The Issue Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.
Findings Of Fact On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13) On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8) Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24) The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17). Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1) The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1) The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith) The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24) At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21) The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)
Recommendation That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: George E. Lewis, II, Esq. 316 East Park Avenue Tallahassee, FL 32303 William L. Hyde, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Ben H. Wilkinson, Esq. Pennington, Wilkinson, Gary and Dunlap Post Office Box 3875 Tallahassee, FL 32303 Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320
The Issue The issue is whether Respondent's Construction and Demolition Debris Disposal Facility Permit No. 003397-013-SO (the Permit) should be revoked and the facility closed for the reasons stated in the Department of Environmental Protection's (Department's) Notice of Revocation (Notice) issued on July 31, 2014.
Findings Of Fact A. The Parties, the Property, and the Dispute The Department administers and enforces the provisions of chapter 403 and the rules promulgated thereunder, including those applicable to construction and demolition debris (C & D) disposal facilities. Respondent is a Florida limited liability corporation that owns real property located at 6990 Rolling Hills Road, Pensacola, Escambia County (County), Florida. The large, odd- shaped parcel (whose exact size is unknown) is south-southwest of the intersection of Interstate 10 and Pensacola Boulevard (U.S. Highway 29) and has Class III fresh surface waters running in a northeast-southwest direction through the middle of the property. See Resp. Ex. 28. The entire site is surrounded by a six-foot tall fence or is separated from adjoining properties by natural barriers. A railroad track borders on the eastern side of the parcel; the western boundary fronts on Rolling Hills Road; and the northern boundary appears to be just south of West Pinestead Road. Id. The area immediately south of the parcel appears to be largely undeveloped. See Dept. Ex. 40. The Emerald Coast Utilities Authority (ECUA), a local government body, has an easement that runs along the eastern side of the property adjacent to the railroad track on which a 48-inch sewer pipe is located. An older residential area, known as Wedgewood, is located northeast of the facility on the north side of West Pinestead Road. Id. The closest Wedgewood homes appear to be around 400 or 500 feet from the edge of Respondent's property. A community and recreational center, the Marie K. Young Center, also known as the Wedgewood Center, serves the Wedgewood community, is northwest of the facility, and lies around 500 feet from the edge of the property. Established in 2012 where a school once stood, it has more than 200 members. Although non- parties, it is fair to say that the Wedgewood community and County strongly support the Department's efforts to revoke Respondent's permit. Respondent acquired the property in 2007. At that time, an existing C & D disposal facility (the facility) was located on the property operating under a permit issued by the Department. The Permit was renewed in February 2013 and will expire in early 2018. Besides the general and specific conditions, the renewed Permit incorporates the terms and conditions of a Consent Order executed in November 2012, as well as detailed requirements relating to the operation of the facility, water quality monitoring, an odor remediation plan, financial assurance and cost estimates, and closure of the facility. The latter requirements are found in four Appendices attached to the Permit. The facility operates under the name of Rolling Hills Construction and Demolition Recycling Center. All material received by the facility is disposed of in an active disposal pile known as cell 2, located in the middle of the northern section of the parcel. Cell 1, southwest of cell 2 and just east of Rolling Hills Road, was closed a number of years ago by the prior operator. Respondent operates the only C & D facility in the County.1/ It currently serves around 50 to 60 active customers, employs 16 persons, and operates between the hours of 7:00 a.m. and 5:00 p.m. The former manager, Charles Davidson, who had overseen operations since 2010, was replaced in June 2014, and Respondent blames him for ignoring or failing to address most of the problems encountered during the last three years. Since June, the managing partner of the LLC, Scott C. Miller, has overseen the operations. Unlike Class I or III landfills, a C & D landfill may accept only construction and demolition debris. Construction and demolition debris is defined as "discarded materials generally considered to be not water soluble and non-hazardous in nature." § 403.703(6), Fla. Stat.; Fla. Admin. Code R. 62- 701.200(24). Debris includes not only items such as steel, glass, brick, concrete, asphalt material, pipe, gypsum wallboard, and lumber that are typically associated with construction or demolition projects, but also rocks, soils, tree remains, trees, and other vegetative matter that normally result from land clearing or land development operations. Id. No solid waste other than construction and demolition debris may be disposed of at the facility. See Fla. Admin. Code R. 62- 701.730(4)(d). To address and resolve certain violations that predated the renewal of the Permit, the Department and Respondent entered into a Consent Order on November 14, 2012. See Dept. Ex. 2. These violations occurred in 2011 and included the storage and/or disposal of non-C & D debris, and a failure to timely submit an appropriate Remedial Action Plan (RAP). Id. Among other things, the Consent Order required that within a time certain Respondent submit for Department review and approval an RAP; and after its approval to "continue to follow the time frames and requirements of Chapter 62-780, F.A.C." Id. Those requirements included the initiation of an active remediation system and site rehabilitation within a time certain, and the continued monitoring and related corrective action for any water quality violations or impacts. Id. To ensure that it has the financial ability to undertake any required corrective action, the Permit requires Respondent to provide proof of financial assurance for the corrective action program cost estimates. See Fla. Admin. Code 62-701.730(11)(d); § 2, Spec. Cond. F.1. This can be done through a number of mechanisms, such as a performance bond, letter of credit, or cash escrow. The Permit also requires Respondent to provide proof of financial assurance to demonstrate that it has the financial ability to close the facility and otherwise provide for the long-term care cost estimates of the facility. See Fla. Admin. Code R. 62-701.630; § 2, Spec. Cond. F.2. Rather than using a cash escrow or letter of credit, Respondent has chosen to use a performance bond for both requirements. These bonds must be updated annually to include an inflation adjustment. Given the many requirements imposed by the Permit and Consent Order, in 2013 and 2014 several follow-up site inspections of the facility were conducted by the Department, and a review of the operations was made to determine if the various deadlines had been met. Also, in 2014, the Department received complaints from the County and neighboring property owners, almost exclusively by those residing in the Wedgewood community, regarding offensive odors emanating from the facility. Based on field observations, the review of operations, and odor complaints, on July 31, 2014, the Department issued a Notice containing eight counts of wrongdoing. The Notice was issued under section 403.087(7)(b), which authorizes the Department to revoke a permit when it finds the permit holder has "[v]iolated law, department orders, rules, or regulations, or permit conditions." To Respondent's consternation, the Department opted to use that enforcement mechanism rather than initiating an enforcement action under section 403.121 or executing another consent order, both of which would likely result in a sanction less severe than permit revocation.2/ The Notice contains the following charges: exceeding surface water quality standards in rules 62-302.500 and 62- 302.530 (Count I); failing to implement an RAP as required by the Consent Order and Permit (Count II); failing to provide adequate financial assurances for facility closure costs (Count III); failing to provide financial assurances for the corrective action required by the RAP (Count IV); failing to reduce on-site and off-site objectionable odors and to implement a routine odor monitoring program (Count V); disposing non-C & D waste on site (Count VI); failing to remove unauthorized waste (Count VII); and disposing solid waste outside of its permitted (vertical) dimension of 130 feet National Geodetic Vertical Datum (NGVD) (Count VIII). These allegations are discussed separately below. Although the Notice is based on violations that occurred on or before July 31, 2014, the undersigned denied the Department's motion in limine that would preclude Respondent from presenting mitigating evidence concerning circumstances surrounding the violations and efforts to remediate them after July 31, 2014. Given that ruling, the Department was allowed to present evidence to show that Respondent's remediation efforts have not been successful and that some violations still existed as of the date of final hearing. Respondent disputes the allegations and contends that most, if not all, are either untrue, inaccurate, have been remedied, or are in the process of being remedied. As noted above, Respondent considers the revocation of its permit too harsh a penalty in light of its continued efforts to comply with Department rules and enforcement guidelines. It contends that the Department is acting at the behest of the County, which desires to close the facility to satisfy the odor complaints of the Wedgewood residents, and to ultimately use the property for a new road that it intends to build in the future. Count I - Water Quality Violations The Notice alleges that two water quality monitoring reports filed by Respondent reflect that it exceeded surface water quality standards at two monitoring locations (MW-2 and SW-6) sampled on August 26, 2013, and at one monitoring location (MW-2) sampled on March 4, 2014. The Notice alleges that these exceedances constitute a failure to comply with Class III fresh surface water quality standards in rules 62-302.500 and 62- 302.530 and therefore violate conditions in the Permit. These standards apply in areas beyond the edge of the discharge area (or zone of discharge) established by the Permit. To ensure compliance with water quality standards, when the Permit was renewed in 2013, a Water Quality Monitoring Report (Appendix 3) was attached to the Permit. It required Respondent to monitor surface water for contamination, identify the locations at which samples must be collected, and specify the testing parameters. All of these conditions were accepted by Respondent and its consultant(s). The monitoring network, already in place when Respondent purchased the facility, consists of six ground water monitoring wells and three surface water monitoring stations. The surface water stations, which must be sampled to determine compliance with water quality criteria, are SW-5, a background location, and SW-6 and MW-2, both compliance locations located outside the zone of discharge. A background location is placed upstream of an activity in order to determine the quality of the water before any impacts by the activity. A compliance location is placed downstream of an activity to determine any impacts of the facility on surface water. The Water Quality Monitoring Plan and Permit require Respondent to submit semi-annual water quality reports. To conduct the preparation and filing of the reports, Respondent used an outside consulting firm, Enviro Pro Tech, Inc. (EPT). On November 5, 2013, EPT submitted a Second Semi-Annual 2013 report. See Dept. Ex. 5. According to Mr. Miller, who now oversees operations at the facility, EPT did not provide Respondent a copy of the report, or even discuss its findings, before filing it with the Department. A Department engineer reviewed the report and noted that surface water samples exceeded the Class III Fresh Water Quality Standards for iron, copper, lead, zinc, nickel, and mercury at SW-6 and for iron at MW-2. See Dept. Ex. 6. A copy of the Department's report was provided to Respondent and EPT. Notably, the report indicated that background levels were lower than the down-gradient results. Under Department protocol, if the samples at the compliance locations exceed both the regulatory levels and the background, there is a violation of water quality standards. This accepted protocol differs from Respondent's suggested protocol that the background level should be added to the regulatory standard before a comparison with the sample results is made. In sum, except for the reported nickel value at SW-6, a violation which the Department now says it will not pursue, all exceedances shown on Department Exhibits 5 and 6 are violations of the standards. On April 1, 2014, EPT submitted a First Semi-Annual 2014 report. See Dept. Ex. 7. A Department engineer reviewed the report and noted that the surface water samples at one monitoring location, MW-2, did not meet water quality standards for iron; however, background levels for iron were much higher than downstream. See Dept. Ex. 8. No other exceedances were shown. Although the Department engineer considered the higher background level for iron to be an "inconsistency" since it varied from the prior reports, the reported iron value was treated as a violation when the Notice was drafted. In its PRO, however, the Department concedes that it did not establish a violation of standards for iron, as alleged in paragraph 7 of the Notice. While having no concerns with sampling taken at MW-2, Respondent's expert contends that the reported values for SW-6 are unreliable because the samples taken from that location were turbid and filled with large amounts of suspended solid matter. He