The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1992.
The Issue The issue presented is whether Respondents, Holmes Dirt Service, Inc., and William J. Holmes, are in violation of various rules and regulations as alleged in the Notice of Violation issued by Petitioner, Department of Environmental Protection (Department).1
Findings Of Fact The Parties The Department is charged with the duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated thereunder in Chapter 62, Florida Administrative Code. Respondent, Holmes Dirt Service, Inc. (Holmes, Inc.), is a Florida corporation authorized to do business in the State of Florida. Holmes, Inc., along with William J. Holmes (Holmes), is responsible for the operation and management of a solid waste facility permitted by the Department under the name "Holmes Fill Dirt Landfill" (Facility). Holmes is a citizen of the State of Florida. Holmes was also the Director of Holmes Dirt Service, Inc. Background On or about August 24, 1998, the Department issued Permit/ Certification No. SO42-0133361-001 to Holmes Fill Dirt Landfill for the operation and management of a C & D disposal facility. The permit was sent to the attention of Holmes and had an expiration date of August 24, 2003. This was a renewal permit, with the initial permit issued in or around 1993. On or about June 26, 2000, Respondents notified the Department that the facility was temporarily closed. The Facility has remained closed since that time. Holmes, Inc., and Holmes own and operate the Facility known as Holmes Fill Dirt Landfill Holmes testified by deposition that he received a Conditional Use Permit from Marion County to operate the Facility. This permit expired on June 1, 2000. The Facility has been closed since at least June 1, 2000, although it has not been officially closed pursuant to Department rules.2 The Facility has not received any additional C & D material after June 1, 2000. On December 17, 2001, the Department issued a Notice of Violation to Holmes, Inc., and Holmes. On June 3, 2002, Respondents requested an administrative hearing before the Division. Count I-Failure to Provide Department with Adequate Financial Assurance Documentation In Count I, the Department alleges "that from June 2000, to the present, Respondents have failed to provide the Department with adequate financial assurance documentation." On June 4, 2001, the Department sent Respondents a letter advising that the financial assurance documentation was inadequate. (Respondents admit the letter was sent, but deny their documentation was inadequate.) The Department specifically contends that Respondents did not provide an annual update of the closing costs to the Department and that the assurance bond, previously issued in 1998, see Finding of Fact 11, was no longer acceptable to the Department. Rule 62-701.730(11), Florida Administrative Code, requires an owner or operator of an off-site construction and demolition debris disposal facility to provide to the Department proof of financial assurance "issued in favor of the State of Florida in the amount of the closing and long-term care cost estimates for the facility." This information is required to be submitted with the permit application for the facility. Financial assurance is required should the State of Florida have to take over closure or long term care of a facility. On May 29, 1998, Holmes, Inc., and Holmes (as Vice President of Holmes Inc.) entered into a Trust Agreement with United Southern Bank, as Trustee, to provide financial assurance for the Facility. This agreement contained a cost estimate of $76,551.72 for closure and post-closure of the Facility. On April 29, 1998, a bond was executed between Holmes, Inc., and Frontier Insurance Company (Frontier) in this amount. Thus, when the C & D permit was renewed in 1998, Respondents obtained financial assurance in the form of a closure cost/long-term care bond from Frontier. Rule 62-701.630(3), Florida Administrative Code, pertaining to "cost estimates for closure," provides that the owner or operator shall estimate the total closure cost for the permitted potions of the landfill for the period in the operation "when the extent and manner of its operation make closing costs most expensive." Rule 62-701.630(4)(a)-(d), Florida Administrative Code, pertaining to "cost adjustments for closure," requires the financial assurance to be updated annually to account for the inflation factor of 1.01. Once a bond is in place, as here as of 1998, these subsections require the permittee, here Holmes Inc., to provide the Department, on an annual basis, with an update to the closure cost, which includes the inflation factor. Additionally, the Department requires notification from the owner or operator that the annual update has been made. Prior to 2001, there was no set time for a facility to report this information. As of 2001, each facility was required to report by March 1 of each year. In 2000, the Department's Tallahassee office notified its Central District Office that the financial assurance for the Holmes Fill Dirt Landfill was inadequate. On June 14, 2000, the Central District Office mailed a letter to the Holmes facility notifying Respondents that there was a problem with financial assurance in that as of June 1, 2000, Frontier was no longer listed as an acceptable surety and, as a result, Respondents were requested to "submit proof of alternate financial assurance," or risk an enforcement action. A letter dated November 15, 2002, from Frontier to Judith Holmes, who is listed in the letter as the President of Holmes Dirt Service, Inc., was sent to Respondents to notify them that premiums were still due and outstanding on their closure/long-term care financial assurance bond for the past two years. This letter also informs that it was the position of Frank Hornbrook of the Department "that all of the requirements covered by our bond have not been satisfied and our bond has not been officially closed by the obligee. As a result, this bond still carries liability and premiums due." (The Department does not release a bond until a facility is officially closed and the Facility is not officially closed.) Invoices for "01/02 and 02/03 renewal premium due" were enclosed with the letter. Holmes admitted that the premium is past due and that he has no money to pay the premium. Even though the bond renewal premiums are past due, there is no persuasive evidence that Frontier has been relieved of its obligations under the bond issued in 1998. Rather, the Department wants a replacement bond from Respondents, but the original bond will remain in place until a replacement bond is furnished by Respondents. In fact, the Department will look to Frontier for potential payment under the 1998 bond, if necessary. However, Respondents have not provided the Department with the inflation update financial assurance in 2001. As a result, the current financial assurance for Holmes Fill Dirt Landfill is inadequate. Count II- Failure to Provide Ground Water Monitoring Reports The Department alleged that from "June 2000 to June 2001, Respondents failed to sample and analyze the ground water in accordance with the approved ground water monitoring plan for two consecutive sampling events." Respondents admit these allegations. Apparently, the last report was submitted to the Department in 2000. The Department does not allege that the ground water on and off-site violate Department rules. Holmes testified during a deposition that "the water tests have been clean. . . . until he stopped the sampling process." Holmes says he does not have "any money"--"[he is] broke." Count III-Objectionable Odors The Department alleged that "[d]uring the period June 2000 to the present, the Department has received numerous complaints from residents in the area, alleging objectionable odors emanating from the landfill." Respondents deny that there have been "objectionable odors." Chapter 62-701, Florida Administrative Code, pertains to "Solid Waste Management Facilities." Rule 62-701.730(7)(e), Florida Administrative Code, provides that C & D debris disposal facilities "shall be operated to control objectionable odors in accordance with Rule 62-296.320(2), F.A.C. If objectionable odors are detected off-site, the owner or operator shall comply with the requirements of paragraph 62-701.530(3)(b), F.A.C."3 Rule 62-701.200(84), Florida Administrative Code, incorporates the definition of "objectionable odors" found at Rule 62- 210.200(181), Florida Administrative Code. "Odor" is defined as "[a] sensation resulting from stimulation of the human olfactory organ." Rule 62- 210.200(182), Florida Administrative Code. Rule 62- 210.200(181), Florida Administrative Code, defines an "objectionable odor" as "[a]ny odor present in the outdoor atmosphere which by itself or in combination with other odors, is or may be harmful or injurious to human health or welfare, which unreasonably interferes with the comfortable use and enjoyment of life or