The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
The Issue The issues 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)
The Issue The issue in this case is whether Pasco County's application for a permit to construct a Class III landfill should be approved by the Department of Environmental Regulation (Department). Pasco County called Robert Hauser, Jr., who was accepted as an expert in sanitary landfills, and the Department called Kim Ford, who was accepted as an expert in professional engineering with expertise in solid waste. Petitioner Collins testified on behalf of the Petitioners. Two exhibits were received on behalf of Pasco County and two on behalf of the Petitioners. One exhibit offered by Petitioners (P-3) was rejected. No transcript of the hearing was filed. The parties were given ten days following the hearing to file their proposed recommended orders, including proposed findings of fact. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.
Findings Of Fact Pasco County filed an application with the department on or about January 29, 1983, to construct a Class III sanitary landfill. The location of the landfill would be near Hays Road and County Road 52, near Aripeka, in Pasco County, Florida. Pasco County owns the property on which the landfill would be located. After review, the Department issued an Intent to Issue on or about December 2, 1988, by which it proposed to issue Permit No. SC 51-144683 to Pasco County. The proposed landfill site is approximately 60 acres in size, with 20 acres to be used for disposal of household trash, yard trash consisting of grass clippings and other vegetative matter resulting from landscape maintenance or land clearing operations, construction or demolition debris, paper, cardboard, cloth, glass, street sweepings, vehicle tires, and other nonputrescible materials. Pasco County will install a 60 mil thick, high density polyethylene synthetic liner with a leachate collection system which is designed to eliminate discharge to the Floridan Aquifer within the landfill boundaries. An extensive geotechnical investigation of subsurface conditions at the site was conducted by the County's consultants in order to determine the suitability of the site for a Class III landfill, and to evaluate the ability of the site to provide an adequate foundation for the facility. Soil boring and ground penetrating radar were used. It was established that the site is of relatively uniform stratigraphy, characterized by a uniform layer of surficial sand, a reasonably continuous clay semi-confining layer from six to ten feet thick, under which lies the limestone groundwater bearing formation known as the Floridan Aquifer. The hydrogeological survey conducted by the County included a foundation analysis which demonstrates that the subgrade will support loads and stresses imposed by the proposed landfill. It also has a low potential for sinkhole development, and the synthetic liner and leachate collection system are reasonable mitigation steps which address sinkhole potentials. Pasco County's application includes a surface water management system, which has already received approval from the Southwest Florida Water Management District, and which is adequate to control surface water discharged from the Class III landfill site. The groundwater monitoring plan included in the application provides for no less that 10 pairs of monitor wells to be located approximately 100 feet from the boundary of the proposed landfill area. This meets the requirements of the Department, and is adequate to monitor both the surficial and Floridan Aquifer, and to provide early detection of any discharges to the groundwater. Reasonable assurances have been provided, through site specific geotechnical analysis and enhanced design features, that the site can be developed and operated as a Class III landfill without adverse impact to the Floridan Aquifer, despite the fact that the site is located in an area designated by the Southwest Florida Water Management District as a high recharge area. The County has demonstrated that it has the financial ability to construct, operate and close this Class III landfill in accordance with the Department's rules. The operations plan included in the County's application establishes the County's ability to operate the proposed landfill in accordance with rules of the Department. The proposed design of Pasco County's proposed Class III landfill offers reasonable assurances that the Department's standards will be met, and in fact, the design as proposed by the County exceeds the standards required by the Department for a Class III landfill, in that this project includes a liner and leachate collection system which are not mandatory. Competent substantial evidence was not presented by the Petitioners to establish that they would be substantially affected, or affected in any way, from the construction and operation of this Class III landfill.
Recommendation Based upon the foregoing, it is recommended that the Department issue Permit NO. SC 51-144683 to Pasco County. DONE AND ENTERED this 23rd of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1989. APPENDIX The Petitioners did not file Proposed Findings of Fact. Rulings on Pasco County's Proposed Findings of Fact: 1. Adopted in Finding of Fact 3. 2-4. Adopted in Finding of Fact 5. 5. Adopted in Finding of Fact 4. 6-8. Adopted in Finding of Fact 6. 9. Adopted in Finding of Fact 11. 10-11. Adopted in Finding of Fact 7. 12. Adopted in Finding of Fact 10. 13-14. Adopted in Finding of Fact 8. 15. Adopted in Finding of Fact 9. Rulings on the Department's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Rejected since this is a conclusion of law. Adopted in Finding of Fact 3. Adopted in Findings of Fact 4, 5, 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. COPIES FURNISHED: Robert G. Collins 1750 Blue Heron Lane Spring Hill, FL 34610 Robert D. Odell 12636 Box Drive Rolling Oaks Estates Hudson, FL 34667 J. Ben Harrill, Esquire 7530 Little Road, Room 203 New Port Richey, FL 34654 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale Twatchmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact This proceeding concerns an application for authority to construct and operate a 20-acre Class I, Class III, and an asbestos municipal solid waste landfill, as well as to close an existing 25.5-acre Class I municipal solid waste landfill located in Holmes County, Florida. This facility would function as a new regional landfill, in part, to replace the existing landfill in Holmes County. The applicant, EPAI, is a Florida corporation formed for the purpose of constructing and operating the proposed facility. EPAI has an option to purchase the site involved from its present owner, which will be accomplished after the facility is permitted, if it is, and all necessary permits for construction and operation have been obtained, then the applicant will sell stock in its corporation to City Management Corporation (City) domiciled in Detroit, Michigan. EPAI will then continue to exist as a wholly-owned subsidiary of City and will proceed to construct and operate the new landfill and initiate and complete all closure operations for the existing landfill. The Department of Environmental Regulation is an agency of the State of Florida subject to the provisions of Chapter 120, Florida Statutes, and charged with enforcing the provisions of Chapter 403, Florida Statutes, and Chapter 17- 701, FAC, as pertinent to this proceeding. It is thus charged with regulating solid waste management facilities, including permitting their construction, operation, and closure. It is charged with reviewing applications for such projects and issuing permits therefor if the statutes and rules it is charged with enforcing are found to have been complied with by a permit applicant. It has performed that function in this case up until the point that jurisdiction of the permit application dispute engendered by the filing of the subject petition resulted in transfer of the matter to the Division of Administrative Hearings. The Petitioner, CVA, is a group of Holmes County citizens opposing issuance of the landfill permit at issue. Based upon rulings on the motions to dismiss and extant law, CVA was required to present proof of its standing at the final hearing held in this cause. CVA called two witnesses, neither of whom presented evidence relevant to the issue of standing. CVA did not present any evidence, either through testimony or exhibits, to identify its members, to establish that a substantial number of its members would be affected by the issuance of the permit and the construction and operation of the landfill nor evidence which would identify members whose substantial interests will be affected by the construction and operation in a way different from any effect on the interests of the public at large. Project Background Holmes County currently leases a site on which its existing landfill is located. The site consists of 84 acres owned by Stone Container Corporation, the successor in interest to International Paper Company. The existing landfill itself covers approximately 25.5 acres. The proposed facility to be located on the same tract would serve as a new regional landfill to meet the solid waste disposal needs of Holmes County, as well as surrounding counties. The proposed facility would consist of approximately 20 acres divided into Class I, Class III, and asbestos landfill facilities. The project will be located on To Shoo Fly Bridge Road, lying approximately 3.3 miles northwest of the City of Bonifay in Holmes County. The northern portion of the present landfill is an unlined cell operated by the county which began receiving waste in 1979 and ceased depositing waste sometime in 1987. The southside cell of the landfill is clay lined with a leachate collection system. That portion of the county facility ceased accepting waste sometime in 1990. Holmes County is unable to properly operate or to close the existing landfill. Consequently, in June of 1989, the county and the Department entered into a consent order whereby the county agreed to meet certain operational, groundwater monitoring, landfill cell design, administrative and other requirements within certain time periods. The county attempted to meet the terms of that consent order but was unable to do so, primarily for financial reasons. In 1990, the county applied to the Department for a permit to close the existing landfill in accordance with the pertinent provisions of Chapter 403, Florida Statutes, and Chapter 17-7, FAC. The closure permit application was denied by Department order of May 22, 1991. Waste disposal at the Holmes County landfill had ceased in 1990, but it has not been properly closed pursuant to law and Department rules. Currently, it only has a temporary cover of soil and seeded grass in order to stabilize its slopes on the portion of the landfill commonly known as the "highrise". The closure costs for the existing landfill were estimated at approximately $700,000.00, which is beyond the resources of the county. Residents of unincorporated Holmes County currently are disposing of their solid waste by hauling it to the regional landfill in Campbellton in Jackson County nearby or by dumping it in unauthorized disposal areas, such as streams or roadsides. The City of Bonifay disposes its solid waste in the Campbellton landfill, as well. The Campbellton landfill, however, does not accept several solid waste components, such as yard trash. Since the county was unable to obtain the necessary permits to either operate or to close the existing landfill and was unable to meet State-mandated solid waste disposal and recycling requirements, it entered into an agreement with EPAI in May of 1990, whereby that entity assumed financial and legal responsibility for closure of the existing landfill, including obtaining the necessary permits from DER to close it, upon issuance of DER permits necessary to construct and operate a new Class I, Class III, and asbestos landfill at the same general site. The May 21, 1990 agreement between EPAI and the county authorized EPAI to so proceed before DER. Once EPAI obtained the permits necessary, the agreement provided that the county would surrender all right, title and interest in the 84-acre site to EPAI, convey all structures, equipment and appurtenances theretofore used by the county for its landfill operation to the corporation and to assign EPAI any legally assignable benefits which the county would receive under the 1988 Solid Waste Management Act, including recycling grants, if applicable. EPAI, the applicant, has an option to purchase the 84-acre site from Stone Container Corporation. After the issuance of any permits for closure and for construction and operation of the new facilities, the option would be exercised and the property would be conveyed by Stone Container Corporation to EPAI. Once it has purchased that property and the county has abandoned its lease on the property, pursuant to the May 21, 1990 agreement, EPAI would then hold fee title ownership and possession rights to the site. Once it obtained the necessary permits for construction and operation of the new landfill, EPAI will sell its stock to City. EPAI would then continue to exist as a wholly- owned subsidiary of City and will construct and operate the new landfill and close the existing landfill. City is a wholly-integrated waste management corporation based in Detroit, Michigan. It has been operating in the solid waste management field since 1961 and has extensive experience in landfill construction, operation and closure. It operates seven regional landfills, approximately ten transfer stations, and 30-40 residential and commercial solid waste collection companies in Michigan. It also operates hazardous waste facilities in Michigan and in Tampa, Florida. Through construction and operation of its regional landfill and hazardous waste facilities, it is familiar with and accustomed to compliance with all pertinent state and federal regulations applicable to such facilities. City holds a DER permit for its hazardous waste facility in the Tampa, Florida, area and has had a history of no major violations of applicable laws and rules. The corporation was shown to be financially sound. EPAI will operate the proposed facility, should it be permitted, as a regional landfill serving neighboring counties between Okaloosa and Jackson Counties, south to the Gulf of Mexico, and north to the Alabama border. The economic feasibility, however, was not shown to depend on interstate transport or disposal of out-of-state wastes in the landfill. Section 17-701.030, FAC, sets forth the permit submittal requirements for solid waste management facilities. CVA stipulated that EPAI met all applicable permit application submittal requirements in this section, except those in Sections 17-701.030(5)(h) & (i) and 17-701.030(7), FAC. EPAI has an option to purchase the landfill site from Stone Container Corporation, the current owner. EPAI has met the ownership requirement in Section 17-701.030(5)(h), FAC. The applicant will establish an escrow account to insure financial responsibility for closing and long-term care and maintenance of the landfill. A specific condition has been agreed to be placed in the permit requiring the applicant to submit written proof of having established financial assurance for closure and long-term care of the entire site 60 days prior to the acceptance of any solid waste at the facility and within 30 days after permit issuance for operations at the existing landfill. City has the financial ability to establish the escrow account and to provide the necessary financial assurance within 30 days after permit issuance. The applicant has thus satisfied the requirements of 17-701.030(5)(i), FAC, with regard to financial responsibility. Section 17-701.030(7), FAC, requires DER to forward a copy of the permit application to the Water Management District within seven days of receipt of the application. The Water Management District would then prepare an advisory report for DER on the landfill's potential impact on water resources with recommendations regarding disposition of the application. The Department sent the application to the Northwest Florida Water Management District, but the District did not prepare an advisory report. The administrator for the waste management program for the Department's northwest district office, who oversees solid waste facility permitting, testified that, as a matter of course, the District does not prepare an advisory report. Moreover, because the reports are advisory only, DER is not required to respond to any comments or follow any recommendations which may be made by the District in such a report. The Department normally issues solid waste facility permits as a matter of policy without having received a water management district report. 1/ Location and Site Requirements An aerial photograph of this area was prepared, as required by Section 17-701.050(4)(a), FAC. It shows the land uses, zoning, dwellings, wells, roads, and other significant features within one mile of the proposed landfill. This map shows several dwellings located within a mile of the site. The closest dwelling, as determined by aerial photograph and performance of a "windshield" survey, is approximately 2,400 feet from the site. The closest potable water well is at the dwelling located approximately 2,400 feet from the site. There are no existing or approved shallow wells within 500 feet of the proposed waste disposal areas at the landfill. Accordingly, the proposed landfill satisfies the condition in Section 17-701.040(2)(c), FAC, that solid waste not be disposed of within 500 feet of an existing or approved shallow water well. The surficial aquifer is located approximately 30 feet from the ground surface at the landfill site. The sediments in the area in which waste is to be disposed of consists of layers of clay and sandy clay having a very low vertical conductivity. The waste disposal cells will not be excavated down to the surficial aquifer. Therefore, waste will not be disposed of in ground water. Waste will not be disposed of in a sinkhole or in a limestone or gravel pit, as prohibited by Sections 17-701.030(2)(a) and 17-701.040(2)(b), FAC. The 100-year flood zone is located at approximately 120 feet national geodetic vertical datum (NGVD). The proposed landfill will be located at approximately 125 feet NGVD elevation and within a perimeter berm system. Therefore, waste will not be disposed of in an area subject to periodic and frequent flooding, as prohibited by Section 17-701.040(2)(e), FAC. The waste disposal areas are over 200 feet from Long Round Bay, the closest water body. Therefore, the 200-foot setback requirement is met. See, Section 17-701.040(2)(g), FAC. To Shoo Fly Bridge Road, on which the landfill is located, is not a major thoroughfare. There are no other major thoroughfares in the vicinity from which the landfill is visible. Accordingly, waste will not be disposed of in an area open to public view from a major thoroughfare. See, Section 17- 701.040(2)(h), FAC. The landfill site is not located on the right-of-way of a public highway, road or alley, and is not located within the bounds of any airport property. The landfill will not be located within a prohibited distance from airports, as proscribed by Section 17-701.040(2)(k), FAC. See also, Sections 17-701.040(2)(j) and (2)(i), FAC. There are no Class I surface waters within 3,000 feet of the landfill site so the setback provisions in Section 17-701.040(7), FAC, are satisfied. No lead-acid batteries, used oil, yard trash, white goods, or whole waste tires will be accepted at the Class I landfill cell. Only trash and yard trash will be accepted at the Class III cell. Therefore, the prohibitions in Section 17- 701.040(8), FAC, are not violated. A ground water monitoring plan has been developed for the landfill site, pursuant to Section 17-28.700(6), FAC, as required by Section 17- 701.050(3)(a), FAC. The original ground water monitoring plan was prepared by Post, Buckley, Schuh, and Jernigan, Inc. and submitted as part of the initial permit application. This plan addresses monitoring well placement, monitoring, and monitoring plan requirements. It proposes corrective action, as required by Section 17-28.700(6), FAC. Subsequent modifications to that plan were developed by Dr. Thomas Herbert, an expert in geology, hydrogeology, well installation and water quality monitoring. These modifications particularly address monitoring well location and provide additional assurances that the ground water monitoring plan complies with Section 17-28.700(6), FAC. These proposed modifications were submitted to DER prior to hearing. A site foundation analysis using appropriate ASTM methods to determine stability for disposal of waste, cover material, and structures constructed on site was performed and the results were submitted to DER as part of the initial application. Additional foundation stability information and the results of another field investigation regarding sinkhole development potential at the site was submitted to the Department. The field investigations and reports in evidence provide assurance that the disposal site location will provide adequate support for the landfill, as required by Section 17-701.050(3)(b), FAC. The landfill site is easily accessible by collection vehicles and other types of vehicles required to use the site. The site design provides for all weather roadways to be located throughout the site for ready ingress, egress, and movement around the site. The proposed landfill is located to safeguard against water pollution originating from disposal of solid waste. See Section 17-701.050(3)(c)2., FAC. The bottom of the waste disposal cells will be located at least six feet above the top of the surficial aquifer. To ensure that ground water is not polluted by waste disposal, the Class I cell will be lined with a composite liner system comprised of a lower unit consisting of 24 inches of compacted clay having a maximum permeability of 1 X 10-7 centimeters per second, and an upper synthetic liner unit consisting of a high density polyethylene (HDPE) of 80 mil thickness. Leachate generated by the waste in the landfill will be collected by a leachate collection and removal system. The leachate control system consists of a two- foot thick layer of sand having a minimum permeability of 1 X 10-3 centimeters per second, with a permeable geotextile filter cloth layer and a highly permeable geonet layer to collect and direct the leachate into a drainage system consisting of a collection pipe system to transfer the leachate to a containment lagoon. Once in the leachate lagoon, the leachate will be evaporated, recirculated over the working face of the