The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation. Its president is William T. Lamsom. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby. Porthouse learned that Orchard View was the owner of the property on which the drums were located. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor." When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground." Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated). Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum. The samples that Magnum had collected from the drums were sent to the laboratory for analysis. The analysis revealed the following: drum number 11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number 2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2 The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was $6,525.13. The Department is requesting that Orchard View reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234. DONE AND ENTERED this 15th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1998.
The Issue Petitioner is charged pursuant to a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance with a violation of Section 386.04(1)(a) and (b), Florida Statutes (1997), which describes conditions that are prima facie evidence of a sanitary nuisance injurious to health.
Findings Of Fact It was stipulated that Petitioner, Ann B. Harvey, through her company Harvey Enterprises and Company, Inc., owns the home at 102 Williams Street, Palatka, Florida. At all times relevant to the alleged violation, the home was occupied by tenants. The tenants vacated the house on or about October 13, 1998. Kenneth F. Burnett, Environmental Specialist I, with the Putnam County Health Department, first investigated a complaint regarding the property at 102 Williams Street, Palatka, Florida, on August 5, 1998. He witnessed faulty plumbing in the home and ponded wastewater at the back of the home. On August 11, 1998, Mr. Burnett drafted and mailed a Notice to Abate. The notice was mailed by certified mail return receipt requested and received by Ann B. Harvey on August 25, 1998. Ann B. Harvey signed the return receipt for the Notice to Abate on August 25, 1998. Mr. Burnett again inspected the property on September 2, 1998, and found no change in the status of the faulty plumbing and ponded wastewater. On September 9, 1998, Mr. Burnett again inspected the property and determined there had been no changes. David Flowers, Environmental Specialist II, became involved in the case on September 18, 1998, when he inspected the property. Mr. Flowers observed that wastewater ponded on the ground at the back of the home, and that the plumbing inside the home was in disrepair. Ms. Laurey Gauch, Environmental Health Director for Putnam County Health Department testified. She inspected the property in question on September 18, 25, and 28, 1998. Ms. Gauch observed ponded wastewater in the backyard and plumbing in disrepair inside the home on each visit. Ms. Gauch opined that the condition of the property was a sanitary nuisance in violation of Section 386.041(1)(a) and (b), Florida Statutes (1997), because the ponded wastewater would breed disease (bacteria, viruses, etc.) and contamination. A Citation for Violation was received and signed for by Ronald Harvey on September 25, 1998, pursuant to statutory authority at Section 381.0065, Florida Statutes (1997). The citation cites the Petitioner for violation of Section 386.041(1)(a) and (b), Florida Statutes (1997). On September 25, 1998, Mr. Flowers again inspected the property, and observed that the sewage remained on the ground at the rear of the home. Mr. Flowers flushed dye in the toilet to determine if the standing water was coming from the toilet inside the home. The dye would run out onto the ground if the ponded water was from the toilet. Mr. Flowers inspected the problem on September 28, 1998. Sewage remained ponded on the ground at the rear of the home and the water bubbled when the toilet was flushed. Mr. Flowers re-inspected the property on September 29, 1998, and flushed dye in the toilet. He documented that the dye came to the ground surface. During the visit, Mr. Flowers was accompanied by a County Codes Enforcement Officer who condemned the home. On October 6, 1998, Mr. Flowers returned to the property with his supervisor, Geoff Batteiger. The tenants were still living in the home, but were reported to be leaving. The plumbing in the home remained unrepaired. When the toilet was flushed, water bubbled onto the ground surface. The problem had neither been abated, nor were there any signs that the problem was being corrected. No repairs were made to the premises between August 25, 1998, and October 6, 1998, a period of one and one-half months during which tenants lived in the home. On November 17, 1998, the property was reinspected by Mr. Burnett and Mr. Batteiger. They observed that the sanitary nuisance had been remedied. Ms. Lucille Harvey, property manager and sister-in-law to the Petitioner, testified for Petitioner. She collects rents and arranges for repairs. She had contacted one handyman who came to the home, but refused to do the work because of foul odor in the yard and fleas. Ms. Lucille Harvey did not contact anyone else for repairs until after the tenants had vacated the premises. The tenants kept dogs in the backyard where the problem was, and were uncooperative with the landlord. Ms. Lucille Harvey testified that she notified the Petitioner of the sanitary nuisance at the end of August 1998, and the problems she was having making repairs. Petitioner, Ann Harvey, testified she commenced eviction proceedings for the tenant at 102 Williams Street on or about July 12, 1998. The proceedings were on-going due to various legal exigencies until the tenants vacated the premises on or about October 13, 1998. Ms. Harvey was out-of-town from approximately July 22, 1998, through August 15, 1998, during which time a judge dismissed the eviction action. The action was recommenced. The tenant made a partial payment of one month, which Petitioner accepted. The judge again dismissed the eviction action. The sanitary nuisance at the property in question was not remedied until the Petitioner evicted the tenants and gained access to the premises. Mr. Thomas Harvey, handyman and brother Ron Harvey, testified that he began working on the repairs at the home at 102 Williams Street, on November 2, 1998. He testified that he replaced broken lines, cleaned a grease trap, and snaked the kitchen and bathroom. These repairs concluded on or about November 12, 1998.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Department of Health enter a final order waiving the fine and payment as stated in the Citation for Violation. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 9th day of April, 1999. COPIES FURNISHED: Ron Harvey Route 2, Box 1650 Palatka, Florida 32177 Ann B. Harvey 102 Williams Street Palatka, Florida 32177 Susan E. Lindgard, Esquire Department of Health 1000 Northeast 16th Avenue Box 19 Gainesville, Florida 32601 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
The Issue The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.
