Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
Findings Of Fact Respondent Jackson County proposes to build a Class I landfill in western Jackson County, about 1.5 miles south of Campbellton on the west side of State Road 273. The named petitioners live near the proposed site, and all parties stipulated to petitioners' standing or party status on account of the proximity of their homes. The forecast is that the proposed landfill would be in service for 15 years, during the last of which it would receive wastes generated by 16,000 persons. Contingent on issuance of the construction permit it seeks in these proceedings, Jackson County has agreed to purchase 85 to 89 acres in section 15, township 6N, range 12W, of which 55 acres would be devoted to the proposed landfill. About ten of the remaining acres are covered by the southern reaches of Grant Pond. Grant Pond may be a sinkhole, but there is no connection between its waters and the Florida aquifer. There is no evidence of sinkhole activity on the site at the present time. One hundred ten feet from the southwest boundary of the proposed site long-time residents have shallow wells from which they once drew water with buckets. There are mostly small farms in the area. A trailer and 6 to 8 homes are located within 1,000 yards of the proposed site. LEACHATE NOT ANTICIPATED Jackson County contemplates eventually dumping 215 cubic yards daily of residential, commercial and agricultural wastes including sewage sludge, in a series of "cells" to H developed seriatim on the site. Developing a cell would entail digging a pit 15 feet deep, 200 feet wide and 650 feet long, lining it with some of the clay removed in excavating, and compacting the two-foot-thick clay bottom liner to 90 percent Proctor. The uncontroverted testimony was that such a liner would be impermeable. A cell is expected to accommodate about a year's worth of refuse. The plan is to have one cell in operation and another in reserve at all times. Waste would be compacted and then covered over with clay soils daily to minimize the possibility of leachate formation. In addition, a six-inch layer of clay would be put down at the end of each "lift," more or less weekly. Once the cell was completely filled, it would be covered with an even thicker layer of clay and/or other materials specified by applicable regulations. Against the possibility of leachate formation before the cell is finally sealed off, the bottom of the cell would be sloped (4:1) so that any leachate generated would accumulate at one point in the cell, from which it could be pumped to a leachate holding pond. The leachate holding pond is also to be lined with impermeable clays. The engineer who designed the project predicts that no leachate whatsoever will be generated and the project plans do not identify the specific method for disposing of leachate, once it reaches the holding pond. Depending on the quality and consistency of any leachate, it could be left in the holding pond to evaporate, or be removed by truck for disposal off site; or be treated biologically and/or chemically before being spread on site. STORMWATER The stormwater management system consists of a series of elongated detention ponds and two ditches, or swales, that drain into Grant Pond. The detention ponds are to be 1.2 feet deep, have varying widths (26.5 to 64 feet), with sides sloping at a 4:1 ratio, and vary in length from 1,000 to 1,600 feet. Water that would accumulate in them as a result of 3.2 inches of rainfall (the amount a 25-year one-hour storm would bring) would fill the ponds. The ponds are designed to overflow through baffled culverts along the swales into Grant Pond. The soils are such that 3.2 inches of rainfall could percolate into the unsaturated soil from the holding ponds in 72 hours. The closest baffle to Grant Pond would be some 200 feet distant; significant sheet flows would also enter Grant Pond. The landfill is designed to insulate stormwater runoff from contamination by waste or leachate. Only when wastes in an almost filled cell had not yet been covered would there be danger that stormwater falling on wastes would end up in the flow of stormwater draining across the surface of the proposed site and ultimately into Grant Pond. This danger could be all but eliminated by placing the last layer of wastes deeply enough in the cell. The plan is to ring the cells with excavated material, as well. If leachate is generated and pumped to the leachate holding pond and if there is enough of it to fill the pond or nearly to fill it, a storm might result in an overflow from the leachate holding pond that would drain eventually into Grant Pond. This danger, too, could be all but eliminated by operating the landfill so that the level of leachate in the holding pond always remained low enough, and by disposing of all leachate, if the facility generates any, off site, rather than "by landspreading on site." Jackson County's Exhibit No. 6. The same people who manage the landfill in eastern Jackson County would manage the landfill here proposed. No leachate has been generated at Jackson County's eastern landfill, but litter that can blow out of the cells at the eastern landfill does. If the same practices obtain at the new site, airborne litter that does not reach Grant Pond on the wing, may later be washed into the Pond by stormwater, even though the baffles would eliminate floatables in the water flowing out of the detention ponds. TWO AQUIFERS The parties are in agreement "that the leachate and or other pollutants will probably never reach the Floridan Aquifer." Petitioners' Closing Argument, p. 4. The Floridan aquifer is a limestone rock formation underlying the proposed site at depths varying between 30 and 130 feet, and separated by a layer of stiff clay from the overlying silts and sands. The stringers of saturated sands lying near the surface comprise a distinct, surficial aquifer that lies between five and twenty feet below ground over most of the site but crops out as Grant Pond on the northern edge of the property. No cell would be built within 200 feet of the highwater line of Grant Pond. The water table in the surficial aquifer, which yields potable water, is a subdued replica of the ground topography. Surface water from the southwest part of the proposed landfill