property, or which creates a nuisance." Rule 62-296.320(2), Florida Administrative Code, provides that "[n]o person shall cause, suffer, allow or permit the discharge of air pollutants which cause or contribute to an objectionable odor." See also Rule 62-210.200(19)-(20), Florida Administrative Code. Joint Exhibit I is a study currently being done by Professor Timothy Townsend, Ph.D., of the University of Florida, Department of Environmental Services, which states that disposal of drywall, which contains gypsum, has caused hydrogen sulfide generation ("rotten egg" smell) at numerous C & D landfills in Florida. (Dr. Townsend is recognized as an authority on landfills.) Further, the primary constituents in the gas creating the problem is, among other reduced sulfur compounds, hydrogen sulfide. The main ingredient for these compounds is gypsum drywall. The study finds that hydrogen sulfide possesses a very strong odor at very low concentrations and is known to be toxic at high concentrations. The discussion of human health impact with regard to odor problems is raised and culminates with the observation that while hydrogen sulfide concentrations in ambient air surrounding C & D waste landfills are less than those thought of as harmful, some studies indicate that long- term exposure even to low concentrations can have a health impact.4 Holmes admitted that there is an odor problem at the Facility caused by gypsum and drywall and that the odor is worse in rainy weather. Holmes also admitted attempting to correct the problem by previously inviting individuals from the University of Florida to the facility, but reported that there was nothing they could do at that time, except for keeping the area covered with dirt. Individuals residing near the Facility offered opinion testimony that they suffered various problems resulting from the odor emanating from the Facility. Neighbor Charles F. LaBell, who resides 500 to 600 feet from the landfill, testified that the odor began as a rotten egg smell and evolved into what they "assumed was a hydrogen sulfide" odor. Mr. LaBell testified to being familiar with the odor of hydrogen sulfide due to his work experience at a wastewater treatment plant. Mr. LaBell further stated that the odor was unpredictable and not constant, but he equated rainy periods and "foggy mornings" with times when the odor would occur. The neighbors have found that outdoor activities have been severely impacted, resulting in a loss of use of portions of their property and diminished enjoyment of their outdoor life. Neighbor Donald L. Strickland confirmed Mr. LaBell's testimony, stating, in part, "You can't go outdoors, you can't stand it." James Bradner, an employee with the Department for twenty-three years and current manager of the Department's solid and hazardous waste program, offered opinion and expert testimony on the issue of odor problems at C & D debris disposal facilities. Mr. Bradner has served in a technical advisory capacity to a technical awareness group on odors caused by gypsum drywall in C & D debris facilities and has had experience at various C & D debris facilities in the State of Florida contending with odor problems. Mr. Bradner has experienced hydrogen sulfide odors at water treatment plants and would characterize the odor as a rotten egg odor. He has also had experience with C & D debris disposal facilities dealing with gypsum-related odor problems and testified that there are various methods to deal with the odor problems, such as putting an impervious cap (excluding water and liquids) of a clay liner and actually closing the Facility. Mr. Bradner has never been on the Facility site. The Department's rules do not define "health." Odor is a subjective measure, according to Mr. Bradner. Department employee John Turner was responsible for taking air samples in order to assess the odor problems at the Facility. Mr. Turner has been with the Department for 26 years, and in his experience with the Department, has smelled the rotten egg odor of hydrogen sulfide at sewage treatment plants and municipal solid waste facilities. Mr. Turner met with neighbors residing near the Facility as a results of complaints of odor. He visited the Facility five times to collect air samples. He detected an odor during his initial three visits, but did not take any samples because the aired smelled was not representative of a strong odor. For Mr. Turner, during each visit, the odor was the same in quality. There was some variation in strength. "It was periodic in some cases and less periodic in other cases." He collected samples during his fourth and fifth visits, but the "samples were below the minimum detection levels for the method." Mr. Turner offered no scientific evidence that would indicate that the air was harmful on the dates when samples were taken and analyzed. Nevertheless, Mr. Turner opined that the odor was objectionable in accordance with the definition found in Rule 62-210.200(181), Florida Administrative Code, on all five occasions. Count IV-Failure to Control Access The Department alleged that "access to the Facility was not completely controlled." Respondents deny the allegation. Rule 62-701.730(7)(c), Florida Administrative Code, provides: "Operation requirements. Owners and operators of construction and demolition debris disposal facilities shall comply with the following requirements by May 1, 1997, or at the time of permit issuance, whichever is sooner: . . .(c) Access to the disposal facility shall be controlled during the active life of the facility by fencing or other effective barriers to prevent disposal of solid waste other than construction and demolition debris." Department employee Gloria-Jean DePradine testified that Florida Rules require that all C & D facilities have an effective barrier so as to prevent unauthorized disposal of waste. An effective barrier could be fencing, although the Department does not require a specific type of fencing. It depends on the situation. Holmes originally owned a 46-acre tract (the property). The Facility is located on 13 acres of this property. Holmes resided on the property until he sold his residence in 2000 to Valentina Ellis. The property has an earthen berm along Highway 42, the southern boundary of the property, which is a barrier. The entrance to the property is controlled by a gate, which provides access to the property. There is no fence separating the Facility from the residence. A fence exists along the perimeter of the property. The property is in the same condition today as when the Department originally issued the permit in 1993. When the Facility was permitted and operated by Holmes, the Department found the access control to be acceptable. However, when a portion of the property (10 acres) was sold to Ms. Ellis, access was no longer being controlled completely because Holmes had provided the necessary security for the Facility, being the owner of the entire 46-acre tract. Because there are two separate property owners, Ms. Ellis can now directly enter the Facility property, or any other members of the public that entered her property, could enter the Facility and dump unauthorized waste. Randall Cunningham has been employed with the Department since May 1999, and has been working in the solid waste section since October 2000. On November 19, 2001, Mr. Cunningham conducted an inspection of the Facility site in response to an odor complaint and found that there was no barrier between the property owned by Ms. Ellis and the Facility. Mr. Cunningham was able to drive from Ms. Ellis’ property onto the landfill. Mr. Cunningham saw a fence leading onto Ms. Ellis' driveway with a swinging gate attached to a post, which was attached to a fence. Mr. Cunningham did not visit the Facility while it was in operation. There is no effective barrier between Ms. Ellis' property and the Facility. Additionally, the Facility is not yet officially closed. Count V-Investigative Costs The Department alleged that it incurred expenses of not less than $500 while investigating this matter. Investigative costs are recoverable pursuant to Section 403.141(1), Florida Statutes, which states: "Whoever commits a violation specified in s. 403.161(1) is liable to the state for . . . reasonable costs and expenses of the state in tracing the source of the discharge, [and] in controlling and abating the source and the pollutants. " Mr. Bradner’s salary is approximately $35.00 per hour. He spent approximately 20 to 30 hours on this case which would total approximately $700.00. Mr. Turner’s salary is approximately $25.00 per hour. Mr. Turner visited the Facility on five separate occasions in order to attempt to collect an air sample. It took him an hour and a half, to one hour and 45 minutes to get to the Facility. He usually spent approximately one half hour at the Facility. The Department conducted the two sampling events referred to above, which were sent to a lab in Los Angeles for analyses. Each analysis cost $250.00.