The Issue The issues in this case are whether the Respondents, Enos Kerr and Custom Care Dry Cleaning, Inc., are guilty of the violations alleged in, should take the corrective actions described in, and should pay the penalties assessed in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment, DEP OGC File No. 06-2382-37-HW (the NOV).
Findings Of Fact Enos Kerr is the President and manager and an owner of Custom Care Dry Cleaning, Inc., a dry-cleaning business located in Tallahassee, Florida. The Respondents have been in business for approximately twenty-five years. For approximately ten years, Custom Care has used Vista LPA-142 as a dry-cleaning solvent. Custom Care uses a spotting agent known as "Picrin" for removal of difficult stains. Vista LPA-142 is also known as paraffinic, napthenic solvent, and aliphatic solvent. It contains 100 percent paraffinic or napthenic solvent. It looks like water but is a white oily liquid that has the odor of hydrocarbon and is a kind of "mineral spirits." "Picrin" contains more than 98 percent chlorinated hydrocarbon. It is listed at 40 Code of Federal Regulations (CFR) § 372.65 and exceeds the de minimis concentration defined in 40 CFR § 372.38. On August 18, 2006, John Johnson, a DEP Environmental Specialist, inspected the premises of Custom Care. He found two partially full 55-gallon steel drums of Vista LPA-142 outside of secondary containment, which contained a 110-gallon storage tank and Custom Care's Midwest dry-cleaning machine (which has a base tank that stores used Vista LPA-142 which has passed through a Filter King purification system for reuse in the dry-cleaning machine). He testified that, not only did Mr. Kerr tell him the drums were full or partially full, they were heavy enough from being full or partially full that Mr. Johnson could not move them easily. On August 18, 2006, Mr. Johnson also observed, hanging on the outside of the wall of the secondary containment area, above the 55-gallon drums, some of the clear plastic tubing, a pump, and a PVC pipe extending from the end of the tubing, which were used to transfer Vista LPA-142 from the 55-gallon drums into the 110-gallon storage tanks. The floor beneath the transfer equipment and the 55-gallon drums was not sealed or otherwise treated to render it impervious. In another part of the premises on that date, also outside secondary containment, was a Forenta spotting board used for removal of difficult stains from fabric before placement in the dry-cleaning machine. Various chemicals, including a plastic bottle containing "Picrin," were in a box or tray attached to the spotting board. Beneath the spotting board was an open plastic waste basket used to collect and contain spotting agent suctioned from the item of clothing being cleaned and funneled to the basket. The floor under the spotting board was not sealed. Custom Care's Filter King purification system uses cloth filters. Periodically, Custom Care replaces the filters containing lint from the dry-cleaning process. The old filters are allowed to air-dry in the secondary containment area before disposal in the municipal solid waste dumpster outside the premises. At the end of Custom Care's dry-cleaning process, the dry-cleaned clothes are wrung out during a mechanical spinning cycle and then manually transferred while still damp or somewhat wet to a Huebsch dryer, which is outside secondary containment and on a floor that was not sealed on August 18, 2006. Air- drying is the last step in the process. DEP did not have the filters and lint analyzed to prove that they were contaminated with Picrin or any other hazardous substance. Instead, DEP assumed that there was some contamination, however small, and relied on the federal "mixture" rule that even the smallest amount of hazardous waste contamination turns previously unregulated solid waste into regulated hazardous waste. Count I - Secondary Containment Respondents' factual defenses to Count I, for not having the Vista LPA-142 in secondary containment on August 18, 2006, are: (1) secondary containment was not required because Vista LPA-142 is not a "dry-cleaning solvent"; and (2) if secondary containment was required, all of the Vista LPA-142 was in secondary containment because the 55-gallon drums and transfer equipment were empty. In support of their first defense to Count I, Respondents maintain that Vista LPA-142 is an aqueous solvent because an analysis of a sample from the base tank that collects used Vista LPA-142 after use and filtration for reuse in the dry- cleaning machine indicates the presence of 0.34 percent water. However, the presence of that small amount of water in the sample did not prove that Vista LPA-142 is an aqueous solvent. Custom Care also contends that Vista LPA-142 is not a "dry-cleaning solvent" because Custom Care buys it from Phenix Supply Company, which not only sells product to dry-cleaners but also sells to other businesses for other uses, making Phenix Supply something other than a "wholesale supply facility." This contention is rejected. See Conclusion 33, infra. Also in support of their first defense to Count I, Respondents pointed to information received from the producer of Vista LPA-142 that it was biodegradable to carbon dioxide and water. However, biodegradation would occur only in the presence of water and naturally-occurring microorganisms and aerobic conditions. Such biodegradation does not mean that Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum- based, dry-cleaning solvent. Respondents also believed Vista LPA-142 was not a petroleum-based dry-cleaning solvent because it has a flashpoint above 140 degrees Fahrenheit. But there was no evidence to prove that having a flashpoint above 140 degrees Fahrenheit means that the Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum-based, dry-cleaning solvent. In support of their second defense to Count I, Mr. Kerr denies telling Mr. Johnson the 55-gallon drums were full or partially full and maintains that the presence of a bung wrench on one of the drums was a fail-safe sign that both were empty (and, essentially, proved that Mr. Johnson was lying). Supposedly, according to Respondents, the Vista LPA-142 always is transferred immediately upon delivery from the 55-gallon drums into the 110-gallon tank and, sometimes, also into the base tank, and that the bung wrench is placed on one of the empty drums as a signal to the supplier that the drums are empty and ready to be removed when the supplier returns in two weeks to check on the drums to see if they are empty and ready to be picked up. This explanation is not logical. To the contrary, the use of the bung-wrench signal tends to prove the opposite--i.e., that the drums were not empty. If the Vista LPA-142 always is immediately transferred in its entirety, there would be need for a bung- wrench signal. Indeed, the Vista LPA-142 could be immediately transferred by the supplier (or by the Respondents while the supplier was still on the premises). In addition, Mr. Kerr conceded that there have been many other occasions when the 55- gallon drums were not completely transferred into the 110-gallon storage tank immediately upon delivery. There also have been occasions when three 55-gallon drums have been delivered by the supplier, all of which would not fit into the 110-gallon reserve tank and the base tank. In addition, during an enforcement meeting on September 13, 2006, to discuss a draft Hazardous Waste Inspection Report, while noting other issues with findings in the report, Mr. Kerr did not take issue with findings concerning the 55- gallon drums. Also in support of their second defense to Count I, Respondents maintain that the transfer equipment is emptied of all Vista LPA-142 before it is re-hung on the wall. This can indeed be accomplished by quickly extracting the PVC extension from the drum, reversing its orientation by 180 degrees so that it point toward the ceiling, and continuing to run the pump until the tubing is empty. In any event, while stains on the concrete floor under where the PVC pipe is hung on the wall may be from Vista LPA-142, which would suggest that the procedure is not always followed to perfection, the NOV did not cite Respondents having the transfer equipment outside of secondary containment. Count II - Unsealed Flooring Respondents' factual defense to Count II, for not having the flooring sealed between the secondary containment area where the dry-cleaning machine was and where the Huebsch dryer was, or where the 55-gallon drums were, is that secondary containment was not required because Vista LPA-142 is not a "dry- cleaning solvent." Factually, that defense already has been addressed in Findings 11-14, supra. Count III - Disposal of Solid Waste Respondents' factual defenses to Count III, for unpermitted and unauthorized disposal of solid waste (i.e., the filters and lint) on August 18, 2006, are: (1) that disposal of the filters and lint in the municipal solid waste dumpster is permitted and authorized because they are not hazardous waste; and (2) that, if they were hazardous waste, they were hazardous due to contamination with Picrin, not with tetrachloroethylene, also known as perchloroethylene or "perc," as alleged in the NOV. In support of their first defense to Count III, Respondents contend that all Picrin used in spot removal would be suctioned out of the item of clothing and collected in the container below the spotting board, or would be evaporated by the steam used in the spot removal process. Indeed, Picrin's boiling point is 165 degrees Fahrenheit, which is lower than the temperature of steam. Respondents contend, as proof of their first defense, that if any trace of Picrin remained on clothing after spot removal, it would be diluted in the Vista LPA-142 used in the dry-cleaning process and then returned to the base tank for reuse after the clothes are wrung out, but that a laboratory analysis of a sample of from the base tank did not indicate the presence of anything but water. However, actually the analysis was only performed to detect the presence of water; the sample was not analyzed for the presence of Picrin, or any of its breakdown products, or anything other than water. There may be traces of Picrin in the contents of the dry-cleaning machine's reservoir. Besides, even if there is no Picrin in the dry-cleaning machine's base tank, that evidence would not preclude the possibility that Picrin is filtered out by the Filter King purification process and is present in the filters and lint. Regardless, while the first defense to Count III was not proven, DEP presented no evidence on the question whether it is likely the filters and lint would be contaminated with Picrin. Rather, DEP's evidence assumed contamination without any further proof. As to Respondents' second defense to Count III, the NOV does in fact reference tetrachloroethylene, also known as perchloroethylene or "perc." However, it also calls the chemical "Picrin ® which contains 100% Tetrachloroethylene ('Perc')." The confusion arose because, during his inspection, Mr. Johnson obtained from Custom Care's files a Material Safety Data Sheet (MSDS) for Picrin. When he consulted with the manufacturer, he was told that the MSDS was out-of-date, and the manufacturer provided him with the current MSDS for Picrin. Then, the draft Hazardous Waste Inspection Report discussed during the enforcement meeting on September 13, 2006, referred to "today's Picrin [which] contains 100% Trichloroethylene ('Perc')." Mr. Kerr pointed