landfill, or transported off site for treatment at a waste water treatment plant. The waste disposal areas are located at approximately 125 foot NGVD elevation. This is well above the 100- year flood plain and they are not located in water bodies or wetlands. An adequate quantity of acceptable earth cover is available on site. See, Section 17-701.050(3)(c)3., FAC. The soil for cover will be obtained from the northeast portion of the site located across To Shoo Fly Bridge Road from the landfill site. The landfill site was shown to conform to proper zoning, as required by Section 17-701.050(3)(c)4., FAC. The 1991 Comprehensive Plan Future Land Use Element for Holmes County designates this site for "public/semi- public/educational" land uses. The "public facilities land uses" designation includes "utilities and other service facilities" of which municipal solid waste landfills are an example. No other land use designation in the Holmes County 1991 Comprehensive Plan expressly includes landfill uses. CVA adduced testimony from Hilton Meadows, its expert witness, as to plant species he observed in the vicinity of the site. He observed plants that he identified as being species that grow on the edge of or in wetlands, but none of these species were shown to exist on the landfill site itself. Mr. Meadows observed them in locations outside the perimeter berms of the landfill site but did not identify their specific locations other than a general direction from the perimeter berms outside of which he observed the plants. He did not quantify the wetland species he observed so as to establish their dominance and did not conduct a jurisdictional wetland survey, as envisioned by Chapter 17- 301, FAC. Landfill Design Requirements As required by Section 17-701.050(4)(a), FAC, an aerial photograph was submitted with the permit drawings. Plot plans were submitted with the permit application, in evidence as EPAI exhibit 1, showing dimensions of the site, location of soil borings, proposed trenching or disposal areas, original elevations, proposed final contours, and previously-filled waste disposal areas. Topographic maps were also submitted with the correct scale and contour intervals required by Section 17-701.050(4)(c), FAC, which show numerous details such as proposed fill areas, borrow areas, access roads, grading, and other details of the design and the site. The design plans also include a report on the current and projected population for the area, the geographic area to be served by the landfill, the anticipated type, quantity and source of the solid waste, the anticipated useful life of the site, and the source and characteristics of cover materials. The landfill will be a regional facility serving the residents of Holmes and surrounding counties. The current population of the area to be served is approximately 63,183 with the projected population for the year 2000 being 76,792. The landfill will receive municipal sanitary solid waste, asbestos, petroleum-contaminated soils, and yard trash. It will not receive used oil, lead-acid batteries, biomedical wastes, hazardous wastes, or septic sludge. The permit application was shown to satisfy all design requirements of Section 17-701.050(4), FAC. Geology, Hydrogeology, and Foundation Stability Dr. Thomas Herbert, a registered professional geologist and licensed well driller in Florida testified of geologic and hydrogeologic investigations and analyses he performed. Mr. Herbert has over 25 years experience in the fields of geology and hydrogeology and was tendered and accepted as an expert in those fields. Dr. Herbert drilled shallow and deep core borings, which were converted into monitor wells to monitor ground water in the surficial and deep aquifers under the landfill site. In addition, he drilled several medium-depth borings along the western boundary of the site to analyze geologic and hydrogeologic conditions in this area, which is the portion of the site closest to Long Round Bay. Dr. Herbert used a hollow stem auger to take the soil borings and install the monitoring wells. This is a device which allows sampling tools to be placed down a hollow drill barrel for more accurate sediment sampling. Dr. Herbert used a continuous sampling system wherein a five-foot core barrel sampled the soil conditions ahead of the turning drill auger. Continuous sampling is preferable to other types of soil sampling equipment because it provides a detailed representative sample of the soil on the site and enables the sampler to precisely determine whether soil materials occur in small thin layers or bands on the site or whether there is a massive deposit of relatively uniform soils. The continuous sampling method also minimizes mixing of soils and creates an undisturbed profile that can be examined once the core barrel is opened. This type of sampling yields a very accurate picture of soil conditions on the site. In addition to the borings taken on the site by Dr. Herbert, other core borings were taken on site by Ardaman & Associates, a geotechnical engineering firm, for the purpose of analyzing the site foundation to determine the site's stability and potential for developing sinkholes. These core boring profiles were analyzed, along with those performed by Dr. Herbert, in determining the site geologic and hydrogeologic conditions. In addition to the core borings, Dr. Herbert reviewed studies on the geology and hydrogeology of the area, as well as the field investigations reported by Post, Buckley, Schuh, and Jernigan, as part of the original permit application submittal. In order to gather additional information on the geology and hydrogeology of the site, gamma ray logging was performed on the wells installed by Dr. Herbert, as well as on the existing wells at the site. Gamma ray logging measures natural gamma radiation from the sediments and permits identification of soil type based on the amount of gamma radiation coming through the soils. Generally, the higher the clay content, the higher the gamma ray count. Gamma ray logging provides an accurate means for determining clay, sand, or sandy clay soils. By examining gamma ray logs of wells he installed and sampled, as well as for wells already existing on the site, Dr. Herbert was able to obtain extensive information about the subsurface soil conditions at the site. Based on these information sources, the geology of the site was determined. The sediments ranging from the surface of the site down to more than 100 feet below the surface are part of the citronelle formation, which consists of consolidated to partially cemented sand, silt, and clay sediments, called clastics, deposited in the Plio-Pleistocene age, between one and four million years ago. The citronelle formation at the site is predominantly clay, with some thin sand lenses running through the clays. The sand lenses or "stringers" grade laterally into the clays or silts. A surficial aquifer is located between 30 and 40 feet below the land surface at the site and is confined immediately above and below by dense, dry clay layers. The top confining unit is estimated to be approximately 10 feet thick. The lower clay confining unit, down to approximately 100 feet below the land surface, consists of dense, dry clays with thin units of sandy or silty clays or clayey sands. Below the citronelle foundation, at approximately 100 feet below land surface, there is a sequence of weathered carbonate rock or mud, termed "residuum". This material is too fine-grained to yield water in usable quantities. Competent limestone is first encountered below the carbonate "residuum" at approximately 262 feet below the surface. This limestone is likely part of the lisbon- tallahatta formation, which is part of the Claiborne Aquifer. In order to investigate an area in the western portion of the site depicted in the Post, Buckley report as being sandy, Dr. Herbert installed a deep core boring and analyzed the soils in that area. He thus determined that rather than being solid sand, as depicted in the Post, Buckley report, the sediments in this area are actually sands interbedded with clay and silt stringers, which decrease the sediments' horizontal and vertical conductivity. He determined that the area is a sandy channel bounded laterally and below by dense clays. As with the rest of the site, the surficial aquifer also is confined in this area. As part of his ground water monitoring plan recommendations, Dr. Herbert recommended installation of an additional monitor well in this area. The core borings and gamma ray logging allowed accurate determination of the site hydrogeology. Transient surface water, termed "vadose" water, percolates down from the land surface through layers of clay, sand, and silt. Within these sediment layers, there are lenses of clay ranging from a few inches to a foot thick. Vadose water is trapped on top of the clay layers, creating shallow saturated zones called "perched" zones, ranging from one to a few inches thick. The vadose water and perched zones are not connected to any ground water systems. Below these perched zones, dense, dry clay layers create a confining layer above the surficial aquifer. The surficial aquifer occurs in discontinuous sandy layers 30 to 40 feet below the land surface. Beneath the surficial aquifer, dense, dry clay layers form a lower confining unit. These confining clay layers overlying and underlying the surficial aquifer create pressure or hydraulic "head", on the water in the surficial aquifer. When a core boring or well penetrates through the upper clay confining layer, the water in the surficial aquifer rises up the well or core casing, due to the hydraulic head, to a level called the potentiometric surface, which is at a higher elevation than the elevation at which the surficial acquifer is actually located. Based on the confined nature of the surficial aquifer, it was determined that water table elevations reported in the hydrogeologic report initially submitted as part of the application are actually potentiometric surface elevations. This is consistent with the information provided in the additional information submittal as part of the permit application which indicates that the potentiometric surface at the landfill site may be five to seven feet below the bottom of the liner. This was confirmed at hearing by Mike Markey, a professional geologist with the Department, who reviewed the permit application and hydrogeologic report submitted by Dr. Herbert and prepared a memorandum dated September 2, 1992, stating that his "previous concern regarding separation of the 'water table' aquifer and HDPE liner is no longer an issue because the 'water table' aquifer was not found" by Dr. Herbert. The surficial aquifer on the landfill site cannot yield enough water to support long-term use as a potable water source. Due to the high clay content in the aquifer, the water has a high sediment content and low water quality, rendering it unusable for domestic purposes. The overall horizontal conductivity for the surficial aquifer on a site-wide basis is estimated to be low due to the discontinuous sand layers comprising the surficial aquifer on the site. While some zones within the aquifer may have high horizontal conductivity, these zones have limited lateral extent and change rapidly into zones of low horizontal conductivity. The steep hydraulic gradient from the highest to lowest areas of the site further indicates that the surficial aquifer has low horizontal conductivity. If water were rapidly moving through the surficial aquifer across the site, the hydraulic gradient would be much less steep. The presence of the hydraulic gradient across the site indicates that the clay in the surficial aquifer system is so pervasive that the water in that system essentially is stagnant. Based upon his extensive experience and familiarity with the clastic sediments like those found at the landfill site, Dr. Herbert estimated the vertical permeability of the sediments comprising the upper and lower confining layers of the surficial aquifer to be in the range of 1 X 10-6 to 1 X 10-8 centimeters per second. These projected permeability values are very low, thus, very little water is moving vertically through the surficial aquifer to deeper depths. The original hydrogeology report on the site submitted as part of the application indicated that the ground water flow is to the west, southwest, and northwest based upon monitoring well and piezometric data. Dr. Herbert's subsequent field investigations confirmed the ground water flow direction as reported in the permit application. Dr. Herbert estimated that the surficial aquifer will be located between 8 and 15 feet below the finished bottom elevation of the Class I waste disposal cell. The intermediate aquifer system is located beginning 80 or 90 feet below the landfill site and is defined as all strata that lie between and retard the exchange of water between the surficial aquifer and the underlying Floridan aquifer, including the lower clay confining unit directly underlying the surficial aquifer. In this part of west Florida, the intermediate system is estimated to be 50 to 60 feet thick and acts as an "aquatard", which means that it retards the passage of water from the surficial aquifer to lower levels. The standard penetration test (SPT), which is an engineering test of soil density, yielded values of 40 to 50 blows per inch for soils sampled in the top 20 feet of the intermediate system throughout the site. These SPT values indicate the soils in the intermediate system are extremely dense, over-compacted clay materials. Below the clays, the lower portion of the intermediate system consists of a weathered limestone residuum. Due to the extremely fine grain size of the residuum, it will not yield water in quantities sufficient to support a well. The deep core borings taken at the site indicate that the Floridan aquifer limestone underlying the landfill site has undergone paleokarst evolution. The underlying limestone has been dissolved away over a long period of time, creating the limestone residuum detected in the deep core borings. Based on the deep core borings taken at the site, Dr. Herbert concluded there is no competent Floridan aquifer limestone capable of supporting wells underlying the landfill site, and the Floridan aquifer either is not present under the site or exists only as a relict or remnant of the limestone formations that make up the Floridan aquifer system in other parts of Florida. The core borings taken on site indicate that the paleokarst terrain underlying the landfill contains no cavities, large openings, sinkholes or other features in the rock that could cause the landfill foundation to collapse. All karst features in this area are filled in and "healed" by the carbonate residuum overlying the limestone under the landfill. Dr. Herbert also investigated the geologic nature of Long Round Bay. In addition to reviewing literature regarding the geology of west Florida in the vicinity of Holmes County and topographic maps depicting the site, Dr. Herbert took at least one sediment core boring in Long Round Bay and also circumnavigated the perimeter of the Bay. Based on information from these sources, Dr. Herbert opined that Long Round Bay, like many other drainage basins in the area north of Bonifay, is a collapse feature of the paleokarst sequence in the vicinity, and is a topographic depression caused by weathering away of the limestone over time. The sediments underlying Long Round Bay consist of deep citronelle clays washed into the collapse feature. Long Round Bay is relatively flat with poorly defined outlets and receives surface drainage from the surrounding area. Because there are no defined channels connecting Long Round Bay to Wright's Creek, water movement from Long Round Bay into Wright's Creek is extremely slow. Long Round Bay is likely not an aquifer recharge area because there is no direct karst connection between Long Round Bay and any aquifer. Clays have run off the surrounding area and accumulated in Long Round Bay for thousands of years sealing off any connections between it and any underlying aquifer. In addition to Dr. Herbert's determination of the potential for active karst formation under the landfill site, Ardaman & Associates performed the foundation analysis of the site, as required by Section 17-701.050(3)(b), FAC. The foundation analysis was supervised by William Jordan, a registered professional engineer. He has an extensive education in geotechnical engineering, as well as 11 years of experience in that field. He was tendered and accepted as an expert in geotechnical engineering and materials testing. As part of the foundation analysis, Ardaman & Associates performed two deep core borings to determine the potential for development of sinkholes at the site. Both borings were taken on the western side of the landfill site, closest to Long Round Bay. One of the borings was performed in an area having a relatively high sand content in the soil, as identified in the hydrogeology report submitted in the permit application. The borings were drilled down to approximately 160 feet below the surface, to the top of the weathered limestone horizon. In Mr. Jordan's extensive experience in foundation testing and analysis, presence or potential for sinkhole development is usually evident at the horizon of the limestone or within the top 15 feet of the limestone. The core borings did not reveal any joints, open seams, cavities, or very loose or soft zones at the horizon or on top of the limestone. In addition, the sediments overlying the limestone horizon were determined to consist of medium dense to dense and medium stiff to stiff sediments, which indicate lack of sinkhole activity or potential. No indication of active or imminent sinkhole conditions were found on the site, either through the core borings or from surficial observation. In addition to the deep core borings, Ardaman & Associates, under Mr. Jordan's supervision, also performed four other core borings to a depth of 60 feet below the land surface. These borings indicated the sediments at the site are composed of clayey sands, very clayey sands, "lean" sandy clays, and sandy "fat" clays. The SPT tests performed on the soils indicate the site soils range from medium to high density and are stiff to very stiff and hard. Mr. Jordan performed a settlement analysis of the landfill based on the types of sediments present on site and assuming a compacted unit weight of 37 pounds per cubic foot for the landfill waste. This unit weight is a typical weight value for compacted municipal waste. For settlement analysis, Mr. Jordan used the SMRF elastic compression and consolidation methods, both of which are professionally accepted standard methods for determining settlement of large structures, including landfills. Using these methods, he determined that the total settlement for the landfill over its total life would be between three and five and one-half inches. Based on the uniformity of the subsurface conditions and density of the soils on the site, any settlement would be uniform and thus would not result in tearing or other failure of the landfill liner. Mr. Jordan performed a bearing capacity analysis of the site. Based on the sediments on site, he estimated the safety factor against bearing capacity to be in excess of 10. The minimum acceptable safety factor for large habitable structures, such as buildings, is in the neighborhood of two to three. Thus, the safety factor determined for the landfill site far exceeds the minimum standard for bearing capacity. Mr. Jordan performed an embankment slope stability analysis for the perimeter berm of the landfill. The inside slope of the perimeter berm has a 3:1 slope and the outside slope has a 4:1 slope. Mr. Jordan's stability analysis was performed on the inside slope of the berm which is steeper and, therefore, less stable. Due to the stability of the clay sediments composing the subgrade of the perimeter berm, and based on his extensive experience in slope stability analysis, Mr. Jordan determined there is no danger of deep circular arc failure of the landfill berm. He used a professionally accepted standard slope stability evaluation method called the "infinite slope" method, to analyze the probability for shallow circular arc failure of the berm. He determined a safety factor of 2.0 to 2.4 for the embankment slope, which is between 1.5 and 2.0 times greater than the minimum accepted safety factor of between 1.3 and 1.5 for embankment slopes. Mr. Jordan also performed an analysis of the site subgrade stability for compaction. Mr. Jordan's analysis showed that the stiff or medium dense silty to clayey sands and clays on the site provide a stable base against which compaction over the life of the landfill can safely occur. Based on the foundation analysis performed by Mr. Jordan on the landfill site, it is evident that the landfill will not be located in an open sinkhole or in an area where geologic foundations or subterranean features will not provide adequate support for the landfill. (See Section 17-701.040(2)(a), FAC). The foundation analysis indicates the landfill will be installed upon a base or in a hydrogeologic setting capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement compression, as required by Section 17- 701.050(5)(b)2., FAC. The foundation analysis further indicates the site will provide support for the landfill, including the waste, cover and structures built on the site (See Section 17-701.050(3)(b), FAC). Section 17-701.050(5)(d)1.a, FAC, requires the lower component of the landfill liner to consist of a compacted soil layer having a maximum hydraulic conductivity of 1 X 10-7 centimeters per second. Mr. Jordan analyzed nine additional core borings to determine if the native soils on the site meet the conductivity standard in the rule or if off-site soils must be blended with on- site soils to achieve the standard. To test whether the on-site soil will meet the conductivity standard, soils were compacted to approximately 95% of the standard maximum for density, which is the industry standard compaction for soil permeability testing. The soils from eight of the nine borings taken at the site exhibited conductivity values of approximately 4.8 X 10-8 centimeters per second. This value is five times less conductive than the value required by the above-cited rule. Only one boring exhibited a conductivity value in excess of the maximum value established in the rule. Based on the conductivity values determined at the site, it is likely the native soils on the landfill site will meet or exceed the maximum conductivity value mandated in the above-cited rule. If the on-site soils do not meet this standard, then bentonite or another material from off site will be blended with the on-site soils to achieve