site, where wells are closest, flows into Grant Pond. Water sometimes stands on the southeast part of the site, an area one witness described as boggy. A trailer stands on a parcel adjoining the property to the southeast with its near boundary 300 or 400 feet from the site proposed for the first working cell. No cell is to be dug within 500 feet of any existing or proved potable water well. The application contemplates monitoring wells. Groundwater in the Floridan aquifer flows south. Three wells to a depth of about 45 feet each are planned for south of the cells so that, in the unlikely event that pollution reached the Floridan aquifer, it could be promptly determined. There will also be a monitoring station in Grant Pond so the effect of stormwater runoff on water quality in the pond can be gauged. One well, 250 feet east of the west property boundary and 250 feet south of the north boundary, is planned for monitoring the surficial aquifer. TOXIC WASTES Toxic wastes are generated in Jackson County. Hundreds of drums with a little something still left in them are brought to the County's eastern landfill. No toxic wastes can lawfully be dumped at landfills like the one Jackson County proposes to build near Campbellton, but containers which once held toxic substances can lawfully be disposed of at such landfills, provided they have been rinsed out with water three times. Signs to this effect are to be posted. The landfill would have a single entrance. An attendant would be on duty during the landfill's hours of operation (8 to 5, five days a week), but would not be expected to have sampling equipment or to enforce the triple rinsing requirement, if past practice at the eastern landfill is any indication. When the landfill is not open, according to the applicant's engineer, green boxes will nevertheless be available for dumping. SCREENING Litter fences are planned only "if needed." A green belt 100 feet wide is proposed along the southern and the eastern perimeter of the property. "Appropriate trees and shrubs" are to be planted there, perhaps bamboo or oleander. SEPTAGE DISPOSAL PITS In a letter dated December 1, 1982, under the heading "septage disposal pits", C. G. Mauriello, the engineer who designed the proposed landfill, wrote DER's Wayne Hosid: This item was not shown on the original application but should be included. It has been recognized by the County that disposal of this type waste material should be handled at the new west site and therefore, provisions will be made for the disposal. Basically, a trench type operation similar to the East Site will be provided. The location of the disposal area will be to the south of the Future Holding Pond and north of the Salvage Area. Jackson County's Exhibit No. 6. A drawing prepared by the same person in July of 1982 shows a "septic tank/drainfield" southeast of the location described for the "septage disposal pits." DER's Exhibit No. 1. The permit DER proposes to issue contains numerous conditions, including the following: Construction of septage drying beds will be identical to those permitted under Permit No. 5032-22067 for Jackson East Sanitary Landfill as modified on July 20, 1981. Jackson County's Exhibit No. 9. Permit No. 5032-22067 was not made a part of the record in these proceedings. Incidentally, the word "septage" does not appear in Webster's Third New International Dictionary (1971). A septic tank or any similar system would differ significantly from the systems described by the witnesses who testified at hearing. Septic tanks eventually discharge their contents into surrounding soils, after treatment by anaerobic bacteria. Septic tanks cannot be sealed off by clay or anything else from the earth around them, if they are to function properly. Sooner or later discharge from any septic tank on site could be expected to enter the surficial aquifer and, ultimately, through the groundwater, Grant's Pond. Nothing in the evidence indicates how long it might take for any such effluent to reach the groundwater or leach into Grant Pond; or what its chemical composition might be. MORAL OBJECTION STATED Petitioners' witness Frederick L. Broxton, Sr. testified that, even conceding the absence of a scientific or legal basis for objection to the proposed project, it was immoral for the County Commission to choose a site so close to people's homes, when there was so much land available in that part of the county, where nobody lived. PROPOSED FINDINGS CONSIDERED All parties filed posthearing submissions which have been considered in preparation of the foregoing findings of fact. Respondent Department of Environmental Regulation filed proposed findings which have been adopted, in substance, for the most part. Where proposed findings have not been adopted, it is because they have been deemed immaterial, unsupported-by the weight of the evidence, subsidiary or cummulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation issue Jackson County a permit for construction of a landfill at the site proposed subject to the conditions (except condition No. 24) stated in the proposed permit, Jackson County's Exhibit No. 9, and subject to the following additional conditions: (a) any leachate generated shall be disposed of off site (b) the whole landfill shall be fenced, and the view from State Road 273 shall be obstructed (c) portable fences shall be placed around any cell in use (d) an additional monitoring well shall be placed between the well southeast of the site and the nearest cell and (e) no septic tank or "septage" disposal pits shall be built on site. DONE and ENTERED this 17th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1983. COPIES FURNISHED: Robert L. Travis, Jr., Esquire 229 East Washington Street Quincy, Florida 32351 J. Paul Griffith, Esquire P. O. Box 207 Marianna, Florida 32446 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS 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 16th day of June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined in this case is whether a site certification should be issued to Hillsborough County for the construction and operation of a fourth municipal waste combustor unit (“Unit No. 4”) at Hillsborough County’s Resource Recovery Facility, in accordance with the provisions of the Florida Electrical Power Plant Siting Act.
