The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
The Issue The issues to be resolved are whether Respondent performed repairs to septic tank systems without obtaining the required permits in three different instances, in violation of Florida Administrative Code Rule 64E-6.022, and if so, what penalty should be imposed for the violations proven.
Findings Of Fact The Department, an agency of the State of Florida, has responsibility for the regulation of septic tank contractors pursuant to Chapters 381, 386 and 489, part III, Florida Statutes. The Respondent, Scott Womble, is a resident of the State of Florida and has been authorized by the Department to provide septic tank contracting services. 5168 Pimlico Drive In 2003, Respondent replaced the drainfield on the real property located at 5168 Pimlico Drive, Tallahassee, Florida. A permit for the repair of the drainfield was issued in 2003, which listed Respondent as the agent for the permit applicant. In 2006, Respondent pumped out the septic tank at the Pimlico Drive location. Pumping out the septic tank does not require a permit. In 2006, Respondent also installed new "old style" chambers and end caps. Chambers are used to repair the drainfield. Repair of the drainfield requires a permit. A review of the records for the Leon County Health Department REHOST database revealed that no permits had been applied for or obtained for any work in 2006, 2007 or 2008 at the Pimlico address. 1351 Cochise Trail On or about December 19, 2008, Alex Mahon and Kathy Davis from the Leon County Health Department, Environmental Health Division, went to real property located at 1351 Cochise Trail in Tallahassee. Mahon and Davis went to the property in response to a phone call received from Respondent requesting the verification of a site evaluation. Site evaluations are required to be completed as part of the application process for a permit for septic tank installation. When Mahon and Davis arrived at the property, no one from Respondent's company was present. However, upon their arrival they observed that the septic tank and drainfield had been installed. A permit application had been submitted for the work at 1351 Cochise Trail. However, the application was incomplete and the permitting fee had not been included with the application. Accordingly, no permit had been issued for the work that was already completed at the time Mahon and Davis visited the site. Later that day, Respondent provided the missing documentation required for the issuance of the permit, and paid the permitting fee. At that time, a permit for the work was issued. 2207 Bannerman In January 2009, Kathy Davis from the Leon County Health Department received a call that work was being performed at 2207 Bannerman Road, which was the location for the La Hacienda Restaurant. She visited the site to see what work was being performed. At the time of Ms. Davis' visit, there was no work being performed at the site. There was, however, equipment present at the location and excavation of the drainfield had been performed. Used drainfield chambers had been dug up and were present on the site as well. No permit had been obtained for drainfield repair. Ms. Davis could not say whether any drainfield had been installed. She could only state with certainty that the area containing the drainfield had been excavated. Ms. Davis was aware that Respondent had been pumping out the septic tank on the property, which did not require a permit.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Department of Health enter a Final Order finding Respondent guilty of Count I and issuing a letter of warning; finding Respondent guilty of Count II and imposing a $750 fine; and dismissing the charges in Count III. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of November, 2009.
Findings Of Fact The Department is an agency of the State of Florida designated, pursuant to Chapter 403, Florida Statutes, to regulate solid waste management in Florida. BFI is a corporation which is engaged in the business of solid waste collection and disposal in Florida, and operates at least one curbside recyclable materials collection program in Florida. In 1988, the Florida Legislature enacted Section 403.706(2), Florida Statutes (1989), as part of the comprehensive Solid Waste Management Act. This section requires counties to institute recyclable materials programs. Counties and cities are urged to form cooperative arrangements for implementing recycling programs. The Solid Waste Management Act requires that, at a minimum, "a majority of the newspaper, aluminum cans, glass and plastic bottles must be separated from the solid waste stream prior to final disposal at a solid waste disposal facility and must be offered for recycling" by the end of 1994. Section 403.706(2)(b), Florida Statutes (1989). To implement the requirements of the Solid Waste Management Act, both Alachua County and the City of Gainesville have instituted curbside recycling programs. BFI has entered into contracts with both of these local governments to implement their curbside recycling programs. These programs include a number of elements, such as: the separation of specified recyclable materials by the homeowner and the placement of these materials in bins; the collection of these recyclable materials from bins at curbside; the further separation of these materials and placement in separate compartments in specially-designed recycling vehicles; the transportation of the materials to a central recycling facility; the further separation and processing of these materials at the central facility; and the transportation of these processed materials to other facilities where they are returned to use in the form of raw materials. Each home in the area served by the curbside recycling programs is provided with a blue recycling bin. The bin comes with a set of instructions that provides information concerning the types of recyclable materials that may be placed in the bin, as well as the day of the week on which the recycling bin is to be placed at the curbside for collection. Recyclable materials to be separated from other solid waste and placed in the recycling bin include plastics, newsprint, three colors of glass, and