the conductivity standard mandated by the rule. Ground Water Monitoring and Water Quality As required by Section 17-701.050(3)(a), FAC, a ground water monitoring plan for the landfill site was completed in accordance with Section 17-28.700(6), FAC. The original ground water monitoring plan was submitted as part of the application. This plan was incorporated into the notice of intent and the attached draft permit for the landfill, as part of specific condition The ground water monitoring plan subsequently was modified and supplemented by Dr. Herbert to include monitor wells required to be installed by Holmes County on the site, pursuant to the consent order entered into by the county and DER on June 26, 1989, as well as the wells installed by Dr. Herbert as part of his hydrogeologic investigation. DER established a zone of discharge for the landfill site, as required by Rule 17-28.700(4), FAC. The horizontal boundary of the zone of discharge extends to the ground water monitoring compliance wells located at the western, northern, and southern portions of the site and to a line coextensive with the eastern property line for the southeastern portion of the property. The horizontal zone of discharge boundary is located inside the western, northern, and southern property boundaries. The vertical zone of discharge extends from the land surface down to the top of the clay layer underlying the site at approximately +50 to +60 feet NGVD. These zones are established in compliance with Section 17-28.700(4), FAC. The groundwater monitoring plan provides for 15 monitor wells to be located in close proximity to the waste disposal areas and the site boundaries to monitor compliance with all applicable ground water quality standards in Sections 17-3.402, 17-3.404, and 17-550.310, FAC. Four of these wells will be located near the western property boundary to closely monitor water quality to insure contaminants do not seep into Long Round Bay. To detect contamination that may violate applicable surface water quality standards in Sections 17-302.500, 17-302.510, and 17-302.560, FAC, at the edge of and beyond the zone of discharge, the ground water monitoring plan provides for several surface water sampling points on the landfill site near the edge of the zone of discharge. If contaminants are detected in the surface water monitoring system, remediation activities can be implemented to insure the surface water quality standards set forth in the above-cited rules are not violated outside the zone of discharge. As required by Section 17-28.700(6)(g)1., FAC, the ground water monitoring plan provides for a well to be located to detect natural, unaffected background quality of the ground water. The monitoring plan also provides for a well to be installed at the edge of the zone of discharge downgradient from the discharge site, as required by Section 17-28.700(6)(g)2., FAC, and for installation of two intermediate wells downgradient from the site within the zone of discharge to detect chemical, physical, and microbial characteristics of the discharge plume, in excess of the requirement for one such well contained in Section 17-701.050(6)(g)3., FAC. The location of the other wells in the ground water monitoring plan was determined according to the hydrogeologic complexity of the site to insure adequate reliable monitoring data in generally accepted engineering or hydrogeologic practice, as required by Section 17-28.700(6)(g)4., FAC. Due to the essentially stagnant nature of the ground water in the surficial aquifer system, and given the location of the intermediate monitoring wells, any contamination detected at the site can be remediated through recovery wells before it reaches the edge of the zone of discharge. Moreover, due to the confined nature of the surficial aquifer system, there is very little free water in the aquifer. Accordingly, any contamination could be quickly removed by recovery of ground water and de-watering of the area in which the contamination is detected through remediation wells. Also, given the location of the monitoring wells on the site, the northerly direction of the surficial aquifer ground water flow on the northern portion of the site near the existing landfill, and the essentially stagnant nature of the ground water in the surficial aquifer, contamination emanating from the existing cell could be discerned from that emanating from the new cell and recovery and remediation operations directed accordingly. The DER intent to issue and draft permit specify an extensive list of parameters which must be sampled at the ground water monitoring wells and surface water sampling points on the landfill site, as required by Sections 17- 3.402, 17-302.510, 17-302.560, and 17-550.310, FAC. These parameters must be sampled and reported to DER on a quarterly basis. In addition, annual water quality reports must be submitted to DER for the site. Based on the large amounts of clay content and the low horizontal and vertical conductivity values of the on-site sediments, the stagnant nature of the surficial aquifer system, the virtual absence of the Floridan aquifer under the site, and the location of the monitoring wells, the ground and surface water monitoring program provides reasonable assurance that the applicable water quality standards in the rules cited above will not be violated within and outside the zone of discharge. Liner Design, Performance, Quality Control, and Installation Section 17-701.050(5)(d)1., FAC, requires that a composite liner and leachate collection and removal system be installed in a landfill such as that proposed. Mr. Leo Overmann, is a registered professional engineer specializing in landfill engineering. He has over 10 years experience in landfill engineering, design, and construction and has worked on the design and construction of over 50 landfill facilities and 250 landfill disposal cells. He was tendered and accepted as an expert in liner design, quality control plans, and leachate control systems design and performance. It is thus established that the composite liner will have an initial 24-inch layer of compacted clay having a maximum hydraulic conductivity of 1 X 10-7 cm/sec. The 24-inch clay layer proposed by the applicant exceeds the 18- inch minimum thickness provided in the above-cited rule and will be placed in the field in layers or lifts of six inches or less. Each lift will then be treated and compacted to proper specifications in accordance with sound engineering practice in order to insure a tight bond between the clay layers. In the process of placing the clay lifts on the site, any roots, holes, channels, lenses, cracks, pipes, or organic matter in the clay will be broken up and removed, as required by the above-cited rule. In order to insure conductivity of the clay liner component does not exceed the above figure, testing will be done at the site or off-site by constructing a "test pad". A test pad is a site at which the liner construction techniques are tested using the clay material that will comprise the lower liner unit. Once the pad is constructed, the hydraulic conductivity of the clay can be tested to determine the most suitable construction methods in order to meet the above-mentioned conductivity standard and the other design and performance standards in the rule section cited last above. The applicant's liner quality control plan provides for testing of the clay liner hydraulic conductivity and compliance with the other liner design and performance standards in the rule (See Section 17- 701.050(5)(c), FAC). A synthetic geomembrane liner consisting of high density polyethylene (HDPE) will be placed directly on top of and in contact with the clay liner. If the geomembrane should leak, the clay will then retard leachate migration. Although Rule 17-701.050(5)(d)1.a., FAC, only requires a 60-mil thickness liner, the applicant has proposed to use a 80-mil liner. The thicker HDPE liner is less susceptible to stress and wear and tear in the daily landfill operation than is the thinner 60-mil liner required by the rule. The water vapor transmission rate of the 80-mil liner will be approximately 1 X 10-12 cm/sec, which is 10 times less transmissive than the maximum water vapor transmission standard of 1 X 10-11 cm/sec established in Rule 17-701.050(5)(d)1.a., FAC. The design also provides for a drainage layer and primary leachate collection and removal system to be installed above the HDPE liner, as required by the above-cited rule. The drainage layer above the liner consists in ascending order, of a layer of geonet material having an equivalent permeability of approximately three cm/sec; a layer of non-woven, needle-punched geotextile cloth, and a two-foot thick layer of sand. The sand provides a permeable layer which allows liquid to pass through it while protecting the underlying synthetic components of the drainage system and liner. The geotextile cloth component of the drainage layer filters fine particles while allowing liquid to pass through it to the geonet layer. The geonet layer is approximately 3,000 times more conductive than required by Section 17-701.050(5)(f), FAC, so as to allow rapid drainage of leachate off of the HDPE liner. The drainage layer is designed to reduce the leachate head or hydraulic pressure on the liner to one inch within one week following a 25-year, 24-hour storm event. This was determined by use of the Hydrologic Evaluation of Landfill Performance (HELP) model. This model is the standard computer model used in the landfill design and construction industry to determine leachate depth over the synthetic liner in lined landfills. The HELP model calculations submitted in the permit application were prepared by Pearce Barrett, the EPAI landfill design engineer, an expert witness. The HELP model analyzes water and rainfall that falls on active waste disposal cells and percolates through the waste, and the model helps determine the amount of leachate that will accumulate on top of the liner. To determine this amount, the HELP model uses several parameters, including rainfall amount, landfill size, and the number of waste and protective cover layers. The HELP model in this instance involved employment of Tallahassee-collected rainfall data because long-term, site-specific data for the landfill site was not available. The Tallahassee rainfall average is greater than the rainfall average for Chipley, which is closer to the landfill site and, therefore, provides a more conservative, "worst-case" rainfall figure for employment in the HELP model calculations. The HELP is itself a very conservative model, generating a worst-case determination of the amount of leachate that will end up on top of the landfill liner. The model's analysis and calculations indicate that the leachate will be reduced to a one-inch depth on the liner within one week after a 25-year, 24-hour storm event. The landfill project design specifications, in the permit application, provide that all materials in direct contact with the liner shall be free of rocks, roots, sharps, or particles larger than 3/8 of an inch. The geonet and geotextile material are in direct contact with the top of the HDPE liner and the clay liner is located directly below the HDPE liner. The project design specifically provides that the clay material comprising the clay liner component will not contain roots, rocks, or other particles in excess of 3/8 of an inch. No waste materials thus will come into contact with the clay liner. The design specifications also provide additional protection for the liner by requiring that the initial waste placed in the landfill be select waste that is monitored and screened for such things as metal objects, wooden posts, automobile frames and parts, and other sharp, heavy objects which could tear the liner. The liner design contained in the application meets the design requirements of Rule 17-701.050(5)(d), FAC. Section 17-701.050(5)(b), FAC, requires that the liner be constructed of materials having appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients, physical contact with the waste or leachate to which they are exposed, climatic conditions, stress of installation, and daily operations. The liner is constructed of HDPE, which is superior to other types of plastic for use as municipal and hazardous waste landfill liners due to its physical and chemical properties. It is a material composed of long polymeric chain molecules, which are highly resistant to physical failure and to chemical weakening or alteration. The liner is of sufficient strength and thickness to resist punctures, tearing, and bursting. The liner has a safety factor of over seven, which is three and one-half times greater than the minimum acceptable safety factor of two, required in the Department's rules for landfill liners. The liner proposed in this instance will not fail due to pressure gradients, including static head or external hydrogeologic forces. Mr. Overmann evaluated the effects of a hydrologic head of one foot over the HDPE liner and the clay liner component and determined that the protective sand layer will insure the HDPE liner does not fail. Mr. Overmann relied on the testimony of Dr. Herbert with respect to hydrogeologic site characteristics in concluding that hydrogeologic forces will not cause liner failure. The 80-mil liner proposed by EPAI will be more resistant to the stresses of installation and daily operation than will a 60-mil liner. The two-foot sand layer above the drainage layer and the HDPE liner will also help protect the liner from stresses of daily operation. Mr. Overmann analyzed the liner's potential for failure between the point at which it is anchored on the edge of the landfill and the base of the landfill where settlement is greatest due to waste deposition. He determined that the HDPE liner would elongate on the order of one percent of its length. This is far less than 700 to 800 percent elongation required to break the liner material. Based on the site foundation analysis and the proposed liner design for the landfill, the liner will not fail due to hydrogeologic or foundation conditions at the site. The liner meets the performance requirements set forth in Rule 17-701.050(5)(b)2., FAC. The liner meets requirements that it cover all of the earth likely to be in contact with waste or leachate. The liner extends beyond the limits of the waste disposal cells to an anchor trench where the HDPE liner is anchored by soils and other materials to hold it in place during installation and operation. The liner design provides reasonable assurance that the liner performance standards contained in the above rule will be satisfied. There are no site- specific conditions at the Holmes County landfill site that would require extraordinary design measures beyond those specified in the rule cited above. The permit application includes a quality control and assurance plan for the soil and HDPE liner components and for the sand, geotextile, and geonet components of the drainage layer. A quality control plan is one in which the manufacturer or contractor monitors the quality of the product or services; a quality assurance plan is one in which an independent third party monitors the construction methods, procedures, processes, and results to insure they meet project specifications. The quality control/quality assurance plan requires the subgrade below the clay liner to be prepared to insure that it provides a dry, level, firm base on which to place the clay liner. The plan provides that low- permeability clay comprising the liner will be placed in lifts of specified thickness and kneaded with a sheepsfoot roller or other equipment. Low- permeability soil panels will be placed adjacent to the clay liner and scarified and overlapped at the end to achieve a tight bond. Each clay lift will be compacted and tested to insure it meets the specified density requirements and moisture specifications before a subsequent lift is placed. Lined surfaces will be graded and rolled to provide a smooth surface. The surface of the final low- permeability soil layer will be free of rocks, stones, sticks, sharp objects, debris, and other harmful materials. If any cracks should develop in the clay liner, the contractor must re-homogenize, knead, and recompact the liner to the depth of the deepest crack. The liner will be protected from the elements by a temporary protective cover used over areas of the clay liner exposed for more than 24 hours. The plan also provides specifications for visual inspection of the liner, measurement of in-place dry density of the soil, and measurement of hydraulic conductivity on undisturbed samples of the completed liner. These tests will be performed under the supervision of the professional engineer in charge of liner installation to insure that performance standards are met. There will be a quality control plan for installation of the HDPE liner in accordance with the DER approved quality control plan that incorporates the manufacturer's specifications and recommendations. The quality assurance and quality control plan calls for the use of numbered or identified rolls of the HDPE liner. The numbering system allows for identification of the manufacturing date and machine location, so that the liner quality can be traced to insure that there are no manufacturing anomalies, such as improper manufactured thickness of the liner. The plan also addresses in detail the installation of the HDPE liner. The liner is installed by unrolling it off spools in sections over the clay liner. As it is unrolled, it is tested for thickness with a micrometer and is visually inspected for flaws or potential flaws along the length of the roll. Flaws detected are marked, coded, and repaired. Records are prepared documenting each flaw. If flaws appear frequently, the HDPE is rejected and removed from the site. As the sheets are installed, they are overlapped and bonded together by heat fusing to create a watertight seam. As the sheets are seamed, they are tested in place by nondestructive testing methods to insure seam continuity and detect any leaks or flaws. If flaws are detected, they are documented and the seam is repaired. The seams are also subject to destructive testing, in which a sample of the seam is removed in the field and tested in the laboratory for shearing or peeling apart of the sheets. If destructive testing reveals seam flaws, additional field and laboratory testing is performed and necessary repairs are made. All tests, repairs, and retests are carefully documented, and a map depicting the location of all repairs is prepared for quality control and performance monitoring. The plan for the installation of the geonet, geotextile, and sand layers provides specifications for storage, installation, inspection, testing, and repair of the geonet and geotextile layers. The liner construction and installation will be in conformance with the methods and procedures contained in EPA publication EPA/600/2-88/052, Lining of Waste Containment and Other Impoundment Facilities, as required by Section 17-701.050(5)(a), FAC. The quality assurance and quality control plan proposed exceeds the requirements contained in Section 17-701.050(5)(c), FAC. Leachate Collection and Removal System The landfill design includes a leachate collection and removal system. See Section 17-701.050(5)(e)&(f), FAC. The leachate collection and removal system meets the requirements in the above rule by providing that the design incorporate at least a 12-inch drainage layer above the liner with a hydraulic conductivity of not less than 1 X 10-3 cm/sec at a slope to promote drainage. The drainage layer consists of a geonet layer, a geotextile layer, and a two- foot sand layer. The geonet has a hydraulic conductivity of two to three cm/sec, many times more permeable than required by the rule; and the sand layer will have a hydraulic conductivity of approximately 1 X 10-3 cm/sec. The leachate collection and removal system meets regulatory requirements contained in the above-cited rule that the design include a drainage tile or pipe collection system of appropriate size and spacing, with sumps and pumps or other means to efficiently remove the leachate. The design provides that the Class I cell will be divided into operating disposal cells. The design includes a piping system consisting of a 6-inch diameter pipe to be placed down the center of each of the operating cells and encased in a granular river rock medium. The HELP model calculations included in the permit application and evidence indicate that the leachate will be removed efficiently and effectively and that the leachate head will be maintained in compliance with the performance standards in the rule. The piping system is on a slope that drains to a central location or sump. Based on a design preference of City, the piping design will be slightly modified in the construction drawings to provide that rather than going through the HDPE liner, the leachate piping will run up the side of the cell wall and leachate will be pumped out of the cell into the leachate lagoon. The leachate collection and removal system design provides for a granular material or synthetic fabric filter overlying or surrounding the leachate collection and removal system to prevent clogging of the system by infiltration of fine sediments from the waste or drainage layer. A layer of non-woven, needle-punched geotextile will be wrapped around the granular river rock material surrounding the piping system to filter out fine particles. The design also provides a method for testing whether the system is clogged and for cleaning the system if it becomes clogged. A clean-out tool can be run through the openings in the leachate collection piping system to monitor and pressure clean the pipes if they become clogged. Thus, the leachate collection and removal system will satisfy the leachate system design requirements of Section 17-701.050(5)(f), FAC. The leachate collection and removal system will meet the performance standards in paragraph (e) of that rule, as well. The leachate collection and removal system will be located immediately above the liner and will be designed, constructed, operated, and maintained to collect and remove leachate from the landfill. The HELP model analysis and calculations indicate that the leachate depth will not exceed one foot on top of the liner. The leachate collection and removal system will be constructed of materials which are chemically resistant to the waste disposed of in the landfill and leachate expected to be generated. The geonet will be comprised of HDPE, which is chemically resistant to waste and leachate due to its molecular structure. The collection piping system also will be composed of HDPE. The geotextile layer will be composed of a non-woven polyester or polypropylene fabric, which has