The Issue The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.
Findings Of Fact Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately 11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells 1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.
Findings Of Fact On June 17, 1994, Petitioner, City of Stuart (City), filed an application with the Department of Environmental Regulation, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to maintenance dredge Krueger Creek between the East Ocean Boulevard bridge and Tenth Street. The City proposed to suction dredge 7,500 cubic yards of sediment or spoil material to be placed on nearby retention sites for dewatering. The retention sites were vacant lots in a residential neighborhood. Some 2,500 cubic yards were to remain on the dewatering sites, and the remainder to be taken elsewhere. On June 20, 1994, the Department sent a completeness letter to the City, requesting additional information. On October 4, 1994, the Department received and approved a complete sediment characterization plan. By memorandum dated January 27, 1995, Ligia Mora-Applegate, an employee of the Department, sent out interim soil cleanup goals which were to be used by waste program administrators in determining final cleanup goals. The memorandum listed chemicals and the appropriate health-based goal for each chemical. For arsenic, the cleanup goal for an aggregate residential setting was .711 mg/kg. These goals had been developed by Dr. Stephen Roberts, a toxicologist employed by the University of Florida, under contract with the Department. On February 2, 1995, the Department received additional information from the City, including sediment analysis results, responses to hydrographic questions, a description of operational methods, and revised spoil retention locations. The Department reviewed the analyses submitted by the City. By memorandum dated February 27, 1995, Paul Wierzbicki, a Waste Cleanup Supervisor of the Department, advised Bruce Jerner, the Department employee who was reviewing the City's permit application, that Based on the analyses submitted it does not appear that the sediments will meet the guidance concentration of 0.7mg/kg as the cleanup criteria for soils. An alternative management plan should be proposed for the sediments. On February 28, 1995, the Department advised the City that arsenic concentrations did not meet the Department's guidance criteria for metals at the proposed spoil disposal sites. The Department recommended alternatives for disposal of the spoil material or the performance of a site specific risk assessment for the spoil sites. By letter dated March 14, 1995, Joseph Capra, the applicant's Project Engineer, advised the Department that the City disagreed with the Department's position that the arsenic levels exceeded the state standards based on Rule 17- 775, Florida Administrative Code which allows a maximum concentration of 10mg/kg of arsenic for the cleanup of petroleum contaminated soil at a soil thermal treatment facility. Mr. Capra asked the Department to reconsider its position and consider the application complete. Staff from the Department's waste cleanup section reviewed Mr. Capra's letter and forwarded the following response to Mr. Jerner by memorandum dated March 29, 1995: The allowable maximum concentration of 10mg/kg for Arsenic referred to in the letter applies to petroleum contaminated soils and since this has not been identified as a petroleum contamination site would not necessarily be appropriate in this situation. Site specific risk assessments have always been an alternative when maximum contaminate levels are not otherwise specified. This level for Arsenic may have been used in the past for non-petroleum contaminated sites in lieu of a risk assessment since it is some- what risk based, is established in rule for specific sites, and based on the lack of any other updated risk information; however, the Department has obtained updated risk inform- ation for arsenic which is currently being incorporated into 62-770, F.A.C., the Petr- oleum Cleanup Rule first, with a 62-775 F.A.C., update to follow. The difference in the exposure to aquatic organisms through sediments and direct human exposure by disposal of the dredged material on land has been explained to Mr. Capra along with some of the alternatives, to disposal in a residential area which may allow direct exposure, which may be accept- able to the Department based on further evaluation. The goal is not to jeopardize funding for the project but to provide reasonable assurance the disposal of the dredged material will not present a potential for harm to human health or the environment based on the latest technological information. Recommend Mr. Capra continue evaluating some of the disposal alternatives discussed, assuming Arsenic is the only contaminant of concern, such as: Evaluating background conditions at the original site or an alternate site. Using the material, within acceptable levels (<0.7mg/kg As), at the original site with disposal of the remainder at a lined landfill. Using material, with acceptable levels (<3.1 mg/kg As), at an industrial site with disposal of the remainder at a lined landfill. Using the material on the original site in such a manner as to prevent human exposure as long as ground water contamination is not an issue. Disposal at a lined landfill with approval from the operator. On April 5, 1995 the interim soil cleanup goals were revised and transmitted to the waste program administrators by memorandum from Ms. Mora- Applegate. The goal for soil cleanup with arsenic in a residential setting was 0.7 mg/kg (ppm). By letter dated April 24, 1995, the Department advised Mr. Capra: The data you submitted on February 2, 1995 was reviewed by the DEP Waste Cleanup Section using the 'Updated Interim Soil Cleanup Goals' which were faxed to you on April 7, 1995. These guidance concentrations are in fact the levels which will be used to evaluate the dredged material and its ultimate destination. The Department also advised that the spoil material could be placed at a residential site if the average background arsenic levels at the spoil site met or exceeded the average of the creek sediment samples. The City declined to provide additional information concerning the application. On August 15, 1995, the Department issued a Notice of Permit Denial denying the application for the following reasons: Pursuant to Section 403.918(2), F.S., a permit may not be issued under Sections 403.91-403.929 unless the applicant provides the Department with reasonable assurance that the project is not contrary to the public interest. In determining whether or not the project is contrary to the public interest, the Department shall consider and balance the seven (7) criteria listed in Section 403.918(2)(a), F.S. This project is contrary to the public interest pursuant to Section 403.918(23)(a), F.S. because the project will: adversely affect the public health, safety, or welfare or the property of others; Specifically, the proposed disposal of dredged material with arsenic levels of greater than 0.7 mg/kg on two residential lots presents a potential for human harm based on the Departments (sic) health-based levels. The applicant has failed to demonstrate that site specific backgrounds are greater than or equal to the levels of arsenic in the dredged materials. The Department received a letter of objection on April 21, 1995 from an adjacent property owner requesting denial of the permit unless additional sediment testing is done and a suitable method of disposal is proposed. Therefore, the applicant has not provided reasonable assurance that the project to maintenance dredge is not contrary to or clearly in the public interest pursuant to Section 403.918(2), Florida Statutes. In drafting the notice of denial, Mr. Jerner relied on Ms. Mora-Applegate's memoranda dated January 27 and April 5, 1995, the memorandum from Mr. Wierzbicki dated February 27, 1995, and the memorandum from the waste cleanup section dated March 29, 1995. By memorandum dated September 29, 1995, John M. Ruddell, Director of the Division of Waste Management, sent the District Directors and Waste Program Administrators a list of the soil cleanup goals for Florida. The residential health-based cleanup goal for residential sites for arsenic was 0.7 mg/kg (ppm). In October, 1995, the Department took samples of the creek sediment. Based on the sampling by the City and by the Department, the average arsenic concentration was 1.8 ppm. On January 19, 1996, Mr. Ruddell sent the District Directors and Waste Program Administrators a memorandum concerning the use of the soil cleanup goals set out in the September 29, 1995 memorandum. Mr. Ruddell stated: The Soil Cleanup Goals are intended to be used only as 'goals' for cleanup decisions in corrective actions and should not be used by the agency as rule, standards or to deny or approve permits. The FDEP has found that most business/site owners do not normally have the money or the expertise to establish Site-specific Rehabilitation Levels (SRLs) as allowed by our cleanup Consent Order condi- tions. The soil cleanup goals are intended to be used for site screening purposes, for source removal evaluations, and as guidance during evaluation of remediation alternatives and design considerations for development of Remedial Action Plan (RAP) for a site. The soil cleanup goals can and should be used for cleanup decisions if the default assumptions fit the site-specific situation. * * * The evaluation process should take into consideration the following criteria: the site-specific background levels, the Method Detection Limits (MDLs), the soil cleanup goals, and the site contaminate levels. The site contaminant levels (criterion 4) for each Chemical of Concern (COC) would be compared to the highest value of the first three criteria. If the site contaminant levels are below the highest value, then no remediation is required for that contaminant. If the site contaminant levels are higher than the highest value, then remediation alternatives should be evaluated taking into consideration the specific nature of the site and the responsible party's ability to effectively manage the risk of a particular site contaminant level. FDEP may consider site-specific risk management alternatives that may further modify the guidance levels for the contaminant. These health-based soil goals are evaluated based on the nature and intended use of the site (e.g., residential or industrial) and usually only apply to the upper two feet of soil. If the contaminated soil can be permanently covered with more than two feet of clean soil or otherwise have the exposure pathways restricted, the site may not need further remediation if the contaminated soil is not a source of ground- water contamination. * * * The soil values may be used for other purposes (other media) if indeed the particular application fits the situation (e.g., sediments that upon dredging will be used as soil). Again, an analysis of the specific situation must be performed (i.e., ascertain land use, exposure duration, leachability concerns, background consideration, etc.). The January 29 memorandum also advised that the soil cleanup goal for arsenic on residential sites was changed to 0.8 mg/kg. This is not a significant change from the goal set out in Ms. Mora-Applegate's January 27, 1995 memorandum. The health-based soil cleanup goals for arsenic have not been adopted as rules, and the Department does not presently intend to adopt them by rule. The health-based goals for arsenic are used to define appropriate concentrations for arsenic regarding protecting public health. The levels are default numbers which an applicant may chose to accept by default. Alternatively, the applicant may elect to provide additional information in the form of a site-specific evaluation or of management strategies that would satisfy the Department. A site specific evaluation could result in a change from the default number to a greater or lesser number. Unless the applicant provides site-specific information, the Department will apply the health-based goals for arsenic.