noted that the well is located in a wetland area that is "clogged with vegetation." The expert estimated the turbidity at the site to be in the range of 480 to 500 Nephelometric Turbidity Units (NTUs) and believes the sample was taken in a "high turbid sediment laden area," thus rendering it unreliable. However, at the time of the sample collection, turbidity was measured at 164 NTUs, or much less than the amount estimated by the expert. See Dept. Ex. 5, p. 147. There is no rule or procedure that disallows the use of turbid samples. In fact, they can be representative of actual water quality. Also, rule 62-302.500(2)(d) provides that if an applicant for a C & D permit believes that turbid samples are not representative of water quality, it may use filtered samples by establishing a "translator" during the permitting process. Respondent did not request a translator during the permitting process, nor is any such translator provision found in the Permit. The expert also criticized EPT for holding the 2013 sample for iron for 22 days after collection before reanalyzing it without providing any explanation for this delay. A reasonable inference to draw from the data, however, is that iron was present in the original sample at levels that required dilution and reanalysis. Respondent's expert testified that even though off- site stormwater is discharged onto the property, no offsite monitoring locations exist, and therefore any offsite exceedances would not be reported. He also criticized the sampling locations that were selected by EPT. In fairness to Respondent, a repositioning of the monitoring network and retesting of the samples might have produced more favorable results. But these are measures that should have been addressed long before this proceeding was initiated. Finally, Respondent's expert testified that the implementation of its RAP, now partially completed, will cure all of the reported exceedances. Assuming this unrefuted testimony is true, it should be taken into account in determining an appropriate penalty. Count II - Failure to Implement an RAP In this Count, the Department alleges that after the issuance of an RAP Approval Order on July 3, 2013, Respondent was required to implement the RAP within 120 days. The Notice alleges that as of July 31, 2014, the RAP had not been implemented. An RAP was first filed by Respondent on November 15, 2010. See Dept. Ex. 3. When the Department determined that changes to the RAP were necessary, the Consent Order imposed a requirement that an RAP addendum be filed within 150 days. The date on which the addendum was filed is not known. However, an RAP Approval Order was issued on July 3, 2013. See Dept. Ex. 4. The terms and conditions in the RAP were incorporated into the renewed Permit. The work required by the RAP consists of two phases, with all work to be completed within 365 days, or by early July 2014. Phase I related to the initiation of an active remediation system within 120 days, or by October 31, 2013. This phase requires Respondent to install a pump and treat system at the facility, which will withdraw contaminated groundwater through recovery wells, pump the water to aeration basins to treat the water, and then re-infiltrate the treated water back into the ground. As noted below, the system was not operational until the second week in December 2014. Respondent's failure to implement the approved RAP by the established deadline constitutes a violation of rules 62- 780.700(11) and 62-780.790 and Permit conditions, as charged in the Notice. While Respondent concedes that it did not comply with the deadline for implementing the RAP, it points out that work on Phase I was begun in a timely manner. However, on October 16, 2013, or just before the 120 days had run, a Notice of Violation was issued by the County. See Resp. Ex. 2. The effect of the Notice of Violation was to halt much of the work on Phase I until Respondent obtained a County stormwater permit. Respondent asserts that this was responsible for all, or most, of the delay. The record shows that the EPT consultant did not apply for the County permit until September 10, 2014, or almost one year after the Notice of Violation was issued. Additional information was required by the County, which was supplied on October 23, 2014, but final sealed documents were not filed by the consultant until around Thanksgiving. The permit was issued by the County "a week or so" before the final hearing. Respondent attributes the delay in applying for a County permit to its former manager and his failure to coordinate with the EPT engineers assigned to the project. It also claims that the County failed to process the application in an expeditious fashion. However, the facts suggest otherwise. Once the permit was issued, Phase I was completed on December 8, 2014, and it was operational at the time of the final hearing. Respondent's expert, hired in August 2014, has proposed a modification to the RAP that would avoid impacting the existing stormwater pond. However, the modification must be reviewed and approved by the Department, and as of the date of the hearing, it had not been formally submitted. The Department asserts that the only reason the modification is being sought is to reduce the cost of a performance bond. In any event, in its PRO, Respondent does not argue that the proposed modification excuses its 13-month delay in completing the requirements of Phase I, or the second phase of the project, which should have been completed by early July 2014. Count III - Failure to Provide Financial Assurance This Count alleges that Respondent failed to provide the required annual 2014 financial assurance mechanism that demonstrates proof of financial assurance for closure and long- term cost estimates of the facility. At the beginning of 2014, Respondent had an $836,000.00 financial performance bond in place for closure and long-term costs. The Permit requires that on or before March 1 of each year Respondent revise the closure cost estimates to account for inflation in accordance with rule 62-701.630(4). See § 2, Spec. Cond. F.2. Once the estimates are approved, the performance bond must be updated within 60 days. In this case, an increase of around $18,000.00 was required. The annual inflation adjustment estimate was not submitted until April 15, 2014. The Department approved the cost estimates the following day and established a due date of June 16, 2014, for submitting a revised financial assurance. Respondent did not have a revised performance bond in place until a "week or two" before the hearing. Other than Respondent's manager indicating that he had a new bonding agent, no evidence was presented to mitigate this violation. The failure to timely update its financial assurance for closure and long-term costs constitutes a violation of rule 62-701.630, as charged in the Notice. Count IV - Financial Assurances for Corrective Action In the same vein as Count III, the Notice alleges that Respondent failed to maintain a financial assurance mechanism to demonstrate proof that it can undertake the corrective action program required under the RAP. Respondent was required to submit proof of financial assurance for corrective actions within 120 days after the corrective action remedy was selected. On July 3, 2013, the RAP Approval Order selected the appropriate remedy. On August 8, 2013, the Department approved Respondent's corrective action program cost estimates of $566,325.85 and established a deadline of October 31, 2013, for Respondent to submit this proof. When the Notice was issued, a corrective action bond had not been secured, and none was in place at the time of the final hearing. This constitutes a violation of rule 62-701.730(11)(d) and applicable Permit conditions. Respondent's manager, Mr. Miller, concedes that this requirement has not been met. He testified that he was not aware a new bond was required until he took over management of the facility and met with Department staff on June 17, 2014. Due to the Notice, Mr. Miller says he has had significant difficulty in securing a bond. He explained that the bonding company is extremely reluctant to issue a bond to an entity faced with possible revocation of its permit, especially if such revocation might occur within a matter of months. Mr. Miller says the bonding company wants 100 percent collateralization to put a bond in place. Nonetheless, he is confident that a bond can be secured if only because its cost will dramatically drop when the RAP project is completed. However, even at hearing, he gave no timeline on when this requirement will be fulfilled. Count V - Objectionable Odors One of the driving forces behind the issuance of the Notice is the complaint about off-site objectionable odors. A considerable amount of testimony was devoted to this issue by witnesses representing the Department, County, Wedgewood community, and Respondent. The Notice alleges that during routine inspections in April, May, and July 2014, mainly in response to citizen complaints, Department inspectors detected objectionable odors both at the facility and off-site. The Notice further alleges that Respondent failed to immediately take steps to reduce the odors, submit an odor remediation plan, and implement that plan in violation of rules 62-296.320(2) and 62-701.730(7)(e) and section 2, Specific Condition E of the Permit. Notably, the Department has never revoked a landfill permit due solely to objectionable odors. Several Department rules apply to this Count. First, objectionable odors are defined in rule 62-210.200(200). Second, a C & D facility must control objectionable odors in accordance with rule 62-296.320(2). Finally, if odors are detected off-site, the facility must comply with the requirements of rule 62-701.530(3)(b). That rule provides that once off-site odors have been confirmed, as they were here, the facility must "immediately take steps to reduce the objectionable odors," "submit to the Department for approval an odor remediation plan," and "implement a routine odor monitoring program to determine the timing and extent of any off-site odors, and to evaluate the effectiveness of the odor remediation plan." These same regulatory requirements are embodied in the Permit conditions. See § 2, Spec. Cond. E. At least occasionally, every landfill has objectionable odors emanating from the facility. As one expert noted, "The trick is, how can you treat it." The technical witnesses who addressed this issue agree that the breakdown of drywall, wall board, and gypsum board, all commonly recycled at C & D facilities, will produce hydrogen sulfide, which has a very strong "rotten egg" type smell. The most effective techniques for reducing or eliminating these odors are to spray reactant on the affected areas, place more cover, such as dirt or hydrated lime, on the pile, and have employees routinely patrol the perimeters of the property and the active cell to report any odors that they smell. Although the facility has been accepting waste products for a number of years, the last seven by Respondent, there is no evidence that the Department was aware of any odor complaints before April 2014. While not an active participant in the operations until recently, Mr. Miller also testified that he was unaware of any citizen complaints being reported to the facility prior to that date. However, in response to citizen complaints that more than likely were directed initially to the County, on April 14, 21, and 24, 2014, the Department conducted routine inspections of the facility. During at least one of the visits, objectionable odors were detected both on-site, emanating from cell 2, and off-site on West Pinestead Road, just north of the facility. See Dept. Ex. 14. Because the inspector created a single report for all three visits, he was unsure whether odors were detected on more than one visit. After the inspection report was generated, Department practice was to send a copy by email to the facility's former manager, Mr. Davidson. A Department engineer who accompanied the inspector on at least one visit in April 2014 testified that she has visited the site on several occasions, and on two of those visits, the odor was strong enough to make her physically ill. On a follow-up inspection by the Department on May 22, 2014, the inspector did not detect any objectionable odors. See Dept. Ex. 17. In June 2014, however, a County inspector visited the Wedgewood Center area in response to a complaint that dust was coming from the facility. He testified that he detected a rotten egg type smell on the Wedgewood Center property. At a meeting attended by Mr. Miller and County and Department representatives on June 17, 2014, the Department advised Respondent of its findings and provided Mr. Miller with copies of the inspection reports. On July 1, 2014, the Department conducted a follow-up inspection of the facility. The inspector noted a hydrogen sulfide odor on the north, south, and west sides of the disposal area of the facility, and on the top of the disposal pile at the facility. See Dept. Ex. 18. Another inspection conducted on July 9, 2014, did not find any objectionable odors. See Dept. Ex. 19. On July 18, 2014, the Department conducted a follow-up inspection of the facility. The inspector again noted objectionable odors at the facility but none off-site. Id. On July 24, 2014, Department inspectors noted objectionable odors on top of the pile, the toe of the north slopes, and off-site on West Pinestead Road. See Dept. Ex. 20. An inspection performed the following day noted objectionable odors on top of the pile and the toe of the north slopes, but none off-site. Id. The Notice, which was already being drafted in mid-July, was issued a week later. In response to the meeting on June 17, 2014, Respondent prepared a draft odor remediation plan, made certain changes suggested by the Department, and then submitted a revised odor remediation plan prior to July 31, 2014. A Department engineer agrees that "in the strict sense it meets the requirements of the rule" and "could work," but there are "two or three things that still needed . . . to be submitted in order for it to be completely approvable." For example, she was uncertain as to how and when dirt cover would be applied, and how erosion would be controlled. Although the plan was filed, it was never formally approved or rejected, and the "two or three things" that the witness says still needed to be done were never disclosed to Respondent. Under these circumstances, it is reasonable to accept Respondent's