been determined to be resistant to and compatible with municipal solid waste leachates. The sand layer will consist of non-carbonate materials that are chemically resistant to or compatible with leachate. The evidence shows that the system will be of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying waste, cover materials, and equipment used at the landfill. Geonet drainage layers, HDPE piping, geotextile fabric, and sand layers such as those proposed are routinely and effectively used in landfills, including those that are deeper than the landfill proposed in the instant situation. The leachate collection and removal system meets requirements in paragraph (e) of the above rule, as well, that the system be designed and operated to function without clogging through the active life and closure period of the landfill. The geonet and geotextile layers will prevent the piping system from clogging. If clogging occurs, the system is designed to allow cleaning of the pipes. The collection and removal system will be designed and constructed to provide for removal of the leachate within the drainage system to a central collection point for treatment and disposal. The leachate will drain by gravity from the sump into the leachate lagoon, but will be altered during construction to provide for pumping of leachate out of the system into the lagoon in order to prevent having to penetrate the HDPE liner with piping. Once the leachate is pumped into the lagoon, it will be recirculated over the landfill face, evaporated from the lagoon, or removed off site for treatment and disposal at a waste disposal and treatment plant. Surface Water and Storm Water Management System The storm water management system for the landfill is designed and sized according to local drainage patterns, soil permeability, annual precipitation calculations, area land use, and other characteristics of the surrounding watershed. (See Rule 17-701.050(5)(h), FAC). The engineering expert for the applicant, Mr. Barrett, designed the storm water management system. He considered the presence of dense clay soils on the site which do not provide good percolation because of low permeability, with regard to storm water falling on the site. He also took into account existing drainage patterns, as well as the annual precipitation. The retention and detention ponds and drainage ways designed into the system consist of three detention basins located at the north, southeast, and southwest quadrants of the site and one retention basin located on the western portion of the site. The site is divided into watersheds and is drained by an on-site gravity system consisting of runoff collection pipes to intercept the overland flow and convey the runoff into the retention and detention facilities. Runoff from the northern watershed is treated in detention basin 1, that from the southeast watershed in basin 3, and runoff from the southwest watershed area in detention basin 4. Runoff from the western area or watershed is treated in retention basin 2. A computer model was used by Mr. Barrett in determining the appropriate design for the storm water management system. The model is called the hydrologic engineering center-1 model developed by the U.S. Army Corps of Engineers. It is a model routinely and widely accepted in the storm water engineering design profession and discipline for designing such systems. It has historically been accepted by the Florida Department of Transportation, DER, the Corps of Engineers, and a number of counties and municipalities. A number of parameters, such as total runoff area, watershed characteristics, rainfall amount, time of concentration, lag time, and route description, were put into the model to develop the storm water management system design. Because no actual runoff data was available to calibrate the model, the model was run using data for two hypothetical storm events, the 25-year, 24-hour storm and the 10- year, 24-hour storm. Total rainfall amounts for these events were obtained from rainfall intensity duration-frequency curves developed by the Florida Department of Transportation (FDOT) for this geographical area. The detention basins are wet treatment facilities having permanent pools of water. Wetlands vegetation grows on the littoral slopes of the detention basins and removes pollutants from the storm water by natural uptake of pollutants contained in the water through the roots, stems, and leaves of the plants. Based on the HEC-1 model, the detention basins are designed to store one inch of runoff over the permanent pool control elevation and to retain the first one-half inch of rainfall, as required by Section 17-25.040(5), FAC, for projects having drainage areas of less than 100 acres. Each basin has several pipes to allow outflow when the water level exceeds the one-half retention level. As water rises to the outflow pipe level, it flows out of the basin and eventually discharges off site. The outflow pipes are two to three inches in diameter, allowing discharge of a controlled volume of water at a controlled rate. The discharge structures will be constructed in accordance with construction drawings that will include erosion control devices, such as rip- rap. The basins also have vertical riser pipes that discharge if water reaches a higher set elevation, specified in the permit application. Only if the water level rises to an elevation exceeding the 25-year, 24-hour storm elevation would the water flow over the berm. As required by Section 17-25.025(8), FAC, the storm water management system design provides for skimmers to be installed on discharge structures to skim oil, grease, and debris off water discharged from the basins. No more than one-half of the volume will be discharged in the first 60 hours following a storm event. The detention basin slopes that exceed a four to one slope down to a depth of two feet below control elevation will be fenced for safety purposes. See Rule 17-25.025(6), FAC. The retention basin is designed to retain the first one-half inch of rainfall with filtration of the first one-half inch through a sand filter bed in the bottom of the basin within 72 hours following the storm event. The sand filter bed will consist of clean well-graded sand having a minimum horizontal and vertical conductivity or percolation rate of six inches per hour. The retention basin has vertical risers, as provided in the application. Erosion and sediment control "best management practices" will be used during construction to retain sediment on site, as referenced in Rule 17-25.025(7), FAC. Other best management practices, such as sodding embankments or stabilizing slopes with geomats or sand bags will be used. The system is designed to minimize mixing of the storm water with the leachate. (Rule 17-701.050(5)(h)3., FAC). As waste is placed in the landfill, berms are constructed laterally across the cell face to segregate the waste disposal areas from other areas in the cell not yet receiving waste. Storm water coming into contact with waste flows down through it and eventually is collected and removed from that cell by the leachate collection and removal system described above. Storm water falling in a portion of a cell in which waste has not been deposited is collected by piping and pumped to the storm water management system for treatment of storm water because it does not constitute leachate, not having traversed on or through waste. Storm water will not come into contact with the waste within the system as designed. There are not any pipes connecting the waste disposal cells to the storm water system or basins. The storm water system in the permit application was designed in accordance with the criteria enunciated in the above-cited rule. This fact was established by the unrefuted expert testimony of Mr. Barrett and was independently confirmed by three other engineers, including the storm water program engineer of DER, each of whom reviewed the storm water system design. The storm water program engineer inspected the site and determined that the proposed management system will not pose any risk to downstream property, as required by the statute and rules enforced by the Northwest Florida Water Management District (NWFWMD). CVA adduced the testimony of Mr. Hilton Meadows in an effort to demonstrate that the storm water management system design in EPAI's application, and case-in-chief, does not meet applicable criteria in Chapters 17-701 and 17- 25, FAC, referenced above. Mr. Meadows attempted to demonstrate, by calculations determined using the "rational formula", that storm water will be discharged off the landfill site at a rate of 16.11 acre feet per minute during a 25-year, 24-hour storm event. An acre foot of water is a depth of one foot of water covering a surface acre in area. According to Mr. Meadows, all storm water would be thus discharged off site at a single discharge point creating a "blowout" of the storm water management system structure at that point which would flood and erode Long Round Bay off the site. In rebuttal, however, Mr. Barrett explained that Mr. Meadows' calculations merely determined the total amount of water that would fall on the landfill site during a 25-year, 24-hour storm event and failed to consider the time-volume reduction of storm water off the site over a 24-hour time period. Mr. Barrett clearly established that 16.11 acre feet of water would not be discharged per minute off the site during the 25-year, 24-hour storm event. It was further demonstrated that Mr. Meadows did not perform any computer modeling in analyzing site-specific compliance of the proposed storm water management system design against the framework of the applicable design and performance standards in Chapters 17-25 and 17-701, FAC. CVA did not adduce any preponderant evidence which would demonstrate that the storm water management system proposed will not meet the design performance standards contained in the rules and rule chapters referenced above. In view of the more extensive background, education, knowledge, and training acquired both through education and experience; in view of the more extensive and detailed investigation and calculations underlying his design, including the computer modeling effort referenced above; and in view of his corroboration by three other witnesses within the storm water engineering discipline, the opinions of Mr. Barrett, and the witnesses corroborating his testimony, are accepted over that of Mr. Meadows. Gas Control System The gas control system for the landfill will meet the design requirements contained in Rule 17-701.050(5)(j), FAC. It will be a passive system, meaning that no mechanical methods are necessary to withdraw gas from the landfill. A ventilation system will be installed as the final cap is placed on the landfill and will consist of perforated PVC pipes placed vertically down through the soil cover layers, to reach the solid waste disposal areas. The pipes are wrapped in geotextile fabric in order to prevent them from being infiltrated by fine soil particles which could cause clogging of the system. The pipes will run laterally across the top of the waste disposal areas to transfer gas to the vertical vents which vent the gases to the atmosphere. If gas production should exceed the capacity of the passive ventilation system, vegetation will be damaged and odor will become objectionable. If that occurs, a pump can be connected to the system to extract gases mechanically and vent them into the atmosphere or flame them off as a more positive control method. The proposed gas system is typical for landfills of this size and has been well tested for efficiency at other such facilities. The gas control system will not interfere with or cause failure of the liner or the leachate control systems. The gas control system is designed to prevent explosion and fires due to methane accumulation, damage to vegetation on the final cover of the closed portions of the landfill or vegetation beyond the perimeter of the property. It will control any objectionable odors migrating off site. The system, as proposed and proven in this case, meets the design requirements contained in the above-cited rule. Landfill Operation Paul Sgriccia, vice president of City, is a registered professional engineer specializing in landfill design, operation, and management. He has extensive professional experience in (and supervises a 20-person staff) designing landfills, obtaining permitting, and overseeing daily operation, environmental regulation compliance, compliance monitoring, hydrogeology, and groundwater monitoring with regard to landfill projects proposed, being constructed, or operated by City. Additionally, he is trained as an engineer. He was tendered and accepted as an expert in the fields of landfill operations and landfill management. The above-cited rule chapter requires landfills to have a ground water monitoring system that complies with monitor well location, construction, and sampling requirements of Sections 17-3.401, 17-4.26, and 17-28.700, FAC, and ground water sampling and testing in accordance with those sections, as well as Section 17-22, Parts III and IV, FAC. Mr. Sgriccia's testimony shows that the ground water monitoring plan proposed and considered in conjunction with the hydrogeologic investigation and ground water monitoring recommendations made by Dr. Herbert will meet these regulatory requirements. The recommendations made by Dr. Herbert concerning ground water monitoring should be incorporated as conditions on issuance of the permit. The applicant has voluntarily agreed to notify DER one year in advance of its ground water monitoring schedule so that DER can be present to collect "split samples", as referenced in Rule 17- 701.050(6)(a)3., FAC. Any grant of a permit should also be conditioned on this policy being strictly followed. The application also contains an operation plan, as required by the above-cited rule at paragraph (6)(b). The operation plan provides that EPAI will be the entity responsible for the operation and maintenance of the landfill. The plan provides that in the event of a natural disaster or equipment failure that would prevent waste from being deposited at the landfill, the waste will be disposed of at the Springhill landfill in adjacent Jackson County, pursuant to an agreement between EPAI and Waste Management, Inc., the operator of that landfill. The operation plan contains detailed procedures to control the type of waste received at the facility. Hazardous waste, biomedical waste, lead-acid batteries, white goods, used oil, and waste tires will not be accepted for disposal at the proposed landfill. Asbestos will only be accepted if it is in the proper regulatory approved containers. The operation plan specifies inspection procedures and procedures to be followed if prohibited wastes are discovered. All vehicles hauling waste to the landfill will be weighed and inspected by the operator or appointed attendants at the entry to the landfill. A load inspection will be performed to determine if the waste conforms to the approved waste description before the waste can be disposed. Paperwork, checks, controls, and records maintenance will be performed, as well as random load inspections for municipal solid waste generated by households. Spotters will observe the actual unloading of each vehicle at the active cells. Unacceptable waste will be rejected and cannot be disposed of at the site. Unacceptable waste that is already unloaded inadvertently at the site will be required to be removed immediately. DER will be notified of attempts to dispose of unacceptable waste at the landfill site. The operation plan provides for weighing and measuring of incoming waste and vehicle traffic control and unloading control. All these vehicles will be weighed and inspected before proceeding to disposal cells. The operation plan provides a method and sequence for filling waste into the disposal cells. Waste disposal will begin in the southwest corner of cell one and waste will be disposed in that cell up to an established final grade and the final capping process will be commenced before beginning disposal in another cell. Waste will be compacted on a daily basis when a load is received. Compaction equipment operates continuously over disposed waste loads to obtain maximum compaction. A daily cover of six inches of clean soil will be applied at the end of the day unless more waste will be disposed on the working face within 18 hours. Daily cover helps reduce disease-vectors, such as flies and rodents, as well as to reduce windborne litter. The gas control system will be maintained to insure that riser pipe vents are not dislodged and will be monitored to insure that explosive limits of methane are not reached. When leachate levels in the lagoon reach a certain level, the leachate will be withdrawn and recirculated back over the working face of the disposal area or else hauled off site to a waste water treatment facility for treatment and disposal. Leachate recirculation is becoming an accepted treatment method by regulatory agencies and is considered an effective industry standard treatment method. Leachate is recirculated by application to the active working face of the disposal cell by a watering truck and is dropped on the cell through a distribution bar or open valve pipe at the back of the truck. Leachate will not be applied during rainfall nor will it be aerially sprayed on the cell. Municipal solid waste has significant absorption capacity, so that large quantities of recirculated leachate are absorbed by the waste. The leachate that does eventually run through the waste is collected in the leachate collection and removal system and does not mix with runoff going into the storm water management system. The leachate lagoon is surrounded by a containment dike area with a loading station inside the dike for removal of leachate by truck for off-site treatment at a waste water treatment plant. A hose is hooked to a tank truck and leachate is pumped into the truck. Any spills during the loading process will be contained by the dike and will flow back into the leachate lagoon. The storm water management system will be operated to insure that there is no mingling of leachate with storm water runoff. The design provides for three diversion berms running the length of the Class I disposal cell which divide the cell into four smaller working cells. Any rainwater falling in the clean, unused cells will be removed to the storm water management system. The rain coming into contact with the working face is leachate and is collected and removed from the cell by the leachate control system. The operation plan addresses and satisfies each requirement of Section 17-701.050(6)(b), FAC. Rule 17-701.050(6)(c), FAC, requires certain operational design features to be incorporated in the landfill. Thus, the entire site will be enclosed by a minimum four-foot high fence with a gate that will be locked during off hours. To Shoo Fly Bridge Road is a county-maintained, all-weather road that provides main access to the landfill site. In addition, the roads on the site will be stabilized, all-weather roads. The operation plan provides for signs indicating the name of the operating authority, traffic flow, hours of operation, and any disposal charges, as well as scales for weighing the waste loads received at the site. Dust will be controlled by water spraying to avoid contaminated runoff due to chemical sprays and oils. Dust will be further minimized by use of paved roads, minimizing the areas of disturbed soil, vegetating stockpiles as soon as possible, and vegetating final and intermediate cover areas. Daily cover, use of portable fences, and cleaning operations by operating personnel will provide litter control. Firefighting equipment and facilities adequate to insure the safety of employees will be located on site. Daily cover will be used to minimize the potential for fire and fire extinguishers and water will be used to fight fires. If a fire is too large to effectively fight with on-site equipment, the Holmes County Fire Department will be called to assist. The operation plan for the landfill meets the requirements depicted in the above-cited rule at paragraph (d) in terms of personnel and facilities requirements. A certified attendant will be on site during all hours of operation and a telephone will be located on site. Equipment requirements are contained in the above-cited rule at paragraph (e). The applicant will thus maintain and operate a large bulldozer, soil scraper, front-end loader, water truck, motor-grader for cleaning roads, and portable pumps for storm water management and leachate management. In the event of an equipment breakdown, the plan provides for an agreement between the operator and a local heavy-equipment company to provide a compactor and other essential equipment within 24 hours. The equipment will have protective roll bars or roll cages, fire extinguishers on board, and windshields. The operation plan otherwise provides for protective devices and gear for heavy equipment and for personnel themselves, such as dust masks and hearing protection devices, hygienic facilities in the maintenance building and office, potable water, electric power, emergency first aid facilities and the like. Employees will be hired locally and trained in appropriate safety procedures and practices. In accordance with the provisions of Section 17-701.050(6)(j), FAC, the operation plan calls for solid waste in the Class I cell to be spread in layers of approximately two-feet in thickness and compacted to approximately one-foot thickness before the next layer is applied. Weekly compaction of the waste will be accomplished by heavy equipment at the Class III cell. The compostible materials and the yard trash at the Class III cell will be removed and composted on site. Bulky materials that are not easily compacted will be worked into the other waste materials to the extent practicable. As required by paragraph (k) of the above-cited rule, the compacted solid waste material will be formed into cells with the working face and side grades above surface at a slope of no greater than 30 degrees. The cell depth will be determined by the area in operation, daily volume of waste, width of the working face, and good safety practices. Waste will be placed into the cell beginning at the southwest corner and spread northward, eventually reaching grade level. As elevation of the cell approaches final grade, intermediate and final cover is applied to the cell. The final slope grade will be approximately 4:1 and will be terraced. The operation plan meets the requirements contained in paragraph (6)(1) of the above-cited rule that the cell working face be only wide enough to accommodate vehicles discharging waste and to minimize the exposed