Findings Of Fact The Applicant The Applicant, Hillsborough County, is a political subdivision of the State of Florida. The County owns the existing Facility and will own the proposed Project. The Facility was designed, built, and is operated by a private company pursuant to a long-term contract with the County. It is anticipated that a private company will design, construct, and operate the Project for the County. Hillsborough County’s Existing Solid Waste System The County has adopted a solid waste Comprehensive Master Plan (the “Master Plan”) in conjunction with the Cities of Tampa, Temple Terrace, and Plant City. The Master Plan provides for state-of-the-art technology and innovative approaches to recycling, waste reduction, and waste disposal. In accordance with the Master Plan, the County has developed: (a) an aggressive recycling program that significantly reduces the quantity of materials requiring disposal; (b) a resource recovery facility for waste reduction and energy recovery from those materials that are not recycled; and (c) a landfill for the disposal of ash and by-pass waste (i.e., materials that are not recycled or processed in the Facility). Hillsborough County and the three cities have used a cooperative, regional approach to solid waste management issues, while providing environmentally protective, cost-efficient programs for local residents. Despite the County’s comprehensive recycling program, the amount of solid waste generated in the County has increased each year since the Facility began operation, primarily due to population growth. The amount of solid waste generated in the County now significantly exceeds the Facility’s design capacity. Consequently, large quantities of solid waste currently are being diverted from the Facility to the County landfill. In 2005, the Board of County Commissioners decided to expand the Facility, consistent with the County’s long-standing Master Plan, rather than dispose of ever-increasing amounts of solid waste in a landfill. The Board’s decision was based on a thorough evaluation of the County’s solid waste disposal options. For these reasons, on November 21, 2005, the County filed an application with DEP for the construction and operation of Unit No. 4. The Site The Facility is located next to Falkenburg Road in an unincorporated area in the County. The Facility is southeast of the City of Tampa, west of Interstate 75 (“I-75"), and north of the Crosstown Expressway and State Road 60. The Facility was built on a 50.4-acre site (“Site”), which is in the southern portion of a 353-acre tract of land owned by Hillsborough County. The Surrounding Area The Facility is surrounded by a variety of governmental and industrial land uses. The Facility is bounded: on the south by the County’s Falkenburg Road Wastewater Treatment Plant and a railroad track that is owned by the CSX railroad company; on the west by a 230 kilovolt transmission line corridor and easement owned by Tampa Electric Company (“TECO”); on the north by vacant improved pasture land, the Falkenburg Road Jail, the Hillsborough County Department of Animal Services, and the Hillsborough County Sheriff’s Office (District 2); and on the east by Falkenburg Road and vacant land. The Facility is compatible with the adjacent and surrounding land uses. The nearest residential area is approximately 1 mile away from the Facility. It is located on the opposite (east) side of I-75. Zoning and Land Use In 1984, the Siting Board determined that the Site and Facility were consistent and in compliance with the applicable land use plans and zoning ordinances. The Siting Board’s determination was based on the County’s plans for the construction and operation of four MWC units at the Facility. The Site is currently zoned “Planned Development”, and is designated “Public/Quasi-Public” under the County’s comprehensive land use plan, specifically to allow the Facility and the Project to be built and operated on the Site. The Existing Facility The Facility currently has three MWC units. Each MWC unit has a nominal design capacity of 400 tons per day (“tpd”) of municipal solid waste (440 tpd when burning a reference fuel with a higher heating value of 4500 British thermal units (“Btu”) per pound). The three MWC units are located inside a fully enclosed building, which also contains the air pollution control systems for the MWC units, the “tipping floor,” the refuse storage pit, and a turbine generator. The Facility also includes an ash management building, cooling tower, stack, stormwater management ponds, water treatment system, transformer yard, electrical transmission lines, and ancillary equipment and facilities. Municipal solid waste (e.g., household and commercial garbage) is delivered to the Site in trucks, which drive inside the refuse storage building to the tipping floor, where the trucks dump the MSW into the refuse storage pit. Two overhead cranes mix the waste in the refuse storage pit and then load the waste into the charging hoppers that feed the three MWC units. The combustion of the municipal solid waste produces heat, which is used to produce steam. The steam is used in a turbine generator to produce approximately 29.5 megawatts (“MW”) of electricity. The Project The Project involves the construction and operation of a fourth MWC unit at the Facility. The new unit will be substantially the same as the three existing MWC units, but larger. The new unit will be designed to process approximately 600 tpd of municipal solid waste (660 tpd @ 5000 Btu/lb). A new turbine generator also will be installed, which will increase the Facility’s electrical generating capacity by approximately 18 MW, thus increasing the Facility’s total net generating capacity to approximately 47 MW. In addition, the Facility’s cooling tower will be expanded, the refuse and ash management buildings will be expanded, two lime silos and a carbon silo will be installed, a new settling basin will be installed, and other related improvements will be made. Construction of Unit No. 4 The Facility was designed and built to accommodate the addition of a fourth MWC unit, thus making the construction of Unit No. 4 relatively simple, without disrupting large areas of the Site. Unit No. 4 will be located adjacent to the three existing MWC units. The construction of the other Facility improvements also will occur adjacent to the existing components of the Facility. Only about 0.3 acres of the Site will be converted from open space to a building or similar use. Construction of Unit No. 4 will occur in previously disturbed upland areas on the Site that are already used for industrial operations. Construction of Unit No. 4 will not affect any wetlands or environmentally sensitive areas. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by Unit No. 4. No new pipelines or other linear facilities will need to be built for the Project. The construction of Unit No. 4 will not expand the Facility beyond the boundaries of the Site that was certified by the Siting Board in 1984. Operation of Unit No. 4 The basic operation of the Facility will not change when Unit No. 4 becomes operational. Municipal solid waste will be processed at the Facility in the same way it is currently processed. The Facility has operated since 1987 and has an excellent track record for compliance with all applicable regulations, including regulations concerning noise, dust, and odors. All of the activities involving solid waste and ash occur inside enclosed buildings. The tipping floor and refuse storage pit are maintained under negative air pressure, thus ensuring that dust and odors are controlled within the building. Since the operations at the Facility will remain the same after Unit No. 4 becomes operational, no problems are anticipated in the future due to noise, dust, or odors. The Facility’s basic water supply and management system will remain the same after Unit No. 4 becomes operational. Treated wastewater from the County’s co-located Falkenburg Road Wastewater Treatment Plant (“WWTP”) will be provided via an existing pipeline to satisfy the Facility’s need for cooling water. Potable water will be provided to the Facility via an existing pipeline from the City of Tampa’s water supply plant. The Facility does not use groundwater or surface water for any of its operations. The Facility will not discharge any industrial or domestic wastewater to any surface water or groundwater. Most of the Facility’s wastewater will be recycled and reused in the Facility. Any excess wastewater will be discharged to the Falkenburg Road WWTP. Stormwater runoff from the Project will be collected and treated in the existing system of swales and ponds on the Site. The County will modify two existing outfall weirs to provide improved treatment of stormwater and to ensure compliance with water quality standards. A traffic analysis was performed to evaluate the potential traffic impacts associated with the operation of the Facility, after the Project is completed. The analysis demonstrated the Facility will not have any significant impacts on the surrounding roadway network, even when Unit No. 4 is operational. Air Quality Regulations The County must comply with federal and state New Source Performance Standards (“NSPS”) and Best Available Control Technology (“BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. The County also must comply with Ambient Air Quality Standards (“AAQS”) and Prevention of Significant Deterioration (“PSD”) standards, which establish criteria for the protection of ambient air quality. Best Available Control Technology BACT is a pollutant-specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. As part of the BACT determination, all available and feasible pollution control technologies being used worldwide are evaluated. The Department performed a BACT determination for the Project. As part of its BACT analyses, DEP determined that (a) a flue gas recirculation system and a selective non-catalytic reduction system (“SNCR”) will control NOx; (b) a spray dryer with lime injection will control MWC acid gas; (c) an activated carbon injection system (“ACI”) will control MWC organic compounds; (d) a fabric filter baghouse will control particulate matter and MWC metals; and (e) proper facility design and operating methods will control other pollutants. These air pollution control technologies (except flue gas recirculation) and methods are currently used in the three existing MWC units and they have performed extremely well. Unit No. 4 will have better, more modern, and more sophisticated versions of these air pollution control systems, plus a flue gas recirculation system. In its analysis of the Project, DEP determined the emission limits for the Project that represent BACT. All of the emission limits determined by DEP for Unit No. 4 are as low as or lower than the emission limits established in 2006 by the U.S. Environmental Protection Agency (“EPA”) in the NSPS (40 CFR 60, Subpart Eb) for new MWC units. The NSPS are based on the use of Maximum Achievable Control Technology (“MACT”). Unit No. 4 will be subject to the lowest NOx emission limits imposed on any MWC unit in the United States. The Facility will use an array of continuous emissions monitors to help ensure that the Facility is continuously in compliance with the DEP’s emission limits. Indeed, Unit No. 4 will be the first MWC unit in the United States to be equipped with a continuous emissions monitor for mercury. Protection of Ambient Air Quality The EPA has adopted “primary” and “secondary” National Ambient Air Quality Standards ("NAAQS"). The primary NAAQS were promulgated to protect the health of the general public, including the most susceptible groups (e.g., children, the elderly, and those with respiratory ailments), with an adequate margin of safety. The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility, and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (“FAAQS”) that are more stringent than EPA’s NAAQS. The County analyzed the Project’s potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project’s impacts by a wide margin. These analyses demonstrate that the maximum impacts from Unit No. 4 will be less than one percent of the amount allowed by the ambient air quality standards. The maximum impact from the Facility (i.e., all four units) will be less than 2.5 percent of the amount allowed by the FAAQS and NAAQS. For these reasons, the emissions from Unit No. 4 and the Facility are not expected to cause adverse impacts on human health or the environment. The maximum impacts of Unit No. 4 and the Facility, when operating under worst case conditions, will be immeasurably small and will be indistinguishable from ambient background conditions. Human Health and Ecological Risk Assessments The County performed a human health and ecological impact assessment of the risks associated with the Facility’s airborne emissions. The County’s risk assessment evaluated the impacts of the entire Facility, with all four MWC units in operation. The risk assessment was designed to over-estimate the potential impacts of the Facility. The County’s risk assessment was conducted in compliance with current EPA guidance. The risk assessment considered hypothetical human receptors (e.g., infants, children, and adults) that were engaged in different types of behavior (e.g., a typical resident; a beef farmer; a subsistence fisherman) and were exposed