Conclusions Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore ORDERED: Respondents shall forthwith comply with all Department rules regarding solid waste management as related to the disposal of C & D debris. Respondents shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Chapters 62-296 and 62-701, Florida Administrative Code. Within 30 days of the effective date of this Final Order, Respondents shall prevent unauthorized waste disposal at the Facility, and shall provide access control by the use of fencing, gates, or other effective barriers on the portion of property that is contiguous with property owned by Ms. Valentina Ellis. Within 30 days of the effective date of this Final Order, Respondents shall obtain adequate financial assurance and shall provide the Department with proof of financial assurance issued in favor of the State of Florida, in the amount of the closing and long-term care cost estimates for the Facility, if the 1998 renewal bond is no longer in full force and effect. (If the renewal bond is in full force and effect, Respondents shall provide the Department with an appropriate financial update.) Otherwise, proof of financial assurance shall consist of one or more of the following instruments which, comply with the requirements of Rule 62-701.630(6), Florida Administrative Code: trust fund agreement; certificate of deposit; surety bonds guaranteeing payment; surety bonds guaranteeing performance; irrevocable letter of credit; closure insurance; or financial test and corporate guarantee. Respondents shall continue to monitor and analyze the ground water at the Facility in accordance with the approved monitoring plan through the active life of the Facility, and for five years after closure activities are completed. The ground water monitoring results shall be submitted to the Department for review within 45 days of each sampling event. Respondents shall control any objectionable odors emanating from the Facility in accordance with Rule 62- 296.320(2), Florida Administrative Code. Since strong odors have been detected off-site, beyond the disposal area boundary, Respondents shall comply with the requirements of Rule 62- 701.530(3)(b), Florida Administrative Code. See Endnote 3. Therefore, within 30 days of the effective date of this Final Order, Respondents shall implement a routine monitoring program to determine the timing and the extent of any off-site odors. If the monitoring program confirms the existence of objectionable odor, Respondents shall submit to the Department for approval an Odor Remediation Plan (Plan) within 60 days of confirmation of objectionable odors. The Plan shall describe the nature and extent of the problem and the proposed remedy. The Plan shall be implemented within 30 days of approval. Upon review of the Plan, the Department may request additional information. Any additional information shall be submitted to the Department within 30 days of receipt of the Department’s written request. If additional information is not submitted in a timely manner, the Department will approve or deny the Plan as submitted. Upon approval, the Plan shall be incorporated herein and made part of this Final Order and the Respondents shall implement the conditions in the Plan pursuant to an approved schedule. If the proposal is denied, Respondents shall submit a new plan or modifications to the plan within 30 days and the review process shall continue as detailed herein. Respondents shall submit monthly reports to the Department. The reports shall include all data collected during the monitoring. The first report shall be submitted to the Department within 45 days of the implementation of the plan and shall continue every 30 days thereafter. Respondents are ordered to close the Facility within 60 days of this Final Order, unless the time is extended by the Department. Respondents shall implement closure activities in accordance with Rule 62-701.730(9)(b)(c)(d) and (10), Florida Administrative Code. Closure activities shall include, but not be limited to the following: Grade and compact the disposal area to eliminate ponding, promote drainage and minimize erosion. Establish and maintain side slopes no greater than three feet horizontal to one foot vertical rise in all above-grade disposal areas. Establish and maintain final cover consisting of a 24-inch thick layer of clean soil, the upper six inches of which shall be capable of supporting vegetation. Seed and/or plant vegetative cover over the disposal area. Respondents shall monitor the effectiveness of the cover for a minimum of five years following completion of closure activities, and acceptance by the Department. Within 30 days of the completion of the closure activities, Respondents shall provide the Department with "Certification of Closure Construction Completion" and a final survey report, conducted by a Professional Land Surveyor in accordance with Rule 62-701.610(3) Florida Administrative Code, if the disposal operation has raised the elevation higher than 20 feet above natural land surface. Within 60 days of the effective date of this Order, Respondents shall pay $3,000.00 to the Department for the administrative penalties assessed above. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the OGC Case No.: 01-1946 and notation "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the Department of Environmental Protection, Central District Office, 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803-3767. In addition to the administrative penalties, within 60 days of the effective date of this Final Order, Respondents shall pay $500.00 to the Department for costs and expenses. Payment shall be made by cashiers check or money order payable to "State of Florida Department of Environmental Protection" and shall include OGC Case No. 01-1946 thereon with the notation "Ecosystem Management and Restoration Fund." The payment shall be sent to the Department of Environmental Protection, Central District Office, 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803-3767. Respondents will remain liable to the Department for any damages resulting from the violations alleged herein and for the correction, control, and abatement of any pollution emanating from Respondents' Facility. Respondents may request and the Department may extend the time limits imposed by this Final Order. DONE AND ORDERED this 24th day of December, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings, this 24th day of December, 2002.
Findings Of Fact At all times pertinent to the issues herein, the Respondent conducted an auto salvage operation under the name, All-States Auto Salvage, Inc., at its site located at 1331 22nd Street North in St. Petersburg. Petitioner, Department of Environmental Protection, was the state agency responsible for enforcing the terms of the rules and statutes of this state dealing with pollution of the land, air and waters of Florida. As a part of Respondent's salvage operation, it dismantled derelict automobiles to salvage parts for further use, if possible, and to obtain scrap metal for processing. This operation is carried out at its business site located on a roughly triangular piece of land in St. Petersburg bordered on one side by 13th Avenue North, by 22nd Avenue North on another side, and on the third side by a water filled ditch which ultimately empties into Booker Lake, classified as an Outstanding Florida Water. On June 9, 1991, Investigator Weeks, of the Department's Southwest District office, conducted an inspection of the Respondent's business site on the land in question, which was rented from someone else, based on a complaint filed with the Department on December 19, 1990. That complaint was that Respondent's salvage operation was discharging various types of polluting fluids from the vehicles being dismantled at the site. Mr. Weeks found that car fluids were being discharged onto the ground during engine removal. He was told by Respondent's employees that the entire site was paved with concrete under the surface dirt. Respondent confirmed that at hearing, indicating further that the eight inch concrete slab was underlaid by a non-porous plastic sheet designed to act as a barrier against seepage. Though neither Mr. Weeks or subsequent investigators who visited the site confirmed the presence of the barrier, neither was its presence disproved, and it is found such a plastic sheet indeed exists. Mr. Weeks noticed, however, that no berms existed to control and contain fluids for later collection and disposal. When Ms. Hinson, also a Department investigator, visited the site again on April 29, 1992, she did not notice any berms surrounding the property, and saw puddles of standing water which had a sheen on them indicating the presence of petroleum products. Mr. Weeks report indicates that storm water falling on the site has been washing these polluting fluids off the property and into the adjacent ditch which ultimately empties into a jurisdictional water. This ditch had distressed vegetation on the side adjoining Respondent's property. This same situation was observed by Ms. Hinson during her April, 1992 visit to the site. Ms. Hinson has an undergraduate degree in biology with minors in chemistry and physics. She is but one semester from completing her Master's