area and use of unnecessary cover material. The waste will not be spread across the entire cell immediately but instead will be spread on a small working face. The typical working area may be 50 feet by 50 feet or slightly larger, and will become larger as more loads of waste are received. Waste is deposited on the working face and compacted until final grade is reached, working across the face of the active cell in a terraced effect. Intermediate and final cover are applied to the portions of the cell that have reached design dimensions. The working face is kept as small as possible to minimize leachate generation, disease-vector problems, and the need for daily cover. The landfill operation meets the requirements contained in paragraph (6)(m) of the above-cited rule to the effect that initial cover will be applied to enclose each working cell except the working face, which may be left uncovered if solid waste will be placed on the working face within 18 hours. If there are adverse environmental impacts or problems with disease-vectors, initial cover will be placed on the working face at the end of each day for the Class I landfill cell and once a week for the Class III cell. The operation plan provides that an intermediate cover of one foot of compacted soil will be applied in addition to the six-inch daily cover within seven days of completion of the cell if final cover or an additional lift is not to be applied within 180 days of cell completion, as required by paragraph (6)(n) of the above-cited rule. The landfill will be closed in accordance with Sections 17-701.050(4) and 17-701.070-.076, FAC. The operation plan further provides that daily cover will control disease-vectors, such as flies, rather than employing use of pesticides. Uncontrolled or unauthorized scavenging will not be permitted at the landfill and will be controlled by fences and on-site personnel. Class III Cell The proposed Class III cell will be located over the old Class I cell last used by Holmes County. This area has a recompacted clay liner and a leachate collection system in place. Only yard trash will be deposited in the Class III cell, however. Based upon the Class III cell design and operating plan that will permit only yard trash disposal in it, any leachate generated from the Class III cell will not pose any threat to or violate applicable water quality standards in or outside the zone of discharge. Asbestos disposal is proposed at the landfill site. A separate asbestos disposal cell is proposed. The operation plan will provide that the asbestos be covered daily with a proper dust suppressant or six inches of non- asbestos material or will be disposed of in an area where proper warning signs, fences and barriers are present. Asbestos accepted for disposal at the landfill will be bagged and accompanied by shipping documents as required by EPA rules appearing in Title 40, Code of Federal Regulation. Persons working around asbestos will be specifically trained in its handling and must use appropriate protective equipment, as required by the National Emission Standards for Hazardous Air Pollutants set forth at 40 CFR 61.25 and other applicable federal regulations. The applicant proposes to dispose of petroleum contaminated soils at the landfill, as well. These soils will be mixed in with the waste on the working face. The soils will not be used as an intermediate cover or come into contact with surface water that will be conveyed to and treated in the storm water management system. Landfill Closure The application includes general plans and schedules for closure of the new and existing landfills. Once final grade is reached, an intermediate cover is applied over the daily cover if the working face will not receive any more waste or will receive final cover within 180 days. The gas control system will then be installed and the final cover consisting of an impermeable synthetic cap will be applied. The final cover will be a plastic cap constructed of polyvinyl chloride (PVC), HDPE, or some other synthetic material and covered by one foot of protective soil, topped by six inches of topsoil to promote vegetation growth. Soils for the closure effort will be obtained on site and will not be obtained by dredging in any jurisdictional wetlands. The final design provides for a terraced landfill profile for the new Class I cell. The waste levels will not exceed 10 feet in height and will be terraced at a 4:1 slope. The terraces will slope back against the cell wall and will be underlain by a subdrain to collect runoff and convey it to the storm water management system. This will prevent erosion of the final cover, waste exposure, and thus, additional leachate generation. The application contains a closure plan containing a general landfill information report and various other plans, investigations, and reports addressing all criteria and factors required to be addressed by Section 17- 701.073(6)(a)-(i), FAC. All such plans, reports and investigations were certified by Pearce Barrett, a registered professional engineer, expert witness and landfill designer for the applicant. The application contains a detailed estimate of closure costs and a monitoring and long-term care plan for the landfill meeting the requirements of Sections 17-701.075 and 17-701.076, FAC. An interest-bearing escrow account will be established for the landfill within 30 days of permanent issuance to cover the closure costs. Funds for closure, monitoring and long-term care of the landfill will be set aside as tipping fees are paid. As portions of the landfill are closed, funds in the escrow account will be available to pay for closure. This type of landfill closure and closure funding is termed "close as you go". This insures that available funds to close the landfill will be present so that funding problems such as those associated with the existing landfill will not arise. The long-term care plan provided for in the permit application and in the applicant's evidence provides for monitoring and maintenance of the landfill for a 20-year period after closure is complete. The storm water management system will be maintained and ground water monitored as part of this long-term care plan.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Regulation dismissing the petition filed in opposition to the permit application and approving EPAI's application for the permit at issue, authorizing construction and operation of a 20-acre Class I, Class III, and asbestos landfill, as well as authority to close the existing 25.5-acre Class I landfill in Holmes County, Florida, in the manner and under the conditions delineated in the application, as amended, the Intent to Issue and draft permit and the above Findings of Fact and Conclusions of Law. It is further RECOMMENDED that the motion for attorney's fees and cost be denied. DONE AND ENTERED this 6th day of April, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1993.
Findings Of Fact The Board of County Commissioners of Monroe County is responsible for maintaining a solid waste management program for the unincorporated areas of the county. The portion of the Florida Keys known as the "lower keys" between Pigeon Key on the north and Key West on the south is such an area. Prior to July 1, 1977, solid waste from this area was dumped at a site located on Middle Torch Key. Until approximately two years prior to the hearing, the Middle Torch Key dump site had been operated by private companies. The private companies apparently could not operate the site profitably under rules and regulations promulgated by the Department, and the County took over operation of the site. The site served as the solid waste dump for the lower keys until July 1, 1977. The Department had issued a temporary operating permit for the site, and open burning was permitted. The temporary permit expired on July 1, 1977. The Middle Torch Key dump site was never operated in full compliance with the Department's rules. The temporary operating permit was issued for the apparent purpose of allowing the County an opportunity to develop a system that could be operated accordance with the Department's rules. The County purchased a site on Cudjoe Key in the lower keys with the intention of utilizing it as a sanitary landfill. The instant proceeding is the culmination of the County's effort to obtain a permit to operate the Cudjoe Key site. The County has been utilizing the Cudjoe Key Site as a sanitary landfill since July 1, 1977. The Petitioners are homeowners in a residential subdivision which is located between three fourths of a mile and one mile from the proposed landfill site on Cudjoe Key. They object to operation of a sanitary landfill in such close proximity to their homes. In order to meet its obligation to maintain a solid waste disposal system, and in order to comply with DER regulations, the County needed to locate a landfill site in the area of the lower keys. The County lacks resources to truck solid waste from the lower keys to any sites in the upper keys, or on the mainland. Tie Cudjoe Key site was chosen for a sanitary landfill for two reasons. First, it was relatively isolated and had been used as a dump before. Secondly, it was for sale, and the County could afford to purchase it. The Cudjoe Key landfill site is not visible from any highway or from any residences or businesses. The site adjoins other public property, and is next to electric company property. The average height of the site is seven to eight feet above sea level. The site is located in close proximity to a borrow pit, and fill is thus obtainable at a fairly inexpensive rate. The County's plan of operation basically is to place solid waste on the site, and to cover it with six inches of landfill at the end of each working day. The site, if used in this manner, would have a useful life of approximately three years. If incineration techniques are eventually permitted, the life expectancy of the site would be increased to approximately twenty years. It does not appear that there is any ideal site for a sanitary landfill in the lower keys. There is very little dry land available that has not been previously developed. It appears that the best present alternative for solid waste disposal for the lower keys would be a joint venture with the City of Key West to desalinate salt water through incinerating activities at a site on Stock Island located just south of Key West. Neither the City of Key West, nor the unincorporated areas of the lower keys produce sufficient solid waste alone to make such a project feasible. Thus far a solution of this sort has not been politically feasible. Aside from this possibility, it appears that the proposed Cudjoe Key site is the best location for a sanitary landfill in the lower keys. The site on Middle Torch Key, which was previously operated as a dump would not comply with the Department's rules. The site is under water at high tide. In order to develop the site so that it would comply with the Department's regulation, a very large expenditure would be required. A copy of the County's completed application to the Department was received in evidence at the hearing as Department's Composite Exhibit 1. The application is complete, and contains the material required under Rule 17-7.05,, Florida Administrative Code. No competent evidence was presented at the hearing from which it could be concluded that the proposed Cudjoe Key landfill site does not comply with statutory requirements, or with the requirements set out in the Department's rules and regulations. Considerable evidence was offered from which it could be concluded that the site has not been operated in full compliance with the Department's regulations since July 1, 1977. Clearly the County has been operating the site since that date without a permit issued by the Department. It is apparent that the Department has not sought to take action against the County due to the pendency of this action. Pictures offered at the hearing, and observations made at the view of the site demonstrate that the required daily cover of solid waste has not been applied at the site. These violations could, and should if they continue, result in enforcement action being taken by the Department. The violations, and anticipated violations cannot, however, constitute grounds for denying a permit to operate a sanitary landfill site which complies with the pertinent statutes and rules and regulations.
The Issue The issue in this case is whether the Department of Environmental Regulation (Department) should issue a solid waste construction permit to the David J. Joseph Company (Applicant) to construct lined cells at its existing Class I solid waste landfill in Tampa, Hillsborough County, Florida. It is the position of the applicant and the Department that all statutory and rule criteria for the issuance of said permit have been met, while Mr. & Mrs. David Brenner (Petitioners) contend that the application fails to meet the criteria for the issuance of this permit.
Findings Of Fact The applicant filed an application for a solid waste construction permit with the Department on May 2, 1988. This application was given permit number S029-77041. The applicant proposes to expand its existing solid waste Class I sanitary landfill located near Kingsway Road and Interstate 4, east of Tampa, Hillsborough County, Florida, through the construction of a lined addition. This entire site consists of approximately 16 acres, but the lined portion for which this permit is sought comprises about eight acres. This site was purchased by the applicant in 1978, to landfill shredder waste, or "fluff", produced at its Tampa shredder. In fact, the applicant has operated this site as a landfill since 1978, under two previous permits issued by the Department in 1978 and 1983, and approximately nine acres of the site have already been filled. The Department gave notice of its intent to grant this permit on September 23, 1988, subject to specified conditions. The Petitioners, thereafter, timely requested this administrative hearing. The applicant is engaged in the ferrous scrap business at fourteen locations throughout the United States, and provides steel mills with raw material for their use in the production of new steel. It operates a large shredding plant in Tampa, Florida, which consists primarily of an automobile shredder and related equipment. The shredder is a large crushing and grinding piece of equipment which, in approximately 20 seconds, grinds scrap autos into small chunks of scrap the size of a man's fist. A conveyor system separates the scrap produced in the shredding process into three streams. The first stream consists of steel scrap that is sold to a steel mill. Approximately 80% of automobile scrap is steel. The second stream consists of non-ferrous material, primarily aluminum, zinc, copper, brass and other non-steel items found in autos, which are then sold to dealers in that particular type of metal. The third stream is waste material, or "shredder fluff". Approximately 17% of the material in automobile scrap is fluff. Guidelines have been established by the applicant which limit the type of material which will be accepted at the shredder facility as feedstock for the shredder operation. These guidelines prohibit acceptance of lead-acid batteries, gas tanks, tires, catalytic converters, and loose mufflers and tail pipes. Automobiles which are accepted by the applicant at its Tampa plant have already been crushed at separate locations by other companies engaged in the car crushing business prior to their purchase by the applicant. In the crushing process, most automobile fluids are liberated, but oil and other fluids not liberated during the crushing process are then liberated in the shredding process, and are intermingled with all three product streams produced at the shredder mill. Shredder fluff consists largely of automotive components such as upholstery, plastic, glass, rubber, dirt, and other non-magnetic and non-ferrous materials. The applicant's shredder operation in Tampa generates approximately seven to eight tractor trailer loads of fluff per day which are deposited at their current landfill. During 1988, the fluff from approximately 200,000 autos was disposed at this site. The existing landfill is located approximately 550 feet off of the roadway, and is accessible by an entrance road leading to the main gate of the site. The landfill is completely fenced with barbed wire around its perimeter, and there is a locked gate at the access road. There is a full time manager on site. Only shredder fluff produced by the applicant's Tampa shredder is deposited at this site. The applicant delivers its waste to this landfill using its own equipment and personnel. The applicant has taken reasonable steps to insure that only authorized persons enter the landfill site, and that there will be no unauthorized dumping. In order to continue using this landfill site, the applicant proposes to construct a liner system and leachate collection system for the remaining unfilled portion of the landfill, and also to establish a stormwater management system serving the entire site. A geotechnical and foundation investigation has been performed on the site to determine the physical and chemical characteristics of site soils, and the ability of those soils to support the landfill construction. The potential for movement in foundation soils was specifically addressed. It is to be noted that the applicant has been operating a landfill at this site for ten years without any sinkhole or foundation problems. There are no active sinkholes on the site, nor was there competent substantial evidence that any sinkhole had historically existed on this site. While the site geology is complex, the soils and subsurface geology will support the proposed project. Thus, the site is suitable for construction of lined Class I landfill cells. Beneath a surficial sand layer of approximately 30 feet in depth, lies an interbedded layer of sands, clay and heavily weathered limestone lenses approximately 40 feet thick, under which lies the Floridan Aquifer. The applicant will excavate below the level of the existing pit floor to remove any limestone protrusions which could adversely affect liner integrity. A dense clay layer, graded to remove rocks and other protrusions, will be used as a secondary barrier to retard the movement of contaminants into groundwater, and to further minimize the potential impact from limestone pinnacles upon liner integrity. The primary containment system will be a liner system constructed of a thick, high density, 60 millimeter polyethylene membrane, applied to both the bottom and sides of the landfill. Below-grade portions of the landfill will be lined completely. A layer of geotextile material is placed between the synthetic liner and clay layer to act as a cushion against stresses on the liner. The liner will be constructed in 30 foot wide strips with welded seams, every inch of which is vacuum tested. Laboratory testing is also conducted on sample coupons of welded seams to insure that the seams are as strong, or stronger, than the original material, and the areas from which coupons are taken are then extrusion welded and vacuum tested. The liner system is designed to withstand stresses, and any differential settlement, that are reasonably expected to occur at this site. It will minimize the risk of leakage of leachate to the environment, as was recognized by Dr. Richard Strom, an expert in hydrogeology called by Petitioners, who stated this is an improvement in the previous unlined operations at this site, and decreases, although it does not completely eliminate, the possibility of ground water pollution. The applicant's project design includes a leachate collection system which will allow leachate generated in the landfill to flow through a 12 inch thick gravel layer, which will act as a drain in the base of the landfill. Fluids will run to low spots and will then be channeled to sumps, where leachate is collected so that it can be disposed of by pumping away from the liner system and spraying onto the active face of the landfill. Natural evapotransporation will then reduce the volume of the leachate. An approved groundwater monitoring program is currently in place, and is being operated at the applicant's existing landfill. It consists of an upgradient well in the northeast corner of the site, and three down gradient wells, one in the southwest corner, one on the west and one on the south sides of the property. These down gradient wells are adequately placed to intercept groundwater flow from the site since the predominate groundwater flow is from the northeast to southwest. These wells all monitor the Floridan Aquifer. The applicant's groundwater monitoring program is adequate and appropriate to detect any leachate or other contaminates emanating from the landfill which might pollute the groundwater, and provides reasonable assurance that water quality standards will not be violated by the landfill operations. The applicant has proposed a stormwater management system for the entire site which is designed to separate non- contact stormwater from that water which actually falls on, or comes into contact with, the waste material. All rainwater coming in contact with waste will be treated as leachate, and handled through the leachate collection system. The non-contact stormwater will be collected in a series of bermed drainage ditches around the site, and will be drained away to retention ponds for infiltration. During times of normal rainfall, there will be sufficient capacity in retention ponds to store all non- contact stormwater on site until it either evaporates or percolates into the ground. During extreme storm events, excess stormwater can be channeled off site to a nearby sinkhole for discharge. Routine monitoring will be conducted to ensure that water in the system has not been contaminated with leachate. The Department has delegated stormwater plan approval authority to the Southwest Florida Water Management District, which reviewed and approved the applicant's stormwater management system through the issuance of a permit in 1988. Noxious odors do not emanate from the existing landfill operations, although there is a slight odor similar to an auto garage service bay close to the disposal materials. This is not a sickening or noxious odor, as acknowledged even by Dr. Strom. The applicant has provided reasonable assurance that leachate sprayed on the active face of the landfill, after having been collected through the leachate collection system, will not result in, or cause, noxious odors at the landfill site. The applicant has established that this project to enlarge its existing landfill with a lined addition will not release contaminants into the underlying soils and groundwater.