Findings Of Fact Petitioner is Arthur L. Jones, Trustee of the Arthur L. Jones Revocable Trust, also known as Eastlake Woodlands Shopping Center ("Eastlake"). Petitioner is not and never has been responsible for the discharge of pollutants at Eastlake within the meaning of Section 376.302. On November 9, 1993, Petitioner requested a determination of eligibility under the "Good Samaritan" program authorized in Section 376.305(6). Petitioner seeks reimbursement of $644,712 in costs associated with the assessment and remediation of perchloroethylene ("PCE") contamination at Eastlake. From May, 1982, through May, 1986, Eastlake included a dry cleaning establishment among its tenants. The dry cleaning establishment utilized PCE. PCE contamination was discovered in June, 1992, when a Publix Supermarket adjacent to the former dry cleaning business ("Publix") requested an environmental assessment as part of its expansion at Eastlake. The environmental assessment was performed by Chastain-Skillman, Inc. ("Skillman"). Skillman first discovered PCE contamination at the site as a result of tests of groundwater obtained from behind the former dry cleaning establishment. From July, 1992, through August, 1992, Skillman confirmed the PCE contamination through tests of additional groundwater samples from 10 other locations. In October, 1992, Petitioner orally notified Respondent of PCE contamination at the site. The PCE contamination was not reported to Respondent's Emergency Response Coordinator. The PCE contamination was not an emergency. Emergencies typically include incidents such as a petroleum spill related to a vehicular accident, a chemical spill, or a fire related release. The PCE contamination did not constitute an imminent threat to the public health, safety, and welfare. It did not constitute a threat to potable water wells at the site. PCE is a solvent commonly used in the dry cleaning business. Release of PCE is a relatively common occurrence in the dry cleaning business. On September 27, 1993, Petitioner and Respondent entered into a consent order with regard to PCE contamination at the site. In relevant part, the consent order requires Petitioner to submit a Contamination Assessment Report and Remedial Action Plan. Petitioner submitted a Contamination Assessment Report in November, 1992. Petitioner did not submit a Remedial Action Plan because Respondent placed a moratorium on enforcement actions undertaken with regard to PCE contamination at dry cleaning establishments. Respondent is in the process of implementing a program for state funded cleanup of contaminated dry cleaning sites throughout the state. Respondent is developing a priority system for cleanup of contaminated dry cleaning sites based upon relative threat to the public health and environment. There are approximately 2,800 contaminated dry cleaning sites around the state that will be affected by Respondent's dry cleaning program. Petitioner is entitled to apply for reimbursement of future costs once Respondent implements its dry cleaning program. Respondent has issued a policy memorandum concerning the review of Good Samaritan applications. Respondent's policy differentiates between petroleum contamination and non-petroleum contamination, such as PCE contaminated sites. Reimbursement of petroleum contamination is funded through the Inland Protection Trust Fund ("IPTF"). Reimbursement of non-petroleum contamination is funded through the Water Quality Assurance Trust Fund ("WQATF"). IPTF funds are statutorily limited to reimbursement of costs associated with petroleum contamination. Respondent's policy is to exhaust the enforcement process before WQATF trust funds are utilized for the assessment and remediation of non- petroleum contamination. Respondent's policy requires a Good Samaritan to obtain prior approval from Respondent's Emergency Response Section or On-Scene Coordinator before initiating cleanup of a non-petroleum site such as the PCE contaminated site at Eastlake. The requirement for prior approval is designed to allow Respondent to preserve the amount of personnel, equipment, and resources available for statutorily prescribed priorities, including emergency responses. 2/ The requirement also allows Respondent to determine the endpoint of the emergency phase of a cleanup and the beginning of the remedial phase of the cleanup. The requirement for prior approval may be waived in the event of an imminent hazard. Respondent adequately explicated its non-rule policy for a moratorium on dry cleaning sites and for prior approval of remediation of non-petroleum sites including dry cleaning sites contaminated with PCE. Respondent's explication was adequate even if its policy constitutes an unwritten rule within the meaning of Section 120.57(1)(b)15, Florida Statutes. Petitioner failed to show good cause for waiver of the requirement for prior approval. The PCE contamination at the site was neither an emergency nor an imminent hazard. The public was restricted from the contaminated area by a fence surrounding the site. The public was not exposed to or threatened with contamination by inhalation. No potable water wells are near the site. Therefore, there was no threat of public access to contaminated drinking water. Petitioner did not obtain prior approval for its remediation of the site. Remediation was undertaken to complete the Publix expansion in a timely manner. Petitioner's efforts in assessing and remediating the site have been exemplary. Petitioner has fully cooperated with Respondent in assessing and remediating the site. In July, 1993, Petitioner retained American Compliance Technologies ("ACT") as a consultant to assist Petitioner in the remediation of the contaminated site. ACT prepared a health and safety plan for workers on the site. The plan addressed the risk to workers of exposure to PCE during construction and demolition activities necessary for the Publix expansion. Construction and demolition activities included removal of the concrete slab at the location of the former dry cleaning business. Disturbance of the soils contaminated with PCE created a potential for exposure of workers to PCE. The health and safety plan developed by ACT required workers to wear standard protective gear utilized by the industry. The plan satisfied the requirements of OSHA. ACT did not prepare a risk assessment addressing the potential for exposure of the general public to PCE. Nor did ACT prepare a risk assessment for the potential impact of PCE on groundwater or potable wells. The PCE contamination did not constitute an imminent threat to the public health, safety, and welfare.
The Issue The issue is whether Petitioner is eligible to continue participating in the Drycleaning Solvent Cleanup Program.
