The Issue The issue in this case is whether the Department of Environmental Regulation (Department) should issue a solid waste construction permit to the David J. Joseph Company (Applicant) to construct lined cells at its existing Class I solid waste landfill in Tampa, Hillsborough County, Florida. It is the position of the applicant and the Department that all statutory and rule criteria for the issuance of said permit have been met, while Mr. & Mrs. David Brenner (Petitioners) contend that the application fails to meet the criteria for the issuance of this permit.
Findings Of Fact The applicant filed an application for a solid waste construction permit with the Department on May 2, 1988. This application was given permit number S029-77041. The applicant proposes to expand its existing solid waste Class I sanitary landfill located near Kingsway Road and Interstate 4, east of Tampa, Hillsborough County, Florida, through the construction of a lined addition. This entire site consists of approximately 16 acres, but the lined portion for which this permit is sought comprises about eight acres. This site was purchased by the applicant in 1978, to landfill shredder waste, or "fluff", produced at its Tampa shredder. In fact, the applicant has operated this site as a landfill since 1978, under two previous permits issued by the Department in 1978 and 1983, and approximately nine acres of the site have already been filled. The Department gave notice of its intent to grant this permit on September 23, 1988, subject to specified conditions. The Petitioners, thereafter, timely requested this administrative hearing. The applicant is engaged in the ferrous scrap business at fourteen locations throughout the United States, and provides steel mills with raw material for their use in the production of new steel. It operates a large shredding plant in Tampa, Florida, which consists primarily of an automobile shredder and related equipment. The shredder is a large crushing and grinding piece of equipment which, in approximately 20 seconds, grinds scrap autos into small chunks of scrap the size of a man's fist. A conveyor system separates the scrap produced in the shredding process into three streams. The first stream consists of steel scrap that is sold to a steel mill. Approximately 80% of automobile scrap is steel. The second stream consists of non-ferrous material, primarily aluminum, zinc, copper, brass and other non-steel items found in autos, which are then sold to dealers in that particular type of metal. The third stream is waste material, or "shredder fluff". Approximately 17% of the material in automobile scrap is fluff. Guidelines have been established by the applicant which limit the type of material which will be accepted at the shredder facility as feedstock for the shredder operation. These guidelines prohibit acceptance of lead-acid batteries, gas tanks, tires, catalytic converters, and loose mufflers and tail pipes. Automobiles which are accepted by the applicant at its Tampa plant have already been crushed at separate locations by other companies engaged in the car crushing business prior to their purchase by the applicant. In the crushing process, most automobile fluids are liberated, but oil and other fluids not liberated during the crushing process are then liberated in the shredding process, and are intermingled with all three product streams produced at the shredder mill. Shredder fluff consists largely of automotive components such as upholstery, plastic, glass, rubber, dirt, and other non-magnetic and non-ferrous materials. The applicant's shredder operation in Tampa generates approximately seven to eight tractor trailer loads of fluff per day which are deposited at their current landfill. During 1988, the fluff from approximately 200,000 autos was disposed at this site. The existing landfill is located approximately 550 feet off of the roadway, and is accessible by an entrance road leading to the main gate of the site. The landfill is completely fenced with barbed wire around its perimeter, and there is a locked gate at the access road. There is a full time manager on site. Only shredder fluff produced by the applicant's Tampa shredder is deposited at this site. The applicant delivers its waste to this landfill using its own equipment and personnel. The applicant has taken reasonable steps to insure that only authorized persons enter the landfill site, and that there will be no unauthorized dumping. In order to continue using this landfill site, the applicant proposes to construct a liner system and leachate collection system for the remaining unfilled portion of the landfill, and also to establish a stormwater management system serving the entire site. A geotechnical and foundation investigation has been performed on the site to determine the physical and chemical characteristics of site soils, and the ability of those soils to support the landfill construction. The potential for movement in foundation soils was specifically addressed. It is to be noted that the applicant has been operating a landfill at this site for ten years without any sinkhole or foundation problems. There are no active sinkholes on the site, nor was there competent substantial evidence that any sinkhole had historically existed on this site. While the site geology is complex, the soils and subsurface geology will support the proposed project. Thus, the site is suitable for construction of lined Class I landfill cells. Beneath a surficial sand layer of approximately 30 feet in depth, lies an interbedded layer of sands, clay and heavily weathered limestone lenses approximately 40 feet thick, under which lies the Floridan Aquifer. The applicant will excavate below the level of the existing pit floor to remove any limestone protrusions which could adversely affect liner integrity. A dense clay layer, graded to remove rocks and other protrusions, will be used as a secondary barrier to retard the movement of contaminants into groundwater, and to further minimize the potential impact from limestone pinnacles upon liner integrity. The primary containment system will be a liner system constructed of a thick, high density, 60 millimeter polyethylene membrane, applied to both the bottom and sides of the landfill. Below-grade portions of the landfill will be lined completely. A layer of geotextile material is placed between the synthetic liner and clay layer to act as a cushion against stresses on the liner. The liner will be constructed in 30 foot wide strips with welded seams, every inch of which is vacuum tested. Laboratory testing is also conducted on sample coupons of welded seams to insure that the seams are as strong, or stronger, than the original material, and the areas from which coupons are taken are then extrusion welded and vacuum tested. The liner system is designed to withstand stresses, and any differential settlement, that are reasonably expected to occur at this site. It will minimize the risk of leakage of leachate to the environment, as was recognized by Dr. Richard Strom, an expert in hydrogeology called by Petitioners, who stated this is an improvement in the previous unlined operations at this site, and decreases, although it does not completely eliminate, the possibility of ground water pollution. The applicant's project design includes a leachate collection system which will allow leachate generated in the landfill to flow through a 12 inch thick gravel layer, which will act as a drain in the base of the landfill. Fluids will run to low spots and will then be channeled to sumps, where leachate is collected so that it can be disposed of by pumping away from the liner system and spraying onto the active face of the landfill. Natural evapotransporation will then reduce the volume of the leachate. An approved groundwater monitoring program is currently in place, and is being operated at the applicant's existing landfill. It consists of an upgradient well in the northeast corner of the site, and three down gradient wells, one in the southwest corner, one on the west and one on the south sides of the property. These down gradient wells are adequately placed to intercept groundwater flow from the site since the predominate groundwater flow is from the northeast to southwest. These wells all monitor the Floridan Aquifer. The applicant's groundwater monitoring program is adequate and appropriate to detect any leachate or other contaminates emanating from the landfill which might pollute the groundwater, and provides reasonable assurance that water quality standards will not be violated by the landfill operations. The applicant has proposed a stormwater management system for the entire site which is designed to separate non- contact stormwater from that water which actually falls on, or comes into contact with, the waste material. All rainwater coming in contact with waste will be treated as leachate, and handled through the leachate collection system. The non-contact stormwater will be collected in a series of bermed drainage ditches around the site, and will be drained away to retention ponds for infiltration. During times of normal rainfall, there will be sufficient capacity in retention ponds to store all non- contact stormwater on site until it either evaporates or percolates into the ground. During extreme storm events, excess stormwater can be channeled off site to a nearby sinkhole for discharge. Routine monitoring will be conducted to ensure that water in the system has not been contaminated with leachate. The Department has delegated stormwater plan approval authority to the Southwest Florida Water Management District, which reviewed and approved the applicant's stormwater management system through the issuance of a permit in 1988. Noxious odors do not emanate from the existing landfill operations, although there is a slight odor similar to an auto garage service bay close to the disposal materials. This is not a sickening or noxious odor, as acknowledged even by Dr. Strom. The applicant has provided reasonable assurance that leachate sprayed on the active face of the landfill, after having been collected through the leachate collection system, will not result in, or cause, noxious odors at the landfill site. The applicant has established that this project to enlarge its existing landfill with a lined addition will not release contaminants into the underlying soils and groundwater.
Recommendation Based upon the foregoing, it is recommended that the Department of Environmental regulation enter a Final Order approving the application of the David J. Joseph Company and issuing permit number S029-77041. DONE AND ENTERED this 21st day of June, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1989. APPENDIX (DOAH Case No. 88-6009) Rulings on the Petitioners' Proposed Findings of Fact: Rejected in Findings 1, 9-12. Rejected in Findings 10-14. Rejected in Finding 16. Rejected in Finding 16, but Adopted in part in Finding 13. Rejected in Findings 10-12. Rejected in Finding 15. Rejected in Finding 14. Rulings on the Respondents' Proposed Findings of Fact: 1. Adopted in Findings 1, 2. 2-3. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. 7-8. Adopted in Finding 1. 9-10. Adopted in Finding 7. 11. Adopted in Finding 8. 12-15. Adopted in Findings 9-11. Adopted in Finding 12. Adopted in Finding 9. Adopted in Finding 13. 19-21. Adopted in Finding 14. Adopted in Finding 15. Adopted in Findings 9 and 16. Adopted in Finding 17. COPIES FURNISHED: John W. Wilcox, Esquire Katherine Harasz, Esquire 100 South Ashley Drive Suite 1650 Tampa, FL 33602 William D. Preston, Esquire Thomas M. DeRose, Esquire 123 South Calhoun Street Tallahassee, FL 32301 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale Twatchmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether the City of Jacksonville has provided reasonable assurances that a proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill will not cause pollution in violation of any of the provisions of Chapter 403, Florida Statutes, or the rules promulgated thereunder? Whether the City of Jacksonville proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill should be denied because of alleged violations of the City of Jacksonville's permit or Florida law?
Findings Of Fact Introduction. The City of Jacksonville North Sanitary Landfill. The City of Jacksonville (hereinafter referred to as the "City") operates two solid waste disposal facilities. One, the City of Jacksonville North Sanitary Landfill (hereinafter referred to as the "North Landfill"), is located at the intersection of New Berlin Road and Island Drive in the northern part of the City and Duval County, Florida. The North Landfill is operated pursuant to permit #SC16-12205 (hereinafter referred to as the "Permit"), issued by the Department on June 6, 1988. The Permit was issued "for operation of the City of Jacksonville North Sanitary Landfill, Phases I, II, and 111a; and of a new disposal area at the North Sanitary Landfill, Phase IIIb." The area in which the North Landfill is located is generally commercial property, with some rural and residential property: The North Landfill is bounded on the north by unimproved land owned by the City. This property stretches to Cedar Point Road. A few parcels within the property owned by the City to the north of the North Landfill are owned by others, including Mr. and Mrs. Leigh. The property to the east of the North Landfill is also unimproved property. It is owned by the St. Johns River Power Park. The St. Johns River Power Park is a power plant facility operated as a joint venture by the City, the Jacksonville Electric Authority and Florida Power and Light. The plant is located on the southern boundary of the North Landfill. The west boundary of the North Landfill is New Berlin Road. The property to the west of New Berlin Road is owned by a number of persons, including M & M Dairy. Phase IIIb of the North Landfill is located in the northeast quadrant of the landfill. The North Landfill primarily serves northern, and a part of western, Duval County. Approximately 3,000 tons of solid waste is disposed of each day in Jacksonville. Approximately 55% of the solid waste is disposed of at the North Landfill. The solid waste disposed of at the North Landfill consists primarily of mixed municipal solid waste and commercial solid waste. The North Landfill is open seven days a weeks from 5:00 a.m. to 11:00 p.m. All phases of the North Landfill are permitted to a height of 75 feet. The land on which the North Landfill is located is approximately 25 to 30 feet above sea level. Therefore, approximately 45 to 50 feet of solid waste can be disposed of at the North Landfill. All phases of the North Landfill have some remaining capacity for the disposal of additional solid waste. The Petitioners. Ms. Holzendorf's residence is approximately ten miles from the North Landfill. Her office is located approximately seven miles from the North Landfill. She does not own any real property located in the immediate vicinity of the North Landfill. Ms. Holzendorf can smell the odor from the North Landfill at her residence when the wind is blowing from the North Landfill toward her residence. Ms. Holzendorf is a Florida State Representative for District 16. District 16 includes the population of approximately one-third of Duval County, The North Landfill is located within District 16. Ms. Holzendorf has received complaints from some of her constituents about the North Landfill. Ms. Holzendorf drives by the North Landfill approximately twice a week. She has visited the site on several occasions. Robin G. and Geraldine Leigh own real property adjacent to Cedar Point Road. The land is unimproved except for a well. The Leigh's land is located north of the unimproved City property located adjacent to the northern boundary of the North Landfill. The Leighs' land is approximately three-fourths of a mile from the North Landfill. The City's Proposal. On August 3, 1988, the City filed an application with the Department for a modification of its Permit. In its application the City requested a "construction permit modification" of its Permit consisting of "extending the height of Phase IIIb of the North Landfill to a constructed elevation including final cover of no greater than 110 feet, NGVD." The City's requested modification of the Permit will provide the City with an additional six months of solid waste disposal capacity. The Department proposed to grant the City's requested modification. The Department issued a proposed Permit modification (hereinafter referred to as the "Modified Permit"). Structural Design of Phase IIIb. Leachate Control System. Waste dumped at the North Landfill is covered daily. Rain falling on the site is disposed of either as "leachate" or stormwater. Leachate is liquid which passes through, and emerges from, solid waste. Leachate on Phase IIIb of the North Landfill is collected and disposed of by a control system which was designed by George Knecht. Mr. Knecht described the leachate control system as follows: The leachate collection system consists of a two-foot drainage layer placed on top of the plastic liner. In this case the city used a plastic liner rather than a clay liner. It's HDPE, which is high-density polyethylene, and that collects the liquid and lets it flow downhill in this drainage layer to the central point, at which point the city has installed a six-inch perforated pipe which is wrapped in a filter media, which is basically a stone, a rock, which in turn is wrapped in a filter media which is porous cloth, and the purpose is that the liquid coming through the landfill gets into this drainage layer, runs downhill in the drainage layer, goes through the filter cloth, and the filter cloth keeps the sand from penetrating into the granular rock, goes through the rock and into the pipe, and then pipes are laid in a sloping downhill direction so that the fluid, once it gets in there, runs downhill. It's collected in manholes at the end of each one of these pipes. Transcript of Formal Hearing, page 49, lines 4-23. The leachate control system of Phase IIIb was properly installed and designed. Although the Petitioners raised questions concerning the manner in which the leachate control system was installed and designed, they did not offer sufficient evidence to contradict the evidence presented by the City that the system was properly installed and designed. The evidence also failed prove that the addition of 35 feet of solid waste to Phase IIIb will adversely affect the operation of the leachate control system. The addition of 35 feet of solid waste to Phase IIIb will probably ultimately have a beneficial effect on the leachate control system of Phase IIIb of the North Landfill. When Phase IIIb reaches its currently authorized height of 75 feet, the leachate depth on the liner of the control system is expected to be an average of approximately three inches. If an additional 35 feet of waste is added to Phase IIIb, the leachate depth on the liner of the control system is expected to decrease to an average of approximately two inches. The depth of leachate on the liner of the leachate control system of Phase IIIb will not exceed one foot. Specific Condition 3 of the Permit required that the City arrange for Department representatives to inspect the facility in the company of the Permittee, Engineer, and onsite operator after completion of construction activities. Cells I and II of the leachate control system of Phase IIIb were not inspected by the Department. The Department was provided with a certification from a registered professional engineer that the installation was inspected and met state requirements. The Department normally relies upon such certificates. Stormwater Disposal System. Rainwater which does not percolate through the waste, thus becoming leachate, runs off in the form of stormwater. Stormwater will consist primarily of rain which strikes the sides of the pyramid formed by the waste deposited on Phase IIIb of the North Landfill. The existing stormwater disposal system of all phases of the North Landfill consists of a series of ditches which collect stormwater and channel the stormwater to other ditches which surround the perimeter of the North Landfill. Stormwater travels through the ditches to collecting ponds located at the northeast corner of the North Landfill. Water reaching the holding ponds is treated by sunlight, oxidation and sedimentation. Ultimately, water reaching the holding ponds runs into Brown's Creek. The existing stormwater collection system of Phase IIIb is in compliance with the Department's permitting requirements. The proposed increase in height of Phase IIIb should not have any appreciable impact on the quality of stormwater eventually emptied into Brown's Creek. Phase IIIb will be capped with an impermeable cap when it is closed. The City has had a stormwater management system designed to take into account the effect of the cap on stormwater disposal. The stormwater collection system which will be installed when Phase IIIb is closed will consist of ditch blocks which will separate the stormwater collection system of Phase IIIb from the other phases of the North Landfill. Stormwater from Phase IIIb will be directed to a new holding pond. Stormwater will eventually be discharged into Brown's Creek. The stormwater collection system which will be installed when Phase IIIb is closed will meet the requirements of Rule 17-25, Florida Administrative Code, and the St. Johns River Water Management District. The system will actually have a positive impact on water quality. Foundation. The earth beneath the leachate control system of Phase IIIb, because of the weight of the solid waste to be deposited above it, is expected to settle approximately twelve inches under 75 feet of solid waste. The addition of 35 feet of solid waste to Phase IIIb is expected to cause the earth beneath the leachate control system to settle an additional six inches for a total of one and one-half feet. The additional 35 feet of solid waste will not adversely affect the structural integrity or functional capacity of the leachate control system of Phase IIIb. The proposed 35 foot addition of solid waste should not affect the ability of the earth beneath Phase IIIb to support the loads and stress it will be subjected to. III Alleged Violations. Water Quality There is a marsh located to the northeast of the North Landfill. The marsh forms the headwaters of Brown's Creek. Brown's Creek flows into the St. Johns River, south of the North Landfill. Alfred Mintz, the former owner of Clapboard Creek Fish Camp, a fish camp located approximately four miles from the North Landfill, testified about a "black gooey substance" which was on the surface of Clapboard Creek and Brown's Creek. Clapboard Creek flows to the northeast and east of the North Landfill. It eventually flows into the St. Johns River. The substance came from the direction of the North Landfill. Mr. Mintz did not know what the substance was and was unable to identify the source of the substance. The evidence failed to prove what the substance was or that the North Landfill was the source of the substance. Anita James, a commercial fisher, testified about a "film" which she saw on Brown's Creek near the St. Johns River. The substance was not identified. Nor was the source of the substance identified. Ms. James' belief that the film came from the North Landfill is not sufficient to support a finding of fact that the film whatever it was, came from the North Landfill. Mr. Mintz and Ms. James also testified about dead and diseased fish, and a dead dolphin and a dead manatee which they had seen in Clapboard Creek, Brown's Creek and other waters in the vicinity. No competent substantial evidence was presented to prove that the deaths or the disease was caused by waste disposed of at the North Landfill. No evidence concerning what killed the fish, dolphin or manatee, or what caused the diseased fish, was presented. Specific Condition 13 of the Permit requires the City to monitor water at three points along the stormwater disposal system of the North Landfill. One of the three monitoring points is approximately one-tenth of a mile east of the North Landfill in Brown's Creek. During approximately ten years of monitoring of water conditions only two parameters, iron and coliform, have been found in excess of state standards. The evidence did not prove what the cause of the excess iron and coliform was. It is possible that the excesses were caused by leachate from Phases I, II and 111a, which do not have lined leachate control systems like Phase IIIb, seeping into the stormwater disposal system. Leachate from Phase IIIb does not aggravate the problem because the leachate control system of Phase IIIb is lined. The City and the Department entered into a Consent Agreement on July 14, 1989 (hereinafter referred to as the Consent Order). Pursuant to the Consent Order the City is required to update its monitoring of stormwater. Quarterly monitoring of 37 parameters will be required. Specific Condition 19 A 2) of the Modified Permit also specifies that 37 parameters are to be analyzed quarterly. Specific Condition 13 A 2 of the Permit only required analyses of 14 parameters. The requested modification of the Permit should not contribute or extend any adverse affect of the North Landfill on water quality. The Consent Order and Specific Condition 20 C of the Modified Permit require that the City analyze 35 parameters quarterly at four wells located inside the North Landfill. The City has contracted for the preparation of a groundwater monitoring plan consistent with the Consent Order and with the requirements of Rule 17-701.050, Florida Administrative Code. Based upon a review of a well inventory conducted by the City and groundwater studies, wells in the vicinity of the North Landfill, including the well on Mr. & Mrs. Leigh's property and the M & M Dairy, are not at risk of contamination. The requested modification of the Permit should not increase the risk of contamination of wells in the vicinity of the North Landfill. Violation of Height Limits. In 1988 