Recommendation Based upon the foregoing, it is recommended that the Department of Environmental regulation enter a Final Order approving the application of the David J. Joseph Company and issuing permit number S029-77041. DONE AND ENTERED this 21st day of June, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1989. APPENDIX (DOAH Case No. 88-6009) Rulings on the Petitioners' Proposed Findings of Fact: Rejected in Findings 1, 9-12. Rejected in Findings 10-14. Rejected in Finding 16. Rejected in Finding 16, but Adopted in part in Finding 13. Rejected in Findings 10-12. Rejected in Finding 15. Rejected in Finding 14. Rulings on the Respondents' Proposed Findings of Fact: 1. Adopted in Findings 1, 2. 2-3. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. 7-8. Adopted in Finding 1. 9-10. Adopted in Finding 7. 11. Adopted in Finding 8. 12-15. Adopted in Findings 9-11. Adopted in Finding 12. Adopted in Finding 9. Adopted in Finding 13. 19-21. Adopted in Finding 14. Adopted in Finding 15. Adopted in Findings 9 and 16. Adopted in Finding 17. COPIES FURNISHED: John W. Wilcox, Esquire Katherine Harasz, Esquire 100 South Ashley Drive Suite 1650 Tampa, FL 33602 William D. Preston, Esquire Thomas M. DeRose, Esquire 123 South Calhoun Street Tallahassee, FL 32301 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale Twatchmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The manner and extent to which the criteria of Rule 17-7.07, F.A.C., entitled "Dump Closing" may be required by Respondent with respect to the Town of Surfside Dump.
Findings Of Fact In 1949, Petitioner purchased approximately 378.8 acres of land located in the northwest section of Miami, Florida. It sold approximately 250 acres of the eastern portion in 1959 to County Line Development Company. Petitioner utilized the remaining land as a solid waste disposal facility known as the "Surfside Dump," and in early 1955, other municipalities in North Dade and South Broward Counties also began using the facility for waste disposal. Originally, "white" goods, rubbish, garden trash, vehicle bodies, and tires were disposed of at the site, in addition to domestic garbage. Somewhat later, the receipt of vehicle bodies and other oversize waste was discontinued. For a number of years, the basic procedure for disposal was to dump the refuse into open trenches where it was compacted by bulldozers and covered with a layer of locally available material. The dump presently is bounded by Northwest 215th Street on the north, Northwest 47th Avenue on the west, Snake Creek Canal on the south, and the land previously conveyed to County Line Development Company on the east. A large portion of the dump area on the west side has not been used since 1972. (Petitioner's Exhibits 1, 3) Inspections of the dump conducted by Department of Pollution Control representatives at various times from 1973 through 1975 revealed that waste was not being covered in a satisfactory manner in that trenches were dug from old refuse, raw garbage was pushed into the water-filled trenches and then recovered with the old refuse. In 1975, the County Line Land Company filed suit against the Petitioner in the Dade County Circuit Court complaining that the dump constituted a public and private nuisance and was being operated in violation of the county code relating to uncovered garbage, Chapter 10D-12 of the Rules of the Department of Health and Rehabilitative Services governing disposal of garbage, and Chapter 17-7 of the Department of Pollution Control pertaining to regulation of solid waste. The Circuit Court found that the dump adversely affected the health and welfare of the surrounding area, and that although the facility was being used for revenue purposes by Petitioner, the conditions existing there had not been improved over the years. It therefore enjoined Petitioner from accepting further refuse at the site commencing June 30, 1976, except from within its own boundaries. It further gave Petitioner until August 1, 1976, to show that it had complied with Chapter 17-7 of the rules of Respondent or that it had received a temporary operating permit under the pertinent regulations. The decision was affirmed by the First District of Appeal on January 4, 1977. State regulations in effect since 1962 have required sanitary landfills to dispose of garbage in compacted layers with not less than a daily six inches of cover material and a final covering of two feet of compacted earth unless otherwise approved by the regulating state agency. (Rule 170C-10.07, State Board of Health; Rule 10D-12.07, Department of Health and Rehabilitative Services)(Respondent's Exhibits 1-3) On February 4, 1975, the Department of Pollution Control sent Petitioner a Letter of Notice advising that the Surfside Dump was in violation of various provisions of Chapter 403, Florida Statutes, and Chapter 17-7, Florida Administrative Code, by not applying for a temporary operation permit. By letter of March 28, 1975, that Department sent a Warning Notice to Petitioner along the same lines and advising of civil penalties for violation of pollution control laws. On May 3, 1975, Petitioner filed an incomplete application for the temporary operating permit. However, it was not until January 20, 1976, that Petitioner ostensibly furnished the necessary exhibits and public notice of its application. By letter of February 9, 1976, the acting district manager of the Respondent, which had succeeded the Department of Pollution Control, informed Petitioner that the Public Notice which had been published did not meet departmental requirements. (Testimony of Quaas, Respondent's Exhibits 5, 13) On June 1, 1976, the Respondent issued a Notice of Violation to Petitioner which stated that the Surfside Dump was being operated without a valid and current permit in an unsafe and unsanitary manner and thereby had violated various provisions of Chapter 403, Florida Statutes, and Chapter 17-7 Florida Administrative Code. The notice included a section entitled "Orders for Corrective Action" which provided that the Petitioner should reimburse the Respondent for expenses, cease to accept any solid material as of September 30, 1976, and implement a specified system of operation and render monthly reports on the same. It also required Petitioner to close the site no later than July 1, 1977, with a final cover of two feet of clean compacted fill with side slopes not to exceed 3:1 slope, and for the entire site to be seeded or planted with grass or other suitable cover vegetation. The orders also required the Petitioner to complete his operating permit application by sending Respondent a compliance schedule and proof of publication of a Public Notice. Subsequently, on January 16, 1977, the parties entered into a "Consent Agreement and Final Department Orders" after having conducted informal negotiations in the matter. The agreement provided that Petitioner waived any right to a hearing under Chapter 120, F.S., and that it would close the site or convert it to a sanitary landfill within the time established in Rule 17-7.07, F.A.C. It required Petitioner to submit plans for closing or converting the site within a certain time period and for implementation of an Operation plan to cover each day's waste and any existing exposed waste with six inches of clean compacted fill. It further required the Petitioner to submit a plan for monitoring ground water for leachate no later than January 30, 1977. Thereafter, on February 25, 1977, Nathaniel M. Zemel, a consulting engineer employed by Petitioner, submitted a "Landfill Closing Plan" to Respondent's West Palm Beach office which provided for a minimum of 24 inches of earth cover over all refuse on the site. Mr. Zemel estimated that between 250 thousand and 300 thousand cubic yards of fill material would be required to complete the covering operation. However, by letter of March 25, 1977, Petitioner advised Respondent that it did not concur in Mr. Zemel's plan and that Dr. Damodar S. Airan would "further refine the plan to reflect new information." The Airan report was submitted to Respondent on October 5, 1977, and essentially concluded that the existing vegetation on the site would be killed and that other harmful effects would result if a final cover of two feet of fill were to be placed over the landfill area. The report therefore recommended that exposed areas of the dump be covered with approximately six inches of clean fill and that corrective measures for surface drainage be accomplished, including sloping, grading, and possible catchment and retention of surface runoff by a drainage canal leading to a small retention basin on the site. A closing plan with drawings to accomplish the report's recommendations was filed with Respondent on November 1, 1977. (Petitioner's Exhibit 1, Respondent's Exhibits 6, 7, 14-17) Respondent's staff reviewed the Airan report and closing plan and was of the opinion that the study did not prove the basic premise that six inches of cover over the dump area was adequate. Thereafter, on December 4, 1977, Respondent issued a Final Consent Order for Dump Closing," Order No. 91, which ostensibly permitted the Petitioner time to undertake a soil and vegetation effectiveness study conditioned upon its agreement to implement and adhere to a final closing and cover plan as determined by the Department upon its review of the results of the study. This order obviously had been framed prior to the submission of the Airan report since that report was the "soil and vegetation effectiveness study" referred to in the consent order which was to be submitted not later than October 5, 1977. The order also provided that Respondent's determination of a final closing and cover plan would be made no later than December 1, 1977 and that the final closing would be accomplished no later than March 1, 1978. Again, the terms of the Consent Order provided that the Petitioner waived any right to a hearing or administrative or judicial review of its terms. Respondent's review and determination of Petitioner's aforesaid study was reflected in a letter to Petitioner from its subdistrict manager, Warren G. Strahm, dated January 3, 1978. It stated that Petitioner's study did not provide evidence that six inches of final cover would minimize and control potential water pollution from vertical percolation of surface water, but that Petitioner's own report showed that thirty-two million gallons more of percolation would result from a six inch as opposed to a two foot final cover. The letter therefore directed Petitioner to implement and adhere to a final closing and cover plan that included a final cover of no less than two feet of compacted earth, grading and sloping of the area, seeding or planting the site with grass or suitable cover vegetation, monitoring of ground water for leachate , and compliance with all other requirements of Rule 17-7.07, F.A.C., by March 1, 1978. Petitioner thereafter filed suit against Respondent in the First District Court of Appeal, Case No. 11-447. The suit was dismissed on May 19, 1978, by joint stipulation of the parties wherein it was agreed that Petitioner would seek a Section 120.57, F.S., hearing. On May 25, 1978, Petitioner filed such a petition with Respondent seeking to have that agency declare Petitioner's final cover and closing plan requiring six inches of final cover to be valid, and that final cover only be required on those portions of the Surfside Dump which were actually used on or after October 1, 1974. (Petitioner's Exhibit 2, Respondent's Exhibits 8, 18, 19) The Surfside Dump has been closed to the receipt of solid waste since March 1977. Although some clandestine dumping of waste has occurred since that time, it has mostly been confined to an area outside of the fenced portion of the site. There are presently relatively small areas of exposed waste in about fifty per cent of the landfill area. Some waste may be seen at the ground level in vegetated areas. A certain amount of ponding occurs in areas of both sparse and dense vegetation. There is a heavy vegetative growth over approximately 90 to 95 per cent of the dump site, consisting primarily of torpedo grass, para grass, guineagrass, common rag weed, caster bean, and sedge. Torpedo grass is a principal species and is abundant in about two thirds of the vegetated area. (Testimony of Quaas, Conn, Hudson, Stotts, Hussin, Gatewood, Busey, Airan, Petitioner's Exhibits 1, 4, 5, Respondent's Exhibits 10-12) Ground water or infiltrating surface water moving through solid waste can produce leachate, a solution containing dissolved and finely suspended solid matter and microbial waste products. Leachate may leave a landfill at the ground surface as a spring or percolate through the soil and rock that underlie and surround the waste. However, since the solid waste is of variable composition, it is not possible to accurately predict contaminant quantities. In completed fills, the amount of leachate can be expected to decrease with time. Leachate percolating through soils underlying and surrounding the solid waste is subject to purification of the contaminants in a variety of ways, but is diluted very little in ground water. Although leachate from a landfill can contaminate ground water, it is necessary to determine the quality of ground water and the aquifer's flow rate and direction to assess its results. Grading of the landfill is a means of diminishing surface infiltration by promoting surface water runoff. Vegetation of a landfill helps to stabilize cover material and thus reduce infiltration. It also reduces infiltration by intercepting and evapotranspiring some of the precipitation. The soil cover over a landfill also reduces percolation into the landfill depending upon its permeability. Clayey and silty loams are well suited for final cover, but are not readily available in South Florida. Sandy soils are primarily available in that area, but allow increased infiltration of precipitation. As a landfill ages, the earth cover will be subject to settlement and maintenance may be required to fill in depressions to avoid ponding of rain water. Such a program should provide for repairing cracks in the fill area due to uneven settlement and reseeding and fertilizing as necessary on the repaired areas, to prevent major erosion and surface water ponding. Leachate leaving the bottom of solid waste can be undesirable for drinking water, surface water, industrial water or irrigation water. However, it is most difficult to determine the character and amount of leachate from a particular area due to the many complex factors involved in such an assessment. The most common method for leachate control is to minimize the amount of water infiltrating the site. Ground water monitoring is accomplished by obtaining samples from wells placed at various locations on and near the landfill. It is generally agreed among the expert authorities that a minimum of two feet of compacted soil is required for the final cover when closing a landfill under normal circumstances. It has been the policy of Respondent to apply the sanitary landfill closing requirements of a two foot final cover, as specified in Rule 17- 7.05(3)(m), F.A.C., to the closing of dumps. (Testimony of Quaas, Conn, Hudson, Stotts, Hussin, Busey, Snider, Respondent's Exhibits 21-27) Expert testimony establishes that most of the vegetative cover on the Surfside Dump will be killed if a two foot cover is placed over it. The plants would re-colonize after such disturbance, but it takes almost two years for new plant growth to reach maturity. The present vegetation has been on the site for a number of years. Vegetation normally will grow at a better rate if its roots extend through the cover soil into the solid waste. However, certain gases created from waste material can be deleterious. A six inch final cover over vegetation would permit certain species to survive well, including torpedo grass, which is abundant on the site. In bare areas, it is best to sprig torpedo grass which provides relatively rapid growth, or to plant bahia grass. (Testimony of Hudson, Gatewood, Busey, Petitioner's Exhibit 1) The landfill site consists of an undulating terrain with surface drainage going in different directions from high to low level areas, but the overall drainage pattern is in a northerly direction. Two low-lying areas in the center and eastern portions of the landfill are subject to ponding after rainfall. These areas need to be filled, graded and planted in order to provide an overall northward direction of flow, together with grading and sloping on the eastern and southern boundaries of the area. Petitioner proposes to install subsurface drainage pipes, if found necessary, to promote horizontal movement of surface water and to provide catchment and retention of surface runoff diverted from the landfill area. This may include a shallow drainage canal along the northern boundary leading to a small retention basin in the northwest corner. Although these proposals were included in Petitioner's final closing plan submitted to Respondent, they were not considered by the latter's staff in evaluating requirements for the dump closing. Some profile corrections of the site were accomplished during the past year which eliminated ponding in the southwest corner of the landfill and improved drainage in the western portion. When further profile corrections are made to remove the remaining low spots, it is estimated that surface and subsurface runoff would increase and result in less leachate reaching the ground water table. (Testimony of Hudson, Airan, Petitioner's Exhibits 1, 4) Field and laboratory tests performed to determine the permeability of the soils on the landfill were performed by Petitioner at representative sites and by surface and subsurface soil samples. These tests showed that the infiltration rate at unvegetated locations was lower than that of adjacent vegetated areas, but this was attributed to the fact that in unvegetated areas, the soil is heavily compacted, very rocky, or no fill material is present. When infiltration was measured directly on waste material, it was found to be lower than that for surface soil. Mathematical calculations as a result of the tests showed that a maximum of 32 million gallons more would percolate annually through a six inch soil cover than a two foot cover. However, these calculations did not take into consideration the amount of surface and subsurface runoff. Petitioner's experts estimate that at least half of the percolation would be dissipated in that manner, leaving approximately 16 million gallons annually that would penetrate through the solid waste to the ground water. In considering this fact and the amount of water flowing laterally through the waste material, Petitioner concludes that only approximately one per cent of the total water flowing through the average ten foot waste layer under the water table would consist of vertical percolation. (Testimony of Airan, Petitioner's Exhibits 1, 4, 6-8, 10-13, Respondent's Exhibit 31-33) The Surfside Dump overlies the Biscayne aquifer. The Snake Creek Canal at the southern boundary of the dump site flows into Biscayne Bay some miles distant. There is a well field approximately one mile south of the dump at Carol City. Upstream of the Snake Creek Canal to the west is the North Dade County Landfill which is still in use. Snake Creek Canal is approximately fifteen feet wide and the bottom of the canal is approximately fifteen feet below original ground level. It is approximately thirty feet below the top of the landfill surface. Ground water flows generally in a southeasternly direction through the landfill. Approximately ten per cent of the ground water flows through the solid waste and the remaining 90 per cent bypasses and goes around the perimeter of the landfill. In May, 1977, a water quality monitoring program was undertaken by Petitioner that utilized nine sampling wells in three clusters of three each located in the northwest corner, center, and southeast corner of the landfill. In each cluster, one well was drilled to about five feet below the solid waste layer, the second ten feet below that point, and the third was ten feet above the waste layer. Water samples were taken in 1977 and in 1978. Tests of the samples showed that water quality generally improved with the depth of the well, and that the center group of wells had the highest level of contaminants because they were drilled in the middle of solid waste layers. In a number of instances, the pollutant levels for various substances were in excess of state standards. One well in the center of the landfill was dry during the rainy season which could indicate that the center of the landfill is less permeable than the outer layers and that a certain amount of water had been subject to subsurface runoff. It is conceded by both parties that the location and method of sampling wells does not provide sufficient definitive information concerning water quality in the area and that further monitoring needs to be undertaken in the future. Testing of Snake Creek Canal from points upstream and downstream of the Surfside Dump show that the surface water quality is most affected by contaminants from upstream. The North Dade County Landfill west of the Surfside Dump is undoubtedly a major influence on the quality of Snake Creek Canal water prior to reaching the Surfside Dump area. Leachate has not been found in canal water samples even though it is sufficiently deep to intercept the same if present. However, it is conceivable that any leachate plume could extend below the bottom of the canal. (Testimony of Stotts, Hussin, Snider, Airan, Patton, Petitioner's Exhibits 1, 4, 9, 12, Respondent's Exhibits 29 a-f) Based on the foregoing Findings of Fact, it is further found: The Surfside Dump presently is contributing to contamination of the ground water table in an unknown amount and is a potential source of pollution to the Snake Creek Canal and Biscayne Bay; The amount of pollution caused by leachate can be reduced through the implementation of corrective measures for surface drainage, including the filling of low lying areas, and grading and sloping to permit maximum surface water runoff. Additionally, infiltration of water into the landfill will be reduced by preserving the existing vegetation thereon which is an important factor in stabilizing surface cover and reducing percolation through evapotransportation most of the present vegetation will not survive if a two foot cover of soil is placed over it, and reestablishment of vegetation to its present state will take approximately two years. A surface cover of six inches over the vegetation would permit survival of most existing vegetation.