through multiple pathways (e.g., inhalation; ingestion of soil; ingestion of local produce, beef, and/or fish) to chronic long term impacts from the Facility. The risk assessment also considered the Facility’s potential impacts on sensitive environmental receptors, including aquatic life (benthic dwelling aquatic organisms), wood storks, and river otters. The County’s risk assessment demonstrates that the potential risks associated with the Facility’s emissions will not exceed, and in most cases will be much less than, the risks that are deemed acceptable by the EPA and DEP for the protection of human health and the environment. The County’s assessment is consistent with the findings in environmental monitoring studies, epidemiological studies, and risk assessments that have been performed for other modern waste-to-energy ("WTE") facilities in the United States. The County’s findings also are consistent with the determinations made by the EPA, which has concluded that WTE facilities equipped with modern pollution control systems are a “clean, reliable, renewable source of energy.” The evidence presented by the County in this case demonstrates that the Facility is not likely to have any adverse effect on human health or the environment, even when all four MWC units are operational, if the Facility is built and operated in compliance with the Conditions of Certification. Potential Impacts on Water Quality The Facility’s emissions of nitrogen oxides (i.e., NOx) will not cause or contribute to violations of any water quality standards in any surface waterbody. Environmental Benefits of the Project The addition of Unit No. 4 will provide significant environmental benefits to the County. Unit No. 4 will reduce the volume of processible solid waste by approximately 90 percent. By reducing the volume of processible waste, Unit No. 4 and the Facility will greatly extend the useful life of the County’s landfill, thus postponing the need to build a new landfill. The Facility also will convert putrescible waste into a relatively inert ash, which poses less threat to groundwater resources. The Project will also provide environmental benefits to the State of Florida. For example, the Facility will produce electricity from discarded materials. In this manner, Unit No. 4 will reduce the need to use fossil fuels to generate electricity at traditional power plants. Unit No. 4 will eliminate the need to use approximately 4 million barrels of oil and thus will save approximately $200 million in oil purchases over the next 20 years. Socioeconomic Benefits of the Project The local economy and labor market will benefit from approximately $100 million that the County will spend to construct the Project. A significant amount of construction supplies, goods, and services are anticipated to be purchased from local businesses. The Project will provide jobs for construction workers. The daily workforce is expected to average between 25 and 75 people over a period of approximately 21 months. The addition of Unit No. 4 will also provide approximately 8 new permanent jobs at the Facility. WTE Criteria in Section 403.7061 Section 403.7061, Florida Statutes, establishes several criteria that must be satisfied before an existing waste-to-energy facility may be expanded. The County has provided reasonable assurance that the Project will satisfy all of the standards and criteria in Section 403.7061, Florida Statutes. Among other things, the County has demonstrated that the County’s waste reduction rate has consistently exceeded the State’s 30 percent recycling goal. Consistency With Land Use Plans and Zoning Ordinances As required by Section 403.508(2), Florida Statutes, the County demonstrated that the Site is consistent and in compliance with the Hillsborough County comprehensive land use plan and Hillsborough County’s applicable zoning ordinances. Compliance with Environmental Standards The Department has concluded and the evidence demonstrates that the County has provided reasonable assurance the Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air quality, water consumption, stormwater, and wetlands. The County has used all reasonable and available methods to minimize the impacts associated with the construction and operation of the Facility. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional, or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare, with a wide margin of safety. Agency Positions Concerning Certification of the Project On May 4, 2006, the PSC issued a report concluding that the Project was exempt from the PSC’s need determination process, pursuant to Section 377.709(6), Florida Statutes. The DEP, DOT, and SWFWMD recommend certification of the Project, subject to the Conditions of Certification. The other agencies involved in this proceeding did not object to the certification of the Project. The County has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Public Notice of the Certification Hearing On December 19, 2005, the County published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Tampa Tribune, which is a newspaper of general circulation published in Hillsborough County, Florida. On May 25, 2006, the County published notice of the Certification Hearing in the Tampa Tribune. On December 23 and December 30, 2005, the Department electronically published “Notice of Filing of Application for Power Plant Certification.” On May 26, 2006, the Department electronically published notice of the Certification Hearing. The public notices for the Certification Hearing satisfy the informational and other requirements set forth in Section 403.5115, Florida Statutes, and Florida Administrative Code Rules 62-17.280 and 62-17.281(4).
Conclusions For Petitioner Hillsborough County (the “County”) David S. Dee, Esquire Young van Assenderp, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301-1720 For the Florida Department of Environmental Protection (“Department” or “DEP”) Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-300
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a site certification for the construction and operation of Unit No. 4 at the Hillsborough County Resource Recovery Facility, in accordance with the Conditions of Certification contained in DEP Exhibit 2. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 2nd day of August, 2006.
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 in this case are whether the Respondents, Enos Kerr and Custom Care Dry Cleaning, Inc., are guilty of the violations alleged in, should take the corrective actions described in, and should pay the penalties assessed in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment, DEP OGC File No. 06-2382-37-HW (the NOV).