metals including aluminum and bi-metal cans. On the specified weekday, BFI personnel collect recyclable materials from the bins that have been placed at the curbside. The driver of the recycling vehicle picks up the bin, places it on a specially-designed hook on the side of the vehicle, and transfers each type of recyclable material into one of six compartments on the side of the vehicle. For example, newspapers are taken from the recycling bin and placed in the side compartment for newspapers, and the same process is repeated for plastics, metal, and each of the three colors of glass. When the bin has been emptied, the driver returns the bin to the curbside for future use. When these side compartments are filled, they are dumped over the side and into the body of the truck. The side compartments and the interior walls of the truck are designed so that the materials remain segregated. The side compartment and walls also are designed so that they may be adjusted to accommodate the relative quantity of recyclable materials that will be collected on a particular route. This design thus provides for the efficient collection and transportation of recyclable materials. The side compartments and interior walls are designed to insure that the recyclable materials remain segregated so that mixing of the recyclable materials is prevented. This is important since recyclable materials that are contaminated with other materials may not be suitable for recycling. For example, newspaper mixed with glass or aluminum will be rejected by a paper mill. Similarly, colors of glass cannot be mixed, since there is no market for mixed glass. The dumping of the side compartments over the side and into the interior of the truck results in the breakage of the glass and effects a volume reduction. When the driver and recycling truck have serviced all of the recycling bins on a route, they return to BFI's central recycling facility in Gainesville. The truck is weighed, and then the first (or rear) interior compartment is opened, the truck is hoisted (or tilted) and the contents are emptied into a separate concrete bunker. For example, the compartment containing newspapers is emptied into the bunker containing newspapers. This weighing and emptying process is repeated for each of the six interior compartments, with each compartment being emptied into a separate concrete bunker. The emptying of the three compartments containing glass results in the further breakage of the glass. A front-end loader is used to transfer the materials from each of the concrete bunkers. The newspaper is transferred from its bunker and placed into a roll-off container. Periodically, the roll-off container is transported to Southeast Paper, where the newspaper is returned to use as a raw material for the manufacture of newsprint. The plastics are transferred from a concrete bunker to a piece of equipment that compacts the plastics into bales of approximately 1,000 pounds each. Periodically, these bales of plastic are transported to Wellman Plastics, where the plastic is returned to use as a raw material for the manufacture of new plastics. The three types (or colors) of glass are transferred from their respective concrete bunkers to heavy-duty cardboard containers that hold approximately 3,000 pounds of glass. Periodically, these containers are transported to Owens- Illinois, where the glass is returned to use as a raw material for making new glass. The dropping of the glass into and from the recycling vehicle breaks the glass into small pieces. For this reason, BFI has not had to purchase and install glass crushing equipment. The bi-metal cans and the aluminum cans are transferred from a concrete bunker to equipment that is used to separate the bi-metal cans from the aluminum cans. The aluminum cans are crushed and blown (or separated) into a trailer. Periodically, these aluminum cans are transported to Anheuser-Busch, where they are returned to use as a raw material for making new aluminum cans. After the bi-metal cans are separated from the aluminum cans, they are crushed and transported to a metal can company, F. Joseph and Company, where they are returned to use as a raw material for metal cans or other types of metal products. BFI's curbside recycling programs constitute a process by which solid waste, or materials which would otherwise become solid waste -- i.e., newspaper, plastics, three types of glass and metals -- are collected, separated, processed and returned to use in the form of raw materials. The curbside recycling programs also constitute a process by which these same materials are recovered from solid waste. The recycling vehicles are specially-designed in accordance with the contracts with the City of Gainesville and Alachua County. The vehicles are used exclusively in the curbside recycling programs. The recycling vehicles are integral to the curbside recycling programs because the programs require the use of vehicles to transport recyclable materials from the "curbside" to a central recycling facility. The recycling vehicles also are integral to the actual process of recovering materials from solid waste because, as a result of the convenience they provide the homeowner, they effect a substantial increase in the recovery of materials from solid waste. Each month, the curbside recycling programs in Alachua County and the City of Gainesville collect and process approximately 500 tons of recyclable materials that otherwise would (and previously did) go into a local landfill. Now these materials are returned to use in the form of raw materials. BFI has purchased and paid sales or use tax on the recycling vehicles and bins that are used in the curbside recycling programs described above. "Resource recovery equipment" that is "owned and operated by or on behalf of any county or municipality, and certified by the Department of Environmental Regulation under the provision of Section 403.715," is exempt from the sales and use tax. Section 212.08(7)(p), Florida Statutes. Pursuant to Section 403.715, Florida Statutes, and Chapter 17-704, Florida Administrative Code, DER certifies to the Department of Revenue (DOR) that certain equipment is "resource recovery equipment." DOR then determines