Recommendation That Respondent issue a final order requiring Petitioner to comply with the requirements set forth in paragraph 6 of the foregoing Conclusions of Law with regard to closing the Surfside Dump. DONE and ENTERED this 11th day of January, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Silvia M. Alderman, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Joseph C. Jacobs, Esquire Melissa L. Allaman, Esquire Ervin, Varn, Jacobs, Odom and Kitchen Post Office Box 1170 Tallahassee, Florida 32302 Stephen Cypen, Esquire 825 Arthur Godfrey Road Miami Beach, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TOWN OF SURFSIDE, Petitioner, vs. CASE NO. 78-1021 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Three Palms Point is a residential subdivision located within the city limits of St. Petersburg Beach, Florida. Three Palms Point is situated on a landfill which extends into Boca Ciega Bay. The site of the subdivision was originally purchased as submerged land from the Board of Trustees of the Internal Improvement Trust Fund. The purchaser filled the submerged land to coincide precisely with his purchase. The original Three Palms Point landfill is depicted on an aerial photograph that was received in evidence as Petitioner's Exhibit 3. This photograph was taken in 1957, and the landfill is circled with yellow ink on the photograph. Petitioner's Exhibit 2 is an engineer's drawing which depicts the original landfill. In August, 1970 the Petitioner purchased a portion of Three Palms Point. The Petitioner has constructed homes on a portion of the Three Palms Point landfill including the end, or easternmost finger. The present dimensions of the easternmost finger are depicted in an aerial photograph that was received in evidence as Petitioner's Exhibit 1. This photograph was taken in February, 1977. Several lines have been drawn on the photograph. The outermost line shows the limits of the original landfill. Considerable erosion has taken place, and the present high water mark is clearly evident in the photograph. Through the instant application the Petitioner is seeking to fill the land within the second line shown on Petitioner's Exhibit 1. Petitioner intends to construct four new homes on the filled area. The easternmost finger of the Three Palms Point landfill has only been partially bulkheaded. In the approximately twenty years that the landfill has been in existence, approximately 200 feet of the fill has eroded away. The amount of erosion is clearly evident in the photograph that was received in evidence as Petitioner's Exhibit 1. Erosion is continuing at the present time. The uplands of the landfill meet the water at a steep embankment which is very unstable. Three of the homes that have been constructed on the easternmost finger are presently and immediately jeopardized by the continuing erosion. When the Petitioner acquired this property he immediately sought approval to dredge a channel around the original limits of the easternmost landfill, and to fill the entire area. Petitioner did not succeed in obtaining local government approval for this proposal. Petitioner was advised to eliminate his proposed dredging, and to limit the landfill as in his present application. The entire area that the Petitioner wishes to fill constitutes .55 acre. Petitioner proposes to use uplands landfill, and to place a bulkhead around the fill to prevent further erosion. The landfill proposed by the Petitioner is the least amount of fill that would permit the Petitioner to construct houses on the finger within local zoning ordinances. Approximately 4,000 cubic yards of material would be required to complete the landfill. At low tide nearly all of the proposed fill area, and a broader area extending to the east and the south of the proposed landfill site is out of water. At high tide nearly all of the site is submerged. This type of environment is known as a littoral, or transitional zone between the uplands and submerged lands. This particular littoral zone is not a natural transitional area as would occur along the unbulkheaded and undeveloped shorelines of Boca Ciega Bay. The zone has resulted from the erosion of a landfill. There is considerable debris, including deteriorated riprap, junk that has been dumped in the area, and spilled cement. Various types of algae exist within the area proposed to be filled. The only grass that grows in the area is Cuban Shoalweed. Cuban Shoalweed is the only vegetation other than algae which has been found to any degree at the site. Cuban Shoalweed dies back and disappears during winter months, and reestablishes itself during summer months. Nearly all of the Cuban Shoalweed visible at the time of the hearing was outside of the proposed fill area. During summer months it is probable that some Cuban Shoalweed would be present within the fill area. The Cuban Shoalweed exists in patches, and does not cover the area. A variety of marine animals have been identified at the proposed fill site. Many mollusks, including oysters, a variety of clams, and mussels are present at the site. Several varieties of crabs were identified. At high tide fish swim into the area. Shore and wading birds have been observed in the area. The most prevalent animal life in the area is clams. Several heavily populated clam beds are located within, and just outside of the proposed landfill site. None of the organisms observed at the site are endangered organisms. It is apparent that the site is not a particularly suitable natural habitat, except apparently for clams. Continuing erosion of the easternmost point of the Three Palms Point subdivision presents an immediate danger to homeowners. Erosion which has averaged approximately ten feet per year during the past twenty years, is continuing to occur at a rate of from two to three feet per year. A large storm is likely to prove disastrous. In order to protect present homeowners, it is essential that some sort of seawall be constructed at the point. The seawall proposed by Petitioner provides the most protection. A rounded seawall will disperse wave action along the seawall. A seawall constructed along the present high water line would provide considerably less protection. High winds coming from the prevailing wind direction during the stormiest seasons would hit the present shoreline at a severe angle. When a wave hits a shoreline at an angle part of the energy is dispersed. This is called long shore energy flux, and results in littoral drift. High winds would cause an extreme littoral drift along the present shoreline. Bottom sand would be loosened, and the seawall would be undermined. The waves would strike the seawall proposed by the Petitioner at a significantly lesser angle, and long shore energy flux would be approximately one-fourth as much as with a seawall constructed along the present shoreline. Littoral or transitional zones provide a significant function for maintaining the water quality of a water body. Runoff from the uplands is filtered through the vegetation of the littoral zone. The vegetation serves to filter the uplands runoff by assimilating nutrients in the runoff. Without such a filtering mechanism, the quality of a water body would rapidly deteriorate, especially in a heavily populated area. The littoral zone involved in this case provides an insignificant filtration system. The only vegetation is Cuban Shoalweed, which is sparce and totally non-existent during winter months. Construction of the proposed landfill could cause considerable turbidity if proper steps are not taken to prevent it. Turbidity would be very detrimental, at least on a temporary basis, to the waters of Boca Ciega Bay. Turbidity can be adequately controlled through the use of screening devices. If the Petitioner's permit application is approved, a .55 acre habitat for a variety of marine organisms would be lost. Crabs and clams would likely reestablish themselves in the areas just outside of the proposed landfill. Many of the creatures could be relocated to other more natural littoral zones in the area. Most of the residents of Three Palms Point appear to favor the proposed landfill. This opinion is not, however, unanimous. Residents who support the proposal testified of their concern with the continuing erosion in the area. Some witnesses were concerned that the area has become a dumping ground, and attracts recreational users for whom there are not adequate facilities. Persons who testified in opposition to the project expressed environmental concerns, and concerns with the disruption that construction in the area would inevitably cause. The testimony was not clear as to the present status of local government authorization of the project. It appears that the Petitioner has received local approval, but that during the two years that his application has been pending before the Respondent, the approval has lapsed.
The Issue Is Respondent, Watson Construction Company, Inc. (Watson), entitled to a general permit allowing it to operate a construction and demolition debris facility in Newberry, Alachua County, Florida?
Findings Of Fact DEP, in accordance with Chapter 403, Florida Statutes, is responsible for enhancing the beauty and quality of the environment; conservation and recycling of natural resources; prevention of the spread of disease and creation of nuisances; protection of the public health, safety and welfare; and provision for a coordinated statewide solid waste management program. It accomplishes these tasks, in part, by regulatory oversight directed to entities who operate solid waste facilities in Florida. That oversight includes permitting the activities by the facilities subject to compliance with statutory and rule requirements. Watson wishes to operate a solid waste facility in Newberry, Florida. In particular, Watson seeks to operate a C&D facility for off-site disposal of C&D debris to be placed where sand has been mined. Watson would pursue this enterprise by using a general permit, as allowed by DEP. Petitioner, City of Newberry (the City), is a political subdivision of the State of Florida. It opposes Watson's use of a general permit to conduct business as a C&D facility, based upon the belief that Watson has not demonstrated compliance with regulatory provisions that would allow Watson to use a general permit. Petitioner, Citizens for Watermelon Pond, Inc. (Citizens), is a corporation constituted of persons who oppose the use of the general permit for the same reasons expressed by the City. On July 21, 1994, Watson noticed DEP that it intended to use a general permit to operate a C&D facility. On July 29, 1994, a notice was published in the Gainesville Sun, a local newspaper, concerning the pendency of the use of a general permit to operate the C&D facility in Newberry, Florida. On August 12 and 16, 1994, the Petitioners filed petitions seeking an administrative hearing on the use of a general permit by Watson to operate the C & D facility. On August 19, 1994, DEP issued a Notice of Denial of the permission to use a general permit to operate the C&D facility. This permit request was under an arrangement between Watson and a co-applicant, Whitehurst. Following the Notice of Denial, no further action being requested by the applicants, DEP issued an order closing its file. In December 1994, in its name only, Watson resubmitted an application to use a general permit to operate the C&D facility in question. The level of consideration at that time was as a pre-application review. This was followed by a formal notice by Watson and application to use a general permit to operate the C&D facility. The formal application was filed on January 17, 1995. On January 24, 1995, notice was published in the Gainesville Sun concerning the more recent intention to use a general permit to operate the C&D facility. On February 6, 1995, Citizens filed a verified petition opposing the use of the general permit contemplated by the January 17, 1995 application. Two days later, the City filed a verified petition in opposition to the most recent request to use a general permit to operate the C&D facility. On February 15, 1995, DEP gave notice that it did not object to Watson's use of a general permit to operate the C&D facility. Watson's most recent request to use a general permit to operate a C&D facility was made on a form provided by DEP in accordance with Rule 62- 701.900(3), Florida Administrative Code. The application to use a general permit was sealed by a professional engineer. The legal description of the property in question is described in the application. It is located in Newberry, Alachua County, Florida. The site location for the proposed C&D facility is one and one-eighth mile south of Southwest 46th Avenue on the east side of County Road 337 in Newberry, Florida. Documentation has been provided which identifies the legal authorization to use the property as a C&D facility. The C&D facility has a planned active life of 50 years. It is intended that the sand that is excavated will be replaced by C&D debris at a similar grade. The mailing address and telephone number of the C&D owner and operator is identified. Watson is the owner/operator. There are 158 acres within the proposed site. Approximately 143 acres would be used in the C&D operation by mining sand as a prelude to recontouring the site by placing the C&D debris. It is intended to excavate tan sand and silty sand to a depth of 20-30 feet. Although Watson anticipates excavating sand to a depth of 30 feet, bore hole data reveals the existence of sand below that depth. Watson does not intend to excavate below 62 feet mean sea level (MSL). In any event, it is not the intention to excavate below the interface of the sand and underlying sandy clays. Once the sand has been excavated, it is anticipated that the bottom of the C&D disposal area will be approximately 15 feet above the piezometric water table associated with the Floridan Aquifer, according to the applicant. The proposed site is located in rolling terrain, whose elevations range from approximately 80 feet MSL to 100 feet MSL. To support the use of a general permit, Watson has provided a site plan with a scale not greater than 200 feet to the inch, which identifies the project location, with proposed disposal areas, total acreage of the site and of the proposed disposal area, and other relevant features that exist on or within 500 feet of the site. The property boundaries are identified. The site would be fenced. Access to the facility would be controlled by a locked gate on County Road 337. The gate would be open during daily operations. The site does not contain surface water. There being no surface water, the C&D facility does not require a surface water management permit from the Suwannee River Water Management District. The site does not present a problem with stormwater runoff. A potable well is located within 500 feet of the property boundary. However, placement of C&D debris would be offset by a 500-foot buffer from the well. Wetlands are located 2,100 feet from the southern edge of the proposed site in the eastern part of the adjacent Whitehurst parcel. Within 3,000 feet of the proposed site is an old phosphate mining pit on the Whitehurst parcel, and 6,200 feet from the proposed site is the northern-most unnamed pond associated with Watermelon Pond. The site is not susceptible to flooding at present. The sand mined at the proposed site would be used to build roads and for foundations for houses and other buildings. Clay removed from the building sites to make room for the sand would be placed in the C&D facility. The material that is removed from building sites and substituted by sand fill is clay with a high shrink and swell factor. That material, together with flint rocks, tree limbs and stumps, would be transported to the C&D facility by Watson's dump trucks. At present, Watson has 20 dump trucks. The dump trucks hold 20 yards each. In addition to those materials removed from Watson job sites by dump trucks, Watson has approximately 36 roll-off dumpsters which hold 20 yards each. Two Watson trucks are available to transport the roll-off dumpsters to the C&D facility. The roll-off dumpsters are placed on construction sites, not exclusively Watson's, and construction materials not used in the building process would be placed in the roll-off dumpsters for disposal at the C&D facility. Approximately 70 percent of the fill material to be placed in the C&D facility would be unsuitable soils, trees, limbs and stumps. The remaining material would be the C&D debris from construction at sites where the dumpsters have been placed. The dump trucks that hold the clay, limbs and stumps would be loaded by Watson employees, who can control what is placed in the trucks. Watson would not control what is placed in the roll-off dumpsters at other construction sites. The Watson dump trucks from job sites directly related to its activities would arrive at the C&D facility and dump their loads for compaction. Those loads would not be spotted for unsuitable fill materials. By contrast, the roll-off dumpsters would be examined at the construction site by the Watson driver. If the driver discovers excessive amounts of material not classified for C&D fill, contact would be made with the Watson office and the material taken to the Alachua County landfill for disposal. If the driver picks up the dumpster at the construction site and there are limited amounts of material not suitable for disposition at the C&D facility, the dumpster would be taken to the C&D facility. The material would be spread out, and a spotter would segregate materials that are not suitable for C&D fill. The unsuitable material would be placed in temporary containers at the disposal site and transported off-site to a permitted landfill or other appropriate facility. Some material brought to the landfill would be recycled. Woods, such as pine or hardwood would be recycled. The limbs and stumps would be placed in the pit as fill. Copper, aluminum, steel, iron, and any other metal would be recycled. The metals would be sold to a scrap-iron facility. An employee at the landfill would keep the money earned from recycling. Metal embedded in broken concrete would be used as fill. The C&D facility would be operated by two persons: one, a loader/operator who loads the dump trucks with the sand that is being excavated; the second individual, a bulldozer operator who pushes the dump truck loads of clay, limbs, and stumps into the fill area and spreads them. He would also spot the roll-off dumpsters and segregate the fill material from unsuitable material. The sorted construction material to be used as fill would be pushed into the working face of the pit, where the tree limbs, stumps and clay would have also been placed. It is anticipated that six to ten roll-off dumpsters with C&D material would be brought to the C&D facility on a daily basis. The amount of unsuitable material that must be sorted from the dumpsters would vary with the individual loads. Watson operates an existing C&D facility in Alachua County, Florida. The proposed C&D facility would be similar in its operation. Based upon the experience in the existing facility, there is no indication that the proposed C&D facility could not be adequately operated by two employees, taking into account the need to segregate unsuitable material before filling. The spotter would receive verbal training concerning his duties. The training provided the spotter is on-site training. He would be reminded once a week of the need to do an adequate job of looking for unsuitable materials. At present, Alachua County inspects the existing C&D facility on a weekly basis and reminds the spotter at that facility what is appropriate for placement and what is not. The expectation is that the same function would be performed at the proposed facility. If sinkholes are encountered in excavating the sand, the equipment operator would contact the Watson office. In turn, Watson would contact its consulting engineer to address the problem, to include placing a plug or cap to repair the breach caused by the sinkhole. In the event that limerock is encountered in the excavation, a clay cap will be placed to prohibit leachate from flowing into the ground water. Areas where limerock is located at higher elevations and not covered by clay present the greatest risk for sinkhole formation. The period between excavation and fill will be approximately two years, leaving the site exposed at the level of excavation before fill is replaced. When the site is closed, the front-end loader operator and bulldozer operator will spread 24 inches of soil as a cap and grade the site in preparation for planting of pine trees. The soil material would be constituted as six inches of top soil suitable for planting pine trees. The remaining 18 inches would contain clay with high shrink/swell properties. The planting of pine trees would be done through a contract forester. The equipment operated at the facility would employ approved muffler systems. Odor generated by the facility is not anticipated to be a problem, in that household garbage, if found, would only be temporarily maintained, pending placement in an appropriate landfill. The site will be examined on a weekly basis to remove blown "litter". Proper provision is made for maintenance of slopes and compaction of fill material as it is placed. Through the application process noticing DEP that Watson intends to use a general permit to operate its C&D facility, DEP has been informed of the location of the proposed site. DEP would have permission to inspect the site during normal business hours. In response to Rule 62-701.420, Florida Administrative Code, Watson conducted a geotechnical investigation and prepared a report to support the application for a general permit. In support of the application Kenneth J. Hill, P.E. investigated the subsurface conditions at the proposed site through drilling activities. The drilling was done at the site and adjacent to the site. In May, 1995, Douglas L. Smith, Ph.D., P.G., conducted an electrical resistivity study (ER) at the site to investigate the subsurface conditions. Thomas H. Patton, Ph.D., P.G. and Charles Swallows, P.E. assisted in the investigation of the subsurface conditions at the site. Ralph E. Eng, P.E., signed and sealed the application for general permit for the proposed C&D facility. In rendering a report following his investigation of the subsurface conditions, Mr. Hill signed and sealed the report and supporting documentation. Likewise, Dr. Smith signed and sealed the report and supporting documentation associated with the ER study, together with Anthony F. Randazzo, Ph.D., P.G. The contribution by Dr. Patton and Mr. Swallows to the geotechnical investigation did not include signing and sealing a report and documentation. Nonetheless, Dr. Patton and Mr. Swallows, when testifying concerning the permit request, as with other professional witnesses, were found qualified to offer testimony consistent with their professional credentials and factual knowledge. 