in accordance with Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Gilchrist County, Florida, more particularly described as Lot 4, Unit 4, Ira Bea's Oasis, a subdivision. The evidence is not clear concerning whether the plat of the subdivision was actually recorded, although the evidence and the Petitioner's testimony indicates that the lots in the subject subdivision were subdivided in 1965. The evidence does not clearly reflect whether the subdivision was ever platted, however. On April 2, 1990, the Petitioner filed an application for an OSDS permit regarding the subject property. The application was for a new OSDS on the above-described property; and the system was intended to serve a single- family residence, which the Petitioner desires to construct on the subject property for a vacation and retirement home. The proposed residence would contain three bedrooms and a heated or cooled area of approximately 1,100 square feet. In the permit application process, at the Respondent's behest, the Petitioner had a survey performed by Herbert G. Parrish, registered land surveyor. That survey, in evidence as the Respondent's Exhibit 1, reveals a benchmark elevation of 21.65 feet above mean sea level ("MSL"). The proposed installation site is at an elevation of 22.5 feet above MSL. A report by the Suwannee River Water Management District, which is admitted into evidence and was submitted to the Respondent by the Petitioner with the application for the OSDS permit, shows a ten-year flood elevation for the subject property, and River Mile 10 of the Santa Fe River, at 31 feet above MSL. Thus, the subject property is located beneath the ten-year flood elevation. The property is also located within the regulatory floodway of the Santa Fe River, as that relates to required engineering certification and calculations being furnished which will assure that if OSDS's are constructed employing mounding or sand filters, and like constructions, that such related fill deposited on the property within the regulatory floodway will not raise the level of the "base flood" for purposes of the rules cited hereinbelow. No evidence of such certification by an appropriately-registered engineer was offered in this proceeding concerning the installation of a mounded system and its effect on the base flood level. The surface grade level of the subject property at the installation site is 9.5 feet below the ten-year flood elevation. The grade elevation of the subject property is also .5 feet below the "two-year flood elevation", and the property has been flooded once in the past three years and has been flooded approximately four times in the past 15 years. It has thus not been established in this proceeding that the property is not subject to frequent flooding. On April 18, 1990, the Respondent denied the Petitioner's application for an OSDS permit by letter of that date. The Petitioner did not make a timely request for a formal administrative hearing to dispute that denial. The Petitioner maintained at hearing that this was, in essence, because the Respondent's personnel informed him that he should seek a variance instead, which is what he did. The testimony of Mr. Fross reveals, however, that, indeed, he was advised of his opportunity to seek a variance but was also advised of his right to seek a formal administrative hearing to contest the denial of the permit itself. Nevertheless, either through the Petitioner's misunderstanding of his rights or because he simply elected to choose the variance remedy instead, the fact remains that he did not timely file a petition for formal proceeding to contest the denial of the OSDS permit itself. Even had a timely petition for formal proceeding concerning the denial of the OSDS permit application been filed, the evidence of record does not establish the Petitioner's entitlement to such a permit. As found above, the property lies beneath the ten-year flood elevation and, indeed, lies below the two-year flood elevation, which subjects the property to a statistical 50% chance of being flooded each year. This and the other findings referenced above indicate that the property has not been established to be free from frequent flooding; and although appropriate "slight-limited" soils are present at the proposed installation site, those soils only extend 50 inches below the surface grade. That leaves an insufficient space beneath the bottom of the drainfield trenches where they would be located so as to have a sufficient volume and distance of appropriate treatment soil available beneath the drain field, if one should be installed. Below 50 inches at the subject site is a limerock strata which is impervious and constitutes a barrier to appropriate percolation and treatment of effluent waste water. Thus, for these reasons, especially the fact that the property clearly lies beneath the ten-year flood elevation and because adequate proof in support of a mounded system which might raise a septic tank and drainfield