Findings Of Fact Enos Kerr is the President and manager and an owner of Custom Care Dry Cleaning, Inc., a dry-cleaning business located in Tallahassee, Florida. The Respondents have been in business for approximately twenty-five years. For approximately ten years, Custom Care has used Vista LPA-142 as a dry-cleaning solvent. Custom Care uses a spotting agent known as "Picrin" for removal of difficult stains. Vista LPA-142 is also known as paraffinic, napthenic solvent, and aliphatic solvent. It contains 100 percent paraffinic or napthenic solvent. It looks like water but is a white oily liquid that has the odor of hydrocarbon and is a kind of "mineral spirits." "Picrin" contains more than 98 percent chlorinated hydrocarbon. It is listed at 40 Code of Federal Regulations (CFR) § 372.65 and exceeds the de minimis concentration defined in 40 CFR § 372.38. On August 18, 2006, John Johnson, a DEP Environmental Specialist, inspected the premises of Custom Care. He found two partially full 55-gallon steel drums of Vista LPA-142 outside of secondary containment, which contained a 110-gallon storage tank and Custom Care's Midwest dry-cleaning machine (which has a base tank that stores used Vista LPA-142 which has passed through a Filter King purification system for reuse in the dry-cleaning machine). He testified that, not only did Mr. Kerr tell him the drums were full or partially full, they were heavy enough from being full or partially full that Mr. Johnson could not move them easily. On August 18, 2006, Mr. Johnson also observed, hanging on the outside of the wall of the secondary containment area, above the 55-gallon drums, some of the clear plastic tubing, a pump, and a PVC pipe extending from the end of the tubing, which were used to transfer Vista LPA-142 from the 55-gallon drums into the 110-gallon storage tanks. The floor beneath the transfer equipment and the 55-gallon drums was not sealed or otherwise treated to render it impervious. In another part of the premises on that date, also outside secondary containment, was a Forenta spotting board used for removal of difficult stains from fabric before placement in the dry-cleaning machine. Various chemicals, including a plastic bottle containing "Picrin," were in a box or tray attached to the spotting board. Beneath the spotting board was an open plastic waste basket used to collect and contain spotting agent suctioned from the item of clothing being cleaned and funneled to the basket. The floor under the spotting board was not sealed. Custom Care's Filter King purification system uses cloth filters. Periodically, Custom Care replaces the filters containing lint from the dry-cleaning process. The old filters are allowed to air-dry in the secondary containment area before disposal in the municipal solid waste dumpster outside the premises. At the end of Custom Care's dry-cleaning process, the dry-cleaned clothes are wrung out during a mechanical spinning cycle and then manually transferred while still damp or somewhat wet to a Huebsch dryer, which is outside secondary containment and on a floor that was not sealed on August 18, 2006. Air- drying is the last step in the process. DEP did not have the filters and lint analyzed to prove that they were contaminated with Picrin or any other hazardous substance. Instead, DEP assumed that there was some contamination, however small, and relied on the federal "mixture" rule that even the smallest amount of hazardous waste contamination turns previously unregulated solid waste into regulated hazardous waste. Count I - Secondary Containment Respondents' factual defenses to Count I, for not having the Vista LPA-142 in secondary containment on August 18, 2006, are: (1) secondary containment was not required because Vista LPA-142 is not a "dry-cleaning solvent"; and (2) if secondary containment was required, all of the Vista LPA-142 was in secondary containment because the 55-gallon drums and transfer equipment were empty. In support of their first defense to Count I, Respondents maintain that Vista LPA-142 is an aqueous solvent because an analysis of a sample from the base tank that collects used Vista LPA-142 after use and filtration for reuse in the dry- cleaning machine indicates the presence of 0.34 percent water. However, the presence of that small amount of water in the sample did not prove that Vista LPA-142 is an aqueous solvent. Custom Care also contends that Vista LPA-142 is not a "dry-cleaning solvent" because Custom Care buys it from Phenix Supply Company, which not only sells product to dry-cleaners but also sells to other businesses for other uses, making Phenix Supply something other than a "wholesale supply facility." This contention is rejected. See Conclusion 33, infra. Also in support of their first defense to Count I, Respondents pointed to information received from the producer of Vista LPA-142 that it was biodegradable to carbon dioxide and water. However, biodegradation would occur only in the presence of water and naturally-occurring microorganisms and aerobic conditions. Such biodegradation does not mean that Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum- based, dry-cleaning solvent. Respondents also believed Vista LPA-142 was not a petroleum-based dry-cleaning solvent because it has a flashpoint above 140 degrees Fahrenheit. But there was no evidence to prove that having a flashpoint above 140 degrees Fahrenheit means that the Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum-based, dry-cleaning solvent. In support of their second defense to Count I, Mr. Kerr denies telling Mr. Johnson the 55-gallon drums were full or partially full and maintains that the presence of a bung wrench on one of the drums was a fail-safe sign that both were empty (and, essentially, proved that Mr. Johnson was lying). Supposedly, according to Respondents, the Vista LPA-142 always is transferred immediately upon delivery from the 55-gallon drums into the 110-gallon tank and, sometimes, also into the base tank, and that the bung wrench is placed on one of the empty drums as a signal to the supplier that the drums are empty and ready to be removed when the supplier returns in two weeks to check on the drums to see if they are empty and ready to be picked up. This explanation is not logical. To the contrary, the use of the bung-wrench signal tends to prove the opposite--i.e., that the drums were not empty. If the Vista LPA-142 always is immediately transferred in its entirety, there would be need for a bung- wrench signal. Indeed, the Vista LPA-142 could be immediately transferred by the supplier (or