degree in environmental health. Based on her education and experience, she concluded the ditch vegetation was damaged because of the contamination of petroleum products from Respondent's yard. If a concrete pad exists and is not properly pitched and sloped, it would increase wastewater runoff into the ditch, and since concrete is somewhat permeable, contaminants could leach through it into the soil beneath unless stopped and rerouted by any existing barrier. She took no water or soil samples from either the site yard or the ditch, however. No direct evidence was presented as to whether the polluted water runoff actually went into the ditch, and no direct evidence was introduced to show that the water in the ditch was ever tested for pollutants at the time of either visit. Mr. Kristensen indicated the distress to the vegetation was caused by weed control spraying by the county or the city. A check with the city office responsible for spraying in the area revealed the last spraying at that site was in October, 1993, and the only one before that was 18 months previously, in June, 1992, after Ms. Hinson's first visit. It is found, therefore, that the vegetative distress was caused by runoff from Respondent's salvage yard though no evidence of pollution was identified in the ditch water. On April 29, 1992, Ms. Hinson was asked by a member of the St. Petersburg Police Department to accompany a team on a joint inspection of Respondent's operation. This is not unusual as she receives similar requests from law enforcement agencies in the several counties which make up the Department's Southwest District. In this case, the police were going to look for stolen vehicles and wanted Ms. Hinson to look for possible environmental violations. When she went through Respondent's site on that occasion, she saw automobiles being dismantled on what appeared to her to be the bare ground to the left of the entrance to the yard. Autos awaiting dismantling were being stored to the right of the entrance. Also on the right side, progressing toward the back of the site, beyond the autos, was a large pile of tires which, she estimated to number between 1,200 and 1,800, lying against the building toward the back of the property and against the side fence. There were no fire lanes provided as the pile extended against the side of the building and the fence. Ms. Hinson saw auto parts lying on the ground all over the site. It appeared to her, from the appearance of the ground, that it was made up of a black, sticky substance smelling of petroleum, whereas regular soil in that area of town was grey and sandy. She did not dig into this covering and does not know how deep it was or whether it overlaid a concrete pad, as Mr. Kristensen asserts. She did notice puddles of fluid on the ground which had a sheen on them, and she did not see any containment efforts being made. There were barrels available for waste fluids, but it was clear to her that not all fluid was getting into them. In fact, she saw an employee removing gasoline tanks from vehicles, and this process was dripping fluid, presumably gasoline, right onto the ground. Admittedly, not much leakage occurred at any one time, but from the condition she observed on the ground, it was evident to her the practice had been going on for a long time. Ms. Hinson asked Mr. Kristensen about how fluids were accumulated, stored, and disposed of. In response, he showed her receipts indicating he had sold reclaimed oil to a processor. Receipts from 1989 - 1993, introduced at the hearing, indicate that waste oil and diesel was periodically sold to processors and in January, 1991, some 20 gallons of waste water was delivered to a recovery firm. Ms. Hinson again visited the site shortly before the hearing but did not go in. She noted, however, that the yard had far fewer vehicles on it, and the dismantled pieces are now neatly stacked. The soil still appears black, however, and the ditch still appears the same as on her previous visit. In her professional opinion, a need exists for a contamination assessment. Though the volume has been substantially reduced since her initial inspection, the contamination she observed then does not appear to have been corrected. There is a need to prevent contamination, and if some occurs, to contain it. She did not observe any control measures in progress. Sometime after Ms. Hinson's visit in April, 1992, Mr. Kristensen received a Final Order from the District Director requiring him to make certain corrections to his place of business and its operation. This Final Order was issued by mistake, however, but at no time until late in 1993 did anyone from the Department notify Mr. Kristensen of that fact or of his responsibilities in light of that mistake. Upon receipt of the Order, Mr. Kristensen set upon a course of corrective action designed to rectify the identified violations. The tire pile was reduced; a suction pump was purchased to collect standing water; an expensive piece of equipment to drain fluids from vehicles was purchased and put into operation; berms were constructed which, with the existing pitch and slope of the slab, should keep all fluids on site for mechanical removal; and all hazardous waste is now stored in a manner approved by the fire department. In addition to the above, since 1986 or before, a standing written procedure has been in existence regarding the handling of hazardous waste. Though this directive is required reading for all employees, it is obvious it was honored more in the breach than in the compliance. According to Mr. Kristensen, the soil which overlays the concrete slab is no more than one quarter of an inch thick. This would appear to be a rather conservative estimate, however. Review of the photographs introduced by both parties reveals the thickness of the mixture to be much greater. Regardless, Mr. Kristensen asserts this soil is periodically collected and dried to remove the petroleum before being put down again and used as an absorbent. This process, however, is not likely to remove more than the odor of petroleum as a result of evaporation. The actual contaminants remain. This absorbent was present as late as October 26, 1993, when the site was visited by Ms. Cangro. At the time of her visit it was raining and the ground was covered with a wet, black substance which gave off an odor of petroleum. Ms. Hinson spent between six and eight hours on this case. She earns approximately $120.00 per hour. Other expenses incurred on the matter include attorney and clerical time. No figures were provided to establish actual or estimated costs in this regard. Taken together, the evidence indicates Respondent is a person within the meaning of the pertinent statutes; automobile fluids and tires constitute solid waste within the meaning of the pertinent statutes; and Respondent's operation at the property constitutes a solid waste management facility within the meaning of the appropriate statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered finding that Respondent has violated those provisions of Florida Statutes cited on the Department's Notice of Violation and Order for Corrective Action, and imposing such restrictions and conditions upon Respondent's continued operation as are lawful, necessary and proper under the circumstance. Costs are not assessed. RECOMMENDED this 29th day of March, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. - 20. Accepted and incorporated herein. Presumed correct but not proven. - 25. Accepted and incorporated herein. Accepted as likely but not proven to have occurred. Accepted and incorporated herein. - 31. Accepted and incorporated herein. & 33. Accepted. Accepted. & 36. Accepted and incorporated herein. 37. - 39. Accepted and incorporated herein. FOR THE RESPONDENT: None submitted. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carl H. J. Kristensen, Jr. Qualified Representative All-States Auto Salvage Incorporated 1331 22nd Street North St. Petersburg, Florida 33713 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether just cause exists to terminate the employment of Respondent with the Escambia County School Board (School District or School Board).