1/ A foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the fill material revealed that the weight of the construction debris was approximately 70 pounds per cubic foot, whereas the weight of the existing sand to be excavated is approximately 100 pounds per cubic foot. Thus, the placement of fill material following excavation would impose less stress on the subsurface than before. No significant settlement of the fill materials is expected to occur, resulting from its weight. The nature and fate of leachate promoted by the placement of fill at the site, in an environmental susceptible to bio-chemical and physical influences in transport through the subsurface, has the potential to adversely impact ground water. Those impacts could possibly cause violations of water- quality standards, ground-water standards, and drinking-water standards. These issues are considered based upon facts associated with the imperatives which must be properly addressed through the geotechnical investigation. That process anticipates gaining an understanding of subsurface conditions, to include the soil stratigraphy and ground-water table conditions. The ground-water table conditions involves estimations of the average and maximum high ground-water table. The geotechnical investigation should also explore the possibility of and address the existence of any sinkholes on the site. No specific testimony was given concerning the degree to which leachate, when present in the ground water at the Floridan Aquifer, might promote water-quality violations. Leachate properties and constituents were described in general terms of water-quality considerations, for example, hardness, nitrates, nitrites, alkalinity, presence of ammonia, chlorides, iron manganese, phenols, barium, arsenic, cadmium, lead, mercury, zinc, TDS and sulfates, urea formaldehyde, plaster, creosote, glues, and mastic hardeners. The evidence presented concerning the parameters for water quality did include a reference to barium, ranging from .5UG/L to 8UG/L in basically similar circumstances. The fill material can influence the natural PH by creating acidic conditions causing the PH to fall from a neutral 7.0 to 5.5 to 6.5. The process that takes place over time with the fill material also releases gases, such as methane, hydrogensulphide, and carbon dioxide. Rainwater falling on the ground's surface forms the basis for transporting the leachate through the subsurface. Only the Floridan Aquifer is potentially at risk, there being no surface water bodies or surficial aquifer at the site. Taking into account rainfall disposition by evapotranspiration, storm- water runoff, and subsurface infiltration, without certainty as to the amounts in those processes, it can be said that a significant amount of rainfall is available through infiltration to recharge the Floridan Aquifer and to transport leachate promoted by the fill. This is borne out by the absence of surface water bodies and a surficial aquifer on the site. To gain basic information concerning the subsurface conditions, Watson had 14 standard penetration test borings conducted by Mr. Hill and his firm. Those borings were advanced to depths of 35-72 feet. Additionally, three auger borings were performed to a depth of 40-50 feet. The auger borings were at sites A-1, A-2, and A-3, performed on April 17, 1993. In July of 1993, standard penetration test borings were performed at sites B-1, B-2, B-3, and B-4. In April of 1994, standard penetration test borings were performed at sites B-5, B-6, B-7, and B-8. In September of 1994, standard penetration test borings were performed at sites B-9, B-10, B-11, B-12, B-13, and B-14. The borings that were performed at the proposed site were at B-2, B-5, B-6, B-9, B-10, and B-14, for a total of six borings. The other borings were performed on the adjacent parcel. The borings at the proposed site were widely dispersed over the 143 acres contemplated for excavation and fill. The borings on the adjacent parcel, referred to as the Whitehurst parcel, were widely dispersed over 475 acres. Logs of the soil borings were prepared depicting the findings in the subsurface. The soil stratigraphy found in the borings was varied with sand, clayey sand, sandy clay and limerock present in some but not all borings. The sands that have been described are Aeolian. The sands are remnants of an ancient coastal dune system. Soil permeability tests were conducted on a limited basis at boring B- 9 at a 25-foot sample depth. The tan and orange clayey sand described had a co- efficient for permeability of 1x10-6. That sample and others described were obtained through a split-spoon. At B-12, at 35 feet, tan and orange clayey sand was found with a co-efficient for permeability of 2.6x10-8. At B-13, at 30 feet, tan and orange clayey sand was found and tested as 2.0x10-8 for the co- efficient for permeability. At B-14, at 30 feet, tan and orange sandy clay was found with a co-efficient for permeability of 9.6x10-9. In describing the soils, sieve analysis was not performed to more precisely classify the sediments encountered. This description of the strata is by appearance and texture. The clayey sand and sandy clay found in the borings retard discharge of the leachate to the ground water in the Floridan Aquifer based upon the permeability in those soils. Generally stated, the tan sands described have a co-efficient for permeability of 10-1 to 10-4. These sands are highly permeable, presenting an easy opportunity to convey the leachate contained in the infiltrating rainwater. Anomalous findings concerning soil permeability are shown at B-4, an off-site location, which portrays only sand in the boring. Also, B-9, which was drilled four to five feet east of a known sinkhole at the site is noteworthy in that the boring log describes tan and orange sandy clay, with trace limerock below 30 feet. This is in contrast to the field notation by the driller of the "p" for push and drilling rod "free fall" from 38 feet BLS to 42.5 feet BLS before encountering limerock, connoting a possible cavity in the 38-foot BLS to 42.5-foot BLS region. The karst feature that is located in the area where boring B-9 was conducted will be surveyed and marked with fence posts prior to excavation. No excavation will be conducted within 200 feet of that site. In addition to the phenomenon at the B-9 boring area, sinkholes at the surface were observed one-half to three-quarters of a mile northeast of the site. Sinkholes can occur when the placement of fill changes the hydraulics and loading in a karst environment. Finally, at B-6, limerock was encountered above the 46.9 feet MSL regional piezometric surface of the Floridan Aquifer. That limerock is considered part of the aquifer system. The head pressure at that location was not sufficient to force the ground water from the Floridan Aquifer. The more typical experience was as shown in B-5, where the surface of the limerock was lower than the regional piezometric surface. In B-5, ground water was not encountered until the clayey layer was breached and water rose in the drill hole. On occasions, such as the experience in B-5, there was an indication that Artesian conditions existed at those places. At the locations where the Artesian conditions were experienced, the Floridan Aquifer is confined. At B-6, where the limestone rises higher than the regional piezometric surface, the Floridan Aquifer is not confined. The bore hole at B-2 was terminated before breaching the clayey layer, and ground water was not encountered. Watson's consultant Hill considered that the ground-water table was found within the Floridan Aquifer at the site whose regional potentiometric surface was 46.9 MSL. He perceived that the findings showed ground water at 45 feet MSL constituting the average for the site. Watson estimated that the "seasonal high" ground-water table at the site was 48 feet MSL. The term "seasonal high" is equated to maximum high. Watson claims that the fluctuation in the ground-water table would be only a few feet. This would mean that the 45 feet MSL from bore hole data would represent not only the average across the site but the average value at the site at any point in time during the year. Watson makes this assertion notwithstanding that the borings were made over two years during different seasons. The basis for the estimate of maximum high ground-water table is not evident. In Dr. Patton's remarks in the application, there is a reference to the fact that the lowest encountered elevation for the Floridan Aquifer was 45 feet MSL and the highest was 55 feet MSL, making the average 50 feet MSL. This runs contrary to the remarks by Hill in which Hill said the elevation in the region was 46.9, the elevation detected was 45, and that the seasonal high would be 48. The only borings that were made in which the log reflects the MSL elevation and the boring depth are borings that were conducted in April 1994. On that date, the boring depth at which ground water was encountered varied from 37-43 feet and the MSL depth varied from 39-47 feet. If only the information for B-5 and B-6 on the site proper is used, those two data points associated with the borings on April 1994 reveal ground water at an excavation depth of 37 feet and between 45-47 feet MSL, respectively. Overall, without reference to MSL, the depths at which the ground water was encountered in the borings varied from 19-44 feet, if encountered. Although it is not shown in the boring log what the relationship is to MSL, at B-9, water was found at a drilling depth of 38 feet; at B-10, at a depth of 36 and one-half feet; at B-2, no water had been encountered at a drilling depth of 50 feet; at B-14, no water had been encountered at a drilling depth of 35 feet; at B-1, water was encountered at a level of 44 feet; at B-3, water had not been encountered at the concluding depth of 50 feet; at B-4, water had not been encountered at the concluding depth of 50 feet; at B-11, water was encountered at a drilling depth of 31 and one-half feet; at B-12, water was encountered at a drilling depth of 19 feet; at B-13, water was encountered at a drilling depth of 21 and one-half feet. Where elevations were measured for the water table in the bore holes, the holes were left open until the drillings had been concluded. Then the measurements were made. In this project, the consultant did not equilibrate the ground-water table by the traditional method of leaving a piezometer in the bore hole to maintain its integrity for a day before making the measurement. Watson has not provided sufficient information and explanation to determine a proper estimate of the average and maximum high ground-water table across the site. Returning to the ER investigation, it involved 39 soundings, which is roughly equivalent to drilling bore holes. The sounding profiles were determined through Wenner-Array Sounding and Lee-Directional Equipment. This technique involves the passing of an electrical current underground and measuring its resistance to flow. The expectation is that earth materials, for example, clay, sand, limestone, and cavities will resist the flow of electrical current differently. Substantially greater contrast in the degree of resistance, anomalies, is used to identify and locate earth materials, as well as the presence and shape of cavities. The sounding measurements reveal two- dimensional detail below the surface at progressively-greater depths. Lee- Directional measurements determine the direction of higher or lower resistivity along the survey line. While in the field, electrodes are placed in the ground at equal distances from one another. After a measurement, this distance is increased in an orderly fashion. The greater distance between the electrodes, the greater the depth of penetration. The ER equipment's electrical current has the capacity to penetrate through clay and into lower features in the subsurface. Subsurface from depths five to 100 feet were examined in this study. Within the 39 groundings surveyed, various soils were encountered. Generally, a thick cover of unconsolidated sand was found overlying clayey sand, with a clay layer varying in thickness and limestone found in some soundings, but not others. Where limestone was detected, it was at deeper levels in the southwestern part of the site. Because ER cannot distinguish between clayey sand and sandy clay, the area where those soils are found is referred to in the report as a thinner clayey sand layer. Also, in some places the upper surface of limestone has suffered weathering or deterioration and may appear as the lower part of the clay unit in terms of its electrical properties. The general portrayal in the ER study concerning the soil stratigraphy, wherein reference is made to dry sand up to 30 feet in thickness overlying a thinner clayey sand layer, approximately 10 feet in thickness, overlying a relatively thick clay layer from 10-60 feet and then limestone, does not coincide with the complexity in the stratigraphy found in the soil borings. In the ER study, at stations 8 and 10, voids were encountered. The nature of those voids is unexplained by this investigative process. At station 8, the void was found at approximately 100 feet deep. At station 10, the voids were at 50 feet and 100 feet deep. At station 14, anomalous findings were explained as the placement of fill and organic material during land-clearing operations. The suggestion in the written report, which summarizes the findings in the ER investigation, that a water table was encountered at approximately 40 feet deep, coinciding with the top of the clay layer, is contrary to the findings in the soil borings. To the extent that finding is intended to suggest that there is a perched water table or surficial aquifer above the clay layer, that view is contrary to other evidence adduced at hearing and is rejected. Like the soil borings, the ER soundings examined very discreet areas, but revealed less discreet information. This investigative process is not designed by itself to resolve disputes concerning the character of the subsurface, taking into account statutory and rule requirements for issuing a general permit. To portray the subsurface conditions, in June 1995, Petitioners undertook another basic study by employing ground-penetrating radar (GPR) to reveal the subsurface conditions. Again, GPR, like ER, affords limited insight into the conditions in the subsurface. More precise information than is revealed in the results from the GPR study would be needed to understand the subsurface conditions. GPR is comprised of several pieces of equipment that are connected with cables and a power source. This equipment is mobile. It uses a transmitter and receiver antenna that essentially glides along the ground surface. A signal is emitted through the transmitter. It perpetrates into the ground. It is reflected off materials of different electrical properties back to the receiving antenna and charted. The record that is made is continuous. Unlike ER, GPR is capable of detecting small anomalies in the subsurface. In employing the equipment in this investigation, Petitioners' consultant was looking for either stratigraphic or water-table reflectors and anomalous conditions. The experience at this site was comparable to the experience at other sites in gaining an understanding of how geologic materials are deposited. The GPR investigation covered approximately 10 percent of the site. Four lines were traversed east to west. Two lines were traversed north to south, and two other lines were traversed on a diagonal. GPR will not significantly penetrate clay. Its ability to penetrate is dependent in some measure upon the nature of the clay unit encountered. However, GPR reveals contrasts in the conductivity of clay, when compared to the overlying sand. The greater the contrast, the greater the reflection event. In this connection, the presence of moisture can slow or prohibit the electromagnetic energy generated by GPR. The GPR study revealed a substantial number of subsurface anomalies that might be indicative of possible access for leachate generated by the placement of fill to enter the Floridan Aquifer. These anomalies might represent sand columns and cover subsidence sinkholes. Any sinkholes on the site would be expected to be "cover subsidence"- type sinkholes. Those sinkholes occur through a process in which overlying strata slowly subsides into the sub-adjacent karst feature, rather than suddenly collapsing. Sinkholes develop rarely, but pose more risk of development in areas where sinkholes have occurred previously. Sinkholes are not always seen at the land surface. Sinkholes can present a risk to ground water in the aquifer in view of solution cavities found in the limestone which is part of the aquifer, thus allowing leachate to flow through the cavities into the ground water. Some anomalies found in the GPR study were more significant. One that was observed in the third traverse was 100 feet wide by 80-90 feet deep. There is an indication that this area might be filled with sands, creating a more ready access to the lower subsurface than would be expected with other soils. Another anomaly discovered was 200-300 feet long and 400-500 feet wide, approximately 50 feet below the surface. Overall subsurface conditions are not readily understood. Watson, through its consultant, suggests that the site is part of the Newberry Sand Hills region of the Brooksville Ridge system. As such, karst activity has proceeded in a slower manner than other places in Alachua County, with no presently active karst conditions. In opposition, Petitioners assert that the site is part of the Brooksville Ridge System, which is an internally-drained area of karst-dominated highly fractured terrain, according to its consultants. If Petitioners are correct, those circumstances lead to solutioning of the limestone and are not indicative of area of continuous impermeable clay layers found at the site as part of the Hawthorne formation that Watson's consultant surmises. The exact nature of the site concerning factors that must be considered in this permit application have not been adequately resolved in this record. While it is sufficiently evident that the Floridan Aquifer is not confined, it is unclear whether the circumstances at the site present unacceptable risks to the ground water, in view of existing subsurface conditions. From the record, the proper manner to resolve the issue would be to perform more soil borings on the site proper to identify the subsurface conditions concerning soil stratigraphy and ground-water location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Watson the use of a general permit to operate the proposed C&D facility. DONE AND ENTERED this 7th day of August, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 7th day of August, 1996.