Findings Of Fact Petitioner, Sunset Square General Partnership, is the owner of Sunset Square Shopping Center located in Clearwater, Florida, and in which Tux Cleaners, Department of Environmental Protection Identification No. 529501419, was a tenant conducting a drycleaning business. At all times relevant hereto, the Sunset Square Shopping Center was managed by the Stuart S. Golding Company on behalf of Sunset Square General Partnership. At all times relevant to this proceeding, Tux Cleaners was owned and operated by Angelo Guarnieri. In June 1996, Petitioner submitted an application to participate in the Drycleaning Solvent Cleanup Program (Program/ Drycleaning Solvent Cleanup Program). The application was signed by a representative of Petitioner and by Guarnieri. David Scher, an employee of the Stuart S. Golding Company, was listed on the application as the contact person for Petitioner. All applications to the Drycleaning Solvent Cleanup Program are joint applications that include the real property owner, the operator of the drycleaning facility, and the owner of the drycleaning facility. Thus, in this instance, the applicant was Petitioner, the owner of the real property on which the drycleaning facility was located, and Guarnieri, the owner and operator of the facility. Petitioner was listed as the "designated applicant" on the aforementioned application filed with the Department. The "designated applicant" served to advise and provide the Department with a single point of contact. Upon review of Petitioner's application, the Department determined that Petitioner met the prescribed eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. Thereafter, by letter dated September 27, 1996, the Department notified Petitioner that its site, Tux Cleaners, was eligible for participation in the Drycleaning Solvent Cleanup Program. The letter advised Petitioner that its "participation in the Program is contingent upon continual compliance with the conditions of eligibility set forth in Section 376.3078(3), F.S." At the time Petitioner's letter of eligibility was issued, Section 376.3078(7), Florida Statutes (1995), required that owners and operators of drycleaning facilities install secondary containment by January 1, 1997. This statute was enacted in 1995, the year before Petitioner was determined eligible for participation in the Drycleaning Solvent Cleanup Program. To maintain its eligibility in the Drycleaning Solvent Cleanup Program, Petitioner was required to install secondary containment at Tux Cleaners by January 1, 1997. As of January 1, 1997, secondary containment had not been installed at Tux Cleaners. Consequently, on January 2, 1997, Petitioner and Tux Cleaners were no longer in compliance with the eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. On January 21, 1998, Margaret Hennis, a Pinellas County environmental inspector, conducted an inspection of Tux Cleaners as part of a Title V compliance inspection. During the inspection, Hennis discovered that Tux Cleaners did not have the required secondary containment and advised Guarnieri that secondary containment needed to be installed. Guarnieri then informed Hennis that the equipment had been ordered in late 1997. Guarnieri initially ordered secondary containment for Tux Cleaners in June 1997 but cancelled the order because he thought the business had been sold. When the business was not sold, Guarnieri reordered the secondary containment in late 1997, almost one year after it should have been installed. There is no evidence that the secondary containment was ever delivered to Tux Cleaners; and it clearly was never installed at Tux Cleaners. Prior to becoming eligible for the Drycleaning Solvent Cleanup Program, Petitioner hired an environmental consultant, who subsequently advised Petitioner to apply for participation in the Program. After the application of Petitioner and Tux Cleaners was approved, Petitioner believed that the environmental consultant would monitor the drycleaning facility to ensure that the site was in continual compliance with Program eligibility requirements. Although Petitioner and Guarnieri submitted a joint application to the Department, they never discussed the need to install secondary containment at Tux Cleaners. It was only after receiving the February 26, 1998, letter described below that Petitioner had actual knowledge of the secondary containment requirement. Accordingly, Petitioner never asked Guarnieri whether the secondary containment had been installed or directed Guarnieri to install the required secondary containment. Furthermore, Guarnieri never discussed with Petitioner the January 1997 inspection of Tux Cleaners, Hennis' notification that secondary containment needed to be installed, or any matters relative to Guarnieri's ordering and reordering of the secondary containment. By letter dated February 26, 1998 (notice of cancellation), the Department notified Petitioner of its intent to cancel Petitioner's eligibility for participation in the Drycleaning Solvent Cleanup Program and of the reason for the cancellation. According to the notice of cancellation, the reason for the cancellation was that Tux Cleaners had "fail[ed] to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S." The February 26, 1998, letter stated, in pertinent part, the following: The Department has determined that the referenced site is no longer eligible to participate in the Drycleaning Solvent Cleanup Program for the following reason: Pursuant to s. 376.3078(7)(a), Florida Statutes (F.S.), owners or operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around any area in which solvents or waste- containing solvents are stored. As of January 21, 1998, secondary containment had not been installed at the referenced facility. Failure to meet this requirement constitutes gross negligence (s. 376.3078(7)(d), F.S.). Also, failure to meet this requirement constitutes a failure to continuously comply with the conditions of eligibility set forth in s. 376.3078(3). Pursuant to s. 376.3078(3)(n)1., F.S., the Department shall have the authority to cancel the eligibility of any drycleaning facility or wholesale supply facility that fails to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S. Persons whose substantial interests are affected by this Order of Eligibility Cancellation have a right, pursuant to Sections 120.569 and 120.57, F.S., to petition for an administrative determination (hearing). The Petition must conform to the requirements of Chapters 62-103 and 28-5, F.A.C., and must be filed (received) with the Department's Office of General Counsel, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, within forty-five (45) calendar days of receipt of this Notice. Failure to file a petition within the forty-five (45) calendar days constitutes a waiver or any right such persons have to an administrative determination (hearing) pursuant to Sections 120.569 and 120.57, F.S. * * * If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. * * * This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the attached site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph. Upon the timely filing of such petition, this Order will not be effective until further order of the Department. Please be advised that mediation of administrative disputes arising from or relating to this Order of Eligibility Cancellation is not available [s.] 120.573, F.S.; when requested the Department will continue to meet and discuss disputed issues with parties adversely affected by this order. The February 26, 1998, notice of cancellation contained a typographical error in that it referenced an "attached site access form." That reference was as follows: "This Order of eligibility cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph." The reference in the notice of cancellation to the site access form was irrelevant to the notice and improperly and inadvertently included in the notice. That reference should have been omitted from the notice of cancellation and the sentence which mistakenly referred to the site access form should have stated: This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after receipt of this Order unless a petition is filed in accordance with the preceding paragraph. The February 26, 1998, notice of cancellation complies with the requirements of Section 376.3078(3)(n)2., Florida Statutes, notwithstanding the aforementioned typographical error contained therein. Consistent with the statutory requirements, the letter gives written notice to the applicant of the Department's intent to cancel Petitioner's program eligibility and also states the reason for the cancellation. Section 376.3078(3)(n)2., Florida Statutes, provides that the "applicant shall have 45 days to resolve the reason for the cancellation to the satisfaction of the Department." Typically, the Department's cancellation notices do not state that applicants or participants have 45 days to resolve the reason or reasons for cancellation of their eligibility. Nevertheless, the Department affords this opportunity to adversely affected parties. To facilitate this process, the Department's cancellation notices advise these parties that, when requested, the Department will "continue to meet and discuss disputed issues with parties adversely affected by this Order." Petitioner availed itself of the opportunity to discuss the disputed issues with the Department. In fact, shortly after receiving the notice of cancellation, Petitioner contacted the Department officials to determine what steps it could take to remain eligible for participation in the Drycleaning Solvent Cleaning Program. Thereafter, Petitioner took immediate steps in an attempt to resolve the reasons for cancellation of its eligibility. After extensive discussions between Petitioner and Department officials, the Department concluded that the notice of cancellation had been properly issued. The Department reached this conclusion after Petitioner acknowledged that Tux Cleaners did not have secondary containment installed by the January 1, 1997, the statutorily prescribed deadline for such installation. Having determined that the secondary containment had not been installed by the January 1997 deadline, the Department concluded that the reason for the cancellation of Petitioner's eligibility could not be resolved or corrected. The Department has interpreted the 45-day language in Section 376.3078(3)(n)2., Florida Statutes, to allow Program applicants or participants the opportunity to resolve items that do not constitute gross negligence within the meaning of the statute. In an attempt to bring the facility into compliance, Petitioner insisted that Guarnieri shut down all drycleaning operations at Tux Cleaners and remove all machines and solvents from the property. By mid-March 1998, Tux Cleaners had shut down all drycleaning operations and by the end of March 1998, all drycleaning machines were removed from the facility. Moreover, in mid-March 1998, after the drycleaning operations ceased, Tux Cleaners continued only as a dry drop-off facility. Any store operating solely as a dry drop-off facility is not required to have secondary containment. Secondary containment was not installed at Tux Cleaners by January 1, 1997, the statutorily prescribed deadline, even though it operated as a drycleaning facility from January 1, 1997, until mid-March 1998. Consequently, beginning in January 1, 1997, and through March 1998, Petitioner and Tux Cleaners were not in compliance with the eligibility requirements of the Drycleaning Solvent Cleanup Program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding that Petitioner's facility is not eligible to participate in the Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 10th day of January, 2000. COPIES FURNISHED: Martha L. Nebelsiek, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Richard M. Hanchett, Esquire Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 East Kennedy Boulevard Post Office Box 1102 Tampa, Florida 33601-1102 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in these consolidated cases is whether the agency should grant variances from Rule 10D-6, F.A.C. regarding construction of on-site sewage disposal systems on the lots in question.