whether that equipment is "owned and operated by or on behalf of any county or municipality." DOR's determination is not at issue in this case. Rule 17-704.420 set out the criteria for the examination and certification of resource recovery equipment. Presently, paragraph (1)(c) of Rule 17-704.420, provides in pertinent part, as follows: equipment (1) Resource recovery equipment includes all or machinery exclusively and integrally used in the actual process of recovering material or energy resources from solid waste, [and which is purchased after July 1, 1989.] Resource recovery equipment does not include: * * * (c) Equipment used to transport materials or energy resources from solid waste <<to or>> from the site where the recovery process takes place. (Emphasis added.) The existing rule prohibits only the certification of equipment used to transport materials or energy resources that already have been recovered from solid waste from the site where the recovery process takes place. For example, DER previously has refused to certify equipment used to take ash residue from a resource recovery facility off site for disposal since the recovery process already had been completed. The proposed amendment would amend paragraph (1)(c) of Rule 17-704.420 as follows: equipment Resource recovery equipment includes all or machinery exclusively and integrally used in the actual process of recovering material or energy resources from solid waste, and which is purchased after July 1, 1989. Resource recovery equipment does not include: * * * Equipment used to transport materials or energy resources recovered from solid waste to or from the site where the recovery process takes place. [Additions are underscored and deletions are stricken.] On its face, the proposed rule amendment prohibits the certification of equipment used to transport materials or energy resources recovered from solid waste to the site where the recovery process takes place. Expert witness, Jan Clark, agreed that this language "doesn't make sense," and she testified that she interprets this provision to prohibit the certification of equipment used to transport recovered materials or energy resources to a place where further resource recovery takes place. In summary, paragraph (1)(c) of Rule 17-704.420 presently does not expressly prohibit certification of equipment that is used to transport recovered materials to the site where further resource recovery takes place. According to DER, the proposed amendment to paragraph (1)(c) would change this by expressly prohibiting the certification of such equipment. DER's position is that the proposed amendment is intended to codify existing policy that equipment used for transportation of recovered materials does not qualify for certification as resource recovery equipment unless the equipment is used solely "on site" or at a "fixed location." This policy is unwritten and is not explained in other documents. In addition, this policy has never been applied to a curbside recycling program. DER's witness was unaware of any statute that expressly authorizes this "on site" or "fixed location" requirement. DER relies on the requirement that resource recovery equipment be "integrally used" in the actual process of recovering material from solid waste. DER in turn interprets the "integrally used" equipment to require that the equipment be located "on site" or at a "fixed location" based on its understanding of the "integrated plant theory" espoused by the Department of Revenue in the so-called JEA case. 1/ DER's witness Clark had little familiarity with the "integrated plant theory" and the rationale for the holding of the JEA case. DER's position is that the requirement that resource recovery equipment be "integrally used" in the actual "process" of "recovering" materials from solid waste authorizes DER to refuse to certify equipment that simply transports materials to a place where further resource recovery takes place. Expert Clark, in reference to the definition of "processing" in Section 403.703(36), suggested that transportation equipment is not used in the actual "process" because it does not result in any physical change in the materials being transported. However, DER has previously certified equipment, the sole function of which is the transportation of materials to a place where further resource recovery takes place. For example, DER previously has certified front-end loaders, conveyor belts, refuse cranes and similar equipment that performs solely a transportation function. In addition, DER has proposed to amend Rule 17-704.600(3) to create a presumption that similar materials handling equipment will be routinely certified. DER's witness Clark admits that this equipment would not result in any physical change in the material and therefore would not meet the definition of "processing" in Section 403.703(36). Moreover, BFI's recycling vehicles do change the physical characteristics of the materials being processed. For example, the vehicles do break, and thereby change the physical character of the recovered glass so as to reduce its volume and render it amenable to recycling. BFI has submitted applications to DER for the final examination and certification of the recycling vehicles and bins purchased and used in these curbside recycling programs. DER has not yet taken final action on these applications. (Composite Exhibit No. 1.) DER interprets the proposed amendment to require the denial of BFI's applications for certification of the recycling vehicles because they are "equipment used to transfer materials recovered from solid waste to ... the site where" further resource recovery takes place. If the certification is denied, BFI will not be eligible for a refund of the sales or use tax paid on these vehicles. BFI therefore will be substantially affected by the adoption of the proposed amendment to Rule 17- 704.420(1)(c).
The Issue The issues presented in the case are whether Respondents P & L Salvage and Marlene Ballard are liable for violations of state statutes and rules, as alleged in the amended NOV, and, if so, whether the proposed corrective action is appropriate, and whether the proposed civil penalties and costs should be paid by Respondents.