system above the ten-year flood elevation has not been adduced, entitlement to the OSDS permit itself has not been established. Concerning the variance application actually at issue in this proceeding, the Petitioner has proposed, in essence, two alternative systems. The Petitioner has designed, and submitted as an exhibit, a plan for a holding- tank-type- system. By this, the Petitioner proposes a 250-gallon holding tank, with a venting pipe extending approximately three feet above the level of the ten-year flood elevation, with an attendant concrete retaining wall and concrete base to which the tank would be securely attached. The Petitioner thus postulates that flood waters would not move or otherwise disturb the holding tank and that he would insure that the holding tank was pumped out at appropriate intervals and the waste there from properly deposited at a treatment facility located above the ten-year flood elevation. The precise method of such disposal and its location was not disclosed in the Petitioner's evidence, however. Moreover, the testimony of Dr. Hunter establishes that the deposition of waste water and human waste into the tank, either through pumping, or by gravity line, if the residence were located at an elevation above the inlet to the tank, might well result in a hydraulic condition which would cause the untreated sewage to overflow from the vent pipe of the tank. Moreover, such systems do not insure that public health, the health of the occupants of the site, and ground or surface waters will not be degraded since it is very costly to pump such a tank out which would have to be done on a frequent basis. This leaves the possibility that the user of such a holding-tank-facility could surreptitiously drain the tank into nearby receiving waters or otherwise improperly empty the tank. Even though the Petitioner may be entirely honorable in his intentions and efforts in this regard and not violate the law and the rules of the above-cited chapter in his manner of disposal of the holding-tank effluent, there is no practical, enforceable safeguard against such illegal activity, especially if one considers that the property may later be conveyed to a different landowner and user of the system. The Petitioner also proposes in his testimony and evidence the possibility of using a nondischarging, composting-toilet-type system to handle sewage involving human excreta. Such a system has been shown by the Petitioner's evidence to adequately treat human sewage so that public health and the ground and surface waters involved in and near the site could be adequately safeguarded. The problem with such a system, however, is that the "gray water", that is, waste water from bathtubs, showers, lavatories and kitchens, cannot be disposed of in the composting-toilet system. Such gray water, which also contains viruses, coliform bacteria and nutrients, must be disposed of, according to the rules at issue, in an appropriate sewage disposal system, be it in a septic tank and drain field or through pumping to an appropriate disposal and treatment facility located above the ten-year flood elevation. The Petitioner's proof does not establish how such gray water could be appropriately and safely disposed of in the environmental and public health context at issue herein. Thus, the proposed alternatives suggested by the Petitioner's proof do not constitute minor deviations from the minimum requirements for OSDS's specified in Chapter 10D-6, Florida Administrative Code. Ironically, the composting-toilet system, coupled with a proper disposal system for household gray water, could constitute a reasonable alternative to a conventional system. Thus, the Petitioner's proof, itself, shows that a reasonable alternative may exist, which militates against the granting of the variance, although he did not prove how it could feasibly be accomplished. In summary, therefore, the Petitioner's proof failed to establish that no reasonable alternative exists and that the proposed system would only be a minor deviation from the minimum requirements of the Respondent's rules concerning OSDS's and their installation and operation. The Petitioner established that a reasonable alternative to a conventional OSDS might exist for purposes of granting an OSDS permit itself, had that issue been formally placed before the Hearing Officer, but did not prove how it could feasibly be accomplished and operated. This proof shows, however, that such a reasonable alternative might be found operable which, thus, fails to justify the granting of a variance based upon hardship. If the Petitioner could come forward with proof to establish the feasibility of disposal and treatment of the household gray water involved in an appropriate treatment and disposal site and facility above the ten-year flood elevation, in conjunction with use of a composting- toilet system, a later permit application might be entertained in which could be justified the granting of an OSDS permit.