Findings Of Fact Jerry Gagliardi is the developer and engineer for an 8-lot subdivision on Merritt Island, Brevard County, Florida. Mr. Gagliardi is a self-employed civil and mechanical engineer. The small subdivision has a long, narrow configuration, extending west to east. It is bounded on the north by an existing drainage ditch and a large tract of undisturbed wetlands. Its south boundary is a finger canal, and its east boundary is Pelican Creek. With the exception of the wetlands, most of the property in the area is already developed. There are no residences built yet on the eight lots. Hook-up to an existing sanitary sewer system is available within one- quarter mile of the subdivision. The entire area, with several finger canals, is served by the sanitary sewer system. Mr. Gagliardi planned to install on-site disposal systems (septic tanks) in the subdivision. When his plan was rejected he applied for variances for lots 1 and 2 in July 1992, stating economic hardship as the basis for the request. The applications were reviewed by Gregory D. Wright, Supervisor for Brevard County Consumer Health Services and his staff. Several site visits were made and a site evaluation was completed. Mr. Wright recommended denial of the variance because the sanitary sewer system is available; the soils (mostly sand and shell) are unsuitable for on- site disposal systems; and the area, virtually surrounded by water, is environmentally very sensitive. Mr. Wright is also concerned that a variance for the two lots will establish a precedent for variances on the remaining lots in the subdivision. Mr. Wright also observed that there is an existing irrigation well on a neighboring lot within thirty feet of the proposed septic tank on lot #1. This well does not appear on Mr. Gagliardi's plans. The Department of Health and Rehabilitative Services Review Group for Individual Sewage Disposal concurred with the local agency's recommendation after consideration of Mr. Gagliardi's hardship argument. The request was not considered to be a minor deviation from the minimum requirements of the law and regulations. For approximately three years Jerry Gagliardi has been providing information on his development plans to the local county staff. He has become extremely frustrated with the process. However, he has still failed to produce the evidence which he must have to justify the variances he is seeking. At the hearing, Mr. Gagliardi claimed that hook-up to the existing sanitary sewer system is impossible because there is insufficient elevation for gravity feed and there is not enough room on Banana River Drive for another sewer line easement. He did not submit evidence to support that claim and it is unclear whether he has made that claim to the local staff for their verification. He has consistently claimed that hook-up to the existing system is prohibitively expensive. He has estimated that the cost of installing hook-up to the existing system would be $52,642 for the entire subdivision, or $6580.25 per lot. He has estimated that installation of aerobic on-site septic systems would cost $28,000.00 or $3500 per lot. This estimate does not include the cost of culverting the ditch along the north boundary of the property. The culvert may be necessary to meet the water body set-back requirements and, assuming that a permit would be granted for its construction, the culvert would substantially increase the cost of the septic tank project. As recently as three weeks prior to hearing, Mr. Gagliardi provided information to the staff that the value of the lots in the subdivision is $60,000.00 each, for lots #1 through #6; and $115,000.00 and $120,000.00, for lots #7 and #8, respectively. At hearing he repudiated that information as being based on three year old appraisals. He now asserts that the value of the lots is closer to $40,000.00 each. Petitioner's exhibit #2 is a cover letter dated January 4, 1993, to Mr. Gagliardi from the Brevard County Property Appraiser. Attached to the letter are four property management print-outs reflecting the value of two lots as $35,000.00, and two others as $65,000.00. The record does not reflect which lots those are in the subdivision and there is no explanation for the inflated values provided to the staff after the printouts were received. It is impossible from the confused and conflicting evidence provided at hearing to determine that the petitioners are entitled to a variance.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final orders denying Petitioners applications for variances. DONE AND RECOMMENDED this 11th day of May, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1993. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Jerry Gagliardi, Agent for Phil Sperli and Gail Bobzein Post Office Box 541061 Merritt Island, Florida 32954 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondents should have an administrative penalty assessed, take corrective action on their property to remove fill, and pay investigative expenses for the reasons stated in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by the Department of Environmental Protection (Department) on July 5, 2017.
Findings Of Fact Respondents’ residence is located at 3100 Victoria Drive, St. Augustine. The property, purchased in 2009, faces Victoria Drive to the west. The high point of the lot is where it abuts the street. It then slopes downward to a small creek which lies at the rear of the parcel. The largest elevation drop is at the front of the property. The Department has the authority to institute a civil or administrative action to abate conditions that may create harm to the environment. In this case, it filed a Notice directed against Respondents for allegedly placing fill on 0.11 acres of jurisdictional wetlands (around 5,000 square feet) located on their property. Mr. Ravan admits that he placed fill on his property without a permit, but he disputes the Department’s assertion that the filled area covers 0.11 acres of wetlands. Wetlands are areas that are inundated and saturated with water for a long enough period of time to support vegetation that can adapt to that environment. Fla. Admin. Code R. 62- 340.200(1). If the landward extent of a wetland cannot be determined by direct application of the rule definition, i.e., without significant on-site work, field verification using the wetland delineation methodology in Florida Administrative Code Rule 62-340.300 is required. Field verification involves a visual inspection of the site to evaluate vegetation, soil conditions, and other hydrologic indicators on the property. If two of these characteristics are found, the Department identifies the area as a wetland. In this case, field verification was necessary. In 2016, Mr. Ravan was involved in a dispute with a neighbor whose dog was repeatedly “messing” in his backyard. After words were spoken by the two, Mr. Ravan believes the neighbor informed the County that Mr. Ravan was placing fill in his back yard. This assumption probably is true, as emails from the County to the Department state that the case arose a few days later as a result of a “citizen complaint.” Pet’r Ex. 18. After receiving the citizen complaint, a County employee visited Respondents’ property. The employee informed Mr. Ravan that fill material (dirt) had been placed on jurisdictional wetlands without a permit. A few days later, the County reported the alleged violation to the Department. In response to the County’s referral, in September 2016, Ms. Sellers, a Department Environmental Specialist III, inspected the property with a County representative. In preparation for her visit, she reviewed aerials of the property to determine the elevation of the area, reviewed soil mapping layers, and drove around the site to verify the drainage patterns on the property and whether it had any connections to a water body. During her inspection, Ms. Sellers performed “a good analysis of the property” and took photographs of the filled area. The results of her inspection are found in a Chapter 62- 340 Data Form accepted in evidence as Exhibit 17. It supports a finding that the filled area consists of wetlands and covers around 0.11 acres. Respondents submitted no contrary evidence. After her inspection, Ms. Sellers informed Mr. Ravan that he must remove the fill. The Notice was issued on July 5, 2017. On a follow-up visit a year after her initial inspection, Ms. Sellers observed that some of the fill piles had been removed, the remaining fill had been spread throughout the area, and some of the vegetation observed in September 2016 was now covered. In a visit a few weeks before the final hearing in April 2018, Ms. Sellers observed that some fill still remained. To comply with the law, Mr. Ravan must remove the fill, obtain a permit, or enter into a consent order. If a permit is obtained, besides the cost of the permit ($420.00), Mr. Ravan would have to offset the environmental impacts by purchasing a mitigation bank credit, an expensive undertaking. If the fill is removed, it must be extracted with a small device, such as a wheelbarrow or other small piece of equipment, as a vehicle cannot be driven into the backyard. This will be a tedious and time-consuming process. The Department’s preferred option is to remove the fill. Because of the slope of the lot, mainly at the front of the parcel, Mr. Ravan has experienced drainage problems since he purchased the home in 2009. The drainage problem is caused by a County-owned culvert that runs along Victoria Drive, stops at the corner of his lot, and then dumps the runoff into his yard. Despite Mr. Ravan’s repeated efforts to obtain relief, the County has refused to correct the problem. During heavy rain events, the blocked culvert overflows into his yard and runs down the side of his property to the rear of the lot. Photographs support Mr. Ravan’s claim that the drainage problem has caused severe erosion on his property. Mr. Ravan testified that some of the fill was in place when he purchased the property from the prior owner in 2009. Because of its age, he contends the fill should be “grandfathered.” However, Ms. Sellers established that “historic fill” must be at least 20 years old in order to be immune from enforcement action. In this case, there is no proof that the fill qualifies for this exception. Mr. Ravan has cooperated fully with the Department throughout this proceeding. The evidence shows that Mr. Ravan acted in good faith and is only attempting to prevent runoff from the culvert, which has resulted in deep channels in the side and rear of his yard and washed away much of the top soil. There is no evidence regarding the derivation of the Department’s “investigative expenses” of at least $500.00. At hearing, Ms. Sellers summarized the proposed corrective action. This is a reasonable corrective action.1/ Mr. Ravan disputes her assertion that in some areas of the backyard, up to two feet of fill must be removed. He contends that if two feet of soil is removed, the water table would be reached. However, this issue must be resolved during the corrective action process.