assertion that it assumed the plan was satisfactory and complied with the rule. After the Notice was issued, Respondent set up a hotline for community members to call and report odors. A sign on the property gives a telephone number to call in the event of odors. At an undisclosed point in time, Respondent began requiring employees to walk the perimeter of the facility each day to monitor for odors; spreading and mixing hydrated lime to reduce the odors around the facility; and increasing the amount of cover applied to the working face of the facility. The parties agree that these measures are the best available practices to monitor and eliminate objectionable odors at a C & D facility. Despite these good faith measures, Mr. Miller acknowledged that he visited the facility during the evening a few days before the final hearing in December 2014 and smelled hydrogen sulfide around the ECUA sewer pipe and "a very mild level" by the debris pile. Respondent does not deny that odors were emanating from the facility during the months leading up to the issuance of the Notice. But in April 2014, the County experienced a 500- year storm event which caused significant flooding and damaged a number of homes. Because Respondent operates the only C & D facility in the County and charges less than the County landfill, it received an abnormal amount of soaked and damaged C & D debris, which it contends could have generated some, if not all, of the odors that month. Given the magnitude of the storm, this is a reasonable explanation for the source of the odors at that time. Respondent also presented evidence that an underground ECUA sewer pipe that runs on the eastern side of the property was damaged during the storm, causing it to rupture and be exposed. Although ECUA eventually repaired the damaged pipe at a later date, the pipe is still exposed above ground. Until the pipe was repaired, Respondent's assumption that it likely contributed to some of the odors detected by the Department appears to be valid. Finally, Respondent's expert attributes some of the odors to biological degradation from other sources both on-site and off-site, including a large wetland area running through the middle of the property. To a small degree, County testing later that fall confirms this assertion. The County has also been an active participant in the odor complaint issue. In response to complaints received from residents of Wedgewood, in July 2014 it began collecting hydrogen sulfide data using a device known as the Jerome 631X Hydrogen Sulfur Detector. This equipment is used to monitor for the presence of hydrogen sulfur. On July 21 and 22, 2014, samples were taken documenting that hydrogen sulfide was coming from the facility. In early September the County set up a fixed station at the Wedgewood Center, around 500 feet from the edge of Respondent's property, to continuously and automatically collect the data. During September and October 2014 the detector reported the presence of hydrogen sulfide at that location 64 percent of the days in those months, and this continued into the month of November. Seventy-five percent of the exceedances occurred when wind was blowing from the south, or when winds were calm. The data also reflected that when the wind was blowing from the meter to the facility, or to the south, hydrogen sulfide was still detected on some occasions. A resident of the Wedgewood community testified that on multiple occasions she has smelled objectionable odors in her home and yard and at the Wedgewood Center, and that these odors have been emanating from the facility for a number of years. Because of the odors, she says fewer citizens are participating in programs hosted by the Wedgewood Center.3/ The evidence establishes that before the Notice was issued, Respondent filed an odor remediation plan that was never rejected; therefore, the allegation that a plan was not submitted has not been proven. However, objectionable odors were detected off-site in June and July 2014, or after the April inspection reports were provided to the facility, and they continued throughout much of the fall. Therefore, the Department has established that the plan was not properly implemented. These same findings sustain the allegation that steps were not immediately taken to reduce the objectionable odors. Counts VI and VII - Disposal and Failure to Remove Unauthorized Waste Counts VI and VII allege that on April 14, 2014, the Department documented the disposal of prohibited or unauthorized waste, including waste tires; and that on July 18, 2014, the Department conducted a follow-up inspection that documented the disposal of unauthorized waste, including waste tires, clothing, shoes, and Class I waste, including one electronic item and a grill, in violation of rule 62-701.730(4)(d). The Permit specifies that the facility can only accept for disposal C & D debris. See § 2, Spec. Cond. C.2. Another condition provides that if unauthorized debris is spotted after a load is received, the unpermitted waste should be removed and placed in temporary storage in a bin at the sorting area. See § 2, Spec. Cond. C.3. The Operations Plan spells out these procedures in great detail. Photographs received in evidence show that during the inspection on April 14, 2014, the following unauthorized items were observed at the facility: tires, a basketball goal, Quiklube material, chromated copper arsenate treated wood, a toy, and a crushed electronic item. See Dept. Ex. 22. Photographs received in evidence show that during an inspection on July 18, 2014, the following unauthorized items were observed at the facility: blanket or clothing, a shoe, a bag of Class I garbage, several bags of household garbage, furniture, an electronic item and garbage, drilling mud, a suitcase, and tires. See Dept. Ex. 23. Respondent's expert, who has trained numerous spotters, including a current Department inspector, established that a de minimis amount of unpermitted waste, which is easily hidden in the debris, is not unusual and would not constitute a violation of the rule. For example, when a building is torn down, numerous thermostats containing mercury vile will be in a C & D container but very difficult to see. Also, workers at construction sites may throw small amounts of leftover food in the pile of debris that goes to the facility. However, he agrees that most, if not all, of the items observed during the two inspections would not be considered de minimis. Respondent does not deny that the unauthorized waste was present on two occasions. However, it contends that one would expect to find some of the items in a C & D dumpster. It also argues that the amount of unauthorized waste was minimal and not so serious as to warrant revocation of its Permit. The evidence supports a finding that on two occasions Respondent violated two conditions in its Permit by accepting non-C & D waste and failing to remove it. Therefore, the charges in Counts VI and VII have been proven. Count VIII - Facility Outside of Permitted Dimensions This Count alleges that on May 22, 2014, the Department conducted an inspection of the facility in response to a complaint that Respondent had disposed of solid waste outside its permitted (vertical) limit of 130 NGVD; that on July 25, 2014, the Department had a survey performed at the facility that confirmed this violation; and that this activity violated section 2.3 of the facility's Operation Plan and Specific Condition C.10 in the Permit. Section 2.3 provides that "the proposed upper elevation of waste at the [facility] will range up to 130-feet, NGVD, which is slightly above original grade[,]" while Specific Condition C.10 provides that "[t]he final (maximum) elevation of the disposal facility shall not exceed 130 feet NGVD as shown on Attachment 3 - Cell 2 Closure Grading Plan." Respondent admits that on July 25, 2014, the maximum height of the disposal pile exceeded 130 feet NGVD. However, it argues that, pursuant to Specific Condition C.10, which in turn refers to the Permit's Cell 2 Closure Grading Plan, the 130-foot height limitation comes into play only when cell 2 is being closed and is no longer active. This interpretation of the conditions is rejected for at least two reasons. First, a disposal pile in excess of the established height would trigger concerns about the integrity of the foundation of the facility. When the 130-foot ceiling was established by the Department at the permitting stage, it was based on calculations that the ground could support the weight of the waste. Second, the facility's financial assurance calculations are based on a set dimension of the site; these calculations would likely be impacted if there were no height restrictions. The Department's interpretation is more reasonable and limits the height of the pile to no more than 130 feet NVGD at any time when the cell is active. The Department has established that Respondent violated Permit conditions by disposing of waste outside its maximum permitted height of 130 feet NVGD. To Respondent's credit, its new consultant, Charles Miller, completed preparation of a height reduction plan on September 3, 2014. See Resp. Ex. 4. Although Mr. Miller says the plan was being implemented at the time of final hearing, it has never been formally submitted to the Department for approval. Under the plan, Respondent proposes to extract all of the existing waste from the pile in the next two years. To reduce the volume of new waste being accepted, Respondent recently purchased a Caterpillar bulldozer, low-speed grinder, and Trommel screener. New waste will be shredded, screened to separate sand and dirt from the material, and then ground and compacted. Mr. Miller anticipates that the facility can achieve up to an eight to one (or at a minimum a five to one) reduction in the size of the waste. This will dramatically reduce the height of the pile and bring it well below 130 feet at closure. But whether cell 2 is now below 130 feet NGVD is unknown. In any event, these proposed remediation steps should be taken into account in assessing an appropriate penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking Respondent's C & D Permit. DONE AND ENTERED this 2nd day of March, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 2nd day of March, 2015.
Findings Of Fact The petitioner is a non-profit corporation consisting of individual members who are residents of Tallahassee and Leon County and organizational members who have chapters in Tallahassee and Leon County. The primary purpose of petitioner is to bring about a balanced transportation system in Tallahassee and Leon County taking into consideration certain criteria which include the following: the prevention of neighborhood disruption and deterioration; the prevention of environmental degradation; and the prevention of harm to historical sites. In conjunction with this purpose and these criteria, one of petitioner's primary concerns is the prevention of degradation of air quality in the Tallahassee, Leon County area. Some members of the petitioner use that part of Thomasville Road to be affected by the subject application. The project for which the Department of Transportation seeks a Complex Source Permit is the four-laning of Thomasville Road from Eighth Avenue to Interstate 10 in Tallahassee, Florida. The Complex Source Permit was originally submitted to the Department of Environmental Regulation on March 22, 1976. The Department of Environmental Regulation did not accept that application, however, due to unacceptable modeling and monitoring. Thereafter, two supplements to the application were submitted to the Department of Environmental Regulation. The first, dated September 21, 1976, and the second, dated November 16, 1976, contained additional monitoring and a repeat of the modeling effort. Because of allegedly incorrect counts and speeds, the Department of Transportation submitted yet another application with revised monitoring and modeling data on January 4, 1978. This latest revised application is the subject of this hearing. The Department of Transportation did not monitor for or project the concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The Department of Environmental Regulation did not require the monitoring for or projection of concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The evidence presented in this proceeding does not establish that construction of the project for which a Complex Source Permit is sought herein would result in or cause an increase in ambient pollutant concentrations of any pollutant listed in Section 17-2.05, F.A.C., with the exception of carbon monoxide. The evidence presented indicates that remaining pollutants listed in the foregoing section would be emitted in insignificant quantities having no effect on the ambient air quality standard for that pollutant. The Department of Environmental Regulation has not independently monitored for any of the pollutants considered by Section 17-2.04(8), F.A.C., but has relied entirely on data submitted by the Department of Transportation. The Department of Transportation has based its carbon monoxide projections upon the use of the California Line Source Model, also known as Calair I, which is a mathematical computer model. It appears from the evidence presented that the Calair I computer model was used in a reasonable and proper manner and produced data which could be relied upon by the Department of Environmental Regulation. The Complex Source Permit application as finally submitted on January 4, 1978, projects the following concentrations for carbon monoxide: one-hour concentration for 1979, 6.7 ppm and for 1939, 4.8 ppm; for eight-hour concentrations in 1969, 2.8 ppm and for 1989, 2.0 ppm. The ambient air quality standard for carbon monoxide set forth in Section 17-2.05(1)(c), F.A.C., is 9 ppm maximum eight-hour concentration and 35 ppm maximum one-hour concentration, both not to be exceeded more than once per year. The testimony indicates that even if the calibration factor with the Calair I model were doubled, the projected carbon monoxide concentrations would not exceed the foregoing standard. No evidence was presented on the issues initially raised in this proceeding involving the Major Thoroughfare Plan, the Transportation Improvement Plan, and the Urban Area Transportation Plan. The testimony and evidence presented in this proceeding establishes reasonable assurance that the subject project will not cause a violation of the ambient air quality standards for the major pollutants to be emitted.