Findings Of Fact The Parties The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Respondent P & L Salvage, Inc., is a Florida corporation. P & L Salvage owned and operated an automobile salvage yard at 4535 and 4537 West 45th Street in West Palm Beach, Florida (the “property,” “facility,” or “site”). The property comprises less than two acres. Respondent Marlene Ballard is a Florida resident and the president, treasurer, secretary, and director of P & L Salvage, Inc. Historical Use of the Site Beginning in the 1960s, the site was used as an auto salvage yard, first under the name Johnny’s Junkyard and later as General Truck Parts. In 1981, the owner of the salvage yard, Marie Arant, sold the facility. The record is not clear about the exact identity of the purchaser. The Alliance report, referred to later, states that the property was purchased by “the Ballard family.” The record evidence is insufficient to prove that Marlene Ballard ever owned the salvage yard. The parties agree that the salvage yard was operated for a time as P & L Salvage, which was unincorporated. Then, in January 1990, the site was purchased by Respondent P & L Salvage, Inc., which owned the site continuously until January 2007. Marlene Ballard lived in a house on the site from the 1980s until the property was sold in 2007. A separate building at the site was used as P & L Salvage’s office. The general operation of the salvage yard was to bring junk cars and trucks to the site, remove fluids from the vehicles, remove parts for sale, and then crush the dismantled vehicles in a hydraulic crusher to prepare them for transport and sale as scrap metal. The automotive fluids removed from the junked cars were stored on the site in 55-gallon drums for later disposal. Respondents presented evidence to show that the person who had the most knowledge of and managed the day-to-day operations in the salvage yard was an employee named John Boyd. When John Boyd ceased employment at the salvage yard, Marlene Ballard’s son, Thomas Ballard, took over the management of the yard. Respondents contend that no evidence was presented that Marlene Ballard conducted or participated in any activities that resulted in contamination, or that she had authority to prevent any potential contamination that might have occurred. However, Ms. Ballard was familiar with the activities in the yard, having worked and lived on the site for many years. She did the bookkeeping and signed payroll checks. All employees answered to Ms. Ballard. She contracted for environmental assessment and remediation work, and signed the hazardous waste manifests. She was acquainted with the contamination that could and did occur at the salvage yard. Eagle Sanitation, Inc., which operated a roll-off container business, leased the site from September 2005 until January 2007. Eagle Sanitation also obtained an option to purchase the property. At first, Eagle Sanitation only leased about a quarter of the site because there were many junk autos, tires, and other salvage debris still on the site in September 2005. For several months, Thomas Ballard continued to sell auto parts and scrap from the site, and to clear the site. Eagle Sanitation did not have complete use of the site until early in 2006. Eagle Sanitation’s business consisted of delivering roll-off containers for a fee to contractors and others for the disposal of construction debris and other solid waste, and then picking up the containers and arranging for disposal at the county landfill or, in some cases, recycling of the materials. Roll-off containers at the site were usually empty, but sometimes trucks with full containers would be parked at the site overnight or over the weekend. During its lease of the site, Eagle Sanitation did not collect used oil or gasoline and did not provide roll-off containers to automotive businesses. No claim was made that Eagle Sanitation caused any contamination found at the site. Contamination at the Site In 1989, Marlene Ballard contracted with Goldcoast Engineering & Testing Company (Goldcoast) to perform a “Phase II” environmental audit. Goldcoast collected and analyzed groundwater and soil samples and produced a report. Cadmium, chromium, and lead were found in the soil samples collected by Goldcoast. Some petroleum contamination was also detected in soils. These pollutants are all associated with automotive fluids. The Goldcoast report states that groundwater samples did not indicate the presence of pollutants in concentrations above any state standard. The Goldcoast report did not address the timing of discharges of contaminating substances that occurred at the site, except that such discharges had to have occurred before the report was issued in 1989. That is before the property was purchased by P & L Salvage, Inc. During an unannounced inspection of the salvage yard by two Department employees on August 15, 1997, oil and other automotive fluids were observed on the ground at the site in the “disassembly area” and around the crusher. There were also stains on the ground that appeared to have been made by automotive fluids. No samples of the fluids were taken or analyzed at the time of the inspection. The Department inspectors told Marlene Ballard to cease discharging fluids onto the ground, but no enforcement action was initiated by the Department. Ms. Ballard was also told that she should consider removing the soil where the discharged fluids and staining were observed. In early 1998, RS Environmental was hired to excavate and remove soils from the site. This evidence was presumably presented by Respondents to indicate that they remediated the contaminated soils observed by the Department inspectors, but no details were offered about the area excavated to make this clear. In 2004, in conjunction with a proposed sale of the site, another Phase II investigation of the site was done by Professional Services Industries, Inc. (PSI), and a report was issued by PSI in May 2004. The PSI report is hearsay and, as such, cannot support a finding of fact regarding the matters stated in the report. Presumably as a result of its knowledge of the PSI report, the Department issued a certified letter to Ms. Ballard on June 24, 2005, informing her that the Department was aware of methyl tert-butyl ethylene (MTBE) contamination at the facility. MTBE is an octane enhancer added to gasoline. The Department’s June 2005 letter advised Ms. Ballard that Florida Administrative Code Chapter 62-780 required “responsible parties” to file a site assessment report (SAR) within 270 days of becoming aware of such contamination. The letter also informed