The Issue The issue is whether Tir-na-n'og, Inc.'s application for renewal of an operating permit for the operation of a residuals management facility in Okeechobee County, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 2, 2000, Respondent, Tir-na-n’og, Inc. (applicant), through its owner and operator, John G. Abel (Abel), made application with Respondent, Department of Environmental Protection (Department), to renew its domestic wastewater facility operating permit FLA016637 for a Residuals Management Facility (RMF). Although the existing permit’s expiration date was November 8, 2000, the application was filed at least 180 days prior to the expiration of the existing permit, and therefore the permit remains effective pending the outcome of this proceeding. Petitioners, Mark Hair (Hair), James and Brenda Burnsed (the Burnseds), and Jerry R. Holland (Holland), who all own property adjacent to or near the applicant's property, have challenged the renewal of the permit on the ground that the applicant is violating various statutes and administrative rules. It is fair to infer that an acrimonious relationship exists between Abel and his neighbors, including Petitioners, who have filed numerous telephonic and written complaints against Abel with the Department over the years. A Department witness asserted, however, that all "public" complaints were "unfounded." The facility is privately owned by Abel and is located on a 247-acre tract of land north of State Road 724 and just west of U.S. Highway 441 near Fort Drum in the northeastern portion of unincorporated Okeechobee County. Besides operating a RMF, Abel also uses the land as pasture to raise 150 head of cattle and award-winning horses, and to grow Callie Grass to make hay. Abel currently operates a 59,000 gallon-per-day lime stabilization facility (the RMF) for sludge, septage, and domestic food service wastes. Treatment of residuals consists of alkaline stabilization for 2.0 hours at a pH of 12 or higher followed by maintenance of a pH of 11.5 or higher for 22 additional hours. Treatment of septage consists of alkaline stabilization for 2.0 hours at a pH of 12 or higher or a pH of 12.5 for a minimum of 30 minutes. The pH is maintained at or above 11 until the septage is land applied, but is less than 12.5 at the time of land application. The RMF is a Type III facility consisting of one 1,250 gallon receiving/screening tank; one 1,250 gallon lime slurry mixing tank; nine 5,000 gallon stabilization tanks; two 6,500 gallon stabilization tanks; two 5,000 gallon emergency storage tanks; two blowers; one lime slurry pump; one irrigation transfer pump; and one tank truck loading pump. Under the proposed permit, flow will be measured in equivalent dry tons/year with a maximum of 242 dry tons/year. All physical components of the facility are in good working condition, are not leaking, and operate as intended. The engineering review concluded that there are no corrective actions required, no outstanding compliance issues, and the facility has no noted problems or deficiencies. The Department’s review concluded that there are no outstanding compliance issues or enforcement actions involving the facility. After treatment, the stabilized residuals are land spread on-site on Abel's property (the ranch) and an adjoining property of unknown size to the southeast known as the Fox property under Department-approved Agricultural Use Plans. Although the Fox property was sold to a third party sometime in 2001, Abel has represented that he has an oral agreement with the new owner to continue to use the land. Any changes in new, modified, or expanded land application sites call for a new or revised Agricultural Use Plan for the site that will be incorporated into the proposed permit as a minor permit revision. Treated, stabilized residuals from other RMF facilities are also land-spread at the site as described in the Agricultural Use Plan and the cumulative loading annual reports submitted to the DEP. Specific Condition II.33 requires the applicant to maintain records of application zones and application rates and to make these records available for inspection. Specific Condition II.34 requires the permittee to submit an annual summary of residuals application activity, including if more than one facility applies residuals to the same application zones. The pending application is for renewal of a permit issued in 1995, prior to the effective date of extensive amendments to Chapter 62-640, Florida Administrative Code, which governs the regulation of domestic wastewater residuals. The proposed permit contains updated reporting requirements and forms more particularly suited to the day-to-day operations of an RMF. Specific Condition I.A.3. of the proposed permit requires that incoming loads to the RMF be reported on Residuals Stabilization Reports or Septage Stabilization Reports and that incoming load manifests be maintained on-site and be readily available for Department inspection. These reports are to be submitted to the Department on a monthly basis as specified in Specific Condition I.A.9. Under the 1995 permit, the applicant is required to submit monthly reports on Discharge Monitoring Report forms (DMRs) to which is attached the DEP Form 62-640.900(3). That form is a Standard Domestic Wastewater Residuals Record Keeping Form and shows incoming load manifests and daily processing reports for the residuals and septage accepted at the RMF for treatment. Specific Condition II.18 of the 1995 permit requires the applicant to maintain records and have them available for inspection. Among other things, the records must include the amount of residuals applied or delivered. The applicant currently maintains these records on-site, and the information is provided to the Department as part of the annual summaries required under Specific Condition II.18. Rule 62-640.700(6)(a), Florida Administrative Code, requires that a minimum unsaturated soil depth of 2 feet above the water table level is required at the time the residuals are applied to the soil. The Agricultural Use Plan and the rule require that if the seasonal high ground water level will be within 2 feet of the surface or is undetermined, the permittee shall determine the groundwater level in one or more representative locations in each application zone prior to the application of residuals. When residuals cannot be applied due to the constraints of the rule, they must be stored in holding tanks at the plant. Under the 1995 permit the applicant must record water table levels at the time of application and cannot land- apply the residuals in a particular area if the unsaturated soil depth is less than 2 feet. To ensure compliance with the above rule, the applicant maintains 6 monitoring wells on-site in each application zone and near the RMF in order to check water table levels prior to spreading residuals in those areas. In addition, Abel has agreed to install 2 or more new monitoring wells "under lock and key" to be monitored exclusively by the Department. If the permit is renewed, such an agreement should be incorporated into the conditions. At the present time, the applicant operates on a rotation schedule based on ability to land-apply residuals, grow pasture grass, and allow the livestock to graze in a certain area after residuals have been applied in accordance with the applicable Department rules and the 1995 permit. To avoid runoff or erosion during rain events, which is proscribed by Rule 62-640.700(7), Florida Administrative Code, the land-spread residuals do not sit on top of the soil. Rather, they are disked into the soil after application using a mobile, self-retrieving, high-rate Rainbow irrigation system. The RMF facility uses lime stabilization to treat liquid residuals or septage for the purpose of meeting the pathogen (disease-causing organisms) and vector attraction (attraction of flies) reduction requirements of Rule 62- 640.600, Florida Administrative Code. These reduction requirements are met at the facility to the Class B level for use on restricted public access areas. The ranch is privately owned property and does not have unrestricted public access. Between 1997 and 1999, the Burnseds purchased 210 acres of land located immediately south of, and adjacent to, the ranch and the Fox property. Also to the south of the ranch and immediately adjacent to the west of the Burnsed property are 80 acres of land on which Roto-Rooter once spread residuals. After the Burnseds filed a complaint, Roto-Rooter ceased using the property for that purpose. The Burnseds desire to build a home on their land but are understandably reluctant to do so at this time given the nature of the activities on the ranch. To the north of the ranch is the Boggy Creek Branch and to the south of the Burnsed property is the Fort Drum Creek, both of which flow essentially northeast into the St. Johns River. The applicant's property varies in topography with the high point being in the northwest corner where the RMF is located and the low points being further south and southeast. Surface water generally flows south toward the Burnsed property. There is no ditch or other holding device to prevent runoff from the ranch or Fox property from going directly onto the Burnsed property during rain events. If the permit is renewed, such a device would be appropriate, given the topography of the land. The topographical map for the area shows a 65-foot contour on the ranch sloping down to a 60-foot contour on the Burnsed property to the south and the Fort Drum Creek and sloping down to a 60-foot contour to the north at Boggy Branch Creek. To the northwest of the ranch is a gated retirement community known as Indian Hammocks. Holland is a resident of that community and lives across the street from the ranch. Hair does not live directly adjacent to the ranch, but the trucks which haul residuals to the RMF use the road in front of his house. The Burnseds contend that the permit should not be renewed under the applicable renewal criteria in Rule 62- 620.335, Florida Administrative Code. More specifically, they contend that the applicant has operated the facility in violation of permit conditions and rule-reporting requirements, in violation of the 2-foot rule, and in violation of minimum setback requirements from surface waters. In addition, Holland contends that the site is not suitable for land-application of residuals, which endangers human health and the environment, and that Abel has violated the setback requirement for adjoining properties. Finally, Hair has contended that spillage or leaks from the trucks occur on the road where his children meet their school bus. The Burnseds first contend that the applicant has consistently and systematically underreported the amount of residuals applied and delivered to the property. To this end, they introduced evidence (Exhibit B1) consisting of a compilation and comparison of information gleaned from surveillance videotapes over the period from April 6, 2000, to May 9, 2001, compared with the information reported to the Department by the applicant in its monthly DMR reports. The tapes established that between April and December 2000, at least 285 trucks entered the facility that were not reported on the DMRs. In addition, for the first 5 months of 2001, at least 185 trucks were not reported on the DMRs. When annualized, the latter number is approximately 370 trucks per year. In response to this allegation, Abel pointed out that each year he receives around 