The Issue The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.
Findings Of Fact The Department (DER) is the regulatory agency of Florida charged with the duty and authority to administer and enforce Chapter 403 and Sections 376.30-376.319, Florida Statutes, and rules and regulations promulgated thereunder. Hendry is a Florida corporation that has been conducting business in excess of 60 years. The two main aspects of its business are the dredging operation and the shipyard. Hendry's site can be loosely described as an industrial site. The shipyard division performs approximately one-half its work for governmental entities, particularly the U.S. Coast Guard, which operations are largely ship refurbishing. Hendry has a Coast Guard certificate enabling it to receive mixtures containing oil and oily water waste. A significant portion of Hendry's ship refurbishing work involves repairing/replacing steel on ships which has deteriorated due to salt water exposure. That work frequently requires cutting, welding and burning. Prior to commencing the refurbrushing work, the ships must be certified as safe. In certifying a ship as being safe, the bilge area is pumped of used oil or waste oil which collects in standing waste water and oil. Also, before that works commences, the ship is defueled. Currently, Hendry's practice is to subcontract the pumping of waste oil from the ships bilge, which waste oil is pumped directly into the tanker truck of the subcontractor. Hendry no longer pumps or stores waste oil on site. In the past, the waste oil and water from the ship's bilge was pumped from the ship through a pipeline from the dry dock across the property to a 10,000 gallon above-ground storage tank. During December 1987, the U.S. Coast Guard observed a fuel spill on the water at Petitioner's facility. Based on that observation, Respondent conducted site inspections of Petitioner's facility during March and April 1988. The fuel spill was occasioned by Petitioner's refurbishment of a tuna boat at its site. Petitioner subsequently received a warning notice regarding alleged violations in its petroleum storage tanks and contamination. The transfer pipeline is of steel construction. Between 1980 and 1984, the pipeline leaked. In 1984, the pipeline was rerun with PVC line and in 1986, it was refitted with 4 inch steel pipe. The 10,000 gallon above-ground tank is located in Area 1. The removal of waste oil occasionally resulted in accidental spills. After 1985, a smaller, above-ground tank was installed adjacent to the 10,000 gallon tank to provide a storage tank for draining off water from the 10,000 gallon tank. The small tank was used to receive only water drained from the 10,000 gallon tank. Prior to installation of the small tank, a retention pond was used to drain water from the 10,000 gallon tank. The retention pond had a 2 foot berm with a visqueen liner. In October 1988, Hendry submitted an EDI Program Notification Application, a prerequisite for EDI reimbursement eligibility, under the program for costs associated with cleanup of certain petroleum contamination. In May 1989, Hendry submitted a document entitled Preliminary Contamination Assessment III Specific Areas--Task IV Rattlesnake Terminal Facility--Westshore Boulevard, Hillsborough County prepared by Mortensen Engineering, Inc. That document included reports of analysis of oil and groundwater samples taken from the site in January, March and April 1989, demonstrating extensive contamination of soil and groundwater including "free product" in monitoring wells MW-2, MW-4 and MW-4A. By letter dated November 9, 1989, the Department informed Hendry of its determination that the facility had been denied EDI reimbursement based on specific enumerated findings. Hendry entered into a stipulation with the Department on October 16, 1990, "regarding the conduct of this case and the basis for denial. " Attached to the stipulation is a sketch of the facility grounds showing a rough division of the area into four separate areas. Area 1 has two waste tanks. One was a large 10,000 gallon closed tank approximately 20 feet high and 12 feet in diameter; the other contained a volume of approximately 1,500-2,000 gallons and was an open tank. Petitioner's practice was to pump bilge in the dry dock area, located west of "Area 2" and direct the waste through underground pipes to the 10,000 gallon tank. The smaller tank was used to "bleed" water from the larger tank. Bilge waste is approximately two-thirds water. Area 2 was the location of Hendry's diesel tank farm. In the stipulation, the Department agreed to withdraw two of the seven specific grounds for the denial, namely denial of site access and failure to report discharges. Likewise, Hendry agreed to withdraw "Area 4" from its application for EDI eligibility. In the stipulation, Hendry was informed of a then recent amendment to Section 376.3071(9), which offered certain applicants who had been earlier determined ineligible for participation in the EDI program, standards and procedures for obtaining reconsideration of eligibility. The amendment required the facility to come into compliance, certify that compliance and request reconsideration prior to March 31, 1991. Additionally, compliance was to be verified by a Department inspection. Pursuant to paragraph 5(b) of the stipulation, these standards and procedures were specifically to be applied to Areas 2 and 3 at the facility. Hendry did not make a written request for reconsideration of the denial of eligibility with respect to Areas 2 and 3 on or before March 31, 1991 or at anytime subsequently. Hendry also did not come into compliance with the underground or above-ground storage tanks system regulations on or before March 31, 1991 in that Hendry failed to register a 560-gallon above-ground diesel storage tank which was onsite on that date as required by Rule 17-762.400, Florida Administrative Code. Hendry also failed to notify the Department of the Hillsborough County Environmental Protection Commission (HCEPC), as the administrator of a designated local program at least thirty days prior to closure of the storage tank system, pursuant to Subsection 376.3073, Florida Statutes. These determinations were made on April 1, 1991 by Hector Diaz, inspector in the HCEPC tanks program. Hendry submitted a registration form for the 560-gallon tank on November 18, 1991, which was of course subsequent to the March 31, 1991 deadline. Hendry stored petroleum products and waste material including petroleum constituents in the above-ground tanks until approximately March 25, 1991 when it initiated tank removal. Hendry's above-ground storage tanks, which were in use at its facility for approximately three years after extensive soil contamination was documented, were without secondary containment. In November 1991, Hendry submitted a document entitled Supplemental Preliminary Contamination Assessment Report, prepared by Keifer-Block Environmental Services, Inc. (Supplemental PCAR). The stated purpose of the study was solely to determine whether hazardous constituents were present in groundwater in Areas 2 and 3. The report included laboratory analysis of groundwater samples taken from the site in August 1991 including monitoring wells located in Area 3. The results of these analysis reflect that Area 3 is contaminated solely with heavy metals, lead and chromium. No petroleum hydrocarbon contamination was detected in Area 3. In the area adjacent to Area 2, seven of eight monitoring wells show chromium or lead contamination. Hendry had, and continues to have, a practice of removing paint from vessels by blasting them with a gritty material known as "black beauty." This practice takes place in the dry dock area near Areas 2 and 3. The waste blast grit/paint chip mixture is vacuumed or shoveled into wheelbarrels or a frontend loader and dumped into an open pile. Occasionally, the waste blast grit/paint mixture is blown about or spilled. Waste "black beauty" has been observed scattered on the ground throughout the facility. Paints sometime contain heavy metals, specifically, lead and chromium. The concentrations and distribution of lead and chromium contamination at the site are consistent with Hendry's long-standing practice of grit-- blasting paint from ships and other vessels and allowing the metal-contaminated paint and waste mixture to fall to the ground. Areas 2 and 3 are contaminated with substances other than petroleum or petroleum products, namely heavy metals. Costs associated with cleanup of lead and chromium are not reimburseable under the EDI program. Paragraph 5(c) of the stipulation allowed Hendry an opportunity to establish eligibility for Area 1 by providing information regarding operating practices at two above-ground storage tanks and a retention pond in that area demonstrating that contamination in that area is predominantly from leaks or unintentional spills of petroleum products from the tanks in that area. Hendry did not provide the required information. On January 27, 1992, Hendry submitted to the Department an affidavit executed by its principal, Aaron Hendry, which Hendry contends fulfills the requirements of paragraph 5(c) of the stipulation. Hendry, the principal who executed the affidavit, is an affiant with a legal and financial interest in the outcome of the EDI eligibility determination. The executed affidavit did not contain specific information with respect to "operating practices at the tanks and retention ponds as required by the stipulation." Specifically, the affidavit is silent as to: What the tanks were made of; When, how and by whom they were installed; What piping, leak detection or overfill protection was associated with them; What repairs or alterations had been made to them; What inventory reconciliation methods were used; Where the materials came from which was put into the tanks; In what manner, how often, and by whom material was put into the tanks; In what manner, how often, and by whom material was removed from the tanks; Disposition of material removed from the tanks; When, how, by whom and why the retention pond was dug; How and for what period of time the retention pond was used; How, often and by whom inspections of the tanks were conducted; When and how leaks occurred and were discovered at the tanks; When and how spills occurred and were discovered at the tanks; What records, including reports to state or local agencies, insurance claims, newspaper accounts, and so forth were kept with respect to leaks or spills at the tanks; What cleanup efforts were made at the time of any leaks or spills; Documentation related to registration of the tanks with state or local agencies; and Documentation with respect to any removal of the tanks, including any description of the condition of the tanks when, or if, removed. For years, the facility's retention pit was used as a "waste pit" namely, a rectangular hole in the ground, approximately 30 feet by 120 feet by 3 feet, for direct discharge of bilge waste piped from vessels at the dry dock area to the waste pit, prior to installation of the storage tank systems. After installation of the large tank in Area 1, the retention pit was used to bleed water from the bilge tank. In the past, the Department has denied eligibility to facilities where a retention pond was used for disposal of petroleum related waste and cleanup of contamination resulting from use of a retention pond. Hendry's affidavit nor other documentation submitted to the Department prior to the EDI redetermination or at hearing establishes that the bilge waste taken from the storage tanks was "a liquid fuel commodity" or recycled into such a commodity. By letter dated June 9, 1992, the Department notified Hendry that reconsideration of its EDI eligibility request for Areas 2 and 3 was denied and that the affidavit of Aaron Hendry submitted with respect to Area 1 did not satisfy the requirements of the stipulation. Thereafter, Hendry challenged the Department's denial of reconsideration and EDI eligibility which joins the issue for this proceeding. The hazardous waste allegation discovered during an inspection of Hendry's facility on April 14, 1988, resulted in a consent order which was entered as a final order of the Department on November 21, 1990. The consent order allowed Hendry an opportunity to demonstrate that not all areas at the facility were hazardous waste disposal areas and, thus, not all areas would be subject to closure and cleanup under the permitting requirements of Subsection 403.722, Florida Statutes and the remediation standards set forth in Chapter 17-730, Florida Administrative Code. To establish appropriate remediation standards and procedures which would be applicable to various areas, Hendry was required to prepare a property diagram designating areas at the property exhibiting any of the following types of contamination: Areas contaminated solely by petroleum or petroleum products or used oil which is not hazardous waste; Areas contaminated by materials which are not