out that "perc" was tetrachloroethylene, not trichloroethylene. From this, Mr. Johnson and Mr. Byer understood Mr. Kerr to be admitting to the use of "perc," which he was not. In an attempt to correct the report in accordance with Mr. Kerr's comment, DEP modified the report so that the final draft referred to: "today's Picrin [which] contains 100% Tetrachloroethylene ('Perc')." Even if the NOV is not defective in referring to "Perc" instead of clearly stating that Picrin was the alleged hazardous waste involved, DEP failed to prove that Picrin was mixed with the filters and lint. For that reason, DEP did not prove the allegations in Count III. Count IV - Investigative Costs The Department's proof of investigative expenses incurred consisted of the salary compensation paid to its investigators. Mr. Johnson’s salary is $17.53 per hour. He spent approximately 55 hours conducting inspections and investigating this case, which totals $964.15. Mr. Byer’s salary is $22.87 per hour. He spent approximately 96 hours investigating this case, which totals $2,195.52. Corrective Actions Upon re-inspection of the premises on November 8, 2006, Respondents were in compliance with all requirements. Deliveries of Vista LPA-142 were being transferred into the 110-gallon storage tank and base tank by the supplier upon delivery, and Respondents had sealed the flooring appropriately. It is not clear from the evidence what was being done with the filters and lint, but apparently they were being appropriately disposed of as hazardous waste at the time of the follow-up inspection. Other Mitigating Circumstances The evidence reflects a misunderstanding on the part of Respondents that, because Custom Care uses Vista LPA-142 and is considered a "mineral spirits" dry-cleaner, as opposed to a "perc" dry-cleaner that uses "perc" or some other form of chlorinated hydrocarbon that is a hazardous material in its dry- cleaning machine, it is not governed by dry-cleaning statutes and regulations.
The Issue The issue is whether Dr. Vigna and his corporation, AVA Hazardous Waste Removal and Disposal, Inc., should be disciplined for the improper disposal of hazardous waste.
Findings Of Fact Lyn-Rand, Inc., was a corporation in the metal fabrication and painting business in Dade County, Florida, during April and May of 1989. The industrial processes used by Lyn-Rand required the use of solvents, cutting oils, and other chemicals. Lyn-Rand employed Courtney Warrenfeltz as its quality control director. Mr. Warrenfeltz had met Dr. Anthony Vigna, who held himself out as a transporter of hazardous waste. Dr. Vigna offered to dispose of 55-gallon drums of waste which had accumulated at the Lyn-Rand facility. Dr. Vigna took samples of the waste, offered to use his federal EPA identification number in connection with the disposal, and do all the paper work involved with the disposal. Mr. Warrenfeltz believed, based upon his conversations with Dr. Vigna, that Dr. Vigna was knowledgable about hazardous waste disposal. Mr. Warrenfeltz made arrangements for Dr. Vigna to pick up nine drums of cutting oils and cleaning solvents on Saturday, April 29, 1989. Dr. Vigna was paid $500 per drum. Those drums had been marked with "x's" on the tops and sides. An employee of Lyn- Rand, Carlos Alayon, had been left instructions to expect Dr. Vigna, and had been given a check to give Dr. Vigna when the drums were picked up. While Dr. Vigna was at the Lyn-Rand site to pick the drums up, he asked Alayon for some black paint which Dr. Vigna used to paint over the labels on the drums. Alayon then helped Dr. Vigna load the drums into a rental truck. Dr. Vigna gave Mr. Alayon no paperwork, such as a manifest, receipt, or shipping papers. Mr. Warrenfeltz never received any paperwork from Mr. Alayon or from Dr. Vigna. The drums Dr. Vigna took from Lyn-Rand were discovered later, Saturday, April 29, 1989, at the business premises of Compliance Technology, Inc., a corporation located in Broward County, which is licensed to act as a broker for hazardous waste. Compliance Technology, Inc., does not, however, act as a transporter of hazardous waste. The employee of Compliance Technology who found the drums near the back loading dock, Mike Webb, was concerned, because their labels had been obliterated with black paint and the only marks on the drums were the "x's." The obliteration of the labels was a cause for concern and the bungs appeared to be leaking around the tops of two of the drums. The drums had been abandoned near a storm drain. The drums were not fenced or secured; if someone had driven into them due to their placement on the ground near the loading dock, the drums could have ruptured and the contents flowed into the storm drain and eventually into the Biscayne Aquifer. Mr. Webb notified the founder of Compliance Technology, Dr. Solon Cole, of the discovery of the drums, and the matter was reported on or about May 1, 1989, to the Broward County Environmental Quality Control Board and the City of Hollywood Police Department. Compliance Technology moved the drums away from the storm drain, barricaded them, and replaced bungs in two of the drums. On or about May 5, 1989, Dr. Cole notified Jeff Tobergte, of the Department of Environmental Regulation office in West Palm Beach, about the drums. Mr. Tobergte went to Compliance Technology the next day, and photographed the drums and sampled their contents. He found that the drums contained various solvents, including methylene chloride, ethylbenzene, toluene, xylene and phenol. The samples had a pH of less than 2 and a flash point of less than 60 degrees centigrade, and therefore were hazardous wastes. Dr. Cole and Mr. Tobergte were able to determine that one of the drums had a label which stated "Spray Iron Phosphatizer