the City filled some portions of Phases I, II and IIIa above their 75 foot limit. The City did not, however, intentionally violate the Permit height limits. The City exceeded the height limit of the Permit only because it believed that solid waste placed on the landfill in excess of 75 feet would eventually settle to less than 75 feet and that this was consistent with the Permits limits. The Department disputed the City's actions in exceeding the 75 foot limit for Phases I, II and IIIa in an administrative action separate from this proceeding. On July 14, 1989, the City and Department settled their dispute and entered into the Consent Order. Pursuant to the Consent Order, the City paid a fine of $1,800.00. The City also built a laser tower for use in measuring the height of the North Landfill and agreed to use it to make more frequent surveys of the landfill. The City was not required to immediately remove the excess height. The City has been allowed to wait until closure. Prior to closure the City can request permission from the Department to leave the excess height. In the modification of the Permit at issue in this proceeding, Specific Condition 3 specifically provides for the manner in which waste may be disposed of in Phase IIIb in an effort to avoid the problems with excessive height experienced with Phases I, II and IIIa. B. Litter. Specific Condition 17 of the Permit provides that [l]itter control devices shall be installed as necessary to prevent litter from leaving the disposal area. Litter outside of the perimeter of the North Landfill along the roads leading to the landfill comes primarily from trucks bringing waste to the North Landfill. A small amount of the litter also comes from the site itself. Although the trucks are not City trucks, the City's litter collection efforts have been extended to cover the main portions of the roads leading to the North Landfill. Litter around and on the North Landfill has been a problem. The City has taken a number of steps to control the amount of litter in and around the landfill: Waste deposited at the North Landfill is covered with six inches of soil. Although the City is not required to do so, six months before the formal hearing of these cases the City began covering the area of the landfill where waste is being deposited (hereinafter referred to as the "working surface") with six inches of dirt. The working surface is also located away from wind. Fences have been installed around the perimeter of the North Landfill. Fences are also placed around the working surface on windy days. Prior to 1989 the City patrolled the immediate vicinity around the North Landfill to collect litter which had not been covered. Collection was performed on a variable time schedule. Only three part-time employees participated in the collection patrols. Beginning in early 1989, the City expanded its litter collection patrols. The roads surrounding the North Landfill (New Berlin Road, Faye Road, Alta Road and Island Drive), are now patrolled daily by five full- time employees. The extent of the patrols prior to 1989 and since early 1989 is depicted on City exhibit 8. The inside of the perimeter of the North Landfill is patrolled for litter collection five days a week and on the weekend, as needed. The stormwater ditches are inspected on a daily basis. At the time of the formal hearing of these cases the stormwater ditches and retention ponds were being excavated. This process had been going on for approximately four to six months. The Modified Permit contains Specific Condition 13, which is essentially the same as Specific Condition 17 of the Permit. Additionally, the Modified Permit contains Specific Condition 8, which provides: The Permittee shall maintain litter controls to prevent litter from entering the collection ditches and from leaving the landfill site. In addition to litter control fences, the Permittee shall provide daily manual collection of litter entering collection ditches and leaving the site. Litter can best be controlled by compacting the waste, picking up litter regularly and using fences. The City has employed these methods of litter control. The City's efforts have been reasonable. The proposed increase in height of Phase IIIb will not adversely affect the amount of litter associated with the North Landfill or the City's litter collection efforts. The City is not required to continue to patrol the roads leading to the North Landfill which it is currently patrolling to pick up litter that is attributable to trucks bringing waste to the North Landfill. Odor. There is no dispute that there is undesirable odor associated with the disposal of solid waste. This is true of the North Landfill. There is undesirable odor associated with the North Landfill most of the time. The nature of the odor associated with landfill's generally, and the North Landfill in particular, was described at the formal hearing as follows: Q The odor that you noticed, is it to some degree all the time? A Some days it won't, but that's very rare. Usually it may be more. Some days it may be in the afternoon, it may not smell in the morning, it may be in the afternoon. Some days it may be in the morning and may not be in the afternoon. Q Could you quantify what percentage of the time? A Probably about 75 percent of the time. Q And you indicate that at times it's much stronger than at other times? A Yes. Q You mentioned odor from the landfill. This was back in time now a good way. When did you start noticing an odor from that landfill? A When did I first start noticing it? Q Yes. A The very day they started dumping. Q And that odor has persisted since then? A Not every -- not every single day, but yes. Q Some days you will have it, some days you won't? A Yes. Q How many years are we talking about since they opened approximately? A Well, we have been out there 17 years. . Q So, over that 14 or 15 years, is it fair to say that basically you have an odor, and some days it will be worse than the average odor, and some days `it will be better than the average odor? A Yes. Transcript, page 511, lines 9-15, page 514, lines 9-13, page 516, line 25, and page 517, lines 1-21. Specific Condition 16 of the Permit provides that 1[o]bjectionable odors originating from the site shall be effectively controlled during all phases of operation. The most effective method of dealing with undesirable odor associated with landfills is to cover the waste daily and minimize the contact of waste with water. The City has been covering the waste disposed of at the North Landfill on a daily basis. The City's efforts have resulted in the North Landfill being as odor free as a "well run" landfill can be. A City ordinance provides for citizen participation in controlling odors in Jacksonville. This ordinance is enforced by the City's Bio- Environmental Services Division. As part of enforcing the odor ordinance the City provides a 24-hour telephone service which citizens can call and complain about odors. Since January, 1988, the City has received 5,500 complaints--an average of 280 complaints a month. Complaints received about odor are investigated by nine inspectors employed by the City. If five or more validated complaints are received about an odor producer during a 90-day period, the City issues a citation. Since January, 1988, the City has received only three complaints about the North Landfill from citizens. No citations have been issued against the North Landfill. Specific Condition 16 of the Permit is included in the Modified Permit as Specific Condition 15. The Modified Permit also includes Specific Condition 6, which provides: The Permittee shall apply no less than 6 inches of compacted initial cover to the top and sides of each cell by the end of each working day, except on the working face which may be left uncovered if additional solid waste will be placed on the working face within 18 hours. An intermediate cover of one (1) foot of compacted earth, in addition to the six (6) inch initial cover, shall be applied within seven (7) days of cell completion if final cover or an additional lift is not to be applied within 180 days of cell completion. The Permittee shall ensure that an adequate quantity of acceptable cover material is available for use during each day of operation of the landfill. The modification of the Permit will not increase the odor associated with the North Landfill. It will, however, extend the period of time that odors emanate from the North Landfill. Access to the North Landfill and Dust. Specific Condition 20 of the Permit provides that "[d]ust free, all- weather access roads to the site and active disposal area, or alternative wet weather disposal area shall be maintained." This condition has been complied with by the City. This condition is included as Specific Condition 12 in the Modified Permit. The roads used to access the North Landfill are paved, two-lane roads. The lanes are twelve feet wide. The speed limit on the access roads is 45 m.p.h. Appropriate turn lanes are available. During December, 1988, New Berlin Road and the North Landfill were able to effectively handle 600 trucks per day, an average of 80 to 90 trucks an hour during peak hours. Normally, the North Landfill effectively handles approximately 300 garbage trucks and 100 cover-dirt trucks a day with a peak of approximately 60 trucks per hour. The unpaved right-of-way on the side of the roads leading to the North Landfill is worn and the source of dust. Dust associated with the North Landfill comes from the roads leading to the landfill. The evidence failed to prove that dust comes from within the perimeter of the North Landfill. Tire Storage. Whole tires have been stored and processed at the North Landfill. At the time of the formal hearing there were more than 1,000 tires at the landfill. The evidence failed to prove how long any specific quantity of tires had been stored at the North Landfill. The City has not allowed the disposal of any whole tires at the North Landfill since July 1, 1989. The City has been shredding tires at the North Landfill. At the time of the formal hearing the City had contracted for the shredding of all the tires which had been located at the North Landfill at the time the contract was entered into in early July, 1989. The contract in existence at the time of the formal hearing was scheduled to expire in October, 1989. The City, however, expected to enter into a follow-up contract to continue shredding tires. In February or March, 1989, the previous tire- shredder contractor walked off the job. Mosquitoes at the North Landfill are managed by the City's Bio- Environmental Services Mosquito Control Division. Spraying is only done "as needed", however. F. Hazardous Waste, Oil Recycling and Infectious Waste. The City has not established an independent hazardous waste disposal program, a used oil recycling program or a infectious waste disposal program. The City attempts to prevent disposal of hazardous waste, used oil and infectious waste through educating the public with signs posted at the North Landfill entrance and periodic inspections of waste disposed of at the North Landfill. The evidence failed to prove that hazardous waste, used oil or infectious waste is being disposed of at the North Landfill. The evidence also failed to prove that approval of the Modified Permit will cause the disposal of hazardous waste, used oil or infectious waste on Phase IIIb of the North Landfill. Specific Condition 5 of the Modified Permit prohibits the disposal of hazardous waste and infectious waste at Phase IIIb of the North Landfill. This condition also requires that the City provide a minimum of one spotter for each working fact of Phase IIIb to watch for unauthorized waste.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department approving issuance of the Modified Permit, modified by the inclusion of a Specific Condition requiring that the City continue its litter patrols as represented at the formal hearing. DONE and ENTERED this 3rd day of January, 1990, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990. APPENDIX Case Numbers 89-0532, 89-0569 All of the parties except the Petitioners in case number 89-0569, have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms.'s Holzendorf's Proposed Findings of Fact Proposed Finding Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 49-52. The Consent Order was entered into on July 14, 1989. The last sentence is not supported by the weight of the evidence. See 49. 80. Whether a violation of Chapter 17- 711, Florida Administrative Code, has occurred is a conclusion of law. The weight of the evidence failed to prove that there is not program for the disposal of tires. The last paragraph of this proposed finding of fact is not supported by the weight of the evidence. IV See 54-55, 61-63, 73 and 77. IV-Hazardous Waste: 86. See 87-89. The second sentence is not supported by the weight of the evidence. Argument. Not supported by the weight of the evidence. V-Used Oil Recycling Plan: 86. See 87-89. The second sentence is not supported by the weight of the evidence. 86. See 87-89. The last paragraph is not supported by the weight of the evidence. Not supported by the weight of the evidence. Not relevant to this proceeding. The Modified Permit only involves a lined portion of the North Landfill. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 2. 3 15. 4 18-19 and 26. 5 20. 6 22-23. 7 34-36. 8 26-29. 9 32-33. 10 30. 11 41-42. 12 43. 13 37-40. 14 49. 15 61-62 and 64. 16 55. 17 56 and 58. 18 74-78. 19 80 and 82-83. The City's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Contrary to testimony of Ms. Holzendorf. Statement of law. 3-4 Hereby accepted. 5 Statement of law. 6 10. 7-8 13. 9 9. 10 1-2. 11 1-2 and 7. 12 4. 13 5. 14 1. 15 6. 16-19 3. 20 14. 21 Hereby accepted. 22 7. 23 8 and 49. 24 16. 25-26 20. 27-28 Hereby accepted. 29-30 25. 31 Hereby accepted. 32-35 22. 36-43 Hereby accepted 44 35-36. 45 Hereby accepted. 46 35. 47 See 36. 48-49 Hereby accepted. 50 44. 51-52 46. 53-58 Hereby accepted. 59 47. 60 48. 61 46. 62-63 Hereby accepted. 64 27. 65-66 43. 67 31. 68 Hereby accepted. 69 33. 70 Hereby accepted. 71 33. 72 30. 73 32. 74 43. 75 30. 76-77 26. 78 42. 79 Not relevant to this proceeding. 80 45. 81-82 Hereby accepted. 83-84 44. 85-86 49-51. 87 49. 88 52. 89 Hereby accepted. 90 55-56. 91-93 56. 94 50. 95 56. 96 59. 97-100 56. 101 55. 102 Hereby accepted. 103 58. 104-112 These proposed findings of fact correctly quote testimony presented the formal hearing. at 113 61 and 64-65. 115 72. 116 66. 117 Hereby accepted. 118 67. 119 Hereby accepted. 120 69. 121 70. 122-123 70 and hereby accepted. 124 See 65. 125 65. 126-129 See 61-62. 130-131 77. 132 Hereby accepted. 133 75. 134 Not relevant to this proceeding. 135 77. 136 79. 137-139 These proposed findings of fact correctly quote testimony presented at the formal hearing. 140 80. 141 82-84. 142 84. 143 81. 144 85. 145-147 Hereby accepted. 148 Cumulative. 149 37-38. 150-152 38. 153-155 40. 156 39-40. 157-161 Hereby accepted. COPIES FURNISHED: Lacy Mahon, Jr., Esquire Mark H. Mahon, Esquire Russell L. Healey, Esquire Lacy Mahon, Jr. & Mark Mahon, P.A. 1120 Blackstone Building Jacksonville, Florida 32202 Robin G. Leigh and Geraldine Leigh 6026 Heckscher Drive Jacksonville, Florida 32226 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel D. Richardson, Esquire Dale H. Twachtmann, Secretary Robin A. Deen, Esquire Department of Environmental Office of General Counsel Regulation Environmental Law Division 2600 Blair Stone Road City of Jacksonville Tallahassee, FL 32399-2400 Towncentre, Suite 715 421 West Church Street Jacksonville, Florida 32202
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
Findings Of Fact The property upon which Petitioner seeks a variance from the normal requirements for attaining a permit to install an on-site sewage disposal system is found in Leon County, Florida. Specifically, it is located at Lot 4, Block A, Killearn Lakes Unit I. The relative position of this lot in the subdivision is depicted within Petitioner's Exhibit 1 and Respondent's Exhibit 2 admitted into evidence. Respondent's Exhibits 3 through 5 are photographs of the site. Petitioner intends to construct a 1,200 square foot residence. As the photographs depict, some preparation has commenced to the extent of lot clearing and other site work where the home would be constructed. Killearn Lakes Unit I is a pre-1972 subdivision. When the development commenced, it was anticipated that a community sewer system would be utilized, as contemplated by the plans submitted in April, 1971. Subsequently, some lots within the Killearn Lakes Unit I were allowed to be developed with the use of on-site sewage disposal systems, namely septic tanks. There are 150 lots in that category. In 1979, with the advent of certain rules under Chapter 10D-6, Florida Administrative Code, the development was allowed to proceed on the basis of four septic tanks per acre. Over time, Killearn Lakes Unit I experienced a history of failures with on-site sewage disposal systems. The failures were promoted by problems with the "sheet flow" drainage system and its patterns of dispersion of storm water runoff, problems of soil permeability and abnormally high wet season water tables, referred to as perched water tables. This resulted in sewage backing up into homes and flowing out onto the ground in the yards of the residences, into streets and onto adjacent neighbors' lots. The problems experienced were widespread within the Killearn Lakes Unit I. This seepage of raw sewage presented a health hazard, as it would on any occasion. Among the residences confronted with this dilemma was Lot 5, Block X, adjacent to the subject lot. Persons residing in that home had to undertake alternative means of on-site sewage disposal to have that system function properly. This included relocation of the apparatus, mounding, use of an aerobic system, and use of pumps to insure that the waste being disposed did not back up into the conveniences within the home. Witnesses who appeared at the hearing described the series of corrections in some detail. Those witnesses included a former owner of that residence and others who had a technical understanding of the problems in that system. The problems in Killearn Lakes Unit I related to on-site sewage disposal systems became so extreme that the Leon County Commission declared a moratorium on the installation of on-site septic tanks in that development. This occurred in 1987. In order to better understand the problems in the Killearn Lakes subdivision, to include Killearn Lakes Unit I, a study was commissioned. That report is referred to as Killearn Lake Waste Water Disposal Study of June, 1987. A copy of the report is found as Respondent's Exhibit 6 admitted into evidence. It was prepared for the Leon County Board of County Commissioners and prepared by the Leon County Public Health Unit with the assistance of the Leon County Department of Public Works, Leon County Building Department, Ochlockonee River Soil and Water Conservation District, Northwest Florida Water Management District, Tallahassee-Leon County Planning Department, Florida Department of Health and Rehabilitative Services, and Florida Department of Environmental Regulation. Some of the highlights of that report concerned the observation that the septic tank systems do not work adequately and that the more systems that are placed the greater the problems. It noted that the nature of the drainage system in this area is a contributing factor to the failures. The soil's poor permeability, relating to the Dothan series of soils in the area which have slow permeability, contributed to the problem. Perched water tables were found above the expected levels for the wet season water tables. They also presented a problem, as did excessive slopes in some areas. In particular, it was noted that 80% of the lots sampled in Killearn Lakes Unit I had severe limitations on the use of on-site sewage disposal systems. Ninety-three per cent of the lots sampled in Block X received excess runoff from other lots and roads at higher elevations. It was noted that French or curtain drains alone would not significantly reduce perched water table complications because of the low permeability of the soils. It was reported that the overall housing density of Killearn Lakes is not particularly high, but the individual lots are small, approximately 1/4 acre in size. This, taken together with the fact that the "sheet flow" concept of storm water management contemplates that the runoff will cascade across the terrain conforming to its contours, means that some small lots will be inundated. This uncontrolled runoff contributes to septic tank problems in that the tanks fail when the soils around them become saturated. The report notes that if there was a different designed drainage system, the impact on septic tanks would be less. The report notes that if something is not done to modify storm water runoff, drainage problems will persist. Consequently, septic tank failures will continue to occur. Concerning the water tables, the soil testing, which was done in Killearn Lakes Unit I, in which the predominant soil is Dothan type, demonstrated that the borings which located mottling of the soils at the expected level of the wet season water table were inaccurate. These indicators did not correspond to reality in that the true water tables were found 12-20 inches above the expected level of the average high water, as seen in the mottling. This phenomenon was revealed in 42% of the lots evaluated which had Dothan soils. The report recommended, among other measures, that no new sewage disposal system permits be issued in Killearn Lakes Unit I until a storm water system had been constructed and demonstration made that the system would collect storm water and thereby lower the perched water table on specific lots under review. The ultimate response to the question of permits for on-site sewage disposal systems in Killearn Lakes Unit I was spoken to in a Resolution of July 14, 1987 entered by the Leon County Board of County Commissioners. A copy of the resolution may be found as Respondent's Exhibit 1 admitted into evidence. It was resolved that the permits for on-site septic disposal systems be reviewed by the Leon County Public Health Unit on a case-by-case basis in accordance with criteria announced at Chapter 10D-6, Florida Administrative Code. This effectively lifted the moratorium. The subject request for installation of an on-site sewage disposal system was reviewed in keeping with the policy decision set forth in the resolution. Respondent's Exhibit 6 admitted into evidence includes a copy of a survey made by the Homeowners' Association for Killearn Lakes, also admitted as Petitioner's Exhibit 1. As part of the study commissioned by the Leon County Board of County Commissioners, it has some relevance in portraying the dimensions of the problem. Those dimensions are better understood by resort to the color scheme which is found in Petitioner's Exhibit 1. It depicts the problem lots in red color, those lots without problems in green color, and the lots upon which no report was made in orange color, as well as vacant lots, to include the subject lot, which have no color scheme. This latter category indicates no participation in the survey. The door-to-door personal survey conducted by Rod Moeller and testified about at hearing does not diminish the impression of the seriousness of the problem with on-site sewage disposal system failures in Killearn Lakes Unit I, which the 1987 study by the Leon County Board of County Commissioners identified. This survey by Mr. Moeller was in a limited area, more specifically related to the portion of Killearn Lakes Unit I nearby the subject lot. The findings of the 1987 study commissioned by the Leon County Board of County Commissioners are accepted as accurate. Eanix Poole, Administrator of Environmental Health for the State Health Office testified at the hearing. He pointed out that the failure rate in the subdivision under question for on-site sewage disposal systems is 25%, as contrasted with the statewide rate of less than 1/2%. He identified the fact that those failures relate to backups within the home and seepage onto the ground. He verified that these events constitute health problems, especially given the number of failures. He sees the lot in question here as being particularly vulnerable to problems given the drainage patterns and its location at the bottom of two hills. The lot in question receives runoff from the two adjacent lots as well. Mr. Poole sees the subject lot as more vulnerable in the wet season and does not believe that any alternatives that are available for placement of the system on the site would sufficiently alleviate the potential failure of the system to make it a successful arrangement. What he sees is a lot in the path of a natural drainage of tremendous quantities of storm water runoff, coupled with poor soil conditions related to soil absorption or permeability in an area where on-site sewage disposal systems have failed. He remarks that dry soils are needed to treat the sewage and that treatment cannot take place in a saturated soil environment. The effects of seepage of the sewage, according to Mr. Poole, is one which can degrade ground water. Mr. Poole is also concerned that the installation of the proposed on-site sewage disposal system above ground will have an adverse impact on the adjacent lots, one of which has already experienced problems. That refers to Lot 5, Block X. These observations by Mr. Poole, as reported, are accepted. Raymond Collins, an environmental administrator with the Respondent's health program office, also testified at the hearing. He is intimately aware of the problems in Killearn Lakes Unit I. Those problems began to occur in the winter of 1986 and continued into 1987. This related to problems with toilets and the seepage of effluent which was running onto people's property and into the streets. He notes a similar failure rate in Killearn Lakes Unit I to that observed by Mr. Peel when contrasted with the experience