Ms. Ballard of the proximity of the City of Riviera Beach’s wellfield and the threat that represented to public drinking water. The June 2005 letter was returned to the Department unsigned. In October 2005, the Department arranged to have the letter to Marlene Ballard served by the Palm Beach County Sheriff’s Office. The Department received a confirmation of service document that shows the letter was served by a deputy on October 14, 2005, but this document is hearsay and does not support a finding that Ms. Ballard had knowledge of the contents of the letter. The Department did not receive an SAR within 270 days, but no enforcement action was immediately initiated. On December 15, 2006, the Department issued a six- count NOV to P & L. Salvage, Inc. P & L Salvage requested a hearing and the matter was referred to DOAH. In January 2007, in conjunction with Eagle Sanitation’s proposed sale of its purchase option to Prime Realty Capital, LLC, Alliance Consulting & Environmental Services, Inc., (Alliance) conducted a site assessment at the site and produced an SAR in April 2007. At that time, as indicated above, P & L Salvage had ceased operations at the site and Eagle Sanitation was operating its roll-off container business there. The SAR states that in January 2007, “[a]pproximately 80 yards of black stained oily-solidified shallow sands were excavated [by Eagle Sanitation] from the central and northeastern portions of the site, where car crushing, fluid draining and battery removal were historically conducted.” The soil contained lead, iron, chromium, cadmium, and arsenic, but testing did not show the excavated soils constituted hazardous materials and, therefore, the soils were disposed at the county landfill. The area of soils where the Department inspectors in 1997 observed automotive fluids and staining appears to have been included in the soils that were excavated and removed in 2007. The Department presented no evidence to the contrary. Testing by Alliance of other soils at the site showed “no significant petroleum metals concentrations” and Alliance did not recommend the removal of other soils. The presence of an MTBE “plume” of approximately 30,000 square feet (horizontal dimension) was also described in the SAR. The plume is in the area where the crusher was located. Several groundwater samples from the site showed MTBE in concentrations above the target cleanup limit. The City of Riviera Beach operates a public water supply wellfield near the site. The closest water well is approximately 250 feet from the site. The SAR concludes that “the potential exists for the MTBE plume to be pulled downward” toward the well, and recommends that a risk assessment be performed. Alliance recommended in the SAR that the MTBE contamination be remediated with “in-situ bioremediation” with oxygen enhancement. No remediation has occurred on the site since the date of the Alliance report. The Alliance report did not address the timing of contaminating discharges that occurred at the site. To the extent that Alliance reported contamination in 2007 that was not reported in the 1989 Goldcoast report, that is not sufficient, standing alone, to meet the Department’s burden of proof to show that P & L Salvage, Inc., caused “new” contamination after 1989. Competent evidence was not presented that the Alliance report describes “new” contamination. The authors of the reports were not called as witnesses. No expert testimony was presented on whether the data in the reports can establish the timing of contaminating discharges. It is not the role of the Administrative Law Judge, nor does he have the requisite expertise, to compare the environmental assessments conducted by Goldcoast and Alliance and make judgments about whether some of the contamination reported by Alliance had to have occurred after 1989. Although the Department’s expert, Paul Wierzbicki, testified that it was his opinion that the contamination was attributable to the “operations of the P & L Salvage yard facility,” he was answering a question about “what caused the contamination” and, in context, his testimony only confirmed that the type of contamination shown in the photographs and reported in the site assessment reports was the type of contamination associated with auto salvage yards. Mr. Wiezbicki’s testimony is not evidence which can support a finding that the contamination at the site, other than the automotive fluids and stained soils observed by the Department inspectors in 1997, was caused by P & L Salvage, Inc.1 On June 12, 2007, after reviewing the Site Assessment Report, the Department issued a letter to Marlene Ballard, requesting additional data and analysis. At the hearing, the Department presented a responding letter from Alliance dated June 21, 2007. It was disputed whether the Alliance letter is evidence of Ms. Ballard’s receipt and knowledge of the Department’s June 12, letter. However, even if Ms. Ballard did not know about the Department’s letter in June 2007, she certainly became aware of the letter in the course of this proceeding. The amended NOV issued in January 2008 mentions the letter, and the letter was listed as an exhibit in the parties’ June 4, 2008 Pre-hearing Stipulation. On January 24, 2008, the Department issued an amended NOV which dropped three counts from the original NOV and added two new counts. Most significantly, the amended NOV added Marlene Ballard and Thomas Ballard as Respondents. P & L Salvage and Marlene Ballard responded to the amended NOV with petitions for hearing. Thomas Ballard did not respond. At the hearing, the Department presented testimony of employees that were involved in this enforcement action regarding the value of their time expended on various tasks associated with this case. Bridget Armstrong spent eight hours inspecting the site of the contamination, eight hours drafting the NOV and consent order, approximately 30 hours reviewing technical documents, and 15 hours corresponding with Respondents. Ms. Armstrong’s salary at the time was about $20.00 per hour. Paul Wierzbicki spent 16 hours investigating facilities in the area, reviewing the contamination assessment reports, and overseeing the enforcement activity of his subordinates. Mr. Wierzbicki was paid $33.00 per hour. Kathleen Winston spent 10 hours reviewing a site assessment report and drafting correspondence. Ms. Winston’s salary at the time was $23.56 per hour. Geetha Selvendren spent 4-to-5 hours reviewing the site assessment report. She was paid $19.00 per hour at the time. Finally, Joseph Lurix spent three hours reviewing documents. His salary at the time was $34.97 per hour.