and Cleaner" "SC-283" from Novamax Tech in Atlanta, Georgia. After contacting Novamax Tech, Mr. Tobergte learned that SC-283 is an unusual product with only four buyers in Florida, three of them in Dade County, including Lyn-Rand. Mr. Tobergte then drove to all three locations in Dade County which were customers of Novamax Tech, and determined that the most likely source of the drums at Compliance Technology was Lyn-Rand. Mr. Tobergte visited Lyn-Rand on May 8, 1989, and verified that the drums he had photographed were drums which originated at Lyn-Rand. The verification was made by comparing the photographs of the drums left at Compliance Technology with drums at Lyn-Rand which still had labels. Mr. Warrenfeltz recognized the markings on the photos of the drums left at Compliance Technology. The pine needles found on the drums were also significant, since drums were stored in a manner at Lyn-Rand which lead to pine needles falling upon them. Mr. Warrenfeltz told Mr. Tobergte that Lyn-Rand had recently shipped nine drums and recognized the drums from the photographs as those delivered to Dr. Vigna. Lyn-Rand removed the drums from Compliance Technology's property and arranged for their proper disposal. Neither Dr. Anthony Vigna nor AVA Hazardous Waste Removal and Disposal, Inc., has any EPA identification number. After the discovery of the abandoned drums, Mr. Vigna mailed a letter to Compliance Technology on May 10, 1989. The letter was backdated to April 28, 1989, and states in part that it was sent to Dr. Solon Cole, the President of Compliance Technology, "to make you aware of a delivery of nine drums that my driver will be leaving off at your plant." The letter was an after-the-fact attempt by Dr. Vigna to cover himself, which is foiled by the postmark date the letter bears. The content of the letter itself, however, leaves the impression that Dr. Cole and Compliance Technology had no prior awareness of the delivery, which is consistent with the testimony of Dr. Cole, that he had not agreed to any delivery of hazardous waste by Dr. Vigna, because Compliance Technology is not a hazardous waste storage facility, or a transporter of hazardous waste. It had acted as a broker for entities needing to dispose of hazardous waste. Dr. Vigna had visited Compliance Technology, and should have known that it did not store hazardous waste. This after-the-fact letter is also inadequate to constitute a shipping manifest for the hazardous waste delivered by Dr. Vigna, for there is no designation of the source of the material, or explanation of the contents of the drums. It does not approximate the kinds of documents used by legitimate hazardous waste transporters. Perhaps most significantly, Dr. Vigna and his company never contacted Dr. Cole after the drums were dropped at the Compliance Technology site to make arrangements to pay Compliance Technology for handling the drums, as the letter of May 10, 1989, suggests. Dr. Vigna maintains that his delivery of the drums to Compliance Technology was the result of a misunderstanding he had with Dr. Solon Cole. Dr. Vigna maintained that he and Dr. Cole had discussions concerning possible business ventures and he told Dr. Cole that he would be delivering nine drums of cutting oils and cleaning solvents to Compliance Technology, Inc. This testimony is rejected as much less credible than that of Dr. Cole, and because of the rather significant problems with the letter Dr. Vigna mailed on May 10, 1989, which was designed to cover himself, not to notify Compliance Technology of a delivery before the delivery was to be made. There is some slight corroboration of Dr. Vigna's version of the facts which arises from the decision of Compliance Technology not to press criminal charges against Dr. Vigna. The lawyer for Compliance Technology, Arthur Luongo, wrote to the Assistant State Attorney on June 7, 1989, and said: I have a great concern that Compliance Technology may be liable for a malicious prosecution action should they [the employees of Compliance Technology] testify in a criminal proceeding against Mr. Vigna. I see the case as one of simple civil negligence arising out of an honest, though admittedly stupid, mistake. It is the intention of Compliance Technology to become a public corporation within a year, and being the defendant in such a suit could seriously effect the value of their stock. They do, however, intend to recover civil restitution for their time, efforts and energy in locating Mr. Vigna. At best, this letter demonstrates that Compliance Technology had its own reasons for not wanting to press any criminal proceedings, but does not show that Dr. Vigna's actions were proper. Dr. Vigna's position would have been much more persuasive if the letter sent to Compliance Technology had actually been sent near the time it was dated (April 28), or if he had made contact with Dr. Cole to discuss pricing for what Dr. Vigna contends would have been Compliance Technology's efforts in arranging for final disposal of the Lyn-Rand material. It is strange that Dr. Vigna arrived at a price to charge Lyn-Rand without knowing what his price for disposal would be from Compliance Technology. That cost to Dr. Vigna was not relevant if Dr. Vigna intended merely to dump the material. The Department's characterization of the material as abandoned by Dr. Vigna is sustained by the evidence. Dr. Vigna acted as a transporter of hazardous waste. Because the drums were rusted, two bungs had to be replaced, and were leaking, Dr. Vigna is properly regarded as having caused pollution in transporting and leaving them at Compliance Technology. The Department incurred $2,936.58 as costs and expenses in tracing the pollution back to Dr. Vigna and arranging for its proper disposal.