statewide. In the aforementioned period he received calls and reports from homeowners concerning system failures. In effect what was happening was that the on-site drain fields in Killearn Lakes Unit I would not accept more input and the raw sewage would bubble up and leach out onto the ground. He personally observed a dozen sites which had failures. He was responsible for the coordination of the July, 1987 study which has been mentioned. As a result of that study one of the steps which he took was to advise that staff investigating the permit application requests should elevate the estimation of the wet season water table by 12-20 inches. Mr. Collins agrees with the recommendation of the individual who was assigned to evaluate the application for permission to install an on-site sewage disposal system at the subject lot, who recommended that the application be turned down. Mr. Collins' description of the experience at Lot 5, Block X, related to his knowledge that the initial system had been replaced with an aerobic system, which also proved to be an inadequate on-site sewage disposal system. In 1988, he went to the home of the person living on that lot, and the aerobic system was not working. There was a light rain on that day, and there were problems in the drain-field area. When a soil boring was made to a depth of two feet effluent poured out. The perched water table had risen to a point in the bottom of the drain field, such that when a hole was punched, it provided a conduit for pressure to be relieved. The drain field that was experiencing this problem was not the original drain field. It was a replacement drain field. The drain field being observed was in the front of the lot, right below the ground. The suggestion to alleviate the problem was to move the drain field to the side of the yard and elevate it and install a series of small-diameter pipes. A pump was also needed to move effluent into the drain field, thus, avoiding a backup of the system into the home. He is unaware of any recent failures in the system at Lot 5, Block X. Mr. Collins emphasized the need for soil to remain unsaturated to provide effective treatment and that 24 inches of unsaturated soil is the minimum amount which would be acceptable. Mr. Collins commented about the nature of the subject lot and the fact that other lots drain through it. Mr. Collins commented that the design of the proposed septic tank does not assure success in the treatment of the waste disposed. Unlike the expert of the Petitioner, Mr. Peel, the problem is not that solids are blocking up the system. It is the failure of the soils to accept the volume of water which is being released from the chambers of the septic tank into the drain field. Mr. Collins does not believe that the use of water-saving appliances in addition to the limited size of the home to be built on the subject lot, installation of an aerobic system, and installation of an above-ground system, as proposed, would be successful and not pose a health risk from system failure. The problems would continue to be drainage patterns and poor soils. His remarks, as reported, are accepted as accurate. Terese A. Hegg, Environmental Specialist I with the Respondent's Leon County Public Health Unit, reviewed the application for variance to install the on-site sewage disposal system. She was familiar with the history of problems in Killearn Lakes Unit I before undertaking this assignment and has made more than 50 evaluations in that development. She observed that the "sheet flow" drainage of storm water does not provide reasonable management because it does not drain normally. She is aware that the wet season water table is as much as 20 inches above the normal indicators, as seen through mottling. Her analysis of this site is under the auspices of those requirements announced in Chapter 10D-6.044, Florida Administrative Code, having in mind that the subdivision plat was made before 1972. This includes an examination of the soil characteristics, history of flooding, and water table evaluations. At this site, she noted the poor permeability of the soil. She did soil borings to confirm the nature of the soils and to identify the water table. She took into account the abnormal perched water table that is above what the mottling would indicate as being the wet season water table. Ms. Hegg is concerned that the system on the adjacent lot, which is now functioning adequately, would not function adequately if the subject system was installed. She noted that the drainage pattern from the neighboring lots was toward the subject lot and that water would come from the left and the right lots adjacent to this lot, corresponding to Lots 5 and 3 as you face them. The drainage pattern would then proceed beyond Lot 4 and into a green area. In making her assessment of this application, she was aware of the problems with the on-site sewage disposal system at Lot 5, Block X. The appearance of saturated soil in the entire length of the boring and standing water on the lot is an indication of problems with percolation. The effluent will flow out and onto the ground if these soils are saturated. From her observations and based upon the history of Killearn Lakes Unit I and its failures regarding on-site sewage disposal systems, Ms. Hegg does not believe that the proposed system would successfully address sewage treatment and would promote a risk of on-site sewage disposal system failures for adjacent lots. Ms. Hegg acknowledged that the storm water flows could be diverted; however, she points out that the subsurface water cannot be diverted. Her account of this site and the acceptability of the request for variance as reported is accepted as accurate. Given the soil conditions and the wet season water table expected at this site, the proposed system will not present an adequate unsaturated soil depth for treatment of the sewage and untreated sewage may be expected to seep or leach out onto the ground. On May 22, 1990, Mr. Collins had written to Dr. Richard G. Hunter, Assistant Health Officer for Environmental Health, recommending the denial of the variance request. A copy of that correspondence may be found as Respondent's Exhibit 7 admitted into evidence. It details reasons which are similar to those described in this Recommended Order. As a consequence, even though the Advisory Review Variance Board had looked with favor upon the request for variance, that variance was denied by action of Dr. Hunter on May 30, 1990, which relied upon the insights of Mr. Collins, as described in his May 22, 1990 correspondence. A copy of the letter of denial may be found as Respondent's Exhibit 8 admitted into evidence. The purpose of this hearing was not to examine whether Respondent had abused its discretion in denying the variance. The reason for the hearing was to allow the parties to present their points in an adversarial setting, which allowed each party to explain its viewpoint anew. That was done, and the analysis provided by this recommended order ensued. In deciding the facts, these representations have been made with due regard to the remarks of James Earl Peel, an expert in the design of on-site sewage disposal systems, who had on his staff, Gary L. Wood, P.E. His methods in analyzing the issue of the suitability of the installation of an on-site sewage disposal system at the subject site do not coincide with the methods contemplated in Chapter 10D-6, Florida Administrative Code, which controls. This is especially significant in his approaches to soil characteristics and location of the wet season water table. As noted above, his belief that the problem is one of distribution of solids from the septic tank into the drain field overlooks the more significant problem of water volume discharge from the septic tank into the drain field. In fact, Mr. Peel indicated that he is unfamiliar with the requirements of septic tank design, as described in Chapter 10D-6, Florida Administrative Code. On balance, Mr. Peel's reports, in Petitioner's Exhibits 3 and 4 admitted into evidence and his in-hearing testimony, do not persuade that the system he recommends can be successfully operated at the subject site. His presentation and the overall presentation of Petitioner do not create a reasonable expectation that the system will not fail and create health hazards for the residents of Lot 4, Block X, and others in the vicinity. It is recognized that this lot owner faces a hardship that was not caused by Petitioner. It is also recognized that, pursuant to the stipulation of the parties, there is no intention by any entity to install a community system of sewage disposal. It is further recognized that there are no alternative methods that would seem to be successful in addressing the problem of the treatment of the sewage, as related in the previous findings. On the other hand, the discharge that could be expected from this subject system would bring about a condition in which the effluent presented a health risk to this applicant and other members of the public and has the potential to significantly degrade the ground or surface waters, although this latter circumstance has not been documented on other occasions and was not found to exist in the July, 1987 study commissioned by the Leon County Board of County Commissioners. In that report, it was specifically found that the surface water had not been compromised by the on-site sewage disposal system failures described in the overall report.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying Petitioner's request for variance from permit requirements and permission to install an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I. DONE AND ENTERED this 20th day of November, 1990, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4456 The following discussion is given concerning the proposed facts of the parties: In the discussion of the testimony of Mr. Poole, the relevant portions of that testimony are reflected in the facts found in this recommended order. Under the heading of testimony said to be attributable to Ms. Hegg, at paragraph 1, while it is recognized that a system might be installed that might not call for diversion of storm water onto adjacent neighbors' properties, the problem on site would remain and would be sufficient reason to reject the application. Moreover, it is not clear that it is the intention to install a system that would divert storm water from adjacent properties. Paragraph 2 under this heading is rejected in its notion that storm water would not have an influence on the proposed system. Paragraph 3 is rejected. Paragraphs 4 and 5 do not lead to the conclusion that sufficient unsaturated soils would be available for the treatment of disposed sewage during the wet season, nor does the representation at paragraph 6. Paragraph 7 under that heading is contrary to facts found. The paragraphs under the reference to James Earl Peel, in those five paragraphs, while accurately portraying the opinion of Mr. Peel and Mr. Wood, does not lead to the conclusion that the application should be granted. Under the heading "Rod Moeller" in the first paragraph, the information provided at hearing and under weather reports does not satisfactorily establish what the rainfall circumstance may have been at the subject property 72 hours before January 24, 1990, as referred to in paragraph 1, nor can it be said that the rain experienced in the overall area contemplated by the attached weather report to the argument by Petitioner was a 25-year storm event. The comment at paragraph 3 under this category that the on-site sewage disposal systems in neighboring lots are functioning fine since modifications in the advent of hurricane "Kate" is contrary to facts found. Under the heading "Ray Collins" in paragraph 1, this proposed fact has no relevance in that the question is the appropriate function within Killearn Lakes Unit I, not at an undisclosed site away from that area. Respondent's Facts These facts are subordinate to facts found. Copies furnished to: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rod Moeller, Authorized Representative Mallard Cove Construction 14261 Buckhorn Road Tallahassee, FL 32312 John L. Pearce, Esquire HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A Tallahassee, FL 32399-2949
The Issue The issue in this case is whether the Florida Department of Environmental Protection (agency or DEP) should issue renewal permit No. SO36-26769E to Waste Management, Inc., of Florida (WMI) for the operation of an existing Class I landfill, the Gulf Coast Sanitary Landfill (GCSL) in Lee County, Florida. In the prehearing stipulation, Petitioners specifically dispute whether WMI has provided reasonable assurances: (1) regarding control of off-site odors emanating from the landfill, (2) that it has an approved closure plan, and (3) that leachate from the landfill will not pollute the air and water.
Findings Of Fact The Parties The applicant, WMI, provides waste management services in the state of Florida. These activities include the hauling, transfer, and recycling of solid waste, as well as the construction and operation of landfills. WMI operates GCSL, the facility that is the subject of the permit application, in Lee County, Florida. WCI is a Delaware limited partnership engaged in the business of developing multiple use communities in Southwest Florida. It owns or holds options to purchase lands adjacent to or near GCSL. WCI is also the developer of a planned unit development known as Gateway, which includes residential and commercial properties in close proximity to the landfill. George Sanders owns, personally or as trustee, lands adjacent to or near GCSL. Lee County is a political subdivision of the state with statutory responsibility to plan for and provide efficient, environmentally acceptable solid waste management. Lee County has contracted with WMI to provide solid waste disposal services to citizens of Lee County at GCSL. DEP is the agency of the state with statutory responsibility to regulate and permit landfills such as GCSL. As stipulated, the Petitioners and Intervenor have standing in this proceeding. The Landfill Facility The GCSL is a Class I landfill located at 11990 State Road 82, East, in Lee County, Florida, east of Interstate I-75. The landfill is in a remote, undeveloped area and has been in operation for over 20 years. The Gateway development is south of the landfill. The GCSL includes three parcels of land that have been used for the disposal of solid waste. Parcel 1 and Parcel 2, each about 40 acres, are unlined Class I landfills that have been closed and no longer receive any solid waste. Neither liners nor leachate collection were required when these parcels were constructed and operated. Parcel 3 is a lined Class I landfill that is approximately 80 acres in size. Approximately 50 acres of Parcel 3 are closed and have received final cover. Approximately 30 acres still are used for the disposal of solid waste. Parcel 3 was constructed in phases. In 1984, the Department issued a permit authorizing the construction of the "east hill" and "west hill"--i.e., two separate disposal areas in Parcel 3 where solid waste was placed above grade. In 1989, the Department issued a permit authorizing the construction of the "valley fill"--i.e., a disposal area where solid waste was used to fill in the valley between the east hill and the west hill. Parcel 3 now consists of a single mound of solid waste. As each phase of Parcel 3 was developed, liners and leachate collection systems were installed in Parcel 3 before the commencement of solid waste disposal operations. The liners and leachate collection systems met or exceeded all of the applicable regulatory requirements that were in effect at the time when the waste disposal areas were permitted. Parcel 3 is a well-designed, well-constructed, and well-operated landfill. William Krumbholz is in charge of landfill compliance and enforcement at DEP's district in Ft. Myers. He reports that the GCSL has an "exceptional operation record," and the GCSL is the "best operated Class I landfill" in the district. The GCSL currently is subject to a DEP operation permit (DEP file number S036-180572), as modified. On March 21, 1995, WMI filed an application for a renewal of its operation permit. On or about September 25, 1996, DEP issued its notice of intent to issue the permit to WMI. If issued, the permit would allow WMI to operate the GCSL for an additional five years. See Rule 62-701.330(2), Florida Administrative Code. The landfill is not yet at design capacity and is not expected to reach that capacity during the next five years. WMI desires to renew the operation permit for the GCSL because WMI wishes to continue to provide solid waste management services to Lee County, consistent with WMI's contractual agreement to do so. WMI also wishes to continue operating the GCSL in order to construct Parcel 3 to its final design grades for closure. The design grades will maximize the site's ability to shed stormwater and thus minimize the production of leachate. Continuing to build Parcel 3 to its design grades is environmentally preferable to closing Parcel 3 at this time in its present configuration. Prior to 1994, the GCSL received approximately 1000 tons of municipal solid waste each day. Approximately 90 per cent of the solid waste was household garbage and about 10 per cent was construction and demolition (C&D) debris. The GCSL did not receive industrial waste. The composition of the waste stream changed in August 1994, when Lee County began to operate a waste-to-energy facility. All of the household garbage generated in the incorporated and unincorporated areas of Lee County is taken to the Lee County waste-to-energy facility, where it is burned, and the ash residue is taken to the GCSL. Currently, the GCSL receives only about 450 tons per day of solid waste, which consists of 65-70 per cent ash residue from the waste-to-energy facility, 30-35 per cent C&D debris, and approximately 2-5 per cent municipal solid waste. DEP would allow WMI to accept more solid waste at the GCSL. However, Lee County has the contractual right with WMI to dictate the types of materials deposited in the GCSL, and it is the county's intent to use the waste-to-energy facility, not the GCSL, for the disposal of putrescible wastes. Lee County is contractually obligated to send all of the county's municipal solid waste to the county's waste-to-energy facility, and the county has a financial incentive to do so. Lee County will send municipal solid waste to the GCSL only if an emergency occurs, but even then the county will try to limit the duration and extent of the County's use of the GCSL. Objectionable Odors Objectionable odors at a landfill typically are related to the facility's operating practices (e.g., the size of the working face) and the presence of putrescible, organic materials that degrade and produce gases when they come in contact with water. In this case, the GCSL's operating practices minimize odors. The majority of the waste now received at the GCSL is ash residue, which contains little or no organic material and thus produces little or no odor. In addition, because the GCSL is a "particularly dry landfill," any putrescible waste is not likely to degrade and cause odors. There have been no violations of the DEP odor rules at the GCSL since 1991 and only two instances, in 1987 and 1991, when off-site odors were verified by DEP's inspector. WCI filed odor complaints in 1995, but the complaints were investigated by DEP and the county and found to be invalid. Petitioners presented no evidence of present or anticipated future odor problems at the GCSL. To the contrary, the DEP inspectors and other witnesses established that there are no objectionable odors at the property boundary of the GCSL. WMI's Approved Closure Plan WMI has a closure plan for the GCSL that was approved by DEP when DEP issued the existing operation permit. In the current application WMI asked DEP for authorization to close the remaining portions of Parcel 3 in the same manner that WMI used when closing the other areas at the GCSL. If WMI's request is not granted, WMI may be required to close Parcel 3 with a geomembrane cover or "cap," in accordance with DEP's new requirements for final closure plans. Although DEP's landfill engineer recommends approval of WMI's request for authorization to use an alternate cover material, no proposed agency action has been taken on that request, and DEP will provide notice and a new point of entry for affected persons when the agency decides whether to grant WMI's request. It is, therefore, inappropriate to address the merits of WMI's "alternate procedure" request in this hearing. As provided in Rule 62-701.310(3), Florida Administrative Code, the agency's decision is action subject to a separate Section 120.57, Florida Statutes, proceeding. WMI's closure plan for the GCSL has little significance in this proceeding. The closure plan is used to calculate the cost of closure, which in turn is used to determine whether WMI has the financial resources to pay the cost of closing the landfill. As part of its approved closure plan, WMI previously demonstrated that it has the financial ability to pay the cost of closing the landfill. WMI could be required to spend an additional $1,000,000 to close the GCSL if WMI's request for approval of the alternate procedure is denied by DEP, but it is undisputed that WMI has the ability to pay this additional cost for closure. WMI must submit a revised closure plan at the time when WMI is prepared to close Parcel 3. DEP then will determine again whether the closure plan for Parcel 3 is adequate and in compliance with the DEP standards in effect at the time. (See paragraphs 38-42, "Specific Conditions," appended to the Intent to Issue, WMI Exhibit 4) Leachate Generation Rate at the GCSL While evaluating WMI's request for approval of an alternate closure plan, DEP noted that the amount of leachate collected in Parcel 3 (i.e., approximately 900,000 gallons per year) is relatively low when compared to the amount of leachate generated at other landfills. DEP was concerned that the low leachate collection rate may indicate a problem in the leachate collection system, so DEP requested WMI to evaluate the leachate generation rate at the GCSL in more detail. WMI subsequently presented additional information to DEP. Leachate is defined by DEP as the liquid that has passed through or emerged from solid waste. Rule 62-701.200(50), Florida Administrative Code. Leachate is generated when rainwater falls on the landfill, sinks in, and percolates through the garbage. One of the primary factors reducing leachate at the GCSL is the use of ash as cover material. The ash, which contains lime, undergoes a reaction and "sets up like mortar." It is extremely hard, cannot be penetrated easily, and has a very low permeability. The permeability of the ash is in the same range as the permeability of the barrier layer that is used in a final cover material. The ash "sets up so well" that the surface water runoff is much greater than with a normal cover material. There is an additional, significant reason why Parcel 3 of the GCSL has a low leachate generation rate. Approximately 50 acres of Parcel 3 already have been closed with a final cover which is designed to shed rainwater and thus minimize the production of leachate. Since most or all of the remaining 30 acres of Parcel 3 have been covered with ash, virtually all of Parcel 3 is covered with low permeability materials that minimize leachate generation. Leachate in Parcel 3 also is minimized because WMI employs good operational practices to limit its generation. WMI uses a small working face and stormwater berms to reduce the size of the area where rainwater may infiltrate. WMI maintains aggressively graded slopes that quickly direct stormwater away from the working face and off of the landfill. WMI's "close-as- you-go" strategy means that the waste at the GCSL is covered before it becomes saturated with rainwater. Specific conditions in the Intent to Issue require that these practices continue. After DEP requested WMI to evaluate the leachate generation rate in Parcel 3, WMI hired a firm to clean the inside of all of the pipes in the leachate collection system in Parcel A television video camera was used to visually inspect the inside of all of the pipes. This work confirmed that "at least 99.9 per cent" of the leachate collection pipes are clean and functional. WMI promptly repaired the leachate collection pipes in two small areas where there was blockage due to a crushed riser and a valve that was left closed. It is highly unlikely that leachate is mounding up inside the landfill or overtopping the perimeter berm that surrounds Parcel 3. The leachate levels inside Parcel 3 generally are and historically have been less than two feet. The leachate levels at the GCSL do not threaten the liner's integrity. The pipes are working, and no seepage has been observed through the side slopes. WMI verified that the liner and leachate collection systems in Parcel 3 were constructed properly and in accordance with the DEP-approved design. Construction Quality Assurance reports were prepared by professional engineers when the liner systems were installed in Parcel 3. In these reports, the engineers certified that each section of the liner was installed, inspected, and tested appropriately to ensure that there are no holes in the liner. Where necessary due to failed tests, the reports reflect that repairs were made before any waste was deposited. The HELP Model In response to DEP's questions about the leachate generation rate at the GCSL, WMI's staff attempted to calculate the rate by using a computer program referred to as the HELP model. WMI initially ran the model with default input values which produced a predicted rate of 7.5 million gallons per year (MGY). WMI questioned the validity of the model results, but submitted the results to DEP because it was the best data then available. Given the discrepancy between the model results and the actual field data, WMI hired a nationally recognized consulting