hazardous waste; Areas contaminated by the past or present disposal of hazardous waste. The consent order allows contamination assessment and remediation pursuant to the standards and procedures set forth in Chapter 17-770, Florida Administrative Code, for areas contaminated solely by petroleum or petroleum products. (Petitioner's Exhibit 5, paragraph 11.) The consent order requires contamination assessment and remediation pursuant to the Department's corrective action and groundwater contamination cases for all areas at the facility contaminated by used oil which is not hazardous waste or by hazardous material. (Petitioner's Exhibit 5, paragraph 12.) The consent order requires contamination assessment and remediation pursuant to a closure permit with a contingent post-closure plan to close the areas at the facility contaminated by the disposal of hazardous waste. In response to the consent order to delineate areas on the property exhibiting various types of contamination, Hendry submitted the supplemental PCAR. By letter dated March 19, 1992, the Department responded to the supplemental PCAR with a determination that: Area 1 can be assessed and remediated through the standards set forth in Chapter 17-770, Florida Administrative Code. Contamination in Areas 2 and 3 includes heavy metals, which are hazardous materials. Thus, Areas 2 and 3 should be assessed and remediated through the corrective action process for groundwater contamination cases. A hazardous waste facility closure permit application should be submitted for assessment and remediation of Area 4, which, because of the presence of Dichloroethylene, a hazardous substance and chlorinated solvent, should be expanded to include the location of monitoring well MW KBMW-2. Hendry had a practice of cleaning electrical motors by placing such motors on the ground outside the electrical repair shop near Area 4. The motors were sprayed with Trichloroethylene, a waste solvent, which was allowed to runoff into the soil. At the time of this practice, the intention was to leave the solvent contamination unchecked. The Department, pursuant to directives from the United States Environmental Protection Agency (EPA), characterizes the disposition of hazardous waste to the environment as a result of intentional, ongoing industrial practices as "disposal of hazardous waste" within the meaning of Subsection 475.703(21), Florida Statutes and 40 CFR 260.10. The consent order allowed Hendry an opportunity to challenge the Department's determination with respect to delineation of the various areas by filing a petition per paragraph 21 of the order for formal administrative hearings. Hendry filed its petition with respect to the March 19, 1992 letter, which petition is the subject of DOAH Case No. 92-2312.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent, Department of Environmental Regulation, issue a Final Order in these consolidated cases concluding that 1) the contamination areas at issue herein are not eligible for EDI reimbursement under Subsections 376.3071(9) and (12), Florida Statutes; 2) that Petitioner cleanup the contamination in Areas 1, 2 and 3 under the guidance document entitled "Corrective Actions for Groundwater Contamination Cases"; and 3) that Area 4 be expanded to include the location of monitoring well MW KBMW-2 and closed through a hazardous waste closure/post closure permit application process. DONE AND ENTERED this 26th day of April, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1993. APPENDIX Rulings on Petitioner's proposed findings of fact: Paragraph 14, partially adopted in Paragraph 13, Recommended Order. Paragraph 19, rejected, contrary to the greater weight of evidence and speculative. Paragraph 20, rejected, unnecessary. Paragraph 21, rejected, contrary to the greater weight of evidence, Paragraphs 24-28, Recommended Order. Paragraph 22, partially adopted, Paragraphs 13 and 14, Recommended Order. Paragraph 23, partially adopted, Paragraph 15, Recommended Order. Paragraph 29, partially adopted, Paragraph 18, Recommended Order. Paragraphs 31, 32, 35, 48, 49, 51, 52, 60, 62 and 73 rejected, unnecessary. Paragraph 33, adopted in part, Paragraph 23, Recommended Order. Paragraph 38, adopted in part, Paragraph 23, Recommended Order. Paragraph 41, rejected, contrary to the greater weight of evidence and the two cases cited at hearing where Respondent exercises his discretion are distinguishable from Petitioner's failure to timely apply. Paragraph 43, rejected, unnecessary and/or argument. Paragraph 45, rejected, contrary to the greater weight of evidence. Paragraph 50, rejected, contrary to the greater weight of evidence, Paragraphs 37-39, Recommended Order. Paragraph 54, rejected, not probative. Paragraph 55, rejected, not probative. Paragraphs 56 and 57, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraphs 58 and 59, rejected, contrary to the greater weight of evidence, Paragraphs 23 and 24, Recommended Order. Paragraph 61, rejected, speculative and unnecessary. Paragraph 63, rejected, speculative. Paragraph 67, rejected, not probative. Paragraph 68, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraph 69, rejected, not probative. Paragraph 70, adopted in part, Paragraph 23, Recommended Order. Paragraph 72, rejected, irrelevant and not necessary to the issues posed. Paragraph 74, rejected, contrary to the greater weight of evidence and unnecessary. Paragraph 75, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 76, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 77, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraphs 78 and 79, rejected, irrelevant and unnecessary. Paragraph 80, rejected, not probative. Rulings in Respondent's proposed findings of fact: Paragraphs 2 and 3, adopted in part, Paragraph 9, Recommended Order. Paragraph 12, adopted in part, Paragraph 23, Recommended Order. Paragraph 23, adopted in part, Paragraph 32, Recommended Order. Paragraph 27, adopted in part, Paragraphs 38 and 39, Recommended Order. Paragraph 30, rejected, unnecessary. COPIES FURNISHED: Thomas J. Patka, Esquire Rory C. Ryan, Esquire HOLLAND & KNIGHT 200 South Orange Ave - Suite 2600 Post Office Box 1526 Orlando, Florida 32802 Agusta P. Posner, Esquire Lisa Duchene, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Virginia B. Wetherell Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400
The Issue The issue to be determined in this case is whether a supplemental site certification should be issued to Lee County for the construction and operation of Unit No. 3 at Lee County's Solid Waste Energy Recovery Facility (Facility), in accordance with the provisions of the Florida Electrical Power Plant Siting Act (PPSA), Sections 403.501 - .518, Florida Statutes. (All statutory references are to the 2002 codification of the Florida Statutes.)
Findings Of Fact The Applicant The Applicant, Lee County, is a political subdivision of the State of Florida. Lee County owns the existing Facility and will own Unit No. 3. The Facility was designed, built and is operated by a private company, Covanta Lee, Inc. (Covanta), pursuant to a long-term contract with Lee County. It is anticipated that Covanta or another private company will design, construct and operate Unit No. 3 for the County. History of the Project In 1985, the Florida Legislature enacted the Lee County Solid Waste Disposal and Resource Recovery Act (the Act), which authorized Lee County to construct, operate, and maintain a solid waste disposal and resource recovery system for the benefit of Lee County's residents. In 1989, pursuant to the Act, Lee County adopted an Integrated Solid Waste Management Master Plan (Plan), which established a comprehensive plan for the management, reuse, recycling and/or disposal of the solid waste generated in Lee County. Lee County's Plan was based on the development of: (a) an aggressive recycling program to reduce the quantity of materials requiring disposal; (b) a waste-to-energy facility for waste reduction and energy recovery from those materials that are not recycled; and (c) a landfill for the disposal of ash and by- pass waste (i.e., materials that are not recycled or processed in the waste-to-energy facility). Lee County has implemented its Integrated Solid Waste Management Plan with innovative approaches and state of the art technology. Lee County has a comprehensive recycling program that handles a wide array of materials, including: (a) waste from residential, commercial, governmental, and institutional facilities; (b) household hazardous waste; (c) yard waste; (d) recovered materials; (e) construction and demolition debris; and (f) electronic waste. Lee County established a recycling and materials separation goal of 40 percent for its residents, even though the State of Florida's goal is 30 percent. From 1993 through 2000, Lee County exceeded the State's 30 percent goal. In 1998, Lee County's recycling rate was approximately 38 percent, which was higher than that of any other county in Florida. Consistent with its Plan, Lee County built a modern landfill, which is equipped with two synthetic liners, two leachate collection systems, and a network of groundwater monitoring wells to ensure the protection of the environment. Lee County's landfill is located in Hendry County, pursuant to an interlocal agreement between Lee County and Hendry County. Under this agreement, the solid waste from both counties is taken to Lee County's Facility for processing and then the ash and by-pass waste are taken to the landfill for disposal. This cooperative, regional approach to solid waste management issues has enabled Lee County and Hendry County to provide environmentally sound, cost-effective programs for the residents of both counties. In 1992, the Governor and Cabinet, sitting as the Siting Board, approved the construction and operation of Units No. 1 and No. 2 at the Facility, and certified an ultimate site capacity of 60 megawatts (MW), based on the operation of three municipal waste combustor (MWC) units. Units No. 1 and No. 2 have been in commercial operation since 1994. Despite Lee County's comprehensive recycling program, the amount of solid waste delivered to the Facility has increased each year since the Facility began operation, primarily due to population growth. In 1999, Lee County's solid waste deliveries were equal to the Facility's guaranteed processing capacity (372,300 tons). In 2000, the Facility processed more than 392,000 tons of solid waste, but the County still had to dispose of nearly 44,000 tons of processible waste in its landfill. Current population projections for Lee and Hendry Counties suggest that the amount of processible solid waste will continue to increase, reaching almost 550,000 tons by 2010. Lee County has decided that it should expand the Facility, consistent with Lee County's long-standing Plan, rather than discard processible waste in a landfill. The Facility was designed to readily accommodate the construction of a third MWC unit. If approved and built, the third unit (Unit No. 3) will be operating at or near its design capacity by 2010 (i.e., within five years after it commences commercial operations). For these reasons, on November 18, 2002, Lee County filed its Supplemental Application with DEP for the construction and operation of Unit No. 3. The Site The Facility is located east of the City of Fort Myers, in unincorporated Lee County. The Facility is approximately 2.5 miles east of the intersection of Interstate-75 and State Road 82, on the north side of Buckingham Road. The County owns approximately 300 acres of land at this location, but only 155 acres (which constitutes the Site) was certified under the PPSA for the Facility. The Site currently includes the Facility, a household hazardous waste drop-off area, a waste tire storage facility, a horticultural waste processing area, and a recovered materials processing facility. A solid waste transfer station is under construction at the Site. Even after the Facility is expanded to accommodate Unit No. 3, approximately 63 percent of the Site will be used solely as buffer and conservation areas. The Surrounding Area There are large buffer areas around the Site. A Florida Power & Light Company (FPL) transmission corridor, containing electric transmission lines, is located along the western boundary of the Site. Approximately three-quarters of a mile to the west of the Site is a limerock, fill, and topsoil mining operation. Immediately north of the Site is approximately 145 acres of undeveloped land owned by the County. A 135-acre County-owned park is adjacent to the Site's eastern property line. Scattered single-family homes are located northeast and farther east of the Site. An adjacent parcel southeast of the Site was previously used as a sanitary landfill (which has been closed and covered), and is now owned by the City of Fort Myers and private individuals who use it for livestock grazing. The land immediately south of the Site is undeveloped. The Gulf Coast Sanitary Landfill is located three miles