Recommendation It is RECOMMENDED that Dr. Vigna and AVA Hazardous Waste Removal and Disposal, Inc., be found guilty of the violations alleged in the Administrative Complaint, that a final order be entered directing them to refrain from the transportation of hazardous waste unless they first notify the Florida Department of Environmental Regulation, obtain an EPA identification number, demonstrate their financial security, and comply with all standards and procedures required by rules of the Department and applicable federal regulations; it is also RECOMMENDED that they be required, jointly and severally, to reimburse the Department $2,936.58. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April 1992. APPENDIX TO RECOMMENDED ORDER The Petitioner's proposed findings of fact are addressed as follows: Adopted in Finding 1. Generally adopted in Finding 1. Adopted in Finding 1. Adopted in Findings 1 and 2. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Rejected as redundant of Finding 1. Adopted in Finding 16. The Respondent's proposed findings of fact are addressed as follows: Adopted in Finding 1. Adopted in Finding 3. Adopted in Finding 10. Rejected, see Finding 13. Rejected as unnecessary. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 4. Rejected for the reasons stated in Findings 10-15. Rejected, see Finding 11. It is in the nature of a manifest that it needs to be delivered with the material it is designed to accompany. A "manifest" which Dr. Vigna maintained as his own record is no manifest. Rejected because the material was left unsecured near a loading dock. Its location near the storm drain, and the obliteration of the labels lead to the conclusion that the way was it was left did constitute an imminent hazard. Rejected, see Finding 3. Rejected because the leakage from the bungs, while not severe, did present the risk of pollution through contamination of the Biscayne Aquifer if any of the contents of the nine drums had been introduced into the storm drain. Rejected, see Finding 3. COPIES FURNISHED: Agusta P. Posner, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Steven N. Rosenthal, Esquire Suite 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to a permit permitting installation of an on-site sewage disposal system (OSDS) on his property located in Dixie County, Florida, in the vicinity of the Suwannee River and whether he is entitled to seek a variance from the statutes and rules concerning permitting of such systems.
Findings Of Fact The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Recommendation Having considered the foregoing Findings of Fact and 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 the Petitioner's application for an OSDS permit, without prejudice to the applicant applying for and seeking a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above, and without prejudice to applying for and pursuing an OSDS permit application should the applicant, at a later time, be able to demonstrate that alternative methods of treatment and disposal of the sewage effluent at issue can feasibly be performed, within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE and ENTERED this 21st of December, 1990 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-2487 PETITIONER'S PROPOSED FINDINGS-OF FACT Accepted. Accepted. 5-14. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT 1-7. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John K. McPherson, Esquire 22 South Main Street Gainesville, FL 32601 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609 =================================================================
Findings Of Fact Respondent Jackson County proposes to build a Class I landfill in western Jackson County, about 1.5 miles south of Campbellton on the west side of State Road 273. The named petitioners live near the proposed site, and all parties stipulated to petitioners' standing or party status on account of the proximity of their homes. The forecast is that the proposed landfill would be in service for 15 years, during the last of which it would receive wastes generated by 16,000 persons. Contingent on issuance of the construction permit it seeks in these proceedings, Jackson County has agreed to purchase 85 to 89 acres in section 15, township 6N, range 12W, of which 55 acres would be devoted to the proposed landfill. About ten of the remaining acres are covered by the southern reaches of Grant Pond. Grant Pond may be a sinkhole, but there is no connection between its waters and the Florida aquifer. There is no evidence of sinkhole activity on the site at the present time. One hundred ten feet from the southwest boundary of the proposed site long-time residents have shallow wells from which they once drew water with buckets. There are mostly small farms in the area. A trailer and 6 to 8 homes are located within 1,000 yards of the proposed site. LEACHATE NOT ANTICIPATED Jackson County contemplates eventually dumping 215 cubic yards daily of residential, commercial and agricultural wastes including sewage sludge, in a series of "cells" to H developed seriatim on the site. Developing a cell would entail digging a pit 15 feet deep, 200 feet wide and 650 feet long, lining it with some of the clay removed in excavating, and compacting the two-foot-thick clay bottom liner to 90 percent Proctor. The uncontroverted testimony was that such a liner would be impermeable. A cell is expected to accommodate about a year's worth of refuse. The plan is to have one cell in operation and another in reserve at all times. Waste would be compacted and then covered over with clay soils daily to minimize the possibility of leachate formation. In addition, a six-inch layer of clay would be put down at the end of each "lift," more or less weekly. Once the cell was completely filled, it would be covered with an even thicker layer of clay and/or other materials specified by applicable regulations. Against the possibility of leachate formation before the cell is finally sealed off, the bottom of the cell would be