280 truckloads of treated residuals under a contract with the Hutchinson Utility Authority (Authority) which are not carried to the RMF but go directly to land application areas. None of these shipments are required to be reported on the DMRs but rather are reported in the summary reports submitted to the Department on an annual basis. This explanation would account for virtually all of the unrecorded shipments in the year 2000, assuming that all of the Authority shipments occurred during the 9- month surveillance period. More than likely, however, these shipments were staggered throughout the year. In any event, there was no evidence (such as summary annual reports for the year 2000, or a copy of the contract with the Authority) to show the dates on which the Authority made deliveries, to demonstrate that the unreported trucks were actually carrying treated residuals, as opposed to untreated residuals, or to show that the claimed number of Authority shipments was accurate. Therefore, it is found that the applicant failed to report on his DMRs around 25 percent of the incoming loads of untreated septage or residuals during the year 2000. Likewise, even after giving credit for the Authority shipments, a significant underreporting would be occurring during the year 2001. These shipments collectively involved several million gallons of septage. Besides the Authority, there are 11 other facilities in the area which "might" transport treated residuals to Abel's property for land application only. There is no evidence of record, however, to show if any trucks hauling treated residuals were received from the other sources, and if so, the number. Moreover, as noted above, the annual summary reports were not made a part of this record so that those figures could be compared to the number of trucks identified in the surveillance tapes. In the absence of any credible evidence to the contrary, it is found that the applicant has violated a condition of his 1995 permit, namely, that he failed to accurately report all incoming loads on his monthly DMRs. The Burnseds further contend that the applicant is in violation of the 2-foot rule regarding the unsaturated soil depth, and therefore the property is no longer suitable for land application of residuals. To support this contention, the Burnseds sited 6 monitoring wells around the western and southern perimeters of the ranch and Fox properties and introduced into evidence the results of samplings taken in September 2001. These samplings showed unsaturated soil depths in each well of less than 2 feet, and that 4 of the 6 wells had depths of less than 1 foot. As discussed in findings of fact 14-16, however, the 2-foot rule is required at the time residuals are applied to the soil. Nothing in the permit documents or Department rule requires an unsaturated soil depth at all locations at all times before a site can be used for residuals application. Petitioners Holland and Burnseds further contend that the low areas on the ranch and Fox properties where surface water exists are subject to the minimum setback requirements in the Department’s rules. In general, a 200- foot setback is required in a residuals application zone from surface waters that are classified as waters of the state. Through recent aerial photographs, Petitioners established that standing water is now found in multiple areas of the Abel and Fox properties for much of the year due to an alleviation of drought conditions that previously existed. However, these surface waters are located completely within the Abel and Fox property boundaries and have not been classified as waters of the state by the Department. Therefore, the setback requirement does not apply. The Agricultural Use Plan for the ranch establishes buffer areas where residuals are not applied. The buffer areas include any required setbacks from property boundaries and occupied buildings. While the Department witness was unable to give a precise distance for the required setbacks from property boundaries (except whatever the "rules" called for), it can be inferred that at least some minimal separation is required. As recently as 6 months before the hearing, Holland personally observed a truck spreading residuals no more than 8 feet from the property line. Other testimony supports a finding that spreading of this nature has occurred on other isolated occasions. These acts constitute a violation of the existing permit. Holland also contends that the land application of residuals at the ranch and Fox properties, over time, endangers human health and the environment. In support of this contention, he presented testimony from a physician who resides in Indian Hammocks and opined that the ranch is a public health problem and should be "eradicated" since the residuals contain numerous bacteria and viruses which can be spread to neighboring properties. He had no concrete evidence, however, to show that several illnesses in the general neighborhood were a direct result of the applicant's operation. That is to say, the evidence presented was speculative, and no direct causal connection was established between the illnesses and the existing operation. The Burnseds have further contended that Abel's RMF and land-application sites are a source of objectionable odors, in violation of Rule 62-296.320(2), Florida Administrative Code. That rule prohibits the "discharge of air pollutants which cause or contribute to an objectionable odor." Both Burnseds have smelled such an odor "several times each year" since purchasing their property a few years ago, especially if the winds are coming out of the west. In addition, a worker on their property became ill in July or August 2000 after smelling odors just after sludge was applied by a truck onto the nearby Fox property. The RMF facility is located near the northwest corner of the property away from the Burnsed property that is located to the south. While the Department points out that immediately adjacent to the Burnsed property is the former land-spreading site once used by Roto-Rooter, and that site was more than likely the source of any objectionable odors, Roto Rooter has ceased operations. Even so, given the fact that odors have been detected only "several times" over the past few years by the Burnseds, and appropriate chemicals are being applied in the tanks to control the odor, reasonable assurance has been given that the RMF is not in violation of the odor rule. Petitioner Hair, who lives near the Abel property, introduced photographs into evidence to demonstrate that trucks carrying residuals to the RMF either spilled or leaked materials at the intersection of U.S. Highway 441 and 325th Trail, which is the site of a school bus stop. Because his children must walk through that area to catch the school bus, Hair is concerned that his children may become ill from walking on the contaminated road. While this is a legitimate and valid health concern, and the leakage may constitute a violation of some regulation by the trucking company, it is not a ground to deny the renewal of the permit or a matter within the Department's jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Tir- na-n'og, Inc. for renewal of its domestic wastewater facility operating permit FLA0166637. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 16th day of November, 2001. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Jonathan Jay Kirschner, Esquire Kirschner & Garland, P.A. 101 North Second Street Fort Pierce, Florida 34960-4403 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark Hair 885 Northeast 336th Street Okeechobee, Florida 34792-3603 Jerry R. Holland 32801 U.S. Highway 441 North, Lot 101 Okeechobee, Florida 34792-0271 John G. Abel 24 Northeast 325th Trail Okeechobee, Florida 34792-0253
Findings Of Fact Petitioner is the owner of several acres of land which are a part of a platted subdivision in Orange Park, Florida. At an undisclosed date in 1979, Petitioner orally applied to the Clay County Health Department for septic tank permits for Lots 3, 4, 5N, and 5S. The only documentation submitted with his application was a site plan for Lot 5S. By letters of March 26 and 30, 1979, the Clay County Health Department advised the Petitioner that his application was denied because the lots were not in compliance with specified provisions of Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. By letter of May 3, 1979, Petitioner requested an administrative hearing to contest the denial of his application. At the hearing, officials of the Clay County Health Department predicated the denial on the fact that the lots in question were not sufficiently large to permit the required setbacks imposed by law and regulation. (Testimony of Bray, Hickey, Exhibits 1-3) A stream runs in an easterly direction across the property in question to the St. Johns River which lies approximately 300 years to the east of the property. A curved extension of the stream located on Lot 4 has been filled at some time in the past. A pond is located at the center of Lots 5N and 5S. The size of the lots vary from over one-third to less than one-half acre. The City of Orange Park has a 20 foot wide easement on both sides of the stream bed for maintenance purposes. The easement precludes the construction of permanent structures but does not proscribe other uses of the land area. There is not a public water supply or sewage disposal system available at the present time, although an artesian well located on adjacent Lot 2 provides water for homes which have previously been constructed on that lot and adjacent Lot 1. It is adequate to supply water needs of the lots in question. However, local health officials informed Petitioner that the artesian well cannot be used as a central water supply for the additional lots. Petitioner proposes to install individual septic tanks and drainage fields on each of the lots. Service easements are also located on Lots 4,5, and 5S. (Testimony of Petitioner, Exhibits 1,4) By exclusion of the easement area on all four lots, together with the pond area of 4,000 square feet on Lot 5N and 3,000 square feet on Lot 5S, the remaining land area of Lots 3 and 4 is more than one-third but less than one- half acre each in size. Lot 5S is slightly less than one-quarter acre in size. Lot 5D is slightly less than one-quarter after exclusion of the pond and easement area. (Testimony of Bray, Exhibit 4) There is sufficient area in Lots 3 and 4 to provide for set back requirements for individual sewage disposal facilities, i.e., not within five feet of property line or within fifty feet of the high water line of lakes, streams, or other waters, as provided in Rules 10D-6.24(3) and (4), F.A.C., respectively. There is sufficient area in Lots 5N and 5S to meet the above setback requirements when consideration is given to the area necessary for septic drain fields. (Testimony of Bray, Exhibit 4)
Recommendation That Petitioner's application for septic tank permits be denied. DONE and ENTERED this 6th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert D. Woolverton 3551 St. Johns Avenue Jacksonville, Florida 32205 Robert M. Eisenberg, Esquire District IV Counsel Post Office Box 2417F Jacksonville, Florida 32231