directly south of the Site. Site Suitability The Site is well-suited for the addition of Unit No. 3. The Site has sizable buffer areas on all sides. Potable water, reclaimed water, and wastewater services are already provided to the Site through existing pipelines. The Facility is near an existing electrical substation (Florida Power & Light Company's Buckingham Substation). An existing electrical transmission line connects the Facility to the substation. Zoning and Land Use In 1991, the Siting Board determined that the Site and Facility are consistent and in compliance with the applicable land use plans and zoning ordinances, based on the construction and operation of three MWC units at the Facility. The Site was zoned for an Industrial Planned Development, and was designated as Public Facilities in the future land use map of Lee County's comprehensive land use plan, specifically to allow the Facility to be built and operated on the Site. The Existing Facility The Facility currently consists of Units No. 1 and No. 2, which have been in commercial operation since 1994. Each MWC unit has a nominal capacity of 600 tons per day (tpd) of solid waste (660 tpd using a reference fuel with a higher heating value of 5000 British thermal units per pound (Btu/lb)). The two MWC units generate steam that is used to drive an electric turbine generator, which generates approximately 39 MW of electricity. The Facility also includes an ash management building, cooling tower, stack, stormwater management ponds, water treatment system, electrical switchyard, electrical transmission lines, and related facilities. Solid waste collection trucks enter the Site from Buckingham Road. They follow an access road to the County's scale house, where the trucks are weighed, and then the trucks are directed to the Facility. The trucks drive inside the Facility and dump the garbage into a refuse pit. A crane mixes the garbage in the pit. The crane then places the garbage in a hopper, which feeds into the combustion chamber where the garbage is burned. The air in the combustion chamber passes through the Facility's air pollution control equipment, and then out the stack. Ash from the combustion process is quenched and then is deposited onto an enclosed conveyor, which takes the ash to an ash management building. The ash then is loaded into trucks and taken to the County's existing landfill in Hendry County. As a result of this process, the amount of fill being taken to the existing landfill is reduced by approximately 90 percent. The New Project-MWC Unit No. 3 The Project involves the construction and operation of a new MWC unit (Unit No. 3) at the Facility. The new unit will be substantially the same as the two existing MWC units. The new unit will have the capacity to process 600 tpd (nominal) of solid waste (660 tpd at 5000 Btu/lb). A new electric turbine generator will be installed and it will generate approximately 20 MW of additional electricity. In addition, the cooling tower will be expanded, the ash management building will be expanded, a lime and carbon silo will be installed, and the new unit may be connected with the two existing units. Construction of Unit No. 3 The Facility was originally designed and built to accommodate the addition of a third MWC unit, thus making the construction of Unit No. 3 relatively simple, without disrupting large areas of the Site. Unit No. 3 will be located adjacent to the two existing MWC units. The expansion of the cooling tower will be adjacent to the existing cooling tower. Construction of Unit No. 3 will occur in previously disturbed upland areas on the Site. Construction of Unit No. 3 will not impact any wetlands or environmentally sensitive areas on the Site. No new electrical transmission lines or improvements will need to be built to accommodate the additional electrical power generated by Unit No. 3. No new pipelines or other linear facilities will need to be built for the Project. Operation of Unit No. 3 The basic operation of the Facility will not change when Unit No. 3 becomes operational. Solid waste will be processed at the Facility in the same way it is currently processed. The Facility has been in continuous operation since 1994, and has an excellent record for compliance with all applicable regulations, including regulations concerning noise, dust, and odors. All of the activities involving solid waste or ash occur inside enclosed buildings. The refuse pit is maintained under negative air pressure, thus ensuring that dust and odors are controlled within the building. Because the operations at the Facility will remain the same after Unit No. 3 becomes operational, no problems are anticipated due to noise, dust or odors. The Facility's basic water supply and management system will remain the same after Unit No. 3 becomes operational. Treated wastewater from the City of Ft. Myers' wastewater treatment plan (WWTP) will be used to satisfy the Facility's need for cooling water. Potable water will be provided to the Facility from the City's water supply plant. On-site wells will be available for emergency water supply purposes; however, the wells have not been regularly used as a source of back-up cooling water since the Facility became operational. The County's water supply plan maximizes the use of reclaimed water and minimizes the use of groundwater. To the extent feasible, the Project uses all of the reclaimed water that is available before it relies on groundwater. The Facility also recycles and reuses water to the greatest extent practicable. Unit No. 3 will not discharge any industrial or domestic wastewater to any surface water or groundwater. Most of the wastewater from the cooling tower will be recycled and reused in the Facility. Any excess wastewater will be discharged to the City of Fort Myers' WWTP. Stormwater runoff from the Project will be collected and treated in the existing system of swales and detention/ retention ponds on the Site. Ultimate Site Capacity The construction of Unit No. 3 will not expand the Facility beyond the boundaries of the Site certified by the Siting Board in 1992. The operation of Unit No. 3, together with the operation of Units No. 1 and No. 2, will not increase the electrical generating capacity of the Site beyond the 60 MW certified by the Siting Board in 1992. Air Quality Regulations The County must comply with federal and state New Source Performance Standards (NSPS) and Best Available Control Technology (BACT) requirements, both of which impose strict limits on the Facility's airborne emissions. The County also must comply with Ambient Air Quality Standards (AAQS) and Prevention of Significant Deterioration (PSD) standards, which establish criteria for the protection of ambient air quality. The addition of Unit No. 3 must undergo PSD review because the Project is a new source of air pollution that will emit some air pollutants at rates exceeding the threshold levels established under the PSD program. PSD review for the Project is required for airborne emissions of particulate matter less than 10 microns in diameter (PM10), MWC metals, MWC organic compounds, MWC acid gasses, sulfur dioxide (SO2), nitrogen oxides (Nox), carbon monoxide, mercury, fluorides, and sulfuric acid mist (SAM). Best Available Control Technology A BACT determination is required for each pollutant for which PSD review is required. BACT is a pollutant-specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. As part of the BACT determination, all available and feasible pollution control technologies being used worldwide are evaluated. As part of its BACT analyses, DEP determined that a fabric filter baghouse will control the Facility's emissions of particulate matter, a scrubber will control acid gases, a selective non-catalytic reduction system (SNCR) will control NOx, an activated carbon injection system (ACI) will control mercury emissions, and proper facility design and operating methods will control other pollutants. These air pollution control technologies are currently used in Units No. 1 and No. 2, and they have performed extremely well. Units No. 1 and No. 2 are among the best operated and controlled MWC units currently operating in the United States. Unit No. 3 will have better, more modern, and more sophisticated air pollution control systems than Units No. 1 and No. 2. In its PSD analysis for the Project, DEP determined the emission limits for the Project that represent BACT. All of the BACT emission limits determined by DEP for Unit No. 3 are as low as the limits established by the United States Environmental Protection Agency (EPA) in the NSPS (40 CFR 60, Subpart Eb) for new MWC units, based on the use of Maximum Achievable Control Technology (MACT). Indeed, DEP's BACT emission limits for Unit No. 3 are lower than EPA's MACT emissions limits for: (a) particulate matter; (b) sulfur dioxide; (c) carbon monoxide; (d) nitrogen oxides; and (e) mercury. The BACT emission limits, as determined by DEP, are included in the proposed Conditions of Certification for Unit No. 3. The Facility's proposed air pollution control systems are proven technologies that can achieve the proposed BACT emission limits. The Facility will use an array of continuous emissions monitors to help ensure that the Facility is continuously in compliance with the BACT emission limits. Protection of Ambient Air Quality The EPA has adopted "primary" and "secondary" National Ambient Air Quality Standards (NAAQS). The primary NAAQS were promulgated to protect the health of the general public, including the most susceptible groups (e.g., children, the elderly, and those with respiratory ailments), with an adequate margin of safety. The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility, and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Florida has adopted EPA's primary and secondary NAAQS, and has adopted some Florida AAQS (FAAQS) that are more stringent than EPA's NAAQS. Lee County and DEP analyzed the Project's potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project's impacts by a wide margin. These analyses demonstrate that the maximum impacts from Unit No. 3 will be less than one percent of the amount allowed by the ambient air quality standards. The maximum impact from the Facility (i.e., all three units) will be less than or equal to 1.2 percent of the amount allowed by the FAAQS and NAAQS. Unit No. 3 and the Facility will not cause or contribute to any violations of the FAAQS or NAAQS. The maximum impacts of Unit No. 3 and the Facility, when operating under worst case conditions, will be less than the regulatory levels that are deemed "significant" (i.e., less than the numerical thresholds set by EPA as "significant impact levels"). The Facility's impacts on ambient air quality will be immeasurably small and will be indistinguishable from ambient background conditions. Non-criteria pollutants are substances for which there are no AAQS. The Department's Air Toxics Group has established non-enforceable guidelines known as ambient reference concentrations (ARCs) (also known as "No Threat Levels") for the non-criteria pollutants. DEP believes there is no health or environmental threat associated with ambient air impacts less than the ARCs. In this case, the maximum impacts of the Facility (3 MWC units) will be less than 50 percent of any of DEP's ARCs. For most parameters, the Facility's maximum impacts are less than 10 percent of the applicable ARCs. Other PSD Analyses The PSD program provides protection for those areas that have good air quality. Different areas of Florida have been designated as PSD "Class I" or "Class II" areas, depending upon the level of protection that is to be provided under the PSD program. In this case, the Project is located in a PSD Class II area. The nearest PSD Class I area is the Everglades National Park (Everglades), which is approximately 90 kilometers (km) south-southeast of the Site. The analyses performed by Lee County and DEP demonstrate that the Project's impacts on the ambient air quality in the vicinity of the Site will be insignificant. The analyses performed by Lee County and DEP also demonstrate that the Project's impacts on the ambient air quality in the PSD Class I area at the Everglades will be insignificant. The Project will not significantly affect visibility in the Class I area, regional haze, or other air quality-related values. Compliance With Air Standards Lee County has provided reasonable assurance that the Project will comply with all of the applicable state and federal air quality standards and requirements. Among other things, Lee County has provided reasonable assurance that the airborne emissions from the Project, alone and when operating with the two existing MWC units at the Facility, will not: (a) cause or contribute to the violation of any state or federal ambient air quality standard; (b) cause or contribute to a violation of any PSD increment for any PSD Class I or Class II area; (c) cause any adverse impacts on human health or the environment; (d) exceed any