Findings Of Fact At all times material to these proceedings, Respondent was employed as a leaderman mechanic assigned to the Transportation Department. In this position, he was responsible for ensuring that mechanics properly completed their work and their records. Respondent's direct supervisor was Terry Orso. The Transportation Department is responsible for maintaining and operating the School District's fleet of school buses, as well as the support vehicles which are generally known as the "white fleet." The Transportation Department, including the garage for the maintenance of Petitioner's vehicles, is within the same building as the Parts Department. The Parts Department, however, is separated from the garage by a wall to ensure the security of the stocks of parts until these parts are turned over for installation in and the maintenance of Petitioner's vehicles. As a leaderman mechanic, Respondent initiated "Repair Orders," which were also known as "Work Orders," and completed part of a "Request for Materials," also known as a "chit" so that parts could be ordered from outside vendors and installed in Petitioner's vehicles requiring repair. The School District form known as a "Repair Order" requires information, including the vehicle number assigned by Petitioner, mileage of the vehicle, and the vehicle make and year. The form includes a section to identify the repairs to be made. The practice within the School District is to complete the top portion of the Repair Order when the vehicle is brought in for repairs with the identifying information. Each Repair Order has an identification number. The person completing the Repair Order is usually, but not always, a leaderman mechanic. Once the vehicle is repaired, the leaderman mechanic initials the form to confirm the correct repairs have been made and that the vehicle has been inspected. The initials of the leaderman mechanic are also written next to the identification number when all repairs are completed. When a vehicle has been brought to the Transportation Department for repairs, the Parts Department issues a chit. Once the chit is issued, an employee from the Parts Department, which is usually a leaderman mechanic, completes the upper left portion of the chit. This section identifies the vehicle, the date the request for materials is submitted, the initials of the mechanic submitting the request, the work order number, and the year and make of the vehicle brought in for repair. A Parts Department employee completes the upper right hand portion of the chit with information identifying the date the request for materials is received, the vendor that is contacted, the name of the person from whom the part is ordered at the vendor, and time of the estimated delivery of the parts. In 2007, Petitioner received information from one of its employees, John Bodie, that parts had been ordered from a vendor at the School District's expense for installation in a private vehicle. Mr. Bodie delivered a letter to the superintendent with copies of Transportation Department records attached. Petitioner initiated an investigation based upon the allegations of Mr. Bodie and the records he provided. Mr. Bodie alleged that he had been approached by Garage Manager Terry Orso to repair a vehicle owned by another employee, Ms. Diana Archer. Mr. Bodie claimed that, at Mr. Orso's request, he took Ms. Archer's vehicle, which was a 1988 Chevrolet Blazer, to his home to assess the needed repairs. He made a list of the parts that were needed to repair the Blazer's front end. Mr. Bodie alleged that, after he agreed to make the repairs, Mr. Orso told him the parts were on Lanny's (Respondent's nickname) desk. Mr. Bodie needed two additional brake calipers and alleged he was told by Mr. Orso that the parts would be ordered. Mr. Bodie received the additional parts and completed the repairs on Ms. Archer's Blazer. Ms. Archer paid Mr. Bodie for his services. Ms. Archer's statement was admitted into evidence without objection. She stated that Mr. Bodie repaired her Blazer and that she paid him for the work. She alleged that Mr. Orso told her "not to worry about the parts" and that the cost of the repairs would be $300.00-$350.00. Since Mr. Bodie admitted to being untruthful in an earlier investigation, Petitioner took extra care when attempting to corroborate his allegations. The investigation revealed that through Repair Order #22721 for School District vehicle #8667, a Chevrolet C-10 pick-up truck, parts were ordered for that vehicle, including parts for "front end repair." A chit was then completed for vehicle #8667 with a request for materials received June 2, 2005. The chit ordered "front end parts." The parts were ordered from a vendor First Call and received at Petitioner's Parts Department the same day. The parts ordered through Repair Order #22721 for vehicle #8667, the C-10 pickup, would not fit that vehicle. Those parts did fit a 1988 Blazer owned by Ms. Archer and repaired by Mr. Bodie. Repair Order #22721 bears the initials of Respondent as confirmed by Ms. Karen Nobles, a forensic document examiner. She noted that Respondent has a distinctive style of handwriting and that there was no question that he had initialed the Repair Order in question. To further corroborate Mr. Bodie's testimony, the School Board Auditor David Bryant was directed to check Petitioner's records to verify whether Mr. Bodie ordered the two calipers after initially receiving the parts to complete the repairs to Ms. Archer's vehicle. Mr. Bryant first checked the service records on vehicle #8667. Finding no calipers ordered in June 2005 for that vehicle, he checked a similar vehicle, #8691, another Chevrolet C-10 pick-up truck. Mr. Bryant located Repair Order #24674 dated June 7, 2005, indicating that brake repairs were needed, specifically "R and R both front brake calipers--flex lines." Respondent's initials were found on Repair Order #24674 indicating that the work was requested, inspected, and completed. The Repair Order corresponds with a chit for vehicle #8691, and the work order corresponds with the purchase order for the parts. Ms. Nobles, through forensic examination of these initials, verified that they too belonged to Respondent. The chit, however, was not completed in the normal manner. It was completed by a Parts Department employee identifying "Lanny" as the person requesting materials and that the "parts were ordered by White Fleet direct." The parts that were ordered were two calipers. As was the case with vehicle #8667, the parts that were ordered would not fit vehicle #8691, a Chevrolet C-10 pick-up truck, but would fit Ms. Archer's Blazer. Dr. Alan Scott, Assistant Superintendent, received a call from a mechanic telling him that Respondent and another mechanic, Robert Hutto, were planning to bring the C-10 pick-up truck into the garage to make it look as though repairs had been done to the front end of the truck. Dr. Scott and Mr. Bryant moved the truck into an area covered by surveillance cameras and then called the Sheriff's Department. The truck was secured by the Sheriff's Department and removed to its impound yard to be inspected by Sheriff's Department mechanics. Sheriff's Department employee, Louie Kemp, inspected Petitioner's C-10 pick-up truck and found that no new parts had been installed on its front end. Mr. Bryant's investigation concerning vehicle #8691 demonstrated not only that the brake parts ordered would not fit the C-10 pick-up truck, but that the same brake repairs had been reported as completed on the same C-10 pick-up truck three times in 2005: on February 16, June 7, and October 20. The State Attorney's Office reviewed the same evidence and determined not to further prosecute the case against Respondent, entering a Nolle Prosequi in the matter of State of Florida v. Andrew L. Mardesich, Circuit Court Case No. 1707CF005289B, for the reason that insufficient evidence existed to prove the charge beyond a reasonable doubt. Respondent does not know nor does he have any relationship with Ms. Archer. Respondent never spoke with Ms. Archer or anyone else about parts or repairs for her Blazer. Mr. Bodie acknowledged that he never spoke with Respondent about parts he needed to perform the work on Ms. Archer's Blazer; nor did Mr. Bodie obtain any parts from Respondent; nor was Respondent present when Mr. Bodie allegedly got the parts from Respondent's desk to repair Ms. Archer's vehicle. Mr. Bodie testified via deposition that he never personally observed Respondent involved with the purchase and installation of parts in Ms. Archer's car in any way. Mr. Bodie was not aware of any benefit Respondent may have received as a result of the work being performed on Ms. Archer's Blazer. Mr. Bodie's only involvement with the parts was through Mr. Orso, Respondent's supervisor, who told him about the job to be performed on Ms. Archer's vehicle and where to find the parts on Respondent's desk. Petitioner relied upon Mr. Bodie's statement to take action against Respondent and Mr. Orso for the ordering and installation of parts in Ms. Archer's vehicle. Respondent denies that he ordered or was ever asked to order parts that were installed in Ms. Archer's vehicle or any other non-School District owned vehicles. He denies ever ordering parts at the School District's expense and approving or installing them on vehicles not owned by the School District. Based upon Respondent's long work history with Petitioner, as well as his demeanor and candor in responding to questions at the hearing, the undersigned finds Respondent's testimony to be credible. Petitioner's records establish that parts were ordered using one vehicle number and installed in other vehicles owned by the School District. Petitioner's investigation documents establish that parts were not always ordered using the correct vehicle numbers. Respondent acknowledged that the ordering of parts using one vehicle number and installed in another vehicle owned by the School District was done when budget constraints forced a department to reimburse at a later date for services needed right away. Mr. Bryant, as well as other School District employees who looked into Transportation Department practices, expressed concern about this practice. Respondent acknowledged that as a leaderman mechanic, due to the busy work schedule in the garage, sometimes he took other mechanics at their word that the repairs had been performed and he would initial the work orders without a thorough, or even any, inspection of the work performed. Respondent never completed any work documents using the name "Lanny" or ordering any parts directly. Parts were ordered by the Parts Department. Respondent's usual way of initialing repair orders was with "A.M." The preponderance of the evidence presented at the hearing demonstrates that a scheme existed to order parts and perform work on non-District owned vehicles, in this case, a 1988 Chevrolet Blazer owned by one of Petitioner's employees, Ms. Archer. Mr. Bodie performed the repairs on Ms. Archer's vehicle using the parts ordered under the School District's account. Respondent did not knowingly sign repair orders or order parts for repairs on non-District owned vehicles, such as the Blazer owned by Ms. Archer. Prior to the investigation and notice of termination, Respondent had voluntarily entered the Deferred Retirement Option Program (DROP). Once he received notice from Petitioner that his employment would be terminated effective October 17, 2007, Respondent advanced his DROP exit and regular retirement to be effective October 17, 2007.