sloped (4:1) so that any leachate generated would accumulate at one point in the cell, from which it could be pumped to a leachate holding pond. The leachate holding pond is also to be lined with impermeable clays. The engineer who designed the project predicts that no leachate whatsoever will be generated and the project plans do not identify the specific method for disposing of leachate, once it reaches the holding pond. Depending on the quality and consistency of any leachate, it could be left in the holding pond to evaporate, or be removed by truck for disposal off site; or be treated biologically and/or chemically before being spread on site. STORMWATER The stormwater management system consists of a series of elongated detention ponds and two ditches, or swales, that drain into Grant Pond. The detention ponds are to be 1.2 feet deep, have varying widths (26.5 to 64 feet), with sides sloping at a 4:1 ratio, and vary in length from 1,000 to 1,600 feet. Water that would accumulate in them as a result of 3.2 inches of rainfall (the amount a 25-year one-hour storm would bring) would fill the ponds. The ponds are designed to overflow through baffled culverts along the swales into Grant Pond. The soils are such that 3.2 inches of rainfall could percolate into the unsaturated soil from the holding ponds in 72 hours. The closest baffle to Grant Pond would be some 200 feet distant; significant sheet flows would also enter Grant Pond. The landfill is designed to insulate stormwater runoff from contamination by waste or leachate. Only when wastes in an almost filled cell had not yet been covered would there be danger that stormwater falling on wastes would end up in the flow of stormwater draining across the surface of the proposed site and ultimately into Grant Pond. This danger could be all but eliminated by placing the last layer of wastes deeply enough in the cell. The plan is to ring the cells with excavated material, as well. If leachate is generated and pumped to the leachate holding pond and if there is enough of it to fill the pond or nearly to fill it, a storm might result in an overflow from the leachate holding pond that would drain eventually into Grant Pond. This danger, too, could be all but eliminated by operating the landfill so that the level of leachate in the holding pond always remained low enough, and by disposing of all leachate, if the facility generates any, off site, rather than "by landspreading on site." Jackson County's Exhibit No. 6. The same people who manage the landfill in eastern Jackson County would manage the landfill here proposed. No leachate has been generated at Jackson County's eastern landfill, but litter that can blow out of the cells at the eastern landfill does. If the same practices obtain at the new site, airborne litter that does not reach Grant Pond on the wing, may later be washed into the Pond by stormwater, even though the baffles would eliminate floatables in the water flowing out of the detention ponds. TWO AQUIFERS The parties are in agreement "that the leachate and or other pollutants will probably never reach the Floridan Aquifer." Petitioners' Closing Argument, p. 4. The Floridan aquifer is a limestone rock formation underlying the proposed site at depths varying between 30 and 130 feet, and separated by a layer of stiff clay from the overlying silts and sands. The stringers of saturated sands lying near the surface comprise a distinct, surficial aquifer that lies between five and twenty feet below ground over most of the site but crops out as Grant Pond on the northern edge of the property. No cell would be built within 200 feet of the highwater line of Grant Pond. The water table in the surficial aquifer, which yields potable water, is a subdued replica of the ground topography. Surface water from the southwest part of the proposed landfill site, where wells are closest, flows into Grant Pond. Water sometimes stands on the southeast part of the site, an area one witness described as boggy. A trailer stands on a parcel adjoining the property to the southeast with its near boundary 300 or 400 feet from the site proposed for the first working cell. No cell is to be dug within 500 feet of any existing or proved potable water well. The application contemplates monitoring wells. Groundwater in the Floridan aquifer flows south. Three wells to a depth of about 45 feet each are planned for south of the cells so that, in the unlikely event that pollution reached the Floridan aquifer, it could be promptly determined. There will also be a monitoring station in Grant Pond so the effect of stormwater runoff on water quality in the pond can be gauged. One well, 250 feet east of the west property boundary and 250 feet south of the north boundary, is planned for monitoring the surficial aquifer. TOXIC WASTES Toxic wastes are generated in Jackson County. Hundreds of drums with a little something still left in them are brought to the County's eastern landfill. No toxic wastes can lawfully be dumped at landfills like the one Jackson County proposes to build near Campbellton, but containers which once held toxic substances can lawfully be disposed of at such landfills, provided they have been rinsed out with water three times. Signs to this effect are to be posted. The landfill would have a single entrance. An attendant would be on duty during the landfill's hours of operation (8 to 5, five days a week), but would not be expected to have sampling equipment or to enforce the triple rinsing requirement, if past practice at the eastern landfill is any indication. When the landfill is not open, according to the applicant's engineer, green boxes will nevertheless be available for dumping. SCREENING Litter fences are planned only "if needed." A green belt 100 feet wide is proposed along the southern and the eastern perimeter of the property. "Appropriate trees and shrubs" are to be planted there, perhaps bamboo or oleander. SEPTAGE DISPOSAL PITS In a letter dated December 1, 1982, under the heading "septage disposal pits", C. G. Mauriello, the