ARC guideline established by DEP for non-criteria pollutants; or (e) cause any adverse impacts to soils, vegetation or wildlife. Lee County also has provided reasonable assurance that Unit No. 3 and the Facility will be able to comply with the Conditions of Certification involving air issues. Human Health and Ecological Risk Assessments As indicated above, the County has performed extensive analyses of the Facility's emissions and impacts to demonstrate compliance with the requirements of state and federal air quality regulations. In addition, the County has taken other measures to address public concerns about the potential impacts associated with the Facility's airborne emissions. In 1992, the County's expert consultants conducted a human health and ecological risk assessment, which evaluated the potential impacts associated with the airborne emissions of mercury and dioxin from the County's Facility. The assessment demonstrated that the operation of the Facility would not adversely affect humans or threatened or endangered species. At the request of the United States Fish and Wildlife Service, the County conducted a supplementary risk assessment in 1992, to more thoroughly evaluate the potential impact of the Facility's mercury emissions on the Florida panther. Among other things, the supplementary assessment evaluated the panther's exposure to mercury through a complex food chain. The County's supplementary assessment confirmed that the Facility would not cause adverse impacts to the panther. The County also initiated a biomonitoring program, which was designed in conjunction with the U.S. Fish and Wildlife Service to identify background concentrations and trends for mercury in key indicator species within the local aquatic environment (i.e., largemouth bass, oysters, and mosquitofish). The County's biomonitoring program was started in 1993, and continued after the County's Facility commenced operations in 1994. The data collected in the biomonitoring program indicate that the mercury concentrations in these key species have not increased as a result of the operation of the Facility. In 2002, the County's consultants completed a new, large-scale, evaluation of the human health and ecological risks associated with the Facility's airborne emissions. The County's 2002 risk assessment evaluated the cumulative impacts of the entire Facility, with all three MWC units in operation. The County's 2002 risk assessment was conducted in compliance with current EPA guidance. The risk assessment considered hypothetical human receptors (e.g., infants, children, and adults) that were engaged in different types of behavior (e.g., a typical resident; a beef farmer; a subsistence fisherman) and were exposed through multiple pathways (e.g., inhalation; ingestion of soil; ingestion of local produce, beef and/or fish) to both acute short-term and chronic long-term impacts from the Facility. The risk assessment was designed to overestimate the potential impacts of the Project, and thus be protective of human health and the environment. The risk assessment relied upon the latest EPA data for mercury, dioxin, and the other chemicals of concern, as set forth in EPA's 1997 Mercury Report to Congress, EPA's 2000 Dioxin Reassessment, and other relevant documents. The County's 2002 risk assessment demonstrates that the Facility's airborne emissions will not measurably increase the typical concentrations of chemicals in the environment. For example, even at the point of maximum impact, the maximum environmental mercury and dioxin concentrations associated with the operation of the Facility will be far below the levels that are typically found in the environment and they will be immeasurably small. The County's 2002 risk assessment also demonstrates that the potential risks associated with the Facility's emissions will not exceed, and in most cases will be much less than, the risks that are deemed acceptable by the EPA and DEP for the protection of human health and the environment. The County's findings are consistent with the findings in environmental monitoring studies and risk assessments that have been performed for other modern waste-to-energy (WTE) facilities in the United States. Indeed, the environmental monitoring studies conducted at similar WTE facilities have shown that risk assessments, like the ones performed for Lee County, overestimate the actual impacts. In light of the evidence presented by the County in this case, the Facility should not have any measurable effect on human health or the environment, even when all three MWC units are operational. Other Potential Environmental Impacts The County's 2002 risk assessment primarily focused on the Facility's maximum impacts under worst case operating conditions. The maximum concentrations in the ambient air and the maximum deposition rates resulting from the Facility's mercury emissions will occur within 2.5 km (approximately 1.5 miles) of the Site. The ambient air concentrations and deposition rates at all other locations beyond the Site will be even lower. EPA studies of similar facilities have shown that mercury deposition rates decrease at least 100 times (i.e., by a factor of 100) within the first 10 km. In this case, the nearest portions of the Everglades are approximately 90 km from the Site. Moreover, the generally prevailing winds at the Site blow toward the Gulf of Mexico, not toward the Everglades. Approximately 90 percent of the time, the wind does not blow from the Site toward the Everglades. For these and other reasons, the Facility's mercury emissions will have an insignificant impact on the Everglades. The Facility's emissions of nitrogen oxides (i.e., NOx) will not cause or contribute to violations of any water quality standards in any surface waterbody. Environmental Benefits of the Project The addition of Unit No. 3 will provide significant environmental benefits to Lee County and Hendry County. The solid waste processed by Unit No. 3 will reduce the volume of processible solid waste by approximately 90 percent. By reducing the volume of processible waste, the Facility will significantly extend the useful life of the Lee County/Hendry County regional landfill, effectively postponing the need to build a new landfill in Lee County or Hendry County. The Project will also provide environmental benefits to the State of Florida. For example, the Facility will produce approximately 1.88 billion kilowatt-hours of electricity from discarded materials during the next 20 years. In this manner, Unit No. 3 will reduce the need to use fossil fuels to generate electricity at traditional power plants. Unit No. 3 will eliminate the need to use approximately 5.54 million barrels of oil, and thus will save approximately $150 million in oil purchases over the next 20 years. In addition, the County will recover ferrous and non-ferrous metals from the Facility's ash, thus recycling resources that otherwise would be buried with the County's solid waste in a landfill. Socioeconomic Benefits of the Project The local economy and labor market will benefit from approximately $70 million that Lee County will spend to construct the Project. A significant amount of construction supplies, such as concrete, structural steel, glass, piping, fittings, and landscape materials, are anticipated to be purchased from local businesses. The Project will provide jobs for over 125 construction workers during the peak of construction activities. The addition of Unit No. 3 will also provide approximately nine new permanent jobs at the Facility, with an increase in the Facility's annual payroll of approximately $400,000. WTE Criteria in Section 403.7061 Section 403.7061, Florida Statutes, establishes several criteria that must be satisfied before an existing waste-to- energy facility may be expanded. Lee County has provided reasonable assurance that the Project will satisfy all of the standards and criteria in Section 403.7061, Florida Statutes. Among other things, the County has demonstrated that Lee County's waste reduction rate will exceed 30 percent when Unit No. 3 begins operation. Compliance with Environmental Standards Lee County has provided reasonable assurance that the Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project's impacts on air quality, water consumption, stormwater, and wetlands. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State's lands and wildlife, and the ecology of the State's waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare, with a wide margin of safety. Agency Positions and Conditions of Certification On December 11, 2001, the PSC issued an order concluding that the Project was exempt from the PSC's "determination of need" process, pursuant to Section 377.709(6), Florida Statutes. DEP, DOT, DCA, and SFWMD all recommend certification of the Project, subject to the Conditions of Certification. The SWFRPC determined that the Project is "Regionally Significant and Consistent with the Regional Strategy Plan," but did not recommend any conditions of certification for the Project. Lee County has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a supplemental site certification for the construction and operation of Unit No. 3 at the Lee County Solid Waste Energy Recovery Facility, in accordance with the Conditions of Certification contained in Appendix 1 to DEP Exhibit 2. DONE AND ENTERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida. S _________________________________ RICHARD A. HIXSON 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 19th day of August, 2003.
Findings Of Fact The proposed site consists of some 311 acres bounded on the South by Alligator Alley (SR 84) and is approximately 6 1/2 miles East of SR 858. The existing solid waste disposal facility at the airport is exceeding the capacity of the area to absorb any additional solid waste. An approved federal grant for expansion and improvement of the Naples airport is contingent upon the cessation of further solid waste disposal at this site. The original deadline for discontinuing use of the airport disposal site of June 30, 1975 has been extended to allow the processing of the instant application. Of the numerous sites considered the one proposed herein was considered by local, state, and federal agencies to be the best overall. The proposed site meets the requirements of, and has been approved by the USDA Soil Conservation Service, the Department of Environmental Regulations, and various state health organization. The plans and specifications which have been submitted by the county and approved by the various agencies concerned called for an excavation of the site to a depth of approximately 3 feet, with the solid waste after compaction being placed in the ground and each layer thereafter placed on top and covered on a daily basis with soil. A perimeter canal will be constructed around the site to divert surface water from outside the site to prevent flooding the area. Interior canals will be installed to provide for collection of the leachate, as well as water falling on the site. The project includes construction of leachate sump ponds on the site, which will be coated to preclude the leachate from percolating into the surrounding area. An all weather access road will be provided to the site, and the only vehicles permitted on the site will be those controlled by the county and city, which would include their contractor for hauling waste. The routes for these vehicles would be such that they would not pass' over the Golden Gate Boulevard, which goes through the community of Golden Gate. At the hearing little new evidence was submitted. Intervenor appeared to take the position that its opposition to the project was based upon the fact that: (1) The site proposed could flood; (2) An impermeable barrier should be installed in all cells to preclude harmful materials from permeating the soil; and (3) Leachate from the cells could enter into the ground water table. Testimony with respect to these objections revealed: (1) The pumping system proposed is adequate to handle any flooding that may reasonably be anticipated; (2) The site is not located on a watershed that could go to a public water supply; (3) The site is some 5 or 6 miles from the nearest public water supply and not so located that surface water from the site could flow to a public water supply; (4) No place in Collier County meets the 5 foot separation provision between water table and place where waste could be dumped; The safeguards provided by the proposed plan qualifies this site for waiver of provision (4) above; (5) If an impermeable barrier was installed beneath the cells it would be ineffective in preventing surface water contamination in the event the site is flooded; (6) In the event the proposed system proves inadequate to control flooding, modifications in the then existing system could be made that would control this problem; and (7) Use of impermeable barrier below cells is but one design method to meet requirements of the various regulatory agencies.