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Escambia County School Board, rescind Respondent's termination and compensate him for his lost salary and benefits, including accrued retirement benefits, since the date of his termination on October 17, 2007. DONE AND ENTERED this 6th day of November, 2008, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 6th day of November, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Tom Wazlavek Union of Escambia ESP 6551 North Palafox Pensacola, Florida 32503 Emily Moore, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301-1700 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
The Issue The issue posed for decision herein is whether or not the Respondent/Licensee, David H. Trump d/b/a Swain Builders, Inc., has engaged in conduct which will be set forth hereinafter which warrants the Florida Construction Industry Licensing Board to discipline the Licensee and to impose an administrative fine.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint mailed December 3, 1979, the Florida Construction Industry Licensing Board (herein referred to as the Board or Petitioner) seeks to revoke Respondent's contractor's license; to impose an administrative fine in the amount of $1,000.00 and to deny reissuance of Respondent's license until sufficient proof of restitution has been provided the Board. 1/ David H. Trump (herein sometimes referred to as Licensee or Respondent) d/b/a Swain Builders, Inc., is a registered General Contractor who holds license No. RGS 003574, which is current and active. The remaining material allegations of the Administrative Complaint are that from June 8, 1979, Respondent contracted with F. O. Parman to construct an addition to an existing structure for $70,500.00. It is alleged that Respondent, after having received $50,000.00 of the contracted price, came under scrutiny when owner Parman determined that contractors and suppliers were not being paid. As a result, Respondent allegedly made a sworn statement to the effect that "all subcontractors and suppliers had been paid, when in fact they had not been paid". It is also alleged that Respondent subcontracted a heating and air conditioning installation to Air Systems, Inc., for $9,610.00 and Respondent failed to pay for this installation even though he received money from the owner, Dean Waters, It was also alleged in the Administrative Complaint that Respondent was charged with perjury by the State Attorney's office for issuing false statements under oath and that he pleaded nolo contendere to the charges, adjudication of guilt was withheld and Respondent was placed on two years probation to allow him an opportunity to reimburse the victim. 2/ On June 8, 1979, Respondent entered into a contract with F. O. Parman to construct an addition to an existing structure, Big Chief Tire Company, situated at 5444 Normandy Boulevard, Jacksonville, Florida, for the sum or $70,500.00 plus an additional $1,000.00 for a bathroom (Petitioner's Exhibit 1). 3/ To complete this project, Respondent purchased concrete from Silcox Concrete Company during approximately August of 1978 which resulted in an outstanding obligation of $2,067.30. This obligation remained unpaid as of December 2, 1978. Ralph Silcox, the President of Silcox Concrete Company contacted the owner of Big Chief Tire Company, Mr. F. Parman, who agreed to pay approximately 80 percent of the invoiced amount, i.e. , $1,724.20. As a result of this agreement Mr. Parman was not obligated to honor additional claims from Silcox Concrete Company. 4/ Mr. Richard Q. Parman, President of Big Chief Tire Company, appeared at the hearing and related that after having released approximately $50,000.00 to Respondent, further disbursements were withheld based on complaints of various subcontractors including a Mr. Felder, the subcontractor for the heating and air conditioning system for the Big Chief Tire project. At that juncture, Mr. Parman had escrowed approximately $20,000.00 due Respondent for the completion of the project. Mr. Parman insisted that Respondent prepare a list of subcontractors and materialmen who had supplied materials for this project. According to that list, Respondent owed subcontractors and materialmen approximately $24,000.00. Mr. Parman and his son prepared the statement, which was signed, notarized and witnessed (Petitioner's Exhibit 2). The Parmans later discovered that Respondent failed to list Fab-All Metals, the entity which had supplied the steel and miscellaneous metals for completion of the Big Chief Tire project. The Parmans paid Richard G. Hornsbrook, the President of Fab-All Metals, approximately $2,500.00 which represented 80 percent of the amount due Mr. Hornsbrook for metals and steel furnished for the Big Chief Tire project. Thereafter, on January 12, 1979, Mr. Hornsbrook received $300.00 from Respondent based on a settlement agreement Respondent and Mr. Hornsbrook entered to pay the remaining balance due of approximately $623.84. (Petitioner's Exhibit 3) John S. Felder, the President of Air Systems of Florida, Inc., supplied two air conditioning and heating systems for the Big Chief Tire project. Mr. Felder received approximately 80 percent of the amount due him from Mr. Parman, the owner of Big Chief Tire Company. Respondent advised Mr. Felder that the money due him would be paid when the building was completed. Respondent is a registered General Contractor who has been in the contracting business for approximately twenty-two (22) years. Swain Builders, Inc., the entity through which the Respondent was conducting his contracting business, has been defunct since December of 1978. Since that time, Respondent has been self employed primarily doing odd jobs trying to repay cost overruns from another project, the Dean Waters job, which was for a total contracted price of $90,000.00. Respondent incurred cost overruns of approximately $22,000.00 on the Dean Waters project. Respondent did not receive any draws for the Air Systems work on the Dean Waters project. Monies for that work was withheld by the owner, Dean Waters. Respondent failed to recognize that Fab-All Metals was left from the list of contractors provided to Mr. Parman. Mr. Parman prepared the statements which appear on the list of contractors provided by Respondent. Respondent is paying Parman restitution for payments he made to Fab-All Metals. An examination of the list of contractors and materialmen indicates that the list is headed by the words, "Bills Unpaid at Big Chief Tire Co." which is followed by a list of contractors and an amount represented as being de and owing of approximately $23,678.26. Thereafter, there is an affirmation which provides in pertinent part: " the above listed company's(sic) and the amounts designated. is a complete list of all the companies who have extended credit to Swain Builders, Inc. for building materials and labor for the construction of the building. location of Bib(sic) Chief Tire Co. Inc. and have not been paid in full." (Emphasis supplied) The material allegation of the Administrative Complaint is set forth in paragraph 1(f): "That David H. Trump made a sworn statement to the effect that all subcontractors and suppliers had. been paid when in fact they had not been paid". At the outset, it should be noted that Respondent acknowledged that he failed to recognize that Fab-All Metals was left off the list of contractors prepared for Mr. Parman. Respondent acknowledges the fact that an amount is due and owing Fab-All Metals, which amount he is presently making restitution to Mr. Parman. However, the sworn statement does not indicate that all subcontractors and suppliers had been paid when in fact they had not, but rather, is a list of bills unpaid. That language which was prepared by Mr. Parman is set forth at the beginning of the paragraph and is again cited in the last sentence which provides, ". and have not been paid in full".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent pay an administrative fine of Five Hundred Dollars ($500.00). RECOMMENDED this 20th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1980.