The Issue The issue in this case is whether Respondents committed the offenses described in an Administrative Complaint entered by Petitioner on or about January 10, 1997.
Findings Of Fact Petitioner, The Department of Agriculture and Consumer Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for enforcing the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Adam's Street Muffler Shop and Service Center, Inc. (hereinafter referred to as "Adam's Street Muffler"), is a dissolved Florida corporation. Adam's Street Muffler is located at 1401 South Adam's Street, Tallahassee, Leon County, Florida. Adam's Street Muffler is registered with the Department under the Act as a motor vehicle repair shop. The Department has assigned registration number MV-15484 to Adam's Street Muffler. Respondent, Tim Tanner, is the owner and operator of Adam's Street Muffler. At the time that Adam's Street Muffler register pursuant to the Act, a registration packet, including a copy of the Act, was provided to Adam's Street Muffler. On July 24, 1995, Robert Dan Drake, an investigator with the Department's Bureau of Motor Vehicle Repair, went to Adam's Street Muffler. Mr. Drake performed a compliance audit to determine whether repair estimate statements and invoices for services were in compliance with Sections 559.905 and 559.911, Florida Statutes. A copy of the repair invoice provided by Adam's Street Muffler personnel to Mr. Drake was determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. See Petitioner's Exhibit 9. Mr. Drake discussed the requirements of the Act pertaining to repair estimates and invoices with Peggy Folsom, the secretary for Adam's Street Muffler. Mr. Drake also provided an On-Site Inspection Report/Citation (Petitioner's Exhibit 7), and a Compliance Checklist/Citation (Petitioner's Exhibit 8), to Ms. Folsom. These forms described the deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. Adam's Street Muffler was given thirty days to correct the repair estimate and invoice. A revised form was submitted to the Department. See Petitioner's Exhibit 10. The corrected form was accepted by the Department. On July 1, 1996, Mr. Drake returned to Adam's Street Muffler. Mr. Drake discovered that the repair estimate and invoice used by Adam's Street Muffler for a complaining customer was the same form that he had found to be deficient on July 24, 1995. See Petitioner's Exhibit 12. Mr. Drake issued a second On-Site Inspection Report/Citation to Adam's Street Muffler as a result of the July 1, 1996 visit. Petitioner's Exhibit 11. The report again described the specific deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. On October 1, 1996, Mr. Tanner paid a $300.00 fine for violating Sections 559.905 and 559.911, Florida Statutes. On December 1, 1996, two months after Mr. Tanner paid the fine, and approximately six months after the second violation of the Act, Dan Keller, an employee of the Department, visited Adam's Street Muffler. Mr. Keller examined forms titled "Repair Orders" in the files of Adam's Street Muffler. The forms discovered by Mr. Keller were determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. Petitioner's Exhibits 1-5. The forms copied by Mr. Keller on December 1, 1996, were used as repair estimates and invoices for services performed. The evidence failed to prove when the vehicles at issue were brought to Adam's Street Muffler, that they were not brought to Adam's Street Muffler by person other than the owner, or that Adam's Street Muffler did not notify the customer pursuant to Section 559.909(1), Florida Statutes. None of the owners of the vehicles to which Petitioner's Exhibits 1-5 relate have filed a complaint with the Department concerning work performed by Adam's Street Muffler. The repairs evidence by Petitioner's Exhibits 1-5 were for repair work costing in excess of $50.00. The forms taken from Adam's Street Muffler on July 24, 1995, July 1, 1996, and December 1, 1996 are incorporated into this Recommended Order by reference. On or about January 10, 1997, the Department entered an Administrative Complaint against Adam's Street Muffler and Mr. Tanner. The Administrative Complaint contains two counts against Respondents: one for alleged violations of Section 559.905, Florida Statutes, and one for alleged violations of Section 559.911, Florida Statutes. Both counts relate the forms obtained by the Department in December of 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services finding that Adam's Street Muffler Shop and Service Center, Inc., a Florida Corporation, and Tim Tanner, individually and as Director of Adam's Street Muffler Shop and Service Center, Inc., violated Section 559.911, Florida Statutes, as alleged in the Administrative Complaint entered January 10, 1997. IT IF FUTHER RECOMMENDED that Respondents be required to pay an administrative fine of $1,000.00 within thirty days of the date that the Final Order becomes final and the motor vehicle repair shop registration, MV-15484, issued to Respondents be suspended for a period of two weeks. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Lawrence J. Davis, Senior Attorney Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 J. Joseph Hughes, Esquire 1017-A Thomasville Road Tallahassee, Florida 32303-6221 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue posed for decision herein is whether or not the Respondent/Licensee, David H. Trump d/b/a Swain Builders, Inc., has engaged in conduct which will be set forth hereinafter which warrants the Florida Construction Industry Licensing Board to discipline the Licensee and to impose an administrative fine.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint mailed December 3, 1979, the Florida Construction Industry Licensing Board (herein referred to as the Board or Petitioner) seeks to revoke Respondent's contractor's license; to impose an administrative fine in the amount of $1,000.00 and to deny reissuance of Respondent's license until sufficient proof of restitution has been provided the Board. 