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 by the Respondent denying the Petitioner's application for a variance from the statutory and regulatory requirements, cited above, for the issuance of permits. At such time as the Petitioner is able to show changed factual circumstances, as for instance, that a reasonable, feasible alternative system, which will adequately treat and dispose of all household waste water effluent in a manner comporting with the rules of Chapter 10D-6, Florida Administrative Code, a permit application should be entertained. DONE AND ENTERED this 27th day of February, 1991, 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 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4569 The Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact 1-16. Accepted. 17. Rejected, as not supported by the preponderant evidence of record. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Mark Moneyhan, pro se Route 3, Box 407 Perry, FL 32347 Frances S. Childers, Esq. Department of HRS District III Legal Office 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue The issue for consideration in this case concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit authorizing the installation of an OSDS on property which they own near the Suwannee River in Dixie County, Florida, in accordance with the permitting requirements of 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 the proximity of the Suwannee River. The property is described as Lot 38, Highpoint Suwannee Riverfront Estates. The lot in question is 82 feet by 141 feet in size and was purchased in April, 1988 for approximately $5000.00. The lot, and the subdivision it is in, was platted in 1983. On February 21, 1990, the Petitioners made application for an on-site sewage disposal system ("OSDS") permit, seeking to install such a system on this lot in order to be able to construct a vacation cottage on the lot The proposed cottage would contain one bedroom and would have a heated and cooled area of approximately 500 square feet. Upon reviewing the application, the, Respondent informed the Petitioners that they would need to have a surveyor establish the elevation of their lot, and particularly the site of the proposed OSDS installation, as well as to establish, through contact with the Suwannee River Water Management District, the ten-year flood elevation for the property. Accordingly, the Petitioners obtained a survey by `Mr. Herbert Raker, a registered land surveyor of Cross City, Florida. That survey shows a benchmark elevation of 13.09 feet above mean sea level ("MSL") That benchmark elevation is six inches above the actual grade surface of the lot so that the elevation at the proposed OSDS installation site is 12.59 feet above MSL. The ten-year flood elevation for the property is 15 feet above MSL, as established by data from the Suwannee River Water Management District contained in a report which is in evidence as Respondent's Exhibit 1. That flood elevation data was submitted to the Respondent by the Petitioners with the application for the OSDS permit. The property in question is located within the ten- year flood plain of the Suwannee River, and it is also located within the regulatory floodway of the River. On April 24, 1990, after advising the Petitioners of the denial of the OSDS permit application, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding rather than file an informal variance application before the Respondent's own Variance Board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D- 6.47(6), Florida Administrative Code, because the subject property was located within the ten-year flood plain of the Suwannee River and because of the Respondent's interpretation of the affect of the Governor's Executive Order 90- 14, which adopted by reference the Suwannee River Task Force recommendation that all such systems be prohibited within the ten-year flood plain. The Respondent thus declined to exercise its discretion, accorded it in the statute and rule cited hereinbelow, to entertain and consider a variance application. Finally, it is established that the lot in question is not subject to frequent flooding; but because the surface grade is beneath the ten-year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten-year flood elevation. In other respects, the property is a amenable to the installation of an effective OSDS because the wet season water table is 48 inches beneath the surface grade and would be more than 24 inches beneath the proposed drain field. The normal water table is approximately 60 inches beneath the surface grade. Appropriate limited soils are present beneath the first six inches of soil below the surface and consist of fine sand, light brown and brown fine sand, down to 60 inches, which is appropriate for effective subterranean treatment and disposal of sewage effluent. The Petitioners established a definite hardship on their part by the fact that they have paid a substantial sum for the lot and are now unable to develop it unless they receive entitlement to an OSDS or some reasonable alternative. In that regard, no sufficient proof of truly effective, reasonable alternatives was established by the Petitioners. However, they did establish that an anaerobic septic tank and drain field disposal system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria which break down and treat sewage at a faster, more effective rate than does the normal anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal subterranean and anaerobic septic tank and drain field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially, an external electric motor and pump to force air into the system. This is disadvantageous in that, if the equipment suffers a breakdown, then treatment and appropriate disposal of the effluent stops. The untreated sewage can then rise to the surface of the property or otherwise pollute ground or surface waters and potentially cause a public health hazard. Thus, such systems would require inspection periodically to insure that they are in adequate working order because if the mechanical system malfunctions, the system will continue to put effluent through its drain field without adequate treatment. In this circumstance, the occupants of the dwelling served by the system might not notice for long periods of time that it is inoperative because the system will continue to dispose of effluent, but just of an untreated nature. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that such an aerobic system works properly at all times was not established in this record, however. Consequently, the Petitioners failed to establish that reasonable alternatives to the proposed conventional system exist and what they might consist of.
Recommendation Having considered the foregoing findings of Fact, Conclusions of Law, the evidence of record, the carndor 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 Petitioners' application for an OSDS permit. DONE AND ENTERED this 21st 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 21st day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3112 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, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Betsy K. Lanier, pro se P.O. Box 238 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