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
The Issue The issue is whether Dr. Vigna and his corporation, AVA Hazardous Waste Removal and Disposal, Inc., should be disciplined for the improper disposal of hazardous waste.
Findings Of Fact Lyn-Rand, Inc., was a corporation in the metal fabrication and painting business in Dade County, Florida, during April and May of 1989. The industrial processes used by Lyn-Rand required the use of solvents, cutting oils, and other chemicals. Lyn-Rand employed Courtney Warrenfeltz as its quality control director. Mr. Warrenfeltz had met Dr. Anthony Vigna, who held himself out as a transporter of hazardous waste. Dr. Vigna offered to dispose of 55-gallon drums of waste which had accumulated at the Lyn-Rand facility. Dr. Vigna took samples of the waste, offered to use his federal EPA identification number in connection with the disposal, and do all the paper work involved with the disposal. Mr. Warrenfeltz believed, based upon his conversations with Dr. Vigna, that Dr. Vigna was knowledgable about hazardous waste disposal. Mr. Warrenfeltz made arrangements for Dr. Vigna to pick up nine drums of cutting oils and cleaning solvents on Saturday, April 29, 1989. Dr. Vigna was paid $500 per drum. Those drums had been marked with "x's" on the tops and sides. An employee of Lyn- Rand, Carlos Alayon, had been left instructions to expect Dr. Vigna, and had been given a check to give Dr. Vigna when the drums were picked up. While Dr. Vigna was at the Lyn-Rand site to pick the drums up, he asked Alayon for some black paint which Dr. Vigna used to paint over the labels on the drums. Alayon then helped Dr. Vigna load the drums into a rental truck. Dr. Vigna gave Mr. Alayon no paperwork, such as a manifest, receipt, or shipping papers. Mr. Warrenfeltz never received any paperwork from Mr. Alayon or from Dr. Vigna. The drums Dr. Vigna took from Lyn-Rand were discovered later, Saturday, April 29, 1989, at the business premises of Compliance Technology, Inc., a corporation located in Broward County, which is licensed to act as a broker for hazardous waste. Compliance Technology, Inc., does not, however, act as a transporter of hazardous waste. The employee of Compliance Technology who found the drums near the back loading dock, Mike Webb, was concerned, because their labels had been obliterated with black paint and the only marks on the drums were the "x's." The obliteration of the labels was a cause for concern and the bungs appeared to be leaking around the tops of two of the drums. The drums had been abandoned near a storm drain. The drums were not fenced or secured; if someone had driven into them due to their placement on the ground near the loading dock, the drums could have ruptured and the contents flowed into the storm drain and eventually into the Biscayne Aquifer. Mr. Webb notified the founder of Compliance Technology, Dr. Solon Cole, of the discovery of the drums, and the matter was reported on or about May 1, 1989, to the Broward County Environmental Quality Control Board and the City of Hollywood Police Department. Compliance Technology moved the drums away from the storm drain, barricaded them, and replaced bungs in two of the drums. On or about May 5, 1989, Dr. Cole notified Jeff Tobergte, of the Department of Environmental Regulation office in West Palm Beach, about the drums. Mr. Tobergte went to Compliance Technology the next day, and photographed the drums and sampled their contents. He found that the drums contained various solvents, including methylene chloride, ethylbenzene, toluene, xylene and phenol. The samples had a pH of less than 2 and a flash point of less than 60 degrees centigrade, and therefore were hazardous wastes. Dr. Cole and Mr. Tobergte were able to determine that one of the drums had a label which stated "Spray Iron Phosphatizer and Cleaner" "SC-283" from Novamax Tech in Atlanta, Georgia. After contacting Novamax Tech, Mr. Tobergte learned that SC-283 is an unusual product with only four buyers in Florida, three of them in Dade County, including Lyn-Rand. Mr. Tobergte then drove to all three locations in Dade County which were customers of Novamax Tech, and determined that the most likely source of the drums at Compliance Technology was Lyn-Rand. Mr. Tobergte visited Lyn-Rand on May 8, 1989, and verified that the drums he had photographed were drums which originated at Lyn-Rand. The verification was made by comparing the photographs of the drums left at Compliance Technology with drums at Lyn-Rand which still had labels. Mr. Warrenfeltz recognized the markings on the photos of the drums left at Compliance Technology. The pine needles found on the drums were also significant, since drums were stored in a manner at Lyn-Rand which lead to pine needles falling upon them. Mr. Warrenfeltz told Mr. Tobergte that Lyn-Rand had recently shipped nine drums and recognized the drums from the photographs as those delivered to Dr. Vigna. Lyn-Rand removed the drums from Compliance Technology's property and arranged for their proper disposal. Neither Dr. Anthony Vigna nor AVA Hazardous Waste Removal and Disposal, Inc., has any EPA identification number. After the discovery of the abandoned drums, Mr. Vigna mailed a letter to Compliance Technology on May 10, 1989. The letter was backdated to April 28, 1989, and states in part that it was sent to Dr. Solon Cole, the President of Compliance Technology, "to make you aware of a delivery of nine drums that my driver will be leaving off at your plant." The letter was an after-the-fact attempt by Dr. Vigna to cover himself, which is foiled by the postmark date the letter bears. The content of the letter itself, however, leaves the impression that Dr. Cole and Compliance Technology had no prior awareness of the delivery, which is consistent with the testimony of Dr. Cole, that he had not agreed to any delivery of hazardous waste by Dr. Vigna, because Compliance Technology is not a hazardous waste storage facility, or a transporter of hazardous waste. It had acted as a broker for entities needing to dispose of hazardous waste. Dr. Vigna had visited Compliance Technology, and should have known that it did not store hazardous waste. This after-the-fact letter is also inadequate to constitute a shipping manifest for the hazardous waste delivered by Dr. Vigna, for there is no designation of the source of the material, or explanation of the contents of the drums. It does not approximate the kinds of documents used by legitimate hazardous waste transporters. Perhaps most significantly, Dr. Vigna and his company never contacted Dr. Cole after the drums were dropped at the Compliance Technology site to make arrangements to pay Compliance Technology for handling the drums, as the letter of May 10, 1989, suggests. Dr. Vigna maintains that his delivery of the drums to Compliance Technology was the result of a misunderstanding he had with Dr. Solon Cole. Dr. Vigna maintained that he and Dr. Cole had discussions concerning possible business ventures and he told Dr. Cole that he would be delivering nine drums of cutting oils and cleaning solvents to Compliance Technology, Inc. This testimony is rejected as much less credible than that of Dr. Cole, and because of the rather significant problems with the letter Dr. Vigna mailed on May 10, 1989, which was designed to cover himself, not to notify Compliance Technology of a delivery before the delivery was to be made. There is some slight corroboration of Dr. Vigna's version of the facts which arises from the decision of Compliance Technology not to press criminal charges against Dr. Vigna. The lawyer for Compliance Technology, Arthur Luongo, wrote to the Assistant State Attorney on June 7, 1989, and said: I have a great concern that Compliance Technology may be liable for a malicious prosecution action should they [the employees of Compliance Technology] testify in a criminal proceeding against Mr. Vigna. I see the case as one of simple civil negligence arising out of an honest, though admittedly stupid, mistake. It is the intention of Compliance Technology to become a public corporation within a year, and being the defendant in such a suit could seriously effect the value of their stock. They do, however, intend to recover civil restitution for their time, efforts and energy in locating Mr. Vigna. At best, this letter demonstrates that Compliance Technology had its own reasons for not wanting to press any criminal proceedings, but does not show that Dr. Vigna's actions were proper. Dr. Vigna's position would have been much more persuasive if the letter sent to Compliance Technology had actually been sent near the time it was dated (April 28), or if he had made contact with Dr. Cole to discuss pricing for what Dr. Vigna contends would have been Compliance Technology's efforts in arranging for final disposal of the Lyn-Rand material. It is strange that Dr. Vigna arrived at a price to charge Lyn-Rand without knowing what his price for disposal would be from Compliance Technology. That cost to Dr. Vigna was not relevant if Dr. Vigna intended merely to dump the material. The Department's characterization of the material as abandoned by Dr. Vigna is sustained by the evidence. Dr. Vigna acted as a transporter of hazardous waste. Because the drums were rusted, two bungs had to be replaced, and were leaking, Dr. Vigna is properly regarded as having caused pollution in transporting and leaving them at Compliance Technology. The Department incurred $2,936.58 as costs and expenses in tracing the pollution back to Dr. Vigna and arranging for its proper disposal.
Recommendation It is RECOMMENDED that Dr. Vigna and AVA Hazardous Waste Removal and Disposal, Inc., be found guilty of the violations alleged in the Administrative Complaint, that a final order be entered directing them to refrain from the transportation of hazardous waste unless they first notify the Florida Department of Environmental Regulation, obtain an EPA identification number, demonstrate their financial security, and comply with all standards and procedures required by rules of the Department and applicable federal regulations; it is also RECOMMENDED that they be required, jointly and severally, to reimburse the Department $2,936.58. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992. 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 1st day of April 1992. APPENDIX TO RECOMMENDED ORDER The Petitioner's proposed findings of fact are addressed as follows: Adopted in Finding 1. Generally adopted in Finding 1. Adopted in Finding 1. Adopted in Findings 1 and 2. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Rejected as redundant of Finding 1. Adopted in Finding 16. The Respondent's proposed findings of fact are addressed as follows: Adopted in Finding 1. Adopted in Finding 3. Adopted in Finding 10. Rejected, see Finding 13. Rejected as unnecessary. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 4. Rejected for the reasons stated in Findings 10-15. Rejected, see Finding 11. It is in the nature of a manifest that it needs to be delivered with the material it is designed to accompany. A "manifest" which Dr. Vigna maintained as his own record is no manifest. Rejected because the material was left unsecured near a loading dock. Its location near the storm drain, and the obliteration of the labels lead to the conclusion that the way was it was left did constitute an imminent hazard. Rejected, see Finding 3. Rejected because the leakage from the bungs, while not severe, did present the risk of pollution through contamination of the Biscayne Aquifer if any of the contents of the nine drums had been introduced into the storm drain. Rejected, see Finding 3. COPIES FURNISHED: Agusta P. Posner, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Steven N. Rosenthal, Esquire Suite 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