by the Respondents while the supplier was still on the premises). In addition, Mr. Kerr conceded that there have been many other occasions when the 55- gallon drums were not completely transferred into the 110-gallon storage tank immediately upon delivery. There also have been occasions when three 55-gallon drums have been delivered by the supplier, all of which would not fit into the 110-gallon reserve tank and the base tank. In addition, during an enforcement meeting on September 13, 2006, to discuss a draft Hazardous Waste Inspection Report, while noting other issues with findings in the report, Mr. Kerr did not take issue with findings concerning the 55- gallon drums. Also in support of their second defense to Count I, Respondents maintain that the transfer equipment is emptied of all Vista LPA-142 before it is re-hung on the wall. This can indeed be accomplished by quickly extracting the PVC extension from the drum, reversing its orientation by 180 degrees so that it point toward the ceiling, and continuing to run the pump until the tubing is empty. In any event, while stains on the concrete floor under where the PVC pipe is hung on the wall may be from Vista LPA-142, which would suggest that the procedure is not always followed to perfection, the NOV did not cite Respondents having the transfer equipment outside of secondary containment. Count II - Unsealed Flooring Respondents' factual defense to Count II, for not having the flooring sealed between the secondary containment area where the dry-cleaning machine was and where the Huebsch dryer was, or where the 55-gallon drums were, is that secondary containment was not required because Vista LPA-142 is not a "dry- cleaning solvent." Factually, that defense already has been addressed in Findings 11-14, supra. Count III - Disposal of Solid Waste Respondents' factual defenses to Count III, for unpermitted and unauthorized disposal of solid waste (i.e., the filters and lint) on August 18, 2006, are: (1) that disposal of the filters and lint in the municipal solid waste dumpster is permitted and authorized because they are not hazardous waste; and (2) that, if they were hazardous waste, they were hazardous due to contamination with Picrin, not with tetrachloroethylene, also known as perchloroethylene or "perc," as alleged in the NOV. In support of their first defense to Count III, Respondents contend that all Picrin used in spot removal would be suctioned out of the item of clothing and collected in the container below the spotting board, or would be evaporated by the steam used in the spot removal process. Indeed, Picrin's boiling point is 165 degrees Fahrenheit, which is lower than the temperature of steam. Respondents contend, as proof of their first defense, that if any trace of Picrin remained on clothing after spot removal, it would be diluted in the Vista LPA-142 used in the dry-cleaning process and then returned to the base tank for reuse after the clothes are wrung out, but that a laboratory analysis of a sample of from the base tank did not indicate the presence of anything but water. However, actually the analysis was only performed to detect the presence of water; the sample was not analyzed for the presence of Picrin, or any of its breakdown products, or anything other than water. There may be traces of Picrin in the contents of the dry-cleaning machine's reservoir. Besides, even if there is no Picrin in the dry-cleaning machine's base tank, that evidence would not preclude the possibility that Picrin is filtered out by the Filter King purification process and is present in the filters and lint. Regardless, while the first defense to Count III was not proven, DEP presented no evidence on the question whether it is likely the filters and lint would be contaminated with Picrin. Rather, DEP's evidence assumed contamination without any further proof. As to Respondents' second defense to Count III, the NOV does in fact reference tetrachloroethylene, also known as perchloroethylene or "perc." However, it also calls the chemical "Picrin ® which contains 100% Tetrachloroethylene ('Perc')." The confusion arose because, during his inspection, Mr. Johnson obtained from Custom Care's files a Material Safety Data Sheet (MSDS) for Picrin. When he consulted with the manufacturer, he was told that the MSDS was out-of-date, and the manufacturer provided him with the current MSDS for Picrin. Then, the draft Hazardous Waste Inspection Report discussed during the enforcement meeting on September 13, 2006, referred to "today's Picrin [which] contains 100% Trichloroethylene ('Perc')." Mr. Kerr pointed out that "perc" was tetrachloroethylene, not trichloroethylene. From this, Mr. Johnson and Mr. Byer understood Mr. Kerr to be admitting to the use of "perc," which he was not. In an attempt to correct the report in accordance with Mr. Kerr's comment, DEP modified the report so that the final draft referred to: "today's Picrin [which] contains 100% Tetrachloroethylene ('Perc')." Even if the NOV is not defective in referring to "Perc" instead of clearly stating that Picrin was the alleged hazardous waste involved, DEP failed to prove that Picrin was mixed with the filters and lint. For that reason, DEP did not prove the allegations in Count III. Count IV - Investigative Costs The Department's proof of investigative expenses incurred consisted of the salary compensation paid to its investigators. Mr. Johnson’s salary is $17.53 per hour. He spent approximately 55 hours conducting inspections and investigating this case, which totals $964.15. Mr. Byer’s salary is $22.87 per hour. He spent approximately 96 hours investigating this case, which totals $2,195.52. Corrective Actions Upon re-inspection of the premises on November 8, 2006, Respondents were in compliance with all requirements. Deliveries of Vista LPA-142 were being transferred into the 110-gallon storage tank and base tank by the supplier upon delivery, and Respondents had sealed the flooring appropriately. It is not clear from the evidence what was being done with the filters and lint, but apparently they were being appropriately disposed of as hazardous waste at the time of the follow-up inspection. Other Mitigating Circumstances The evidence reflects a misunderstanding on the part of Respondents that, because Custom Care uses Vista LPA-142 and is considered a "mineral spirits" dry-cleaner, as opposed to a "perc" dry-cleaner that uses "perc" or some other form of chlorinated hydrocarbon that is a hazardous material in its dry- cleaning machine, it is not governed by dry-cleaning statutes and regulations.