1/ David H. Trump (herein sometimes referred to as Licensee or Respondent) d/b/a Swain Builders, Inc., is a registered General Contractor who holds license No. RGS 003574, which is current and active. The remaining material allegations of the Administrative Complaint are that from June 8, 1979, Respondent contracted with F. O. Parman to construct an addition to an existing structure for $70,500.00. It is alleged that Respondent, after having received $50,000.00 of the contracted price, came under scrutiny when owner Parman determined that contractors and suppliers were not being paid. As a result, Respondent allegedly made a sworn statement to the effect that "all subcontractors and suppliers had been paid, when in fact they had not been paid". It is also alleged that Respondent subcontracted a heating and air conditioning installation to Air Systems, Inc., for $9,610.00 and Respondent failed to pay for this installation even though he received money from the owner, Dean Waters, It was also alleged in the Administrative Complaint that Respondent was charged with perjury by the State Attorney's office for issuing false statements under oath and that he pleaded nolo contendere to the charges, adjudication of guilt was withheld and Respondent was placed on two years probation to allow him an opportunity to reimburse the victim. 2/ On June 8, 1979, Respondent entered into a contract with F. O. Parman to construct an addition to an existing structure, Big Chief Tire Company, situated at 5444 Normandy Boulevard, Jacksonville, Florida, for the sum or $70,500.00 plus an additional $1,000.00 for a bathroom (Petitioner's Exhibit 1). 3/ To complete this project, Respondent purchased concrete from Silcox Concrete Company during approximately August of 1978 which resulted in an outstanding obligation of $2,067.30. This obligation remained unpaid as of December 2, 1978. Ralph Silcox, the President of Silcox Concrete Company contacted the owner of Big Chief Tire Company, Mr. F. Parman, who agreed to pay approximately 80 percent of the invoiced amount, i.e. , $1,724.20. As a result of this agreement Mr. Parman was not obligated to honor additional claims from Silcox Concrete Company. 4/ Mr. Richard Q. Parman, President of Big Chief Tire Company, appeared at the hearing and related that after having released approximately $50,000.00 to Respondent, further disbursements were withheld based on complaints of various subcontractors including a Mr. Felder, the subcontractor for the heating and air conditioning system for the Big Chief Tire project. At that juncture, Mr. Parman had escrowed approximately $20,000.00 due Respondent for the completion of the project. Mr. Parman insisted that Respondent prepare a list of subcontractors and materialmen who had supplied materials for this project. According to that list, Respondent owed subcontractors and materialmen approximately $24,000.00. Mr. Parman and his son prepared the statement, which was signed, notarized and witnessed (Petitioner's Exhibit 2). The Parmans later discovered that Respondent failed to list Fab-All Metals, the entity which had supplied the steel and miscellaneous metals for completion of the Big Chief Tire project. The Parmans paid Richard G. Hornsbrook, the President of Fab-All Metals, approximately $2,500.00 which represented 80 percent of the amount due Mr. Hornsbrook for metals and steel furnished for the Big Chief Tire project. Thereafter, on January 12, 1979, Mr. Hornsbrook received $300.00 from Respondent based on a settlement agreement Respondent and Mr. Hornsbrook entered to pay the remaining balance due of approximately $623.84. (Petitioner's Exhibit 3) John S. Felder, the President of Air Systems of Florida, Inc., supplied two air conditioning and heating systems for the Big Chief Tire project. Mr. Felder received approximately 80 percent of the amount due him from Mr. Parman, the owner of Big Chief Tire Company. Respondent advised Mr. Felder that the money due him would be paid when the building was completed. Respondent is a registered General Contractor who has been in the contracting business for approximately twenty-two (22) years. Swain Builders, Inc., the entity through which the Respondent was conducting his contracting business, has been defunct since December of 1978. Since that time, Respondent has been self employed primarily doing odd jobs trying to repay cost overruns from another project, the Dean Waters job, which was for a total contracted price of $90,000.00. Respondent incurred cost overruns of approximately $22,000.00 on the Dean Waters project. Respondent did not receive any draws for the Air Systems work on the Dean Waters project. Monies for that work was withheld by the owner, Dean Waters. Respondent failed to recognize that Fab-All Metals was left from the list of contractors provided to Mr. Parman. Mr. Parman prepared the statements which appear on the list of contractors provided by Respondent. Respondent is paying Parman restitution for payments he made to Fab-All Metals. An examination of the list of contractors and materialmen indicates that the list is headed by the words, "Bills Unpaid at Big Chief Tire Co." which is followed by a list of contractors and an amount represented as being de and owing of approximately $23,678.26. Thereafter, there is an affirmation which provides in pertinent part: " the above listed company's(sic) and the amounts designated. is a complete list of all the companies who have extended credit to Swain Builders, Inc. for building materials and labor for the construction of the building. location of Bib(sic) Chief Tire Co. Inc. and have not been paid in full." (Emphasis supplied) The material allegation of the Administrative Complaint is set forth in paragraph 1(f): "That David H. Trump made a sworn statement to the effect that all subcontractors and suppliers had. been paid when in fact they had not been paid". At the outset, it should be noted that Respondent acknowledged that he failed to recognize that Fab-All Metals was left off the list of contractors prepared for Mr. Parman. Respondent acknowledges the fact that an amount is due and owing Fab-All Metals, which amount he is presently making restitution to Mr. Parman. However, the sworn statement does not indicate that all subcontractors and suppliers had been paid when in fact they had not, but rather, is a list of bills unpaid. That language which was prepared by Mr. Parman is set forth at the beginning of the paragraph and is again cited in the last sentence which provides, ". and have not been paid in full".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent pay an administrative fine of Five Hundred Dollars ($500.00). RECOMMENDED this 20th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1980.