firm, Post, Buckley, Shuh, and Jernigan (Post Buckley), to perform a more refined analysis using the HELP model. The HELP model is used to calculate water balances at landfills. The model calculates the amount of water that will move across, into, and through landfills under different conditions. The model is a useful tool for comparing the performance of two alternate landfill designs, but it has limited value when used to predict the actual performance of an operating landfill. The model can be run with default values or with site- specific information. However, the model is designed to be conservative and overpredict the actual leachate generated. In its application of the model, Post Buckley adjusted several input parameters to reflect the actual conditions at the GCSL. Most significantly, Post Buckley adjusted the input parameters for the moisture content of the waste in the GCSL and for the U.S. Soil Conservation Service's (SCS) Curve Number. These adjustments were "reasonable and well-considered." The HELP model assumes that the solid waste in the landfill is at field capacity--i.e., saturated with rainwater. However, it is well established that the solid waste in landfills is not saturated. At the GCSL, the ash cover material and WMI's "close-as-you-go" practices would reduce the likelihood that the waste would be saturated. Indeed, Post Buckley's on-site inspections revealed that the GCSL is a "particularly dry landfill." The users' manual for the HELP model indicates that the Curve Number should be adjusted in certain cases to account for increased stormwater runoff that will occur during short duration, high intensity storms. The default value is used in areas where the rainfall occurs over a 24-hour period. In this case, Post Buckley concluded that the SCS Curve Number should be adjusted because the GCSL receives about 54 inches of rainfall annually during approximately 90 short duration, high intensity storms. Accordingly, Post Buckley adjusted the model's input parameters to increase runoff by 23 per cent of precipitation. Post Buckley's adjustment to the Curve Number and runoff value is consistent with the findings contained in a report by Benson and Pliska, which in the opinion of WMI's expert is the best study performed to-date on the calibration of the HELP model and which is similar or equivalent to the Peyton and Shroeder calibration relied on by Petitioner's expert. Post Buckley ran the HELP model with three different sets of conditions. In one run, Post Buckley adjusted the input parameter for the moisture content of the waste and calculated an leachate generation rate of 100,000 gallons per year. In the second run, Post Buckley adjusted the Curve Number and calculated a rate of 1.3 MGY. In the third run, Post Buckley adjusted both the Curve Number and the moisture content and calculated a rate of zero gallons per year. Given Post Buckley's landfill experience and its knowledge about the operational practices at the GCSL, the ash used as cover material, the climatological conditions in southwest Florida, and the limitations of the HELP model, Post Buckley concluded that 1.3 MGY is a reasonable estimate or approximation of the actual leachate generation rule for Parcel 3 of the GCSL. The leachate generation rate for the GCSL also has been evaluated by other witnesses. Mr. Joe Fluet calculated that approximately 960,000 gallons to 1,030,000 gallons of leachate are generated annually in Parcel 3. Mr. Fluet is a nationally recognized landfill expert who was selected by DEP to serve as the chairman of a technical advisory group that helped DEP develop the current DEP landfill rules. Mr. Fluet's conclusion is consistent with the leachate collection data for the GCSL, the Post Buckley analysis, the measurements of leachate in the sumps at the landfill, and his own personal observations of the landfill and WMI's operational practices. It is unlikely that leachate generation in Parcel 3 is as high as 2.0 MGY. This rate would produce about three feet of leachate on the liner. WMI's field data show that the "head" (depth) of leachate over the liner in Parcel 3 generally is less than two feet. By comparison, Post Buckley's estimated rate of 1.3 MGY would produce about 1.8 to 2.5 feet of leachate over the liner, which is more consistent with WMI's field data. Petitioners also attempted to calculate leachate generation for Parcel 3 by running the HELP model. Using default values, Petitioners calculated a rate of approximately 7 MGY. Petitioners also ran the model after adjusting several input parameters. Among other things, Petitioners decreased the slope from 20 per cent to 4 per cent, and Petitioners increased runoff by 30 per cent, as compared to the default value. With these adjustments, Petitioners calculated a rate of 4.2 MGY. The various experts' calculations with the HELP model produced leachate generation rates of 0 to 7.5 MGY. The magnitude of the range reflects the limitations of the model and underscores the need for sound professional judgment when adjusting the input parameters. In this case, the most persuasive and credible testimony was presented by Mr. Bonaparte, a recognized landfill expert who is assisting EPA with its efforts to calibrate the HELP model, and Mr. Fluet. Consistent with their testimony, the greater weight of the evidence indicates that the leachate generation rate for Parcel 3 of the GCSL is most likely to range between 960,000 gallons and 1.3 MGY. The Petitioners' calculated range of 4.2 to 7.0 MGY is not credible. Even the low end of Petitioners' range is more than twice as much (2.0 MGY) estimated by any other witness. In addition, Petitioners' entire range of calculated leachate generation rates is inconsistent with the other evidence of record, as described below. Petitioners' leachate generation calculations were prepared by Marcus Pugh, who has not visited the GCSL nor performed any site specific field work concerning the GCSL. Mr. Pugh had never used the HELP model before to predict the generation rate of an operating landfill, but rather has used it as others commonly do, to size and design facilities. Although Mr. Pugh initially criticized Post Buckley's calculation of the slopes at the GCSL, he subsequently conceded that the HELP model results obtained by Post Buckley are independent of slopes. Missing Leachate? Based on their HELP model calculations that Parcel 3 actually is generating 4.2 to 7.0 MGY of leachate and since WMI is collecting 900,000 gallons per year, Petitioners speculate that there is "unaccounted for" or "missing" leachate (i.e., 3.3 to 6.1 MGY), which must be leaking through the GCSL's liner or seeping out of the sides of the GCSL, or both. Petitioners' allegations, however, are not supported by the evidence of record, which favors a finding that the facility is simply not generating the vast amounts of leachate predicted by Petitioners. The liner and leachate collection systems under Parcel 3 were "state-of-the-art" and in full compliance with all of the applicable DEP rules at the time of their installation. These systems were installed properly, in accordance with standard quality assurance procedures, as certified by a professional engineer. Mr. Bill Krumbholz, the DEP inspector, personally witnessed the installation of portions of the liner. Mr. Fluet also was personally involved with the certification for the landfill. Even the Petitioners' witness, Mr. Pugh, conceded that he had no concerns about or disagreements with the certifications for Parcel 3. Thus, there is no reason to believe that the liner or leachate collection systems were damaged at the time when they were installed. Petitioners theorize that the liner in the GCSL may have been damaged after it was installed, but Mr. Pugh readily admits that this contention is based on "pure speculation" based on the notion that a minimum wage laborer on heavy equipment might damage the liner. Petitioners presented no direct or credible evidence to support their contention. After the completion of construction and the commencement of operations large scale breaches of a landfill liner are not a common or even occasional occurrence. As part of its standard management practices, WMI places a four-to six-foot thick "fluff" layer of select household garbage over any new landfill liner system. The fluff layer is used to protect the liner and ensure that the liner is not accidentally damaged. This WMI policy was followed when the liners were installed in Parcel 3 of the GCSL. As a result, there is no reason to believe that the liner in Parcel 3 was damaged after installation. There is no circumstantial evidence to support Petitioners' claims. Since 1976, WMI has monitored the water quality at the GCSL in accordance with a DEP-approved ground water monitoring plan, which is designed to detect any significant leakage from the landfill. No groundwater quality violations have been recorded at the GCSL. However, if one were to assume that Petitioners' theory is correct, then one also would have to assume that over the last five years approximately 16.5 to 30.5 million gallons of leachate have leaked through the liner in Parcel 3 and entered the adjacent groundwater, but somehow have evaded detection in the monitoring wells. Respondents' witness Mr. Fluet calculated that a maximum of 56,000 gallons per year of leachate might possibly leak through the liner system in Parcel 3. His calculation conservatively assumed that there may be as many as ten 0.1 cm2 holes in each acre of the liner in Parcel 3. Petitioners have offered no credible theory that would produce a leakage rate of several million gallons per year. To create a leakage rate of even one million gallons per year, there would have to be at least ten and perhaps dozens of large holes in the liner. Each of the holes would need to be 10-feet long and several inches wide. However, large holes or breaches in a liner system normally are identified and repaired during the installation and quality assurance process. There is no evidence of poor quality assurance or poor operational practices at the GCSL to support Petitioners' speculation. WMI witness, Rudolph Bonaparte, has never encountered a situation where there was evidence of the kinds of "major flaws" that would be necessary to generate the leakage rates hypothesized by Petitioners. Mr. Fluet also was unable to identify any plausible scenario that would support Petitioners' theory. Petitioners' witness, Mr. Pugh, conceded that he has never worked on a lined landfill where 4-to 7-MGY of leachate leaked through the liner. Petitioners questioned whether settlement would affect the liner or leachate collection systems in Parcel 3. Since ash is denser than MSW, the disposal of ash in the GCSL may affect the settlement of the subsurface soils to some extent, but there will be no shearing or failure of the liner due to any differential settlement. The amount of differential settlement that may occur would be extremely small. Settlement could create a 1000 gallon "puddle" of leachate in the valley fill portion of Parcel 3, or the slope in some portions of the leachate collection system may flatten, but these are relatively minor impacts. Conversely, increased settlement in the base of Parcel 3 would help improve the overall drainage of the east hill and the west hill areas. Petitioners contend that the "unaccounted for" leachate may be escaping from the GCSL through side slope seepage, but this theory is not supported by any direct or credible evidence. It was undisputed that any significant amount of side slope seepage from a landfill is readily apparent. Leachate seeps typically "look ugly and smell bad." When seeps occur, the soil is discolored, the vegetation is killed, and there is sheering, gullying, rilling, and other signs of erosion. There has been no side slope seepage from Parcel 3, as established by numerous site visits and personal observations of the DEP staff, county representatives, and other witnesses. Petitioners' witnesses have not observed any side slope seepage at the GCSL. Although Petitioners noted that there are discolored areas on Parcel 3, those are the areas where WMI recently excavated into the sides of the GCSL to complete the repairs to the leachate collection system. The leachate would have to mound up inside the landfill before there would be the amount of seepage predicted by Petitioners. This mounding would create tremendous head pressure in the cleanout pipes. However, no such pressure has been found in the cleanout pipes at the GCSL. Petitioners suggest that leachate may be seeping from the toe of Parcel 3 into the drainage ditch that leads to the stormwater retention pond. Again, the evidence does not support this hypothesis. The liner in Parcel 3 goes over the top of a berm which is built completely around the perimeter of Parcel 3. The berm and the liner rise 3 feet above the base of the leachate collection system. Leachate could not seep from the toe of Parcel 3 unless the leachate level rose above the functioning leachate collection pipes, avoided being drained away by the leachate collection system, and then flowed uphill over the berm. Even if the leachate went up and over the berm, the leachate would enter the ditch from the top of the berm, where it would be readily visible to site inspectors as side slope seepage. No such seepage has been observed at the GCSL, even when people were looking for it. Ground Water Monitoring at GCSL There are three aquifers underlying the GCSL: (a) the surficial water table aquifer; (b) a sandstone aquifer; and (c) the Hawthorne formation. Each of the aquifers is separated by a low-permeability, confining layer of varying thickness. The confining layer below the surficial water table aquifer is between 40 and 80 feet in thickness. Based on field data and reports of other scientists, including Petitioner's expert, Thomas Missimer, hydrogeologist Martin Sara derived a vertical flow rate of approximately 0.1 feet per year. At this rate, ground water would take approximately 40 to 50 years to move vertically downward through the confining layer. Petitioners contend that the GCSL is affecting the surficial water table aquifer. The surficial water table aquifer contains fresh water and is used extensively as a source of potable water in Lee County, but not in the area of the GCSL. Ground water samples collected from the surficial water table aquifer on Petitioners' property had average total dissolved solids (TDS) concentrations of approximately 500 mg/l. Similar TDS values have been reported for the surficial water table aquifer in the area surrounding the GCSL. In general, the regional groundwater flow in the vicinity of the GCSL is to the northwest. There is a northwesterly flow from WCI's property onto the GCSL that is consistent year after year and during all seasons. Extensive historical monitoring data for the site confirm that the ground- water flow under the GCSL also primarily is to the northwest, but with some likely localized flow to the west, at least during special events such as landfill dewatering in 1982. The only significant exception to this trend occurs in the area of the stormwater retention pond, where the groundwater usually flows radially outward in all directions. Groundwater monitoring began at the GCSL in 1976, when the facility opened. The groundwater monitoring system at the GCSL has complied with or exceeded the DEP requirements at all times since 1976. Currently there are seven groundwater monitoring wells, each approximately 30-feet deep, in the surficial water table aquifer at the GCSL. These wells surround the perimeter of the GCSL. At the final hearing, Lee County attempted to address concerns about the groundwater monitoring program for the GCSL by agreeing to pay for the redevelopment and installation of additional groundwater monitoring wells. Lee County and WMI stipulated that two existing groundwater monitoring wells (wells 14-S and 18-S) will be redeveloped and a new ground water monitoring well will be installed in the surficial aquifer between existing wells 20-S and 21-S. The two redeveloped wells and the new well will be sampled on a semiannual basis for chloride and the field parameters of pH, specific conductivity, field turbidity, and temperature for the life of the permit. The monitoring may be discontinued if the GCSL closes. The monitoring well network at the GCSL is adequate to monitor the type of area-wide plume that might originate from the GCSL. The evidence demonstrates that any holes in the liner in Parcel 3 are likely to be small and spread widely across the entire site. Although the plume from a single hole may be narrow and elongated, the plume from the entire landfill would be approximately 2400-feet wide. Under most if not all plausible scenarios, leachate leaking out of the liner beneath Parcel 3 will move with the regional groundwater flow toward the monitoring wells located along the western and northern perimeters of Parcel 3. Potential leakage from Parcel 3 will be pushed toward these monitoring wells by the regional groundwater flow and the radial flow from the retention pond. DEP has concluded and the evidence confirms that WMI's groundwater monitoring plan, as modified by Lee County's stipulation, is protective of the environment and satisfies all applicable DEP requirements. Under the facts of this case, it is not necessary to add any additional monitoring wells or otherwise modify the groundwater monitoring plan, except as stipulated by Lee County. It was undisputed that the leachate generated at the GCSL is and always has been "very weak" in comparison to the leachate from other landfills. The leachate contains relatively few contaminants and has low contaminant concentrations. The GCSL's leachate has few volatile or hazardous constituents. It also was undisputed that there have been no violations of DEP groundwater standards detected in any of the groundwater monitoring wells at the GCSL. There have been one- time exceedances or anomalies, but such events do not constitute a violation of the DEP standards. Chloride In the Ground Water Chloride is present in the GCSL's leachate. Over the last ten years, the average chloride concentration in the leachate has been 1021 parts per million (ppm), and the highest concentration has been 2070 ppm. The Department has no primary (i.e., health-based) groundwater quality standard for chloride. The only groundwater quality standard for chloride is a secondary standard of 250 ppm. Secondary standards are intended to address concerns about odor, taste, and aesthetics. If chloride concentrations become too high in drinking water, people simply stop drinking the water before there are any health implications, because the water is too salty. WMI evaluated Petitioners' claim that chloride leaking from Parcel 3 may affect the water quality on Petitioners' property. First, WMI performed a mass balance calculation and concluded that the maximum rate of leakage from Parcel 3 would increase the chloride concentrations beneath the landfill by only 7 to 14 ppm. WMI then used a dispersion model and determined that the maximum leakage rate would increase the chloride concentrations in the groundwater only 3.5 ppm at a distance of 100 feet from the landfill. This increase in chloride could not be distinguished from the existing background concentrations in the groundwater. WMI also analyzed the groundwater data to determine whether the GCSL is causing an increase in the chloride concentration measured in monitoring well 21-S. WMI plotted the data on trilinear diagrams, consistent with techniques that have been commonly used by hydrogeologists for many years. The trilinear diagrams clearly show that the increased levels of chloride in monitoring well 21-S are not caused by the leachate from the GCSL. The trilinear diagrams do not identify the source of the chloride found in monitoring well 21-S. However, it appears that the chloride originated from a source of "brackish" water. There are several potential sources of the chloride in well 21-S. In the past, there was an irrigation well on WCI's property that pumped water with high chloride concentrations and created a large plume of chloride-enriched groundwater on WCI's property. Historic groundwater monitoring data indicate that the chloride plume was approximately 6000-feet wide and flowing towards the GCSL. This large plume may have reached the GCSL and affected the water quality in well 21-S. There also were irrigation wells located on the site of the GCSL that may have contributed to the chloride concentrations in well 21-S. Historic water quality data indicate that these irrigation wells produced elevated chloride concentrations in the groundwater at the GCSL. Petitioners' Stormwater Data On May 12, 1997, Petitioners collected samples of the water in the stormwater retention pond at the GCSL. Petitioners also collected a sample of the water in a concrete culvert that carries stormwater runoff from Parcel 3 to the retention pond. The samples were collected during a severe rainstorm when it was "raining cats and dogs." Based on these samples, Petitioners speculate that the "unaccounted for" leachate is entering the stormwater retention pond via a perimeter drainage ditch and the concrete culvert. This speculation is not supported by the evidence. Leachate generated in the GCSL has an ammonia-nitrogen concentration in the range of 700 to 800 ppm. The stormwater collected from the culvert pipe had an ammonia-nitrogen concentration of 1.7 ppm. The disparity between these two values belies the possibility that the stormwater in the ditch contains leachate from the GCSL. Although Petitioners contend that ammonia-nitrogen in the leachate could be oxidized while flowing in the ditch, it would be virtually impossible for the oxidation of stormwater in the ditch to reduce ammonia-nitrogen levels from 700 or 800 to 1.7 ppm. WMI's extensive experience with leachate has demonstrated that it is "very difficult" to treat and reduce the ammonia-nitrogen levels in the leachate through volatization and aeration. The water collected by Petitioners in the culvert had a chloride concentration of 2900 ppm, which significantly exceeds the highest chloride level ever found in the GCSL's leachate (2070 ppm). The pH in Petitioners' sample (8.87) also was notably higher than the pH found in the landfill's leachate (e.g., 7.20 in WCI Exhibit 14). The disparity between the values found in Petitioners' sample and the values found in the landfill's leachate suggests that the Petitioners' sample is not representative of leachate from Parcel 3. Stormwater flowing over the ash residue on the top of Parcel 3 is the most probable source of the elevated chloride and high pH found in Petitioners' sample. The ash at the GCSL has elevated chloride concentrations. It also has high pH, due to the addition of lime at the waste-to-energy facility. Both WMI's witness, Mr. DeBattista, and Petitioner's witness, Dr. Missimer, saw stormwater washing over the ash and entering the stormwater conveyance system that led to the culvert where Petitioners' sample was collected while Petitioners were at the GCSL collecting samples. Petitioners noted that the water in the stormwater ditch was discolored. However, Petitioners' photograph of the site (WCI Ex. 10) reveals that the water in the ditch is the same color as the mulch (compost) that is stockpiled on Parcel 3 and used for intermediate cover. During Petitioners' site visit, stormwater was flowing over the mulch on Parcel 3 before entering the stormwater ditch. Dr. Missimer conceded that the color of the water in the ditch could be caused in part by the mulch and stormwater runoff. Dr. Missimer raised a number of other issues about the GCSL. He claimed that the sediments in the stormwater retention pond have elevated metals concentrations, but he does not contend that the metals concentrations in the sediments violate any applicable DEP standard. He also does not contend that the metals are leaving the site. Dr. Missimer noted that there was "foam" in a stormwater ditch. However, Petitioners presented no competent evidence about the source of the foam or its chemical composition. Finally, Dr. Missimer heard gas escaping from a cleanout pipe at a different location on the landfill, but there were no odors associated with it. There is no evidence to demonstrate that gas in the riser pipes is a cause for concern. In response to Petitioners' chloride data, WMI is taking steps to manage its stormwater better. WMI has placed intermediate cover over 10 acres of exposed ash, thus reducing the potential for the rainwater to come in contact with the ash and convey chloride into the stormwater management system. WMI also is determining whether it should remove a culvert that served as a conduit for the runoff from Parcel 3 to the retention pond. It was undisputed that the GCSL is an "existing installation," as that term is defined by DEP. Parcels 1 and 2 of the GCSL were unlined and were reasonably expected to release contaminants into the ground water on or before July 1, 1982. The GCSL has operated consistently with the applicable DEP statutes and rules relating to groundwater discharges in effect during the time of its operation. Since the GCSL is an existing installation, WMI is entitled to a zone of discharge that extends to WMI's property boundary. The groundwater within the zone of discharge is not required to meet the DEP water quality standards. Modifications to Conditions of Draft Permit and Summary of Findings In addition to the modification to the ground water monitoring plan described in paragraph 59 above, WMI has requested and DEP has agreed to make minor changes to the language in Specific Conditions 10, 19, 32, 38, and 45(e) of the draft permit. These changes relate respectively to gas monitoring, daily cover, acceptance of C & D debris, data to support the alternate procedure request for final cover, and the zone of discharge. These modifications are reasonable, supported by the evidence, and consistent with DEP rules. Moreover, WMI has provided reasonable assurance of compliance with all applicable DEP rules for continued operation of the GCSL. As amply demonstrated in this proceeding, highly competent professionals can disagree. Petitioners' witness Dr. Missimer, has had years of experience in studying the hydrogeology of Lee County and the area of the landfill and Gateway. His data collected during the development of Regional Impact Studies for Gateway have been relied on by DEP and others. His conclusions, however, regarding enormous amounts of leachate escaping the landfill are simply not supported by the results of years of monitoring the landfill's operations. With continued monitoring, the applicant should be permitted to continue to operate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of Environmental Protection enter a Final Order approving Waste Management, Inc., of Florida's application for a permit renewal to continue to operate the Gulf Coast Sanitary Landfill, subject to the parties' stipulation regarding additional groundwater monitoring wells and subject to the revisions to the draft permit that are described herein. DONE AND ENTERED this 17th day of September, 1997, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of September, 1997. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire Michael P. Petrovich, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 Neale Montgomery, Esquire Pavese Garner Haverfield Dalton Harrison & Jensen Post Office Box 1507 Fort Myers, Florida 33902-1507 David S. Dee, Esquire John T. LaVia, III, Esquire Landers & Parsons, P.A. 310 West College Avenue Tallahassee, Florida 32301 David M. Owen, Esquire Lee County Assistant Attorney Post Office Box 398 Fort Myers, Florida 33902 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Three Palms Point is a residential subdivision located within the city limits of St. Petersburg Beach, Florida. Three Palms Point is situated on a landfill which extends into Boca Ciega Bay. The site of the subdivision was originally purchased as submerged land from the Board of Trustees of the Internal Improvement Trust Fund. The purchaser filled the submerged land to coincide precisely with his purchase. The original Three Palms Point landfill is depicted on an aerial photograph that was received in evidence as Petitioner's Exhibit 3. This photograph was taken in 1957, and the landfill is circled with yellow ink on the photograph. Petitioner's Exhibit 2 is an engineer's drawing which depicts the original landfill. In August, 1970 the Petitioner purchased a portion of Three Palms Point. The Petitioner has constructed homes on a portion of the Three Palms Point landfill including the end, or easternmost finger. The present dimensions of the easternmost finger are depicted in an aerial photograph that was received in evidence as Petitioner's Exhibit 1. This photograph was taken in February, 1977. Several lines have been drawn on the photograph. The outermost line shows the limits of the original landfill. Considerable erosion has taken place, and the present high water mark is clearly evident in the photograph. Through the instant application the Petitioner is seeking to fill the land within the second line shown on Petitioner's Exhibit 1. Petitioner intends to construct four new homes on the filled area. The easternmost finger of the Three Palms Point landfill has only been partially bulkheaded. In the approximately twenty years that the landfill has been in existence, approximately 200 feet of the fill has eroded away. The amount of erosion is clearly evident in the photograph that was received in evidence as Petitioner's Exhibit 1. Erosion is continuing at the present time. The uplands of the landfill meet the water at a steep embankment which is very unstable. Three of the homes that have been constructed on the easternmost finger are presently and immediately jeopardized by the continuing erosion. When the Petitioner acquired this property he immediately sought approval to dredge a channel around the original limits of the easternmost landfill, and to fill the entire area. Petitioner did not succeed in obtaining local government approval for this proposal. Petitioner was advised to eliminate his proposed dredging, and to limit the landfill as in his present application. The entire area that the Petitioner wishes to fill constitutes .55 acre. Petitioner proposes to use uplands landfill, and to place a bulkhead around the fill to prevent further erosion. The landfill proposed by the Petitioner is the least amount of fill that would permit the Petitioner to construct houses on the finger within local zoning ordinances. Approximately 4,000 cubic yards of material would be required to complete the landfill. At low tide nearly all of the proposed fill area, and a broader area extending to the east and the south of the proposed landfill site is out of water. At high tide nearly all of the site is submerged. This type of environment is known as a littoral, or transitional zone between the uplands and submerged lands. This particular littoral zone is not a natural transitional area as would occur along the unbulkheaded and undeveloped shorelines of Boca Ciega Bay. The zone has resulted from the erosion of a landfill. There is considerable debris, including deteriorated riprap, junk that has been dumped in the area, and spilled cement. Various types of algae exist within the area proposed to be filled. The only grass that grows in the area is Cuban Shoalweed. Cuban Shoalweed is the only vegetation other than algae which has been found to any degree at the site. Cuban Shoalweed dies back and disappears during winter months, and reestablishes itself during summer months. Nearly all of the Cuban Shoalweed visible at the time of the hearing was outside of the proposed fill area. During summer months it is probable that some Cuban Shoalweed would be present within the fill area. The Cuban Shoalweed exists in patches, and does not cover the area. A variety of marine animals have been identified at the proposed fill site. Many mollusks, including oysters, a variety of clams, and mussels are present at the site. Several varieties of crabs were identified. At high tide fish swim into the area. Shore and wading birds have been observed in the area. The most prevalent animal life in the area is clams. Several heavily populated clam beds are located within, and just outside of the proposed landfill site. None of the organisms observed at the site are endangered organisms. It is apparent that the site is not a particularly suitable natural habitat, except apparently for clams. Continuing erosion of the easternmost point of the Three Palms Point subdivision presents an immediate danger to homeowners. Erosion which has averaged approximately ten feet per year during the past twenty years, is continuing to occur at a rate of from two to three feet per year. A large storm is likely to prove disastrous. In order to protect present homeowners, it is essential that some sort of seawall be constructed at the point. The seawall proposed by Petitioner provides the most protection. A rounded seawall will disperse wave action along the seawall. A seawall constructed along the present high water line would provide considerably less protection. High winds coming from the prevailing wind direction during the stormiest seasons would hit the present shoreline at a severe angle. When a wave hits a shoreline at an angle part of the energy is dispersed. This is called long shore energy flux, and results in littoral drift. High winds would cause an extreme littoral drift along the present shoreline. Bottom sand would be loosened, and the seawall would be undermined. The waves would strike the seawall proposed by the Petitioner at a significantly lesser angle, and long shore energy flux would be approximately one-fourth as much as with a seawall constructed along the present shoreline. Littoral or transitional zones provide a significant function for maintaining the water quality of a water body. Runoff from the uplands is filtered through the vegetation of the littoral zone. The vegetation serves to filter the uplands runoff by assimilating nutrients in the runoff. Without such a filtering mechanism, the quality of a water body would rapidly deteriorate, especially in a heavily populated area. The littoral zone involved in this case provides an insignificant filtration system. The only vegetation is Cuban Shoalweed, which is sparce and totally non-existent during winter months. Construction of the proposed landfill could cause considerable turbidity if proper steps are not taken to prevent it. Turbidity would be very detrimental, at least on a temporary basis, to the waters of Boca Ciega Bay. Turbidity can be adequately controlled through the use of screening devices. If the Petitioner's permit application is approved, a .55 acre habitat for a variety of marine organisms would be lost. Crabs and clams would likely reestablish themselves in the areas just outside of the proposed landfill. Many of the creatures could be relocated to other more natural littoral zones in the area. Most of the residents of Three Palms Point appear to favor the proposed landfill. This opinion is not, however, unanimous. Residents who support the proposal testified of their concern with the continuing erosion in the area. Some witnesses were concerned that the area has become a dumping ground, and attracts recreational users for whom there are not adequate facilities. Persons who testified in opposition to the project expressed environmental concerns, and concerns with the disruption that construction in the area would inevitably cause. The testimony was not clear as to the present status of local government authorization of the project. It appears that the Petitioner has received local approval, but that during the two years that his application has been pending before the Respondent, the approval has lapsed.
The Issue Schofield Corporation of Orlando has applied to the Department of Environmental Regulation for a permit to construct and operate a Class III trash/yard trash landfill in Orange County, Florida. The issues are whether the applicant is entitled to the permit and, if so, what conditions should attach. Also at issue is Schofield Corporation's motion for attorney's fees and costs, pursuant to Section 403.412(2)(f), F.S.
Findings Of Fact The applicant, Schofield Corporation of Orlando (Schofield), owns the proposed landfill site and existing permits for the site. The proposed site is located in West Orange County, southwest of the intersection of State Road 545 and Schofield Road on the west half of the northwest quarter of section 32, township 23 south, range 27 east, comprising approximately sixty acres within a larger eighty-acre parcel. In some undetermined distant past the site was cultivated in citrus. It is currently being excavated as a borrow pit. The materials proposed to be placed in the landfill include trash, yard trash, construction and demolition debris and clean debris, as defined in DER Rule 17-701.020, F.A.C. The northern half of the site is flat and will be used first for the composting operation. The southern excavated portion of the site will receive the permitted fill material until it is flattened. Then, the two functions will alternate; the composting will occur on the south, and the north end will be excavated to receive fill. The proposed facility will be operated by Chambers Corporation, a nationally recognized waste management company with approximately 20 years of experience in solid waste management. The landfill site will be completely fenced, with a gate entrance mid-site between the landfill and compost area. The gate will be locked when the facility is not in operation, and will be patrolled by security personnel 24 hours a day. "Spotters", or inspectors will be employed to examine incoming waste loads at the gate, from a high gantry, and at the place where the waste is deposited. The loads will be monitored by a television camera, and all haulers will be under contract. The landfill will not accept loads from trucks coming off the road looking for a place to dump. Receptacles will be maintained on site to receive errant non-permitted waste that is found in a load, and that waste will be properly disposed of elsewhere. Schofield has several permits related to its proposed operation. These include a type III landfill permit from Orange County, a compost facility permit from DER, a general construction and demolition debris landfill permit from DER, a surface water management permit from the South Florida Water Management District, and a permit to excavate or mine from the Florida Department of Natural Resources. Schofield also has a contract to receive yard waste from Orange County. The initial term of contract requires at least ten percent of the yard waste to be composted or recycled, with the percentage amount to be renegotiated in subsequent contract renewals. In the hierarchy of landfills, DER considers Class III the least environmentally sensitive. Problems with unauthorized waste and with water quality occur more frequently with Class I landfills, defined as accommodating more than twenty tons a day of residential garbage. In this case DER has proposed to grant Schofield its Class III permit without the requirement of a bottom liner or a leachate or gas control system because of the nature of the waste that will be accepted and because of the rigorous controls, described above, to avoid receiving unauthorized or hazardous waste. The Petitioners are an individual and a homeowners' association representing a residential area approximately a half mile south of the proposed site. Petitioners contend that the applicant's data is insufficient to provide reasonable assurances that water quality standards will not be violated. Petitioners contend that the landfill, if approved, should be required to have a liner to prevent leachate from polluting the groundwater. They further contend that the groundwater monitoring plan submitted by the applicant is inadequate to detect vertical movement of contaminated leachate into the Floridan aquifer, a major source of water supply in Orange County. Hydrogeology The site of the proposed landfill is within a high recharge area. Water percolates rapidly though the soil, moving downward into the aquifer, and laterally off site. The site is considered Karst terrain, underlined with limerock. There is evidence of relic sinkholes, thousands of years old, but there is a low probability of future open sinkhole development. The geology in the area of the site provides adequate structural support for the proposed facility. An aquifer is generally defined as a unit of material which contains water and can give up a sufficient amount of yield to provide some productive flow for pumpage. Below the site there are two aquifers: the shallow water table, or surficial aquifer, containing clean well-drained fine sands, about 70 feet down; and the Floridan, primarily limestone, encountered at a depth of approximately 115 feet. The two are separated by a confining layer of less permeable sands and clay. Flow in the Floridan at the site is primarily from the west to east. Flow in the surficial is also generally from west to east, but the Petitioners theorize, and have presented competent supporting evidence, that there are fissures in the confining layer, allowing some internal drainage within the site, causing surficial water to flow vertically into the Floridan, rather than laterally off-site in an eastward direction. Based on recent data taken from two piezometers installed near the middle of the site, the applicant's hydrogeologist, James Golden, concedes that "mounding" exists along the eastern boundary of the site, reflecting some flow westerly back into the interior of the site. Petitioners' theory regarding internal draining of the site is based in part on data as to groundwater elevation. Groundwater elevation or high groundwater table is the elevation at which water stands on a continuous surface under the site. Jammal and Associates is a consultant firm which has done field studies of this and neighboring sites in the past, for various purposes. Some open bore readings taken by Jammal and Associates in a 1983 study for the Orange County Rapid Infiltration Basin project indicate groundwater table levels on site up to 126 feet, National Geodetic Vertical Data (NGVD). Open bore readings are less reliable than cased hole readings; due to collapses within the hole, artificially high readings are sometimes obtained. Data from the applicant's consultants reveals groundwater tables at 96-98 NGVD. This data was most recently obtained in December 1991 from sealed and surveyed piezometer casings, but not from the area of the site where Jammal's higher readings were obtained. Although it may be conjectured that Jammal's high readings are anomalous, additional sealed borings need to be obtained before the anomaly is confirmed. Groundwater elevations are significant also to determine the depth to which the landfill may be excavated. Based on its December 1991 readings, obtained after the application for permit was filed, the applicant agreed to raise the proposed bottom of the landfill to approximately five feet above the level of the estimated high (wet weather) groundwater table in the area. Water Quality and Monitoring Specific conditions of the proposed permit include DER's requirements that Class GII water quality standards be met at the boundary of the zone of discharge, in accordance with Rule 17-3, F.A.C. The zone of discharge for this facility is a three-dimensional volume defined in the vertical plane as the top of the ground to the base of the most surficial aquifer, and horizontally 100 feet from the edge of the waste-filled area, or the property boundary, whichever is less. The groundwater monitoring plan proposed by the applicant includes one upstream monitoring well on the west side of the site and five wells along the east side of the site, with an additional well at the south, between the project and the Petitioners' residential area. The wells extend down into the upper zone of the surficial aquifer, but not into the deeper limestone Floridan. The downstream wells should detect any contamination in the surficial aquifer flowing from west to east at the zone of discharge. However, they will not pick up contamination draining internally within the site and into the Floridan. Such contamination is possible, even though leachate from Class III- type wastes is expected to be relatively benign. Volatile organic carbons (VOCs) have not typically been a problem in Class III landfills, unless those landfills were previously operated as Class I sites. Secondary drinking water standards for certain metals have been violated at some Class III sites, but such violations are often related to the problem of sampling newly-installed wells. From DER records, Petitioners presented evidence of consistent drinking water quality standard violations in Class III landfills. That such violations can occur in Class III landfills is clearly established. It is not so clear that such violations will occur in this facility, given the proposed controls on load content. However, even acceptable materials will not avoid the production of leachate or gas. Within demolition waste there are chemically bound components which are inseparable, for example, creosote and other preservatives, glues, paints, resins, varnishes and stains. The lignin, tannins and volatile organic acids which are produced when wood decomposes alter the pH of the groundwater. As the water becomes more acidic, heavy metals that were typically bound up in the waste or in the soil, are released in soluble form and travel with the water. The decomposition process occurring in the construction and demolition waste is enhanced by the addition of yard trash which becomes the food source for the biodegradation. Summary of Findings and Proposed Permit Conditions If, as applicant suggests, all groundwater moves primarily from west to east within the site, given the proposed operational controls and the proposed monitoring plan, reasonable assurances have been provided that water quality standards will not be violated beyond the zone of discharge. That is, any contamination likely to occur will be contained within the surficial aquifer and within the 100 feet or property line horizontal boundary. Transmissivity of the surficial aquifer is low enough to allow mixing of the leachate before it reaches the zone of discharge. The Petitioners, however, have presented credible evidence sufficient to question the groundwater flow premise and sufficient to require additional conditions on the permit. If leachate reaches the Floridan through fissures in the confining layer, it will move rapidly off site. In its proposed recommended order DER has suggested additional permit conditions and in its adoption of the proposed recommended order, the applicant has accepted those additional permit conditions. Those permit conditions recognize the fact that data presently provided by the applicant is insufficient to overcome the evidence by Petitioners as to the hydrogeological characteristics of the site with the possibility of internal drainage and vertical intrusion of contaminated water into the Floridan aquifer. The proposed recommended order provides this finding: ...that the ground water monitoring plan as proposed in this proceeding is adequate, provided that there be added to the permit conditions that the permittee conduct appropriate water table testing with cased piezometers during the next wet season to determine whether ground water flow is internal within the site and therefore not intercepted by the present ground water monitoring wells. The permittee shall consult with DER and get approval for the location and construction of these wells prior to their installation. The results shall be immediately submitted to the DER. The ground water monitoring requirements should be modified if necessary at that time pursuant to Rule 17-28.700(5) to assure proper monitoring at this site. (DER proposed Recommended Order, p. 17) The ground water monitoring plan modification suggested by DER is that deeper monitoring wells, into the Floridan aquifer, be required if the additional testing reveals the likelihood of internal on-site ground water drainage. These conditions are still inadequate since they lack specificity with regard to the extent of testing, the location and construction of the wells, and the amendments to the monitoring program to be required if internal drainage is confirmed. Moreover, the proposed conditions fail to address the possibility that the permit should require a liner for the landfill if the data to be obtained reveals the likelihood that contaminates will penetrate into the groundwater of the Floridan. Monitoring programs, however effective, only predict or detect problems; they do not remediate them. Groundwater contamination by landfills is not quickly and easily reversed. Unlike discharges from other facilities such as spray application or deep well injection, the leachate from a landfill is not "turned off". Without the additional data which all parties agree is needed, it is impossible to determine what additional conditions, if any, should be required or what amendments, if any, need to be made to the applicant's proposed monitoring plan.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Environmental Regulation issue its Final Order denying the application for Class III land fill permit. DONE AND RECOMMENDED this 17th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraph 1. Adopted in substance in paragraph 10. 3.-11. Rejected as unnecessary. 12.-23. Rejected as argument or summary of testimony, rather than findings of fact. 24. Rejected as unnecessary. 25.-30. Rejected as argument or summary of testimony, rather than findings of fact. 31. Rejected as unnecessary. 32.-41. Rejected as argument or summary of testimony, rather than findings of fact. Rejected as unnecessary. Adopted in substance throughout the recommended findings. 44.-50. Adopted in Preliminary Statement and paragraph 4. 51. Rejected as unnecessary. 52.-53. Adopted in paragraph 2. 54.-55. Rejected as statement of testimony rather than finding of fact. Adopted in paragraph 3. Rejected as unnecessary. 58.-97. Rejected as argument or statement of testimony, rather than findings of fact. Subparts a), b), c) and e) are rejected as unsupported by competent evidence. The evidence suggests that violations might occur and that insufficient data has been produced. Subpart d) is adopted, by implication in paragraph 18. 99.-101. Adopted in summary in paragraph 20. Respondent's Proposed Findings of Fact Addressed in Preliminary Statement. Adopted in paragraphs 1, 2 and 5. 3.-4. Adopted in paragraph 4. Adopted in summary in paragraph 11. Adopted in paragraph 13. Rejected as unnecessary or irrelevant, given the stipulation related to Section 403.412, F.S. standing. Rejected as cumulative. Adopted in paragraph 10. Adopted in paragraph 9. Adopted in substance in paragraph 9. 12.-13. Adopted in paragraph 13. Adopted in substance in paragraph 16. Rejected as unsupported by the evidence. If internal drainage is shown to exist, conditions other than additional monitoring wells may be required. Adopted in paragraph 17. 17.-18. Adopted in paragraph 3. 19.-21. Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 12. 24.-26. Adopted in general in paragraph 14. 27. The unlikelihood that unauthorized waste will be dumped is adopted in paragraph 3. Whether there will be a violation of ground water quality standards at the zone of discharge was not established, given the need for additional data on internal draining. COPIES FURNISHED: Thomas B. Drage, Jr., Esquire P.O. Box 87 Orlando, FL 32802 Irby G. Pugh, Esquire 218 Annie Street Orlando, FL 32806 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be determined in this proceeding is whether Angelo's Aggregate Materials, LTD ("Angelo's") is entitled to permits from the Department of Environmental Protection ("Department") to construct and operate a Class I landfill in Pasco County.