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 for determination in this matter are: (1) whether Petitioner, MW Horticulture Recycling Facility, Inc. (MW), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration; (2) whether Petitioner MW is an irresponsible applicant; and (3) whether Petitioner MW Horticulture Recycling of North Fort Myers, Inc. (MW-NFM), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and the Registration Denials Petitioner MW is a Florida corporation that operates an SOPF located at 6290 Thomas Road, Fort Myers, Lee County, Florida. The site is commonly referred to as the "South Yard." Petitioner MW-NFM is a Florida corporation that operates an SOPF located at 17560 East Street, North Fort Myers, Lee County, Florida. The site is commonly referred to as the "North Yard." The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of part IV of chapter 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Chapters 62-701 and 62-709. Pursuant to that authority, the Department determines whether to allow SOPFs to annually register in lieu of obtaining a solid waste management facility permit. On April 25, 2019, Petitioner MW submitted its application for registration renewal for the South Yard. On August 22, 2019, the Department issued a notice of denial. The listed reasons for denial focused on non-compliance with orders for corrective action in a Consent Order (Order) between Petitioner MW and the Department entered on February 22, 2019. The Order was entered to resolve outstanding violations in a Notice of Violation, Orders for Corrective Action and Administrative Penalty Assessment (NOV), issued on November 20, 2018. The notice of denial stated that, as of August 9, 2019, Petitioner MW had not completed the following corrective actions of the Order by the specified timeframes: (a) within 90 days of the effective date of this Order, Respondent shall remove all processed or unprocessed material (yard trash) from the Seminole Gulf Railway Right of Way and the swale along Old US 41 and establish a 20 foot wide all-weather access road, around the entire perimeter of the site; (b) within 90 days of the effective date of this Order, Respondent shall reduce the height of the piles to a height that the facility’s equipment can reach without driving (mechanically compacting) onto the processed or unprocessed material; and (c) within 90 days of the effective date of this Order, Respondent shall have all the processed and unprocessed material be no more than 50 feet from access by motorized firefighting equipment. The notice of denial also stated that when Department staff conducted compliance visits on April 29, 2019, June 27, 2019, July 7, 2019, and July 18, 2019, the following outstanding violations were documented: (a) unauthorized open burning of yard waste; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) an all-weather access road, at least 20 feet wide, around the perimeter of the Facility has not been maintained and yard trash has been stored or deposited within the all-weather access road; and (d) yard trash is being stored more than 50 feet from access by motorized firefighting equipment. On April 25, 2019, Petitioner MW-NFM submitted its application for registration renewal for the North Yard. On August 22, 2019, the Department issued a notice of denial. The notice of denial stated that compliance and site observation visits were conducted on July 9, 2019, July 30, 2019, August 1 and 2, 2019, and the following non-compliance issues were documented: (a) unauthorized open burning; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) yard trash received has been stored or disposed of within 50 feet of a body of water; and (d) yard trash received is not being size-reduced or removed, and most of the unprocessed yard trash has been onsite for more than six months. The notice of denial also stated that on March 27, 2018, May 10, 2018, and October 3, 2018, Department staff conducted inspections of the North Yard. A Warning Letter was issued on November 2, 2018. The Warning Letter noted the following violations: (1) unauthorized burning of solid waste; (2) the absence of the required 20-foot-wide all-weather perimeter access road along the southern unprocessed yard trash debris pile; (3) inadequate access for motorized firefighting equipment around the southern unprocessed yard trash debris pile (lake pile); (4) the lake pile not size-reduced or removed within six months; (5) mechanical compaction of processed and unprocessed material by heavy equipment; and (6) yard trash storage setbacks from wetlands not maintained. Petitioners' SOPFs The North Yard is located in North Fort Myers and is bound by the southbound lanes of Interstate 75 to the east and a lake to the west. The South Yard is slightly larger than the North Yard and abuts Thomas Road to the west and a railroad owned and operated by the Seminole Gulf Railway Company to the east. Petitioners' facilities accept vegetative waste and yard trash (material) from the public in exchange for a disposal fee before processing and size-reducing the material into retail products such as organic compost, topsoil, and mulch. The unprocessed material is staged in various piles generally according to waste type until it can be processed by grinding or screening. As of the date of the final hearing, both the North Yard and the South Yard were completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meander between the piles themselves. As the material in the piles decomposes, heat is produced from the respiration and metabolization of organic matter. This heat ignites the dry material and can cause substantial fires. Both the North Yard and South Yard are susceptible to fires caused by spontaneous combustion as a result of their normal operations of collecting and stockpiling organic waste. Fires Although spontaneous combustion is an inherent risk with SOPFs, the evidence at the hearing established that the material at Petitioners' facilities catches fire at an abnormally high rate as a result of poor pile management. Piles need to be turned and wetted to keep down incidents of spontaneous combustion. Monitoring temperatures, rotating the piles, and removing the material at a faster rate would help reduce the incidence of fires. Large piles with no extra land space cannot be managed in a way "to aerate and keep the temperatures at a level where you're not going to have spontaneous combustion." See Tr. Vol. I, pg. 32. Fire Marshal Steve Lennon of San Carlos Park Fire and Rescue regarded the South Yard as a fire hazard compared to other similar sites in his district. He testified that the pile heights, widths, and lengths at the South Yard are not in compliance with applicable fire-code size requirements. He also testified that if the pile sizes were in compliance, Petitioner MW would not have to put their motorized firefighting equipment on top of the piles "because [they] would be able to reach it from the ground." See Tr. Vol. I, pg. 41. As of the date of the hearing, San Carlos Park Fire and Rescue had responded to 43 active fire calls at the South Yard in the last two years, and three times in 2020 alone. In 2018, the active fire calls at the South Yard were multi-day suppression operations. In 2019, the active fire calls were mostly hotspots and flare-ups. Captain Doug Underwood of the Bayshore Fire Rescue and Protection Service District (Bayshore Fire District) testified that his department had responded to approximately 75 fire calls at the North Yard in the last two years. The most common cause of the fires was spontaneous combustion. The piles were not in compliance from a size standpoint. Captain Underwood testified that the majority of the 75 calls were to the lake pile at the North Yard. See Tr. Vol. I, pg. 59. The lake pile was a temporary site on the southern end of the lake that borders the North Yard, and for most of 2018 and 2019, contained debris from Hurricane Irma.1 The lake pile temporary site was completely cleared by the time of the hearing. Captain Underwood testified that in 2018, he recommended to Petitioners that they engage the services of an expert fire engineer. Petitioners engaged Jeff Collins who met with Captain Underwood on multiple occasions. They discussed how to address fires and hotspots and that the facilities should have a written fire protection safety and mitigation plan. Such a plan was created and Captain Underwood was satisfied with its provisions. Although the lake pile temporary site was completely cleared by the time of the hearing, it was not an entirely voluntary effort on Petitioners' part. Captain Underwood testified that Petitioners' "initial plan of action was to leave it there for . . . eight months or greater, depending on the time frame needed to have the product decompose and cool down to a temperature that they could remove it." See Tr. Vol. I, pg. 83. It took Lee County code enforcement efforts "to compel MW to remove this material off-site as quickly as possible." See Tr. Vol. I, pg. 82. 1 Throughout this proceeding, the lake pile was referred to by various names in testimony and exhibits, such as, "southern unprocessed yard trash debris pile," "lake yard," "trac[t] D," and "temporary site." As recently as February 12, 2020, a large pile of hardwood, green waste, and compost at the North Yard caught fire as a result of spontaneous combustion. The size of the fire was so large and hot that the Bayshore Fire District could not safely extinguish the fire with water or equipment, and allowed it to free-burn openly for 24 hours in order to reduce some of the fuel. The fire produced smoke that drifted across the travel lanes of Interstate 75. The free-burn allowed the pile to reduce in size "down to the abilities of the district and the equipment on-site." See Tr. Vol. I, pgs. 51-52. Captain Underwood testified that "once we started putting water on it, then the MW crews with their heavy equipment covered the rest of the smoldering areas with dirt." See Tr. Vol. I, pg. 56. Rule Violations By Petitioners' own admission, the facilities have repeatedly violated applicable Department rules throughout the course of their operations over the last two and one-half years. The most pertinent of these violations center around the Department's standards for fire protection and control to deal with accidental burning of solid waste at SOPFs. Renee Kwiat, the Department's expert, testified that the Department cited the South Yard nine times for failing to maintain a 20-foot all-weather access road. The South Yard consistently violated the requirement to maintain processed and unprocessed material within 50 feet of access by motorized firefighting equipment, and the North Yard has violated this requirement twice. The North Yard consistently violated the requirement to size-reduce or remove the lake pile material within six months. Both the North Yard and South Yard were cited multiple times for mechanically compacting processed and unprocessed material. Following a period of noncompliance and nearly 11 months of compliance assistance at the South Yard, Petitioner MW told the Department it would resolve all outstanding violations by July 1, 2018. The July 1, 2018, deadline passed and on October 18, 2018, the Department proposed a consent order to resolve the violations at the South Yard. However, Petitioner MW did not respond. On November 20, 2018, the Department issued the NOV to Petitioner MW regarding the South Yard. The violations included failure to maintain a 20-foot all-weather access road around the perimeter of the site, failure to ensure access by motorized firefighting equipment, mechanical compaction, and the unauthorized open burning of solid waste. On February 22, 2019, the Department executed the Order with Petitioner