The Issue The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.
Findings Of Fact Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately 11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells 1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.
The Issue Petitioner is charged pursuant to a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance with a violation of Section 386.04(1)(a) and (b), Florida Statutes (1997), which describes conditions that are prima facie evidence of a sanitary nuisance injurious to health.
Findings Of Fact It was stipulated that Petitioner, Ann B. Harvey, through her company Harvey Enterprises and Company, Inc., owns the home at 102 Williams Street, Palatka, Florida. At all times relevant to the alleged violation, the home was occupied by tenants. The tenants vacated the house on or about October 13, 1998. Kenneth F. Burnett, Environmental Specialist I, with the Putnam County Health Department, first investigated a complaint regarding the property at 102 Williams Street, Palatka, Florida, on August 5, 1998. He witnessed faulty plumbing in the home and ponded wastewater at the back of the home. On August 11, 1998, Mr. Burnett drafted and mailed a Notice to Abate. The notice was mailed by certified mail return receipt requested and received by Ann B. Harvey on August 25, 1998. Ann B. Harvey signed the return receipt for the Notice to Abate on August 25, 1998. Mr. Burnett again inspected the property on September 2, 1998, and found no change in the status of the faulty plumbing and ponded wastewater. On September 9, 1998, Mr. Burnett again inspected the property and determined there had been no changes. David Flowers, Environmental Specialist II, became involved in the case on September 18, 1998, when he inspected the property. Mr. Flowers observed that wastewater ponded on the ground at the back of the home, and that the plumbing inside the home was in disrepair. Ms. Laurey Gauch, Environmental Health Director for Putnam County Health Department testified. She inspected the property in question on September 18, 25, and 28, 1998. Ms. Gauch observed ponded wastewater in the backyard and plumbing in disrepair inside the home on each visit. Ms. Gauch opined that the condition of the property was a sanitary nuisance in violation of Section 386.041(1)(a) and (b), Florida Statutes (1997), because the ponded wastewater would breed disease (bacteria, viruses, etc.) and contamination. A Citation for Violation was received and signed for by Ronald Harvey on September 25, 1998, pursuant to statutory authority at Section 381.0065, Florida Statutes (1997). The citation cites the Petitioner for violation of Section 386.041(1)(a) and (b), Florida Statutes (1997). On September 25, 1998, Mr. Flowers again inspected the property, and observed that the sewage remained on the ground at the rear of the home. Mr. Flowers flushed dye in the toilet to determine if the standing water was coming from the toilet inside the home. The dye would run out onto the ground if the ponded water was from the toilet. Mr. Flowers inspected the problem on September 28, 1998. Sewage remained ponded on the ground at the rear of the home and the water bubbled when the toilet was flushed. Mr. Flowers re-inspected the property on September 29, 1998, and flushed dye in the toilet. He documented that the dye came to the ground surface. During the visit, Mr. Flowers was accompanied by a County Codes Enforcement Officer who condemned the home. On October 6, 1998, Mr. Flowers returned to the property with his supervisor, Geoff Batteiger. The tenants were still living in the home, but were reported to be leaving. The plumbing in the home remained unrepaired. When the toilet was flushed, water bubbled onto the ground surface. The problem had neither been abated, nor were there any signs that the problem was being corrected. No repairs were made to the premises between August 25, 1998, and October 6, 1998, a period of one and one-half months during which tenants lived in the home. On November 17, 1998, the property was reinspected by Mr. Burnett and Mr. Batteiger. They observed that the sanitary nuisance had been remedied. Ms. Lucille Harvey, property manager and sister-in-law to the Petitioner, testified for Petitioner. She collects rents and arranges for repairs. She had contacted one handyman who came to the home, but refused to do the work because of foul odor in the yard and fleas. Ms. Lucille Harvey did not contact anyone else for repairs until after the tenants had vacated the premises. The tenants kept dogs in the backyard where the problem was, and were uncooperative with the landlord. Ms. Lucille Harvey testified that she notified the Petitioner of the sanitary nuisance at the end of August 1998, and the problems she was having making repairs. Petitioner, Ann Harvey, testified she commenced eviction proceedings for the tenant at 102 Williams Street on or about July 12, 1998. The proceedings were on-going due to various legal exigencies until the tenants vacated the premises on or about October 13, 1998. Ms. Harvey was out-of-town from approximately July 22, 1998, through August 15, 1998, during which time a judge dismissed the eviction action. The action was recommenced. The tenant made a partial payment of one month, which Petitioner accepted. The judge again dismissed the eviction action. The sanitary nuisance at the property in question was not remedied until the Petitioner evicted the tenants and gained access to the premises. Mr. Thomas Harvey, handyman and brother Ron Harvey, testified that he