engineer who designed the proposed landfill, wrote DER's Wayne Hosid: This item was not shown on the original application but should be included. It has been recognized by the County that disposal of this type waste material should be handled at the new west site and therefore, provisions will be made for the disposal. Basically, a trench type operation similar to the East Site will be provided. The location of the disposal area will be to the south of the Future Holding Pond and north of the Salvage Area. Jackson County's Exhibit No. 6. A drawing prepared by the same person in July of 1982 shows a "septic tank/drainfield" southeast of the location described for the "septage disposal pits." DER's Exhibit No. 1. The permit DER proposes to issue contains numerous conditions, including the following: Construction of septage drying beds will be identical to those permitted under Permit No. 5032-22067 for Jackson East Sanitary Landfill as modified on July 20, 1981. Jackson County's Exhibit No. 9. Permit No. 5032-22067 was not made a part of the record in these proceedings. Incidentally, the word "septage" does not appear in Webster's Third New International Dictionary (1971). A septic tank or any similar system would differ significantly from the systems described by the witnesses who testified at hearing. Septic tanks eventually discharge their contents into surrounding soils, after treatment by anaerobic bacteria. Septic tanks cannot be sealed off by clay or anything else from the earth around them, if they are to function properly. Sooner or later discharge from any septic tank on site could be expected to enter the surficial aquifer and, ultimately, through the groundwater, Grant's Pond. Nothing in the evidence indicates how long it might take for any such effluent to reach the groundwater or leach into Grant Pond; or what its chemical composition might be. MORAL OBJECTION STATED Petitioners' witness Frederick L. Broxton, Sr. testified that, even conceding the absence of a scientific or legal basis for objection to the proposed project, it was immoral for the County Commission to choose a site so close to people's homes, when there was so much land available in that part of the county, where nobody lived. PROPOSED FINDINGS CONSIDERED All parties filed posthearing submissions which have been considered in preparation of the foregoing findings of fact. Respondent Department of Environmental Regulation filed proposed findings which have been adopted, in substance, for the most part. Where proposed findings have not been adopted, it is because they have been deemed immaterial, unsupported-by the weight of the evidence, subsidiary or cummulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation issue Jackson County a permit for construction of a landfill at the site proposed subject to the conditions (except condition No. 24) stated in the proposed permit, Jackson County's Exhibit No. 9, and subject to the following additional conditions: (a) any leachate generated shall be disposed of off site (b) the whole landfill shall be fenced, and the view from State Road 273 shall be obstructed (c) portable fences shall be placed around any cell in use (d) an additional monitoring well shall be placed between the well southeast of the site and the nearest cell and (e) no septic tank or "septage" disposal pits shall be built on site. DONE and ENTERED this 17th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1983. COPIES FURNISHED: Robert L. Travis, Jr., Esquire 229 East Washington Street Quincy, Florida 32351 J. Paul Griffith, Esquire P. O. Box 207 Marianna, Florida 32446 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns a parcel of land in Palm Beach, County on which is housed Petitioner's paving and landscapping business and which is zoned for industrial use. Petitioner intends to install a manufactured building for use as an office. To provide sewage treatment for the bathroom of the office, Petitioner had a septic tank designed and applied for a septic tank permit which was denied as was its variance request. As a result of a complaint, Petitioner was inspected in August, 1988, by the Palm Beach County Department of Environmental Resources Management and by the Florida Department of Environmental Regulation. Both inspections yielded citiations for soil contamination by oil and other hazardous waste. Petitioner represented that most of the infractions had been rectified by the date of the hearing in this matter and pledged full cooperation with the County and State rules. To oversee the operation of the business and assure that no further problems arose, Petitioner decided to establish its office on site. The closest sewage treatment plant is at full capacity and does not intend to provide service to the parcel in the near future. The adjoining properties are serviced by septic tanks. As such, the proof did not demonstrate that alternative methods of waste disposal were available to the site However, as part of its business operation, Petitioner does minor repair of its equipment on site and may include oil changes and other such services. Although Petitioner does not intend to pollute the groundwater and intends to use the proposed septic tank for office use only, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of its equipment could result in the disposition of prohibited hazardous waste into the groundwater. Further, the proof failed to demonstrate that the septic tank would be protected from use by those who handled the hazardous waste. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner and the proof failed to demonstrate reasonable alternatives of waste disposal, the potential for an adverse affect of the operation to the groundwater is great. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions or whether the property was platted prior to 1972. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July 1989. COPIES FURNISHED: Hattie Parker 160 Toneypenna Drive Jupiter, Florida 33468 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