The Issue Should Respondent be fined $500.00 for initiating repairs to an on-site sewage treatment and disposal system before obtaining a permit?
Findings Of Fact Respondent is engaged in the septic tank contracting business as a contractor licensed under Chapter 489, Part III, Florida Statutes. He does business as "Alpha." In association with his business Respondent provided services to residents at 224 North Orange Avenue, Orange City, Florida. This was related to a failed on-site sewage treatment and disposal system at that residence. To assist in providing repair service to the residence in Orange City, Florida, Respondent engaged Andy Trapp. Mr. Trapp's business is to assist septic tank contractors in obtaining necessary permits to perform septic tank contracting services. Mr. Trapp's occupation includes field work involving soil testing, measurements, and completion of necessary paperwork to assist the septic tank contractor in obtaining necessary permits. As permitting agency, usually Petitioner would accept applications submitted by Mr. Trapp in relation to the application for a permit to repair on-site sewage treatment and disposal systems, in that Mr. Trapp is recognized by Petitioner as being sufficiently qualified to submit information in support of an application for permit. On March 27, 1998, Mr. Trapp submitted an application for a permit to repair the on-site sewage treatment and disposal system at the Orange City, Florida, address, to include supporting information concerning the results of soil testing. That application was accompanied by the necessary fee to obtain a permit. The application was delivered to Petitioner's Daytona Beach, Florida, office as a matter of convenience to Mr. Trapp. Mr. Trapp realized that the actual processing of the permit application would be conducted by Petitioner's Deland, Florida, office. In that connection, Mr. Trapp realized that the application that he had submitted to the Daytona Beach office would be forwarded by interoffice transmittal to the Deland office, which would cause a delay in the processing of the application. In his experience Mr. Trapp has filed applications with the Daytona Beach office to be subsequently transmitted to the New Smyrna Beach office of the Petitioner, which ordinarily can be done late on the same day that the application was presented or by the next day. James McRae is an environmental supervisor for the Volusia Health Department, Environmental Health Office in Deland, Florida. It is his office that had ultimate responsibility for considering, and if appropriate, issuing a permit allowing Respondent to conduct necessary repairs of the failed on-site sewage treatment and disposal system at the Orange City, Florida address. Mr. McRae confirmed that the permit application, as submitted by Mr. Trapp for the repairs, had been received by the Deland office on March 30, 1998. In addition, the accompanying $57.00 fee had been transferred from the Daytona Beach office to the Deland office, as was customary, the custom being that the funds in support of an application would ultimately be received in the office from which the application would be processed and a permit number assigned, as applicable. Upon receipt of the application in the Deland office, a receipt was generated. Information concerning the permit application was placed in the computer. Assessment of the application was assigned to William Vander Lugt, Environmental Specialists II, who is part of the field staff for the Petitioner's Deland office. Beyond Mr. Vander Lugt's assignment to consider the application for the permit for the Orange City, Florida project, it was expected that he would do any necessary field work involving an inspection and any necessary soil analysis. If satisfied that the site was appropriate to effect repairs to the failed on-site sewage treatment and disposal system, Mr. Vander Lugt would issue a permit subject to approval by Mr. McRae. Mr. McRae identified that the usual turn around time for issuing permits is two to three days, assuming that the permit was applied for at Petitioner's office which would be responsible for assessing the application. In this instance the permit had been applied for at another office which delayed consideration of the permit application by the Deland office. The permit was approved on April 2, 1998, within three days of its receipt by the Deland office. Before the permit was issued, Respondent, through his employees, had commenced the repairs at the Orange City, Florida, address. The commencement of repairs was verified by an on-site inspection performed by Mr. Vander Lugt, on March 31, 1998. Although the supporting information presented by Mr. Trapp was in order and the fee had been paid, and there was no indication that any other problems existed which would prohibit the repairs from being conducted, Respondent was premature in commencing the work before the permit issued, and was unjustified in that choice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be issued which imposes a $500.00 fine against Respondent for initiating a repair of an on-site sewage treatment and disposal system without first obtaining a permit to do the work. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Charlene Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael J. Jedware Post Office Box 390073 Deltona, Florida 32739-0073 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