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
Findings Of Fact Respondent is a rancher who obtained cattle grazing rights to property owned by Florida Power and Light Company (FP&L) in Lee County, Florida. Essentially, Respondent became a tenant on the FP&L property pursuant to the terms of a contract or "license" entered into by FP&L and Respondent. The license was in effect between May 1, 1980 and April 30, 1986, when FP&L evicted Respondent from the property. After his entry onto the FP&L property in 1980, Respondent undertook several projects to improve the land for cattle grazing. One such project involved the filling of a ditch dug by FP&L to build a power line access road. This ditch is water-filled much of the time and drains into the Caloosahatchee River, a Class III Florida Water Body. Respondent did not seek a dredge and fill permit for the ditch project. As "fill" he arranged for the dumping of waste tires over about a one year period. He intended to cover the tires with dirt but lacked sufficient financial resources to complete the project. At present, the tires are strewn over a distance of about 2,000 feet in this ditch, and are "migrating" downstream. Tire cleanup and disposal costs will be substantial and are estimated by FP&L at $130,000. Respondent refuses to remove these tires and contends that he would be financially unable to do so even if he were willing to remove them. He believes the tires should remain in place and be covered with dirt as he originally intended. Petitioner learned of the tire-filled ditch on July 6, 1984, and has thereafter sought to force Respondent to remove these tires without success. 1/ Prior to DER involvement, FP&L became aware of Respondent's fill activities and instructed him to complete the project by relocating some of the tires and covering them with dirt. After DER became involved, FP&L changed its instructions to Respondent and required him to remove the tires as ordered by DER. When he failed to do so, FP&L evicted him. FP&L and Respondent are in disagreement as to the terms of the license and are apparently in litigation over Respondent's eviction. For purposes of the instant proceedings, however, FP&L was aware of the tire dumping project while it was under way and did nothing to stop it prior to action by Petitioner.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order: Directing Respondent, within sixty days of the effective date of the Final Order, to remove and transfer all tires from the subject property to a DER approved sanitary landfill or a DER approved incinerator, or properly recycle the tires in a DER approved manner. Within seven days thereafter, Respondent is required to submit landfill, incinerator, or recycling receipts to DER as proof of proper disposal. Pursuant to Section 403.141(1), F.S., Respondent is directed to pay $145.92 to DER for expenses of the State in tracing, controlling, and abating this source of pollution. Payment is to be made by certified check to the "Pollution Recovery Fund," delivered to the South Florida District Office, 2269 Bay Street, Fort Myers, Florida 33901, within ten days of the effective date of the Final Order. It is further RECOMMENDED: That any civil enforcement suit filed pursuant to Section 120.69, 403.121 or 403.131, F.S., join Florida Power and Light Company as a Party Respondent. DONE and ENTERED this 10th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1985.
The Issue The only factual issue in this case is whether the Superior Paving triple axle dump truck being driven by Norman Jones on February 13, 1990, on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its remaining tandem rear axle under Section 316.535, Florida Statutes (1989). However, this straightforward factual case also raises several legal and procedural questions, including: (1) whether the Division of Administrative Hearings has jurisdiction; (2) which agency is authorized to take final agency action in the case; (3) who are the actual parties in interest; (4) whether the parties have standing; and (5) which party bears the burden of proof.
Findings Of Fact On February 13, 1990, while traveling south on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, Patty Fagan, a DOT Motor Carrier Compliance Officer, observed a Superior Paving, Inc., dump truck traveling north on U.S. 41 with a full load of rock. She decided to check the load and, as she began to slow, she saw a second Superior Paving dump truck, also heading north with a full load of rock. She testified that the second truck was riding with its air axle up, leaving only two tandem rear axles, along with the steering axle, to bear the weight of the load. Fagan continued a short distance to the south on U.S. 41 until she was able to turn around and pursue the trucks to the north. She passed the second truck between one and two miles from where she turned around and testified that the second truck still was traveling with its air axle up. Fagan pulled up behind the first truck where it had stopped in the left turn lane at the entrance of the Gardinier plant. She got out to check the first truck. Meanwhile, the second truck, driven by Norman B. Jones, pulled up behind Fagan's vehicle. According to Fagan, Jones' truck still had the air axle up. According to Jones, the air axle was down at all times that he was within sight of Fagan until he pulled into the left turn lane behind Fagan's car and, while she was talking to the driver of the first truck, raised the air axle in preparation for the left turn. It would be difficult for anyone, much less an experienced compliance officer like Fagan, to mistakenly think she saw Jones' truck riding with the air axle up. It is obvious and easy to see whether the air axle is up or down. Likewise, it was easy for Jones to determine whether the air axle was up or down. There is a switch and an air pressure gauge immediately to the right of the driver seat which registers 40 pounds of pressure when the air axle is down and zero when it is up. The factual issue resolves to a question of the relative credibility of Fagan and Jones. Fagan wrote in her report of the incident that Jones first admitted that he had been driving with his air axle up because it was malfunctioning. The report states that Jones told her the problem was noticed when he picked up his first load in Brooksville and that he planned to have the problem fixed after his third load. She wrote that she told him he should have had it fixed before he left the yard with the first load. In fact, Jones only carried two loads that day, as usual, and never planned to carry three loads. He picked up both loads in Center Hill, Florida, about 60 miles northeast of Brooksville, and drove to Gardinier via I-75, also to the east of Brooksville, never going anywhere near Brooksville. Jones denied having made the statements the report attributes to him and stated that he had no reason to mention Brooksville or an alleged third load in the course of his conversation with Fagan. Fagan also wrote in her report that Jones changed his story later in the conversation and claimed that the air axle worked but was slow. Fagan said her response was that the air axle should have been down by the time she passed him for the second time, after she had turned around to head north on U.S. 41. Jones also denied that he ever said the air axle was slow. He testified that the air pressure system was worked on just two weeks before the incident and that it was in perfect operating condition. Neither party adduced any documentary evidence or testimony of third persons to establish whether air pressure system repairs were done on the truck or, if so, when they were done or what the problem was. Jones testified that his last load out Brooksville was "about six months ago." It is not clear whether he meant six months before the incident or six months before the hearing, which would have put it about the time of the incident, and also about the time work was done on the air pressure system. The evidence suggests the possibility that an air pressure problem arose while Jones was carrying a load out of Brooksville and that he had mentioned this to Fagan. In response to questioning by counsel for the DOT, Jones first stated that it is common to have problems with the air axle and that he has had trouble with the air axle on the same truck he was driving on February 13, 1990. In his next breath, he stated that he has had no trouble with the air axle on the truck but said he did have the governor on the air pressure system replaced "about a year and a half ago." (Again, his testimony was not clear whether he meant a year and a half before the incident or before the hearing.) He also again admitted that about two weeks before the incident, the air pressure lines and valves were replaced, and the air axle line was reattached to the new valve. According to Fagan, after checking the first truck, she went back to Jones' truck, asked Jones for his load ticket and, while he was looking for it in the cab, did a routine check by feeling the tires on the air axle and on the front tandem axle on the driver side. She testified that the tire on the air axle was cooler. Jones denies that Fagan ever touched or even got close to the tandem axle. Jones testified that he standing on the step to the cab when Fagan walked up and asked to see the his load ticket and that he just reached in, grabbed it off the dashboard and handed it to her. He testified that he then stepped to the ground and stood between Fagan and the rear axles and that she never walked past him. Later in testimony, Fagan testified that she might have asked Jones for the vehicle registration so that she could check the registered gross weight of the vehicle, and that Jones was looking for it in the cab while she was touching the vehicle tires. But Jones countered that Fagan did not ask for the vehicle registration until later, when they were at the weigh station to which Fagan had Jones drive. Jones testified that the air axle was down all the way from Center Hill except for just two times on each load when he raised it for purposes of negotiating tight turns, as permitted by the DOT's nonrule policy designed to reduce road and truck wear and tear: once when he turned onto U.S. 41; and a second time after he entered the left turn lane at the entrance of the Gardinier plant and stopped behind Fagan's car, while Fagan was talking to the driver of the first truck. However, Jones' description of his route from Center Hill to