Findings Of Fact The Parties The Department is the state agency with the power and duty under chapter 403, Florida Statutes, to review and take action on applications for permits to construct and operate solid waste management facilities, including landfills. Angelo's is a Florida limited partnership authorized to conduct business under the name Angelo's Recycled Materials. Angelo's filed the permit applications which are the subject of this proceeding. Angelo's owns the property on which the proposed landfill would be constructed and operated. Crystal Springs Preserve is a Florida corporation that owns approximately 525 acres in Pasco County, Florida on which is located Crystal Springs, a second magnitude spring that flows into the Hillsborough River. The property is about 10 miles south of Angelo's proposed landfill site. Crystal Springs Preserve's primary business activities are selling spring water for bottling for human consumption and operating an environmental education center that focuses on Crystal Springs and the Hillsborough River. Crystal Springs Preserve hosts approximately 50,000 visitors annually at the environmental education center. Crystal Springs Preserve holds a water use permit which authorizes it to withdraw up to 756,893 gallons of water per day (annual average) from Crystal Springs for production of bottled water. The water is transported about three miles to a water bottling facility operated by Nestlé. Nestlé is a private corporation engaged in the business of bottling and selling spring water. Nestlé purchases spring water from Crystal Springs Preserve. Nestlé's "Zephyrhills Spring Water" brand is composed of approximately 90 percent Crystal Springs water and 10 percent Madison Blue Spring water. The only water treatment applied by Nestlé is filtering the water to remove gross contaminants and passing the water through ultraviolet light or ozone to kill any potential bacteria before bottling. Nestlé has established "norms" for its spring water and would not be able to use the water from Crystal Springs if its chemical composition varied significantly from the norms. WRB is a Florida corporation that owns 1,866 acres in Pasco County known as Boarshead Ranch. Boarshead Ranch is adjacent to the east and south of Angelo’s property and is approximately 3,000 feet from the proposed landfill at its closest point. Boarshead Ranch is currently being used for agricultural, recreational, residential, and conservation purposes, including wildlife management. Nearly all of Boarshead Ranch is subject to a conservation easement held by the Southwest Florida Water Management District (SWFWMD). The conservation easement allows WRB to continue agricultural operations. Numerous agricultural water wells are located on Boarshead Ranch. WRB holds a water use permit which authorizes the withdrawal of 820,000 gallons per day (gpd) (annual average) for a number of uses, including production of agricultural products, animal drinking water, and personal use. The City of Zephyrhills is located in Pasco County and is a municipal corporation. Zephyrhills' water service area encompasses Zephyrhills and portions of Pasco County. Zephyrhills owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Zephyrhills holds a water use permit which authorizes nine potable water supply wells with a combined withdrawal of 2.9 million gallons per day ("mgd") (annual average). Zephyrhills has two new production wells located about two miles southeast of the proposed landfill. The City of Tampa owns and operates the David L. Tippin Water Treatment Plant, the Hillsborough River dam, and the City of Tampa reservoir on the Hillsborough River. Flows from Crystal Springs make up a substantial amount of the water in the Hillsborough River, especially during drought conditions when the spring flow accounts for about 50 percent of the flow. The City of Tampa holds a water use permit which authorizes the withdrawal 82 mgd (annual average). The City of Tampa owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Carl Roth, Marvin Hall, and Louis Potenziano own property in Pasco County near the proposed landfill site. Roth's property is 3.5 miles west of the proposed landfill site; Hall's property is located approximately one mile southwest of the site; and Potenziano's property is 1.6 miles to the south/southeast of the site. Roth, Hall, and Potenziano have water wells on their properties. The record does not establish that John Floyd owns property in the area. Floyd and Associates, Inc., owns about 55 acres in the area and holds a water use permit authorizing the withdrawal of water for agricultural uses. The Stipulated Agreement On March 1, 2010, Angelo's filed with DOAH a "Stipulated Agreement" signed by all parties. The Stipulated Agreement states in relevant part: Angelo's shall provide a final design, revised complete permit application and site investigation (referred to jointly as "Revised Submittal") to DEP with copies to all Parties and DEP shall make a completeness determination prior to this proceeding being set for a new final hearing date. * * * Angelo's shall not revise its permit application or supporting information beyond the Revised Submittal prior to or during the final hearing except in response to issues raised by DEP. It appears that the Aligned Parties did not remember the Stipulated Agreement until the commencement of the final hearing. They did not object before then to any of the evidence which Angelo's had prepared or intended to prepare for hearing on the basis that it violated the terms of the Stipulated Agreement. At the commencement of the hearing, Nestlé argued that the Stipulated Agreement barred Angelo's from revising its application or presenting new support for its project at the final hearing. The Stipulated Agreement is unusual and the necessity for Angelo's to make any concessions to the Aligned Parties in order to obtain their agreement to an abeyance was not explained. Allowing an applicant time to amend a permit application is usually good cause for an abeyance. The Stipulated Agreement allowed Angelo's to continue to respond to issues raised by the Department. Angelo's contends that all of the evidence it presented at the final hearing qualifies as a response to issues raised by the Department. The Proposed Landfill Angelo's applied to construct and operate a Class I landfill with associated buildings and leachate holding tanks. Application No. 22913-001-SC/01 corresponds to the construction permit application and Application No. 22913-001-SO/01 corresponds to the operation permit application. A Class I landfill is a landfill authorized to receive Class I waste, which is solid waste from households and businesses. Class I waste does not include hazardous waste, yard waste, or construction and demolition debris. See Fla. Admin. Code R. 62-701.200(13) and (14). The proposed landfill would be approximately 30 acres in size. It is part of a 1,020-acre parcel owned by Angelo's that is west of County Road 35 and south of Enterprise Road in Pasco County. The site is currently leased for cattle grazing and hay and sod production. There are also spray fields, orange groves, and a pond on the 1,020-acre parcel. Angelo's would construct the landfill by first clearing the 30-acre site. It would then excavate and fill to create the design subgrade or floor of the landfill with slopes required for the liner system. The subgrade would be compacted with a vibratory roller. After the subgrade compaction, the grouting plan would be implemented. The grouting plan calls for grouting 39 subsurface locations on the site that have voids, loose soils, or other unstable characteristics. A liner system would be installed after the grouting is completed and the subgrade is finished. From the bottom upward, the liner system would begin with a 12-inch layer of clay, over which a reinforcement geotextile would be installed, followed by another 12-inch layer of clay. This reinforcement geotextile is in addition to the double liner system required by Department rule. Its purpose is to maintain the integrity of the liner system in the event that a sinkhole occurs beneath the landfill. Installed above the reinforcement geotextile and clay layer would be a 60-millimeter high-density polyethylene ("HDPE") geomembrane, followed by a HDPE drainage net. These last two components comprise the secondary leachate collection system. Above the HDPE drainage net would be the primary leachate collection system, consisting of another 60-millimeter HDPE geomembrane and HDPE drainage net, followed by a geotextile, then a 12-inch sand layer for drainage, and an additional 12-inch sand layer for protection against puncture of the HDPE liner. A 48-inch layer of selected waste, free of items that could puncture the liner, would be the first waste placed over the primary leachate collection system. "Leachate" is "liquid that has passed through or merged from solid waste and may contain soluble, suspended, or miscible materials." See Fla. Admin. Code R. 62-701.200(66). Leachate would be collected through a system of perforated pipes that empty into a sloping trench with a leachate collection pipe. The leachate collection pipe would run down the center of the landfill to the lowest point where a pump would send the collected leachate through a force main 0.25 miles to storage tanks. Five above-ground storage tanks would be installed on a concrete pad with capacity to store 90,000 gallons of leachate. The stored leachate would be periodically transported to an offsite location, such as a wastewater treatment facility, for disposal. Sinkholes and Karst The terms "sinkhole" and "sinkhole activity" are not defined by Department rule, but the statutory definitions in chapter 627, a chapter dealing with insurance coverage for homes and other buildings, are generally consistent with the scientific meanings of these terms. The term "sinkhole" is defined in section 627.706(2)(h) as: a landform created by subsidence of soil, sediment, or rock as underlying strata are dissolved by groundwater. A sinkhole forms by collapse into subterranean voids created by dissolution of limestone or dolostone or by subsidence as these strata are dissolved. The term "sinkhole activity" is defined in section 627.706(2)(i) as: settlement or systematic weakening of the earth supporting the covered building only if the settlement or systematic weakening results from contemporaneous movement or raveling of soils, sediments, or rock materials into subterranean voids created by the effect of water on a limestone or similar rock formation. Sinkholes occur throughout Florida. There have been many reported and confirmed sinkholes in Pasco County. The more common type of sinkhole that has occurred on the Brooksville Ridge is a "cover subsidence" sinkhole, which is caused by voids in the limestone and the downward movement--"raveling"--of overlying soils into the cavity. Eventually, the loss of soils in the raveling zone will propagate upward until the soils at the ground surface also move downward and a depression is formed at the surface. Cover subsidence sinkholes develop slowly and are usually small, less than ten feet in diameter. Less common are "cover collapse" sinkholes, which can form in a matter of days or hours as the result of the collapse of the "roof" of a dissolved cavity in the limestone. These sinkholes are usually large and deep. The occurrence of a sinkhole does not always mean that areas near the sinkhole are unstable. However, the occurrence of a sinkhole is reasonable cause for concern about the stability of nearby areas and a reasonable basis for the Department to require thorough geologic investigations. "Karst" refers to limestone that is undergoing dissolution and it is common in Florida. A sinkhole forms in karst. "Epikarst" is limestone that was weathered while exposed above sea level millions of years ago before being submerged again. It is generally softer and more permeable than unweathered limestone. "Paleokarst" refers to karst that is very old in geologic time. Paleosinks are old sinkhole features in the paleokarst. A paleosink may no longer be unstable because it has been filled in for thousands or millions of years. A "lineament," or a "photolineament," is a relatively straight line seen in the topography or aerial photographs of the ground surface in an area. It might be defined by soil color, sloughs, ponds, wetlands, or other land features that follow a linear path. Lineaments are sometimes, but not always, associated with subsurface fractures in the bedrock where one would expect to also find active karst, sinkholes, and relatively rapid groundwater flow. Even where there is no lineament, there can be fractures in limestone that, when extensive enough, will allow for "fractured," "preferential," or "conduit flow" of groundwater. Fractured flow can occur in a small area or may go on for miles. Springs in Florida are usually associated with fractured flow or conduit flow that allows groundwater to move through the aquifer a long distance relatively rapidly, in weeks rather than decades. Geotechnical Investigation The Department's rules require subsurface conditions to be explored and described, including soil stratigraphy, soft ground, lineaments, and unstable areas, but the rules do not require the application of any particular geologic testing technique. An applicant's testing program is primarily a function of the professional judgment of the applicant’s geologist in cooperation with Department staff. The amount of geological testing done by Angelo's during its initial testing was similar to what was done for recent landfill applications. Angelo's conducted additional testing to respond to Department concerns and to prepare for the final hearing in this case, making the total amount of testing at Angelo's proposed site more extensive than is usual for a proposed landfill. The geologic investigation conducted by Angelo's experts to determine subsurface features, including any sinkholes, employed several technologies. Split Spoon Penetrometer Test (SPT) or SPT borings were drilled with a drill rig that advances a split spoon sampler into the ground with a 140 pound hammer. The hammer is dropped 30 inches and the number of blows required to drive the sampler each successive 12 inches is referred to as the "N" value and indicates soil strength and density. The higher the N value, the denser the soil. When the material is so dense the drill rod cannot (essentially) be hammered deeper, the N value is shown as "R," which stands for "refusal." SPT Bore logs also note any observed "weight of hammer," "weight of rod," or "loss of circulation." These terms describe areas where the drilling encounters very soft material or voids. Weight of rod, for example, means the weight of the drilling rod, by itself, with no hammer blow, was enough to cause the rod to fall deeper through the soil or rock. Cone Penetrometer Test ("CPT") borings were also conducted. CPT borings are relatively shallow, performed with a hand-held rod and special tip that the operator pushes into the ground. The CPT equipment continuously measures and records tip resistance and sleeve resistance as the rod moves downward through soils. It is helpful in some applications, but is less precise in determining soil type, strength, and compressibility than SPT borings and cannot be used to explore deep zones. Ground penetrating radar ("GPR") studies were used. GPR equipment transmits pulses of radio frequency waves into the ground. The manner in which the radio waves are reflected indicates the types of soil and rock encountered. It can also detect cavities and other features that would suggest karst activity. When the GPR identifies geologic features of interest, they can be further investigated with SPT borings. Another investigative tool used by Angelo's was Multiple Electrode Resistivity ("MER"). MER uses a grid of wires and electrodes and the equipment interprets the resistivity of electrical signals transmitted through the subsurface. MER data can be displayed in a two dimensional or three dimensional format, depending on the software program that is used to process the data. Like GPR, MER is useful for indentifying geologic features of interest that can be further explored with SPT borings. However, GPR generally has good resolution only near the ground surface, while MER has good resolution to a depth of 100 feet. The Regional Geology The proposed site is in a geologic transition zone on the eastern flank of a regional, geological feature known as the Brooksville Ridge. It is a transition zone for both the Suwannee Limestone and Hawthorn Group. The Brooksville Ridge was formed when it was part of the coastline. In its geologic past, the Brooksville Ridge experienced sea level changes, weathering, erosion of sediments, and beach reworking. The general layering of geologic features on the Brooksville Ridge, from the top down, begins with topsoil and a layer of sand. Under the sand layer is the Hawthorn Group, an older geologic layer consisting of a heterogeneous mix of limestone, clays, and sands which generally range in depth from slightly under 60 feet to 80 feet or more. It was formed by river and wind erosion, flushing, and re-deposition in a beach dune environment. Below the Hawthorn Group is the Suwannee Limestone Formation, which is present throughout eastern Pasco County. The upper surface of the Suwannee Limestone Formation is undulating, due to a gradual chemical weathering of its upper surface, representing a "paleokarst environment." Underlying the Suwannee Limestone Formation is the Ocala Limestone Formation. It extends throughout most of Florida. It is composed of nearly pure limestone and is considered the Floridan Aquifer. It extends across the site’s subsurface. Angelo's used the Florida Geologic Survey's data base to determine there are six sinkholes within five miles of the proposed landfill. A seventh sinkhole, not in the data base, is the 15- foot sinkhole at the Angelo's Enterprise Road Facility landfill, a Class III landfill (yard waste and construction and demolition debris) about a mile northwest of the proposed site. Angelo's contends that the sinkhole at its Class III landfill was "induced" during construction of the facility by the diversion of stormwater runoff to an area where overburden had been removed. The average diameter of the seven sinkholes is 11.9 feet. The Geology of the Proposed Site Rule 62-701.410(2)(c) requires a geotechnical site investigation and report, which shall: Explore and describe subsurface conditions including soil stratigraphy and ground water table conditions; Explore and address the presence of muck, previously filled areas, soft ground, lineaments, and sinkholes; Evaluate and address fault areas, seismic impact zones, and unstable areas as described in 40 C.F.R. 258.13, 258.14 and 258.15; Include estimates of the average and maximum high ground water table across the site; and Include a foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the landfill. It may include geotechnical measures necessary to modify the foundation to accommodate the imposed loads and stresses. The foundation shall be analyzed for short-term, end of construction, and long-term stability and settlement conditions. Considering the existing or proposed subgrade conditions and the landfill geometry, analysis shall include: Foundation bearing capacity; Subgrade settlements, both total and differential; and Subgrade slope stability. Angelo's conducted a geotechnical site investigation, but it was not adequate, as discussed below and in sections I. and J. The proposed landfill site is geologically complex, having features that are discontinuous horizontally and vertically. The site has karst features or areas where the limestone has dissolved. There is a clay layer in some areas, but it is not continuous and its depth and thickness vary. There are deposits of hard and soft sands at various depths. There are pinnacles of limestone surrounded by softer materials. Photographs from a quarry called the Vulcan Mine, located on the western flank of the Brooksville Ridge, show exposed features in the top 20 to 30 feet of the Suwannee Limestone in the region. The features at the Vulcan Mine are roughly similar to features at the Angelo's site. There are a number of shallow depressions on the surface of the ground on the Angelo's site. The origin and significance of these depressions was a matter of dispute. The Aligned Parties believe they represent sinkhole activity, but the evidence presented did not rise to the level of proof. However, Angelo's did not prove they were unassociated with geotechnical issues that could affect the proposed landfill. Angelo's offered no reasonable explanation for the depressions. Determining the exact cause of the depressions may not be possible even with more extensive investigation, but it was Angelo's responsibility as the permit applicant, pursuant to rule 62-701.410(2)(c), to make a greater effort to account for them. Angelo's initial permit application identified two intersecting lineaments on Angelo's property, based on aligned lowlands, enclosed valleys, and ponds. Angelo's contends the lineaments do not reflect an unstable subsurface or fractured limestone. The Aligned Parties contend that the lineaments are regional features and reflect fractures in the bedrock. They also contend that the onsite pond, which is located along the lineament, is an old sinkhole. The Aligned Parties did not prove the proposed landfill site is above an area of fractured bedrock, but the evidence presented by Angelo's was incomplete and insufficient to show there are no fractures. The limestone on the site was not adequately investigated for voids and fractures. Angelo's did not refute the possibility that the lineaments reflect a significant subsurface feature that could affect both site stability and groundwater movement. The Regional and Local Hydrogeology Rule 62-701.410(1) requires a hydrogeological investigation and site report, which shall: Define the landfill site geology and hydrology and its relationship to the local and regional hydrogeologic patterns including: Direction and rate of ground water and surface water flow, including seasonal variations; Background quality of ground water and surface water; Any on site hydraulic connections between aquifers; For all confining layers, semi-confining layers, and all aquifers below the landfill site that may be affected by the landfill, the porosity or effective porosity, horizontal and vertical permeabilities, and the depth to and lithology of the layers and aquifers; and Topography, soil types and characteristics, and surface water drainage systems of the site and surrounding the site. Include an inventory of all the public and private water wells within a one-mile radius of the proposed landfill site. The inventory shall include, where available: The approximate elevation of the top of the well casing and the depth of each well; The name of the owner, the age and usage of each well, and the estimated daily pumpage; and The stratigraphic unit screened, well construction technique, and static water levels of each well. Identify and locate any existing contaminated areas on the landfill site. Include a map showing the locations of all potable wells within 500 feet of the waste storage and disposal areas to demonstrate compliance with paragraph 62- 701.300(2)(b), F.A.C. Angelo's conducted a hydrogeological investigation, but it was not adequate, as discussed below. Angelo's and the Aligned Parties disputed the hydrogeological characteristics of the proposed landfill site and region. The principal disputes related to the direction and velocity of groundwater flow. Angelo's contends that groundwater flows from the landfill site to the west, making the proposed landfill site part of the Withlacoochee River groundwater basin. The Aligned Parties contend that groundwater flows south toward Crystal Springs and, therefore, the site is within the "springshed" of Crystal Springs. A United States Geological Survey map of the Crystal Springs springshed shows Angelo's proposed landfill site within the springshed. A springshed study done for SWFWMD also indicates the site is within the Crystal Springs springshed, but the District has not always been consistent in its statements about the groundwater basin boundaries in this area. A water chemistry analysis of the groundwater in the area of Angelo's proposed landfill indicates that the site is an area of higher recharge and within the Crystal Springs springshed. The springshed boundary can shift, depending on rainfall. Angelo's hydrogeological evidence was not sufficient to refute the reasonable possibility that the proposed landfill site is within the Crystal Springs springshed. Therefore, the Department's determination whether Angelo's has provided reasonable assurances must account for the threat of contamination to Crystal Springs and the other public and private water supply sources to the south. There are no creeks or streams and only a few