MW to resolve outstanding violations in the NOV. By signing the Order, Petitioner MW agreed to undertake the listed corrective actions within the stated time frames. Compliance visits to the South Yard on April 29, 2019, June 7, 2019, June 27, 2019, July 18, 2019, and August 22, 2019, documented that many violations outlined above were still present at the site. At the time of the final hearing, the preponderance of the evidence established that none of the time periods in the Order were met. The preponderance of the evidence established the violations listed in paragraphs 5 and 6 above. At the time of the final hearing, the preponderance of the evidence established that Petitioner MW still had not reduced the height of the piles such that their equipment could reach the tops of the piles without driving (mechanically compacting) onto the processed or unprocessed material. Thus, all the processed and unprocessed material was not more than 50 feet from access by motorized firefighting equipment. At the time of the final hearing, the preponderance of the evidence established more incidents of unauthorized open-burning of solid waste; and continuing unauthorized mechanical compaction of processed and unprocessed material. The evidence also established that the South Yard does not encroach on Seminole's real property interest. The Department did not issue an NOV for the North Yard. The preponderance of the evidence established that there were repeated rule violations at the North Yard. These violations formed the basis for denying the North Yard's registration as outlined in paragraph 8 above. The Department deferred to Lee County's enforcement action for violations of County rules as resolution of the violations of Department rules. At the time of the final hearing, however, the preponderance of the evidence established more incidents of unauthorized open burning of solid waste, and continuing unauthorized mechanical compaction of processed and unprocessed material at the North Yard. Petitioners' Response and Explanation Approximately two and one-half years before the date of the hearing in this case, Hurricane Irma, a category four hurricane, made landfall in the state of Florida. It was September 10, 2017, and Hurricane Irma significantly impacted the southwest coast of Florida, where Petitioners' facilities are located. Hurricane Irma caused extensive damage, including the destruction of trees, vegetation, and other horticultural waste which required disposal. Massive amounts of such yard waste and horticultural debris were deposited on roadways and streets throughout Lee County, creating a significant issue that needed to be addressed by local governments, and state and federal agencies. Due to the threat posed by Hurricane Irma, the state of Florida declared a state of emergency on September 4, 2017, for every county in Florida. This state of emergency was subsequently extended to approximately March 31, 2019, for certain counties, including Lee County, due to the damage caused by Hurricane Irma. An overwhelming volume of material needed to be processed and disposed of following Hurricane Irma. The Petitioners' facilities were inundated with material brought there by Lee County, the Florida Department of Transportation, the Federal Emergency Management Agency, and others. After Hurricane Irma, haulers took considerable time just to get the materials off the streets, and processors like the Petitioners, ran out of space because there was limited space permitted at the time. As a result, these materials stacked up and had to be managed over time at facilities, including Petitioners' facilities. To accommodate the material, Petitioner MW-NFM added the temporary site that was labeled the "lake pile" or "southern unprocessed yard trash debris pile" in Department inspection and compliance reports of the North Yard. In order to address the volume of material on the site after Hurricane Irma, Petitioner MW-NFM requested approval from the Department to move the material off-site to other locations in order to reduce the size of the piles at the North Yard's lake pile. For reasons that remain unclear, such authorization was not obtained, and Petitioner MW-NFM believes that this would have size-reduced the piles and prevented accumulation of material in violation of Department rules. In order to process the North Yard's lake pile and move it off-site more quickly, Petitioner MW-NFM requested permission from Lee County and the Department to grind unprocessed material on site, which would have size-reduced the lake pile and allowed it to be moved off-site more quickly. Because existing zoning did not authorize this grinding, the request was denied in spite of the fact that a state of emergency had been declared which Petitioner MW-NFM believes would have permitted such an activity. This further hampered Petitioner MW-NFM's ability to size-reduce the lake pile leading to more issues with hot spots and fires. Because the material was of such volume, and was decomposing, a major fire erupted in 2018 at the North Yard's lake pile. Petitioners' fire safety engineer, Jeff Collins, wrote reports to address this issue and recommended to the local fire department that the pile be smothered in dirt until the fire was extinguished. The request was denied by the Bayshore Fire District, which instead directed that Petitioners break into the pile in order to extinguish the fire. When Petitioners did so, the piles immediately erupted into flames as predicted by Petitioners' fire safety engineer. Moving the smoldering material to the South Yard also led to fires at the South Yard. In spite of the large volume of material at the North Yard's lake pile, Petitioners made steady progress in size reducing the material and moving it off-site. However, as of the date of the final hearing, both the North Yard and the South Yard were still completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meandered between the piles themselves. Mechanical Compaction Each party presented testimony regarding the question of whether Petitioners' facilities violated the prohibition that any processed or unprocessed material shall not be mechanically compacted. The parties disagreed over how the prohibition against mechanical compaction was applied to yard trash transfer facilities. In March of 2018, Petitioners' representative, Denise Houghtaling, wrote an email to the Department requesting clarification of the Department's definition of "mechanical compaction" because it is undefined in the rules. On April 3, 2018, Lauren O' Connor, a government operations consultant for the Department's Division of Solid Waste Management, responded to Petitioners' request. The response stated that the Department interprets "mechanical compaction" as the use of heavy equipment over processed or unprocessed material that increases the density of waste material stored. Mechanical compaction is authorized at permitted disposal sites and waste processing facilities, but is not permissible under a registration for a yard trash transfer facility.2 Mechanical compaction contributes to spontaneous combustion fires, which is the primary reason for its prohibition at yard trash transfer facilities. Petitioners' interpretation of mechanical compaction as running over material in "stages" or "lifts" was not supported by their expert witnesses. Both David Hill and Jeff Collins agreed with the Department's interpretation that operating heavy equipment on piles of material is mechanical compaction. The persuasive and credible evidence established that Petitioners mechanically compact material at their facilities. Mechanical compaction was apparent at both sites by either direct observation of equipment on the piles of material, or by observation of paths worn into the material by regular and repeated trips. Department personnel observed evidence of mechanical compaction on eight separate inspections between December 2017 and January 2019. Additional compaction was observed at the South Yard on June 7, 2019, and in aerial surveillance footage from August 28, 2019, September 5, 2019, January 30, 2020, and February 12, 2020. Petitioners' fire safety engineer, who assisted them at the North Yard lake pile, testified that the fire code required access ramps or pathways for equipment onto the piles in order to suppress or prevent fire. However, Captain Underwood and Fire Marshal Lennon testified they do not and have never required Petitioners to maintain such access ramps or paths on the piles. The fire code provision cited by Petitioners' expert does not apply to their piles. See Tr. Vol. II, pgs. 78-80. In addition, Fire Marshal Lennon testified that placing firefighting equipment on top of piles is not an acceptable and safe way to fight fires at the site by his fire department. 2 Rule 62-701.710 prohibits the operation of a waste processing facility without a permit issued by the Department. See also Fla. Admin. Code R. 62-701.803(4). Rule 62- 701.320(16)(b) contemplates the availability of equipment for excavating, spreading, compacting, and covering waste at a permitted solid waste disposal facility. Despite receiving clarification from the Department in April of 2018, Petitioners choose to ignore the Department's prohibition against mechanically compacting unprocessed or processed material piles. In addition, the persuasive and credible evidence suggests that Petitioners blanket the piles with dirt to both suppress fires and accommodate the "access roads" or "paths" on the piles.3 Ultimate findings The persuasive and credible evidence established the violations cited in the Department's registration denial for the North Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established the violations cited in the Department's registration denial for the South Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established that Petitioners did not consistently comply with Department rules over the two and one-half years prior to the final hearing. However, Petitioners established through persuasive and credible evidence that because of the impacts of Hurricane Irma, and the subsequent circumstances, they could not have reasonably prevented the violations. The totality of the evidence does not justify labeling the Petitioners as irresponsible applicants under the relevant statute and Department rule. However, Petitioners did not provide reasonable assurances that they would comply with Department standards for annual registration of yard trash transfer facilities. 3 The evidence suggests that Petitioners may prefer to follow the advice of their hired experts with regard to the practice of mechanical compaction and blanketing the piles with dirt. See, e.g., Petitioners' Ex. 16. However, the evidence suggests that the experts' level of experience is with large commercial composting and recycling facilities that may be regulated by solid waste management facility permits and not simple annual registrations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioners' annual registration renewal applications for the North Yard and South Yard. DONE AND ENTERED this this 17th day of September, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2020. COPIES FURNISHED: Clayton W. Crevasse, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Sarah E. Spector, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Carson Zimmer, Esquire Department of Environmental Protection Mail Station 49 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