Gardinier included several other turns that would seem to have been just as tight as the two he says were the only times he raised his air axle. As Jones pointed out, if the rest of his testimony is true, even if the air axle was up the entire time from when he turned onto U.S 41 until he was stopped at the entrance to the Gardinier plant, the air axle tires still would have been hot to the touch. Conversely, if Fagan's testimony that the air axle tire was cool to the touch is true, then the air axle probably was up for most, if not all, of the trip from Center Hill. No statement was taken, or testimony elicited, from the driver of the other company truck to shed light on this factual dispute. Despite the difficulties presented by the evidence in this case, it is found that the DOT has proven by a preponderance of the evidence that Jones was operating the company truck he was driving on February 13, 1990, with the air axle up at least for a mile or two along U.S. 41. After their conversation in the left turn lane at the Gardinier plant entrance, Fagan required Jones to drive to a weigh station. (It angered Jones that this weigh station was five miles out of Jones' way. Jones did not understand why the truck could not have been weighed at the Gardinier plant.) The scale showed that 52,540 pounds of weight was being supported by the rear tandem axles of the truck. After weighing the truck, Fagan issued a citation and $387 fine to Superior Paving, Inc. The company paid the fine and deducted it from Jones' salary. The company never challenged the fine, and there is no evidence in the record that the company authorized Jones to challenge it on the company's behalf. Jones reqested that the Commercial Motor Vehicle Review Board drop or the fine reduce, which it declined to do.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commercial Motor Vehicle Review Board enter a final order upholding the $387 fine it assessed against Superior Paving, Inc., in this case. RECOMMENDED this 24th day of September, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is the owner and operator of a waste tire site located at 17421 East Colonial Drive in Orlando, Florida. On or about March 28, 1989, the petitioner filed a "Waste Tire Notification" with the Department's Central District Office in Orlando, Florida. The notification form identified the site name as "I. G. Fonte, Jr. Import Used Auto Part's." At that time, owners or operators of any waste tire sites were required, by law, to provide the Department with certain information related to the waste tire site's size, location, and the quantity of waste tires located on the site. The Waste Tire Notification form filed by the Petitioner indicated that approximately 1,000,000 waste tires were located on the Petitioner's waste tire site. The exact number of waste tires at the site is unknown. Petitioner estimated 400,000 tires were on the site at the time of the hearing. On July 17, 1989, the Petitioner filed a "Waste Tire Closure Permit Application" with the Department's Central District Office in Orlando, Florida. The Petitioner's application for a Waste Tire Closure Permit was filed on DER Form No. 17-711.900(7), which was the appropriate form for the requested permit. The Petitioner's application for a Waste Tire Closure Permit indicated the mailing address for the permit applicant was as stated in paragraph 1. The permit also indicated the and name and address of Petitioner's attorney. Among the items of information requested by the application, Petitioner was required to submit a description of how the following tasks required for the closure of the waste tire site would be accomplished together with a time schedule for their completion: removal of all waste tires, processed tires and residuals from the site; removal of any solid waste to a permitted solid waste management facility (indicate the facility where disposal will take place); and site rehabilitation. Further, the application required the Petitioner to submit proof of financial responsibility pursuant to Rule 17-711.510(c), F.A.C. On August 8, 1989, the Department requested that the Petitioner provide additional information in order to complete the permit application. Specifically, the Department requested that the Petitioner submit proof of financial responsibility. The foregoing request for additional information was mailed to the Petitioner at the address noted above. On August 29, 1989, the Department received the Petitioner's response to the Department's request for additional information. By correspondence dated August 30, 1989, the Department once again requested that the Petitioner submit the information required by the permit application form. This second request for information, dated August 30, 1989, was again mailed to Petitioner's address noted above. The notice dated August 30, 1989, was not returned to the Department. The Department utilizes a computer system for the purpose of tracking permit applications. The computer system is referred to by the acronym "PATS" which stands for "Permit Application Tracking System". The "PATS" sheet for the Petitioner's permit application reflects that on August 30, 1989, the Department mailed a second letter to the Petitioner requesting that the Petitioner submit additional information. The Petitioner did not respond to the August 30, 1989, request for additional information. By correspondence dated April 9, 1991, the Department notified the Petitioner that: Due to rule changes, the department no longer requires closure permits prior to closure. Rather, current rules require an approved Closure Plan for the Facility, Rule 17-711.700(3), F.A.C., which is to be executed when closure is desired. The Department's correspondence dated April 9, 1991, was mailed to Petitioner at the address noted above. There is no dispute that the Petitioner received the correspondence dated April 9, 1991. On June 12, 1991, the Department issued a Notice of Intent to Deny with regard to the Petitioner's permit application. The Petitioner has not filed with the Department an application for a "Waste Tire Processing Facility" permit. At the time the Petitioner filed the permit application, the Petitioner was aware that the permit, if issued, would have required the site to have been closed by July 1, 1990. At the time the Petitioner filed the permit application the Petitioner did not have the financial resources to close the site by July 1, 1990. The Petitioner does not have the financial resources necessary to close the site. The Petitioner's waste tire site is not an integral part of a waste tire processing facility. The Petitioner's waste tire site is not used for the storage of waste tires prior to processing. The Petitioner's waste tire site is not a permitted solid waste management facility nor would it qualify for a permit for same.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order dismissing Petitioner's petition in this cause and denying the application for a "functionally equivalent permit." DONE and ENTERED this 14th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 January, 1993. APPENDIX TO CASE NO. 92-0133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1, 2, 4, 6, 9, 10, 16, 17, 19, 21, 27, and 28 are accepted. 2. Paragraphs 3, 5, 7, 8, 11, 12, 13, 14, 15, 18, 20, 22, 23, 24, 25, and 26 are rejected as irrelevant, hearsay, contrary to the weight of the evidence, or argumentative. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 30 are accepted. COPIES FURNISHED: Carole Joy Barice, Esquire 28 West Central Boulevard Orlando, FL 32801 W. Douglas Beason, Esquire Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether a penalty should be imposed on Pettegrove Equipment for driving a truck over a bridge when the truck weighed more than the posted bridge weight limit.
Findings Of Fact Raymond S. Cran drove a loaded dump truck owned by Pettegrove Equipment over a bridge on State Road 850 which crosses over Florida's Turnpike on September 26, 1990. The truck weighed 69,100 pounds. The truck was a straight truck, not a tractor trailer combination. The bridge which Mr. Cran drove across is a low limit bridge. Signs were posted in five places on the approaches to the bridge of the 26 ton limit for straight trucks. The first is at the intersection of State Road 850 and East Highland Pines Drive, which states "Weight Limit Restriction Ahead." One mile from the bridge at the intersection of Green Meadows Road is a second sign which states "Weight Limit" and has silhouettes of a straight truck and of a tractor trailer combination, showing a 26 ton limit for the straight truck and a 38 ton limit for the tractor trailer combination (tractor trailers have a higher limit because their weight is distributed differently). Similar signs are posted one half mile from the bridge, two tenths of a mile from the bridge, and at the foot of the bridge. Officer Joseph Barkas, a Department of Transportation Motor Carrier Compliance Officer, stopped Mr. Cran and prepared the Load Report and Filed Receipt describing the incident. The Respondent did not dispute that the truck was 17,100 pounds overweight, nor that the penalty for crossing the bridge based on that weight is $865, as shown on the Load Report and Field Receipt. Pettegrove Equipment disputes the fine because it's driver misunderstood the weight limit signs on the approach to the bridge. The silhouette of the straight truck is much shorter than the silhouette of the tractor trailer combination. Mr. Cran believed that the 26 ton limit for a straight truck applied to only small trucks, such as pickup trucks, and not to a large dump truck like the one he was driving. This contention is unpersuasive. Ordinary pickup trucks are incapable of carrying loads any where near 26 tons. Mr. Cran's interpretation is simply unreasonable. The limitations for straight trucks were clearly posted, and were violated.
Recommendation It is RECOMMENDED that a final order be entered by the Department of Transportation sustaining the fine of $865 assessed against Pettegrove Equipment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. COPIES FURNISHED: Vernon Whittier, Esquire Assistant General Counsel WILLIAM R. DORSEY, JR. 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 4th day of June 1992. Florida Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ann Porath, Esquire Wellington Country Plaza Suite 209 12773 Forrest Hill Boulevard West Palm Beach, Florida 33414 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