lakes in the area between Crystal Springs and the Angelo's site. The absence of surface runoff features indicates it is an area of high recharge to the groundwater. Crystal Springs is in an area of conduit flow. The hydrologic investigation conducted by Angelo's was not thorough enough to characterize surficial aquifer flow and flow between aquifers. The preponderance of the evidence shows more groundwater recharge to the Floridan Aquifer in the area than estimated by Angelo's. Angelo's hydrogeological investigation was inadequate to refute the possibility of fractured flow or rapid groundwater movement at the proposed landfill site. Angelo's contends there is a continuous clay confining layer that would prevent contamination from moving into deep zones, but the preponderance of the evidence shows discontinuity in the clay and large variations in thickness and depth. The landfill's impermeable liner will impede water movement downward from the landfill, but groundwater will still recharge from outside the landfill to carry any contaminants deeper. If fractured flow or conduit flow extends south from the proposed landfill site, any leachate released into the groundwater beneath the landfill could travel rapidly toward the water supply sources of the City of Zephyrhills, Crystal Springs, Nestlé, and the City of Tampa. Whether the Proposed Landfill is in an Unstable Area Rule 62-701.200(2)(a) prohibits the storage or disposal of solid waste "[i]n an area where geological formations or other subsurface features will not provide support for the solid waste." However, the Department has adopted by reference a federal regulation, 40 C.F.R. 258.15, which allows a landfill to be constructed in a geologically unstable area if the permit applicant can demonstrate that engineering measures are incorporated into the design to ensure that the integrity of the landfill’s structural components "will not be disrupted." The parties presented evidence on many disputed issues of fact at the final hearing, but most of the case involved two ultimate questions: whether the proposed landfill site is unstable and, if so, whether Angelo's has proposed measures that would eliminate the unstable conditions and make the site suitable for a landfill. as: An "unstable area" is defined in 40 C.F.R. § 258.15 A location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terrains. There is overwhelming evidence that the proposed landfill site is an unstable area. A considerable amount of evidence presented by Angelo's supports this finding. For example, Angelo's experts agreed there are loose soils, evidence of raveling, and sinkhole activity. These conditions make the site susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from the proposed landfill. The Department's landfill permitting staff requested a sinkhole risk assessment from the Florida Geologic Survey ("FGS"). The State Geologist and Director of the FGS, Dr. Jonathan Arthur, believes the potential for sinkhole formation at the proposed site is moderately high to high. That potential is consistent with the characterization of the area as unstable. Whether the Proposed Engineering Measures Are Adequate Because the site is unstable, Angelo’s must demonstrate that engineering measures have been incorporated into the landfill's design to ensure that the integrity of its structural components will not be disrupted. See 40 C.F.R. § 258.15(a). The engineering measures proposed by Angelo's are discussed below. Because it was found that Angelo's hydrogeological and geotechnical investigations were not sufficient to characterize all potentially unstable features of the subsurface, it was not demonstrated that the proposed engineering measures would overcome the instability and make the site suitable for a landfill. Roller Compaction Angelo's would use roller compaction on the graded floor of the landfill to compact the soils to a depth of about five feet and eliminate any voids within that depth. The Aligned Parties did not contradict Angelo's evidence that its proposed roller compaction will be done in a manner exceeding what the Department usually requires as far as roller force and the number of roller "passes." However, roller compaction will not affect deep voids. Liner System In order to ensure that the landfill’s liner system components will not be disrupted in the event of a sinkhole, Angelo’s proposes to include the reinforcement geotextile discussed above. The Department previously approved the use of geotextile reinforcement, combined with grouting, to demonstrate site stability for the Hernando County Northwest Landfill, which had a comparable risk of sinkhole formation according to the Department. The reinforcement geotextile can span a 15-foot diameter sinkhole without failure. As found above, the average diameter of the seven sinkholes within five miles of the proposed landfill is 11.9 feet. Angelo's proved that the proposed liner system meets all applicable criteria, except the requirement of rule 62- 701.400(3)(a) that the liner be installed upon a geologically stable base. Grouting Plan Angelo's grouting plan would be implemented to fill voids and stabilize areas of loose or weak material. The grouting plan was first designed to grout all locations where there was a Weight of Hammer, Weight of Rod, Loss of Circulation, or loose sands, as indicated by a low blow count. Angelo's revised the grout plan to include several more areas of concern identified later, for a total of 39 locations. Each grout location would have seven grout points, one in the center and six others equally-spaced on a ten-foot radius from the center. If more than ten cubic yards of grout is needed, additional grout points further outward would be injected until the void or loose soils are filled or stabilized. Although Angelo's proposes to grout every boring of concern, that still ties the integrity of the grouting plan to the thoroughness of the borings. The geologic evidence indicates that there are unstable areas which the grouting plan does not address. The Aligned Parties' MER analysis was persuasive in identifying potential areas of instability that were omitted from Angelo's investigation and from its grouting plan. There are other unstable areas existing on the site that should be grouted or otherwise engineered to provide support for the landfill. The grouting plan does not provide reasonable assurance that the integrity of the structural components of the landfill will not be disturbed. Other Issues Raised by the Aligned Parties The Aligned Parties raise a number of other issues, some of which begin with the assumption that the site is unstable and a large sinkhole would form at the landfill. This sometimes mixes issues inappropriately. It has been found that Angelo's did not provide reasonable assurance that the site will support the proposed landfill, but other project elements must be reviewed on their own merits where possible, assuming the site was engineered for stability. Leachate Collection System There is a single leachate collection trench in the center of the two landfill cells, which makes the landfill operate much like a single cell. The two halves of the cell slope toward the center, so that leachate will drain to the leachate collection trench, and the entire landfill slopes to the west, so that the trench will drain to a sump from which the leachate is pumped to storage tanks. At full capacity, the landfill will generate about 40,000 gallons of leachate per day. Careful cutting and grading of the earth is necessary to create the slopes that are essential to the proper functioning of the project’s leachate collection system. Settlement analyses are necessary to assure that the slopes are maintained. Rule 62-701.410(2)(e) requires a foundation analysis which must include a study of "subgrade settlements, both total and differential." "Total settlement" refers to the overall settlement of a landfill after construction and the loading of solid waste. "Differential settlement" compares settlement at two different points. Angelo's did not meet its burden to provide reasonable assurance on this point. The settlement analysis conducted by Angelo's was amended two or three times during the course of the final hearing to account for computational errors and other issues raised by the Aligned Parties. The analysis never came completely into focus. The final analysis was not signed and sealed by a professional engineer. The settlement analysis is dependent on the geologic analysis, which is inadequate. Without adequate settlement and geologic analyses, it cannot be determined that leachate collection would meet applicable criteria. Storage Tanks The Aligned Parties contend that the leachate storage tanks cannot be supported by the site. Because it was found that Angelo's geologic investigation was not adequate to identify all unstable areas, it is also found that Angelo's failed to provide reasonable assurance that the site would support the leachate storage tanks. In all other respects, the Aligned Parties failed to refute Angelo's demonstration that the storage tanks would meet applicable criteria. Groundwater Monitoring Plan The Aligned Parties contend that there is an insufficient number of monitor wells proposed by Angelo's to detect a leak from the landfill and the wells are too shallow. Because it was found that Angelo's did not adequately characterize the geology and hydrology of the proposed landfill site, the monitoring plan does not provide reasonable assurance of compliance with applicable criteria. Cell Design The Aligned Parties contend that the "mega-cell" design proposed by Angelo's provides less flexibility to respond to and isolate landfill problems than other landfill designs with smaller cells, and the mega-cell design could generate more leakage. No evidence was presented to show whether Angelo's design was one that had been approved or rejected in the past by the Department. Although it is not the best landfill design, the Aligned Parties did not show that the proposed design violates any permitting criteria. Operation and Closure The evidence presented by the Aligned Parties in support of their issues regarding the operation of the proposed landfill, such as noise, odor, and traffic, was not sufficient to refute Angelo's evidence of compliance with applicable criteria, with one exception: Angelo's has not provided an adequate contingency plan to show how it would respond to a sinkhole or other incident that required the landfill to be shut down and repaired. Assuming the site was engineered to support the landfill, there is nothing about the Closure Plan that the Aligned Parties showed does not meet applicable criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny Angelo's Permit Application Nos. 22913-001-SC/01 and 22913- 002-SO/01. DONE AND ENTERED this 28th day of June, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 28th day of June, 2013. COPIES FURNISHED: Carl Roth, Qualified Representative 8031 Island Drive Port Richey, Florida 34668-6220 Christopher M. Kise, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 Wayne E. Flowers, Esquire Lewis, Longman and Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32202-4931 Janice M. McLean, Esquire City of Tampa 7th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 Joseph A. Poblick, Esquire City of Zephyrhills 5335 8th Street Zephyrhills, Florida 33542-4312 Doug Manson, Esquire William Bilenky, Esquire Brian A. Bolves, Esquire Manson Bolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 Jacob D. Varn, Esquire Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler, White, Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32302-1547 David Smolker, Esquire Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A. Suite 200 500 East Kennedy Boulevard Tampa, Florida 33602-4936 Stanley Warden, Esquire Christopher Dale McGuire, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent's Construction and Demolition Debris Disposal Facility Permit No. 003397-013-SO (the Permit) should be revoked and the facility closed for the reasons stated in the Department of Environmental Protection's (Department's) Notice of Revocation (Notice) issued on July 31, 2014.
Findings Of Fact A. The Parties, the Property, and the Dispute The Department administers and enforces the provisions of chapter 403 and the rules promulgated thereunder, including those applicable to construction and demolition debris (C & D) disposal facilities. Respondent is a Florida limited liability corporation that owns real property located at 6990 Rolling Hills Road, Pensacola, Escambia County (County), Florida. The large, odd- shaped parcel (whose exact size is unknown) is south-southwest of the intersection of Interstate 10 and Pensacola Boulevard (U.S. Highway 29) and has Class III fresh surface waters running in a northeast-southwest direction through the middle of the property. See Resp. Ex. 28. The entire site is surrounded by a six-foot tall fence or is separated from adjoining properties by natural barriers. A railroad track borders on the eastern side of the parcel; the western boundary fronts on Rolling Hills Road; and the northern boundary appears to be just south of West Pinestead Road. Id. The area immediately south of the parcel appears to be largely undeveloped. See Dept. Ex. 40. The Emerald Coast Utilities Authority (ECUA), a local government body, has an easement that runs along the eastern side of the property adjacent to the railroad track on which a 48-inch sewer pipe is located. An older residential area, known as Wedgewood, is located northeast of the facility on the north side of West Pinestead Road. Id. The closest Wedgewood homes appear to be around 400 or 500 feet from the edge of Respondent's property. A community and recreational center, the Marie K. Young Center, also known as the Wedgewood Center, serves the Wedgewood community, is northwest of the facility, and lies around 500 feet from the edge of the property. Established in 2012 where a school once stood, it has more than 200 members. Although non- parties, it is fair to say that the Wedgewood community and County strongly support the Department's efforts to revoke Respondent's permit. Respondent acquired the property in 2007. At that time, an existing C & D disposal facility (the facility) was located on the property operating under a permit issued by the Department. The Permit was renewed in February 2013 and will expire in early 2018. Besides the general and specific conditions, the renewed Permit incorporates the terms and conditions of a Consent Order executed in November 2012, as well as detailed requirements relating to the operation of the facility, water quality monitoring, an odor remediation plan, financial assurance and cost estimates, and closure of the facility. The latter requirements are found in four Appendices attached to the Permit. The facility operates under the name of Rolling Hills Construction and Demolition Recycling Center. All material received by the facility is disposed of in an active disposal pile known as cell 2, located in the middle of the northern section of the parcel. Cell 1, southwest of cell 2 and just east of Rolling Hills Road, was closed a number of years ago by the prior operator. Respondent operates the only C & D facility in the County.1/ It currently serves around 50 to 60 active customers, employs 16 persons, and operates between the hours of 7:00 a.m. and 5:00 p.m. The former manager, Charles Davidson, who had overseen operations since 2010, was replaced in June 2014, and Respondent blames him for ignoring or failing to address most of the problems encountered during the last three years. Since June, the managing partner of the LLC, Scott C. Miller, has overseen the operations. Unlike Class I or III landfills, a C & D landfill may accept only construction and demolition debris. Construction and demolition debris is defined as "discarded materials generally considered to be not water soluble and non-hazardous in nature." § 403.703(6), Fla. Stat.; Fla. Admin. Code R. 62- 701.200(24). Debris includes not only items such as steel, glass, brick, concrete, asphalt material, pipe, gypsum wallboard, and lumber that are typically associated with construction or demolition projects, but also rocks, soils, tree remains, trees, and other vegetative matter that normally result from land clearing or land development operations. Id. No solid waste other than construction and demolition debris may be disposed of at the facility. See Fla. Admin. Code R. 62- 701.730(4)(d). To address and resolve certain violations that predated the renewal of the Permit, the Department and Respondent entered into a Consent Order on November 14, 2012. See Dept. Ex. 2. These violations occurred in 2011 and included the storage and/or disposal of non-C & D debris, and a failure to timely submit an appropriate Remedial Action Plan (RAP). Id. Among other things, the Consent Order required that within a time certain Respondent submit for Department review and approval an RAP; and after its approval to "continue to follow the time frames and requirements of Chapter 62-780, F.A.C." Id. Those requirements included the initiation of an active remediation system and site rehabilitation within a time certain, and the continued monitoring and related corrective action for any water quality violations or impacts. Id. To ensure that it has the financial ability to undertake any required corrective action, the Permit requires Respondent to provide proof of financial assurance for the corrective action program cost estimates. See Fla. Admin. Code 62-701.730(11)(d); § 2, Spec. Cond. F.1. This can be done through a number of mechanisms, such as a performance bond, letter of credit, or cash escrow. The Permit also requires Respondent to provide proof of financial assurance to demonstrate that it has the financial ability to close the facility and otherwise provide for the long-term care cost estimates of the facility. See Fla. Admin. Code R. 62-701.630; § 2, Spec. Cond. F.2. Rather than using a cash escrow or letter of credit, Respondent has chosen to use a performance bond for both requirements. These bonds must be updated annually to include an inflation adjustment. Given the many requirements imposed by the Permit and Consent Order, in 2013 and 2014 several follow-up site inspections of the facility were conducted by the Department, and a review of the operations was made to determine if the various deadlines had been met. Also, in 2014, the Department received complaints from the County and neighboring property owners, almost exclusively by those residing in the Wedgewood community, regarding offensive odors emanating from the facility. Based on field observations, the review of operations, and odor complaints, on July 31, 2014, the Department issued a Notice containing eight counts of wrongdoing. The Notice was issued under section 403.087(7)(b), which authorizes the Department to revoke a permit when it finds the permit holder has "[v]iolated law, department orders, rules, or regulations, or permit conditions." To Respondent's consternation, the Department opted to use that enforcement mechanism rather than initiating an enforcement action under section 403.121 or executing another consent order, both of which would likely result in a sanction less severe than permit revocation.2/ The Notice contains the following charges: exceeding surface water quality standards in rules 62-302.500 and 62- 302.530 (Count I); failing to implement an RAP as required by the Consent Order and Permit (Count II); failing to provide adequate financial assurances for facility closure costs (Count III); failing to provide financial assurances for the corrective action required by the RAP (Count IV); failing to reduce on-site and off-site objectionable odors and to implement a routine odor monitoring program (Count V); disposing non-C & D waste on site (Count VI); failing to remove unauthorized waste (Count VII); and disposing solid waste outside of its permitted (vertical) dimension of 130 feet National Geodetic Vertical Datum (NGVD) (Count VIII). These allegations are discussed separately below. Although the Notice is based on violations that occurred on or before July 31, 2014, the undersigned denied the Department's motion in limine that would preclude Respondent from presenting mitigating evidence concerning circumstances surrounding the violations and efforts to remediate them after July 31, 2014. Given that ruling, the Department was allowed to present evidence to show that Respondent's remediation efforts have not been successful and that some violations still existed as of the date of final hearing. Respondent disputes the allegations and contends that most, if not all, are either untrue, inaccurate, have been remedied, or are in the process of being remedied. As noted above, Respondent considers the revocation of its permit too harsh a penalty in light of its continued efforts to comply with Department rules and enforcement guidelines. It contends that the Department is acting at the behest of the County, which desires to close the facility to satisfy the odor complaints of the Wedgewood residents, and to ultimately use the property for a new road that it intends to build in the future. Count I - Water Quality Violations The Notice alleges that two water quality monitoring reports filed by Respondent reflect that it exceeded surface water quality standards at two monitoring locations (MW-2 and SW-6) sampled on August 26, 2013, and at one monitoring location (MW-2) sampled on March 4, 2014. The Notice alleges that these exceedances constitute a failure to comply with Class III fresh surface water quality standards in rules 62-302.500 and 62- 302.530 and therefore violate conditions in the Permit. These standards apply in areas beyond the edge of the discharge area (or zone of discharge) established by the Permit. To ensure compliance with water quality standards, when the Permit was renewed in 2013, a Water Quality Monitoring Report (Appendix 3) was attached to the Permit. It required Respondent to monitor surface water for contamination, identify the locations at which samples must be collected, and specify the testing parameters. All of these conditions were accepted by Respondent and its consultant(s). The monitoring network, already in place when Respondent purchased the facility, consists of six ground water monitoring wells and three surface water monitoring stations. The surface water stations, which must be sampled to determine compliance with water quality criteria, are SW-5, a background location, and SW-6 and MW-2, both compliance locations located outside the zone of discharge. A background location is placed upstream of an activity in order to determine the quality of the water before any impacts by the activity. A compliance location is placed downstream of an activity to determine any impacts of the facility on surface water. The Water Quality Monitoring Plan and Permit require Respondent to submit semi-annual water quality reports. To conduct the preparation and filing of the reports, Respondent used an outside consulting firm, Enviro Pro Tech, Inc. (EPT). On November 5, 2013, EPT submitted a Second Semi-Annual 2013 report. See Dept. Ex. 5. According to Mr. Miller, who now oversees operations at the facility, EPT did not provide Respondent a copy of the report, or even discuss its findings, before filing it with the Department. A Department engineer reviewed the report and noted that surface water samples exceeded the Class III Fresh Water Quality Standards for iron, copper, lead, zinc, nickel, and mercury at SW-6 and for iron at MW-2. See Dept. Ex. 6. A copy of the Department's report was provided to Respondent and EPT. Notably, the report indicated that background levels were lower than the down-gradient results. Under Department protocol, if the samples at the compliance locations exceed both the regulatory levels and the background, there is a violation of water quality standards. This accepted protocol differs from Respondent's suggested protocol that the background level should be added to the regulatory standard before a comparison with the sample results is made. In sum, except for the reported nickel value at SW-6, a violation which the Department now says it will not pursue, all exceedances shown on Department Exhibits 5 and 6 are violations of the standards. On April 1, 2014, EPT submitted a First Semi-Annual 2014 report. See Dept. Ex. 7. A Department engineer reviewed the report and noted that the surface water samples at one monitoring location, MW-2, did not meet water quality standards for iron; however, background levels for iron were much higher than downstream. See Dept. Ex. 8. No other exceedances were shown. Although the Department engineer considered the higher background level for iron to be an "inconsistency" since it varied from the prior reports, the reported iron value was treated as a violation when the Notice was drafted. In its PRO, however, the Department concedes that it did not establish a violation of standards for iron, as alleged in paragraph 7 of the Notice. While having no concerns with sampling taken at MW-2, Respondent's expert contends that the reported values for SW-6 are unreliable because the samples taken from that location were turbid and filled with large amounts of suspended solid matter. He noted that the well is located in a wetland area that is "clogged with vegetation." The expert estimated the turbidity at the site to be in the range of 480 to 500 Nephelometric Turbidity Units (NTUs) and believes the sample was taken in a "high turbid sediment laden area," thus rendering it unreliable. However, at the time of the sample collection, turbidity was measured at 164 NTUs, or much less than the amount estimated by the expert. See Dept. Ex. 5, p. 147. There is no rule or procedure that disallows the use of turbid samples. In fact, they can be representative of actual water quality. Also, rule 62-302.500(2)(d) provides that if an applicant for a C & D permit believes that turbid samples are not representative of water quality, it may use filtered samples by establishing a "translator" during the permitting process. Respondent did not request a translator during the permitting process, nor is any such translator provision found in the Permit. The expert also criticized EPT for holding the 2013 sample for iron for 22 days after collection before reanalyzing it without providing any explanation for this delay. A reasonable inference to draw from the data, however, is that iron was present in the original sample at levels that required dilution and reanalysis. Respondent's expert testified that even though off- site stormwater is discharged onto the property, no offsite monitoring locations exist, and therefore any offsite exceedances would not be reported. He also criticized the sampling locations that were selected by EPT. In fairness to Respondent, a repositioning of the monitoring network and retesting of the samples might have produced more favorable results. But these are measures that should have been addressed long before this proceeding was initiated. Finally, Respondent's expert testified that the implementation of its RAP, now partially completed, will cure all of the reported exceedances. Assuming this unrefuted testimony is true, it should be taken into account in determining an appropriate penalty. Count II - Failure to Implement an RAP In this Count, the Department alleges that after the issuance of an RAP Approval Order on July 3, 2013, Respondent was required to implement the RAP within 120 days. The Notice alleges that as of July 31, 2014, the RAP had not been implemented. An RAP was first filed by Respondent on November 15, 2010. See Dept. Ex. 3. When the Department determined that changes to the RAP were necessary, the Consent Order imposed a requirement that an RAP addendum be filed within 150 days. The date on which the addendum was filed is not known. However, an RAP Approval Order was issued on July 3, 2013. See Dept. Ex. 4. The terms and conditions in the RAP were incorporated into the renewed Permit. The work required by the RAP consists of two phases, with all work to be completed within 365 days, or by early July 2014. Phase I related to the initiation of an active remediation system within 120 days, or by October 31, 2013. This phase requires Respondent to install a pump and treat system at the facility, which will withdraw contaminated groundwater through recovery wells, pump the water to aeration basins to treat the water, and then re-infiltrate the treated water back into the ground. As noted below, the system was not operational until the second week in December 2014. Respondent's failure to implement the approved RAP by the established deadline constitutes a violation of rules 62- 780.700(11) and 62-780.790 and Permit conditions, as charged in the Notice. While Respondent concedes that it did not comply with the deadline for implementing the RAP, it points out that work on Phase I was begun in a timely manner. However, on October 16, 2013, or just before the 120 days had run, a Notice of Violation was issued by the County. See Resp. Ex. 2. The effect of the Notice of Violation was to halt much of the work on Phase I until Respondent obtained a County stormwater permit. Respondent asserts that this was responsible for all, or most, of the delay. The record shows that the EPT consultant did not apply for the County permit until September 10, 2014, or almost one year after the Notice of Violation was issued. Additional information was required by the County, which was supplied on October 23, 2014, but final sealed documents were not filed by the consultant until around Thanksgiving. The permit was issued by the County "a week or so" before the final hearing. Respondent attributes the delay in applying for a County permit to its former manager and his failure to coordinate with the EPT engineers assigned to the project. It also claims that the County failed to process the application in an expeditious fashion. However, the facts suggest otherwise. Once the permit was issued, Phase I was completed on December 8, 2014, and it was operational at the time of the final hearing. Respondent's expert, hired in August 2014, has proposed a modification to the RAP that would avoid impacting the existing stormwater pond. However, the modification must be reviewed and approved by the Department, and as of the date of the hearing, it had not been formally submitted. The Department asserts that the only reason the modification is being sought is to reduce the cost of a performance bond. In any event, in its PRO, Respondent does not argue that the proposed modification excuses its 13-month delay in completing the requirements of Phase I, or the second phase of the project, which should have been completed by early July 2014. Count III - Failure to Provide Financial Assurance This Count alleges that Respondent failed to provide the required annual 2014 financial assurance mechanism that demonstrates proof of financial assurance for closure and long- term cost estimates of the facility. At the beginning of 2014, Respondent had an $836,000.00 financial performance bond in place for closure and long-term costs. The Permit requires that on or before March 1 of each year Respondent revise the closure cost estimates to account for inflation in accordance with rule 62-701.630(4). See § 2, Spec. Cond. F.2. Once the estimates are approved, the performance bond must be updated within 60 days. In this case, an increase of around $18,000.00 was required. The annual inflation adjustment estimate was not submitted until April 15, 2014. The Department approved the cost estimates the following day and established a due date of June 16, 2014, for submitting a revised financial assurance. Respondent did not have a revised performance bond in place until a "week or two" before the hearing. Other than Respondent's manager indicating that he had a new bonding agent, no evidence was presented to mitigate this violation. The failure to timely update its financial assurance for closure and long-term costs constitutes a violation of rule 62-701.630, as charged in the Notice. Count IV - Financial Assurances for Corrective Action In the same vein as Count III, the Notice alleges that Respondent failed to maintain a financial assurance mechanism to demonstrate proof that it can undertake the corrective action program required under the RAP. Respondent was required to submit proof of financial assurance for corrective actions within 120 days after the corrective action remedy was selected. On July 3, 2013, the RAP Approval Order selected the appropriate remedy. On August 8, 2013, the Department approved Respondent's corrective action program cost estimates of $566,325.85 and established a deadline of October 31, 2013, for Respondent to submit this proof. When the Notice was issued, a corrective action bond had not been secured, and none was in place at the time of the final hearing. This constitutes a violation of rule 62-701.730(11)(d) and applicable Permit conditions. Respondent's manager, Mr. Miller, concedes that this requirement has not been met. He testified that he was not aware a new bond was required until he took over management of the facility and met with Department staff on June 17, 2014. Due to the Notice, Mr. Miller says he has had significant difficulty in securing a bond. He explained that the bonding company is extremely reluctant to issue a bond to an entity faced with possible revocation of its permit, especially if such revocation might occur within a matter of months. Mr. Miller says the bonding company wants 100 percent collateralization to put a bond in place. Nonetheless, he is confident that a bond can be secured if only because its cost will dramatically drop when the RAP project is completed. However, even at hearing, he gave no timeline on when this requirement will be fulfilled. Count V - Objectionable Odors One of the driving forces behind the issuance of the Notice is the complaint about off-site objectionable odors. A considerable amount of testimony was devoted to this issue by witnesses representing the Department, County, Wedgewood community, and Respondent. The Notice alleges that during routine inspections in April, May, and July 2014, mainly in response to citizen complaints, Department inspectors detected objectionable odors both at the facility and off-site. The Notice further alleges that Respondent failed to immediately take steps to reduce the odors, submit an odor remediation plan, and implement that plan in violation of rules 62-296.320(2) and 62-701.730(7)(e) and section 2, Specific Condition E of the Permit. Notably, the Department has never revoked a landfill permit due solely to objectionable odors. Several Department rules apply to this Count. First, objectionable odors are defined in rule 62-210.200(200). Second, a C & D facility must control objectionable odors in accordance with rule 62-296.320(2). Finally, if odors are detected off-site, the facility must comply with the requirements of rule 62-701.530(3)(b). That rule provides that once off-site odors have been confirmed, as they were here, the facility must "immediately take steps to reduce the objectionable odors," "submit to the Department for approval an odor remediation plan," and "implement a routine odor monitoring program to determine the timing and extent of any off-site odors, and to evaluate the effectiveness of the odor remediation plan." These same regulatory requirements are embodied in the Permit conditions. See § 2, Spec. Cond. E. At least occasionally, every landfill has objectionable odors emanating from the facility. As one expert noted, "The trick is, how can you treat it." The technical witnesses who addressed this issue agree that the breakdown of drywall, wall board, and gypsum board, all commonly recycled at C & D facilities, will produce hydrogen sulfide, which has a very strong "rotten egg" type smell. The most effective techniques for reducing or eliminating these odors are to spray reactant on the affected areas, place more cover, such as dirt or hydrated lime, on the pile, and have employees routinely patrol the perimeters of the property and the active cell to report any odors that they smell. Although the facility has been accepting waste products for a number of years, the last seven by Respondent, there is no evidence that the Department was aware of any odor complaints before April 2014. While not an active participant in the operations until recently, Mr. Miller also testified that he was unaware of any citizen complaints being reported to the facility prior to that date. However, in response to citizen complaints that more than likely were directed initially to the County, on April 14, 21, and 24, 2014, the Department conducted routine inspections of the facility. During at least one of the visits, objectionable odors were detected both on-site, emanating from cell 2, and off-site on West Pinestead Road, just north of the facility. See Dept. Ex. 14. Because the inspector created a single report for all three visits, he was unsure whether odors were detected on more than one visit. After the inspection report was generated, Department practice was to send a copy by email to the facility's former manager, Mr. Davidson. A Department engineer who accompanied the inspector on at least one visit in April 2014 testified that she has visited the site on several occasions, and on two of those visits, the odor was strong enough to make her physically ill. On a follow-up inspection by the Department on May 22, 2014, the inspector did not detect any objectionable odors. See Dept. Ex. 17. In June 2014, however, a County inspector visited the Wedgewood Center area in response to a complaint that dust was coming from the facility. He testified that he detected a rotten egg type smell on the Wedgewood Center property. At a meeting attended by Mr. Miller and County and Department representatives on June 17, 2014, the Department advised Respondent of its findings and provided Mr. Miller with copies of the inspection reports. On July 1, 2014, the Department conducted a follow-up inspection of the facility. The inspector noted a hydrogen sulfide odor on the north, south, and west sides of the disposal area of the facility, and on the top of the disposal pile at the facility. See Dept. Ex. 18. Another inspection conducted on July 9, 2014, did not find any objectionable odors. See Dept. Ex. 19. On July 18, 2014, the Department conducted a follow-up inspection of the facility. The inspector again noted objectionable odors at the facility but none off-site. Id. On July 24, 2014, Department inspectors noted objectionable odors on top of the pile, the toe of the north slopes, and off-site on West Pinestead Road. See Dept. Ex. 20. An inspection performed the following day noted objectionable odors on top of the pile and the toe of the north slopes, but none off-site. Id. The Notice, which was already being drafted in mid-July, was issued a week later. In response to the meeting on June 17, 2014, Respondent prepared a draft odor remediation plan, made certain changes suggested by the Department, and then submitted a revised odor remediation plan prior to July 31, 2014. A Department engineer agrees that "in the strict sense it meets the requirements of the rule" and "could work," but there are "two or three things that still needed . . . to be submitted in order for it to be completely approvable." For example, she was uncertain as to how and when dirt cover would be applied, and how erosion would be controlled. Although the plan was filed, it was never formally approved or rejected, and the "two or three things" that the witness says still needed to be done were never disclosed to Respondent. Under these circumstances, it is reasonable to accept Respondent's assertion that it assumed the plan was satisfactory and complied with the rule. After the Notice was issued, Respondent set up a hotline for community members to call and report odors. A sign on the property gives a telephone number to call in the event of odors. At an undisclosed point in time, Respondent began requiring employees to walk the perimeter of the facility each day to monitor for odors; spreading and mixing hydrated lime to reduce the odors around the facility; and increasing the amount of cover applied to the working face of the facility. The parties agree that these measures are the best available practices to monitor and eliminate objectionable odors at a C & D facility. Despite these good faith measures, Mr. Miller acknowledged that he visited the facility during the evening a few days before the final hearing in December 2014 and smelled hydrogen sulfide around the ECUA sewer pipe and "a very mild level" by the debris pile. Respondent does not deny that odors were emanating from the facility during the months leading up to the issuance of the Notice. But in April 2014, the County experienced a 500- year storm event which caused significant flooding and damaged a number of homes. Because Respondent operates the only C & D facility in the County and charges less than the County landfill, it received an abnormal amount of soaked and damaged C & D debris, which it contends could have generated some, if not all, of the odors that month. Given the magnitude of the storm, this is a reasonable explanation for the source of the odors at that time. Respondent also presented evidence that an underground ECUA sewer pipe that runs on the eastern side of the property was damaged during the storm, causing it to rupture and be exposed. Although ECUA eventually repaired the damaged pipe at a later date, the pipe is still exposed above ground. Until the pipe was repaired, Respondent's assumption that it likely contributed to some of the odors detected by the Department appears to be valid. Finally, Respondent's expert attributes some of the odors to biological degradation from other sources both on-site and off-site, including a large wetland area running through the middle of the property. To a small degree, County testing later that fall confirms this assertion. The County has also been an active participant in the odor complaint issue. In response to complaints received from residents of Wedgewood, in July 2014 it began collecting hydrogen sulfide data using a device known as the Jerome 631X Hydrogen Sulfur Detector. This equipment is used to monitor for the presence of hydrogen sulfur. On July 21 and 22, 2014, samples were taken documenting that hydrogen sulfide was coming from the facility. In early September the County set up a fixed station at the Wedgewood Center, around 500 feet from the edge of Respondent's property, to continuously and automatically collect the data. During September and October 2014 the detector reported the presence of hydrogen sulfide at that location 64 percent of the days in those months, and this continued into the month of November. Seventy-five percent of the exceedances occurred when wind was blowing from the south, or when winds were calm. The data also reflected that when the wind was blowing from the meter to the facility, or to the south, hydrogen sulfide was still detected on some occasions. A resident of the Wedgewood community testified that on multiple occasions she has smelled objectionable odors in her home and yard and at the Wedgewood Center, and that these odors have been emanating from the facility for a number of years. Because of the odors, she says fewer citizens are participating in programs hosted by the Wedgewood Center.3/ The evidence establishes that before the Notice was issued, Respondent filed an odor remediation plan that was never rejected; therefore, the allegation that a plan was not submitted has not been proven. However, objectionable odors were detected off-site in June and July 2014, or after the April inspection reports were provided to the facility, and they continued throughout much of the fall. Therefore, the Department has established that the plan was not properly implemented. These same findings sustain the allegation that steps were not immediately taken to reduce the objectionable odors. Counts VI and VII - Disposal and Failure to Remove Unauthorized Waste Counts VI and VII allege that on April 14, 2014, the Department documented the disposal of prohibited or unauthorized waste, including waste tires; and that on July 18, 2014, the Department conducted a follow-up inspection that documented the disposal of unauthorized waste, including waste tires, clothing, shoes, and Class I waste, including one electronic item and a grill, in violation of rule 62-701.730(4)(d). The Permit specifies that the facility can only accept for disposal C & D debris. See § 2, Spec. Cond. C.2. Another condition provides that if unauthorized debris is spotted after a load is received, the unpermitted waste should be removed and placed in temporary storage in a bin at the sorting area. See § 2, Spec. Cond. C.3. The Operations Plan spells out these procedures in great detail. Photographs received in evidence show that during the inspection on April 14, 2014, the following unauthorized items were observed at the facility: tires, a basketball goal, Quiklube material, chromated copper arsenate treated wood, a toy, and a crushed electronic item. See Dept. Ex. 22. Photographs received in evidence show that during an inspection on July 18, 2014, the following unauthorized items were observed at the facility: blanket or clothing, a shoe, a bag of Class I garbage, several bags of household garbage, furniture, an electronic item and garbage, drilling mud, a suitcase, and tires. See Dept. Ex. 23. Respondent's expert, who has trained numerous spotters, including a current Department inspector, established that a de minimis amount of unpermitted waste, which is easily hidden in the debris, is not unusual and would not constitute a violation of the rule. For example, when a building is torn down, numerous thermostats containing mercury vile will be in a C & D container but very difficult to see. Also, workers at construction sites may throw small amounts of leftover food in the pile of debris that goes to the facility. However, he agrees that most, if not all, of the items observed during the two inspections would not be considered de minimis. Respondent does not deny that the unauthorized waste was present on two occasions. However, it contends that one would expect to find some of the items in a C & D dumpster. It also argues that the amount of unauthorized waste was minimal and not so serious as to warrant revocation of its Permit. The evidence supports a finding that on two occasions Respondent violated two conditions in its Permit by accepting non-C & D waste and failing to remove it. Therefore, the charges in Counts VI and VII have been proven. Count VIII - Facility Outside of Permitted Dimensions This Count alleges that on May 22, 2014, the Department conducted an inspection of the facility in response to a complaint that Respondent had disposed of solid waste outside its permitted (vertical) limit of 130 NGVD; that on July 25, 2014, the Department had a survey performed at the facility that confirmed this violation; and that this activity violated section 2.3 of the facility's Operation Plan and Specific Condition C.10 in the Permit. Section 2.3 provides that "the proposed upper elevation of waste at the [facility] will range up to 130-feet, NGVD, which is slightly above original grade[,]" while Specific Condition C.10 provides that "[t]he final (maximum) elevation of the disposal facility shall not exceed 130 feet NGVD as shown on Attachment 3 - Cell 2 Closure Grading Plan." Respondent admits that on July 25, 2014, the maximum height of the disposal pile exceeded 130 feet NGVD. However, it argues that, pursuant to Specific Condition C.10, which in turn refers to the Permit's Cell 2 Closure Grading Plan, the 130-foot height limitation comes into play only when cell 2 is being closed and is no longer active. This interpretation of the conditions is rejected for at least two reasons. First, a disposal pile in excess of the established height would trigger concerns about the integrity of the foundation of the facility. When the 130-foot ceiling was established by the Department at the permitting stage, it was based on calculations that the ground could support the weight of the waste. Second, the facility's financial assurance calculations are based on a set dimension of the site; these calculations would likely be impacted if there were no height restrictions. The Department's interpretation is more reasonable and limits the height of the pile to no more than 130 feet NVGD at any time when the cell is active. The Department has established that Respondent violated Permit conditions by disposing of waste outside its maximum permitted height of 130 feet NVGD. To Respondent's credit, its new consultant, Charles Miller, completed preparation of a height reduction plan on September 3, 2014. See Resp. Ex. 4. Although Mr. Miller says the plan was being implemented at the time of final hearing, it has never been formally submitted to the Department for approval. Under the plan, Respondent proposes to extract all of the existing waste from the pile in the next two years. To reduce the volume of new waste being accepted, Respondent recently purchased a Caterpillar bulldozer, low-speed grinder, and Trommel screener. New waste will be shredded, screened to separate sand and dirt from the material, and then ground and compacted. Mr. Miller anticipates that the facility can achieve up to an eight to one (or at a minimum a five to one) reduction in the size of the waste. This will dramatically reduce the height of the pile and bring it well below 130 feet at closure. But whether cell 2 is now below 130 feet NGVD is unknown. In any event, these proposed remediation steps should be taken into account in assessing an appropriate penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking Respondent's C & D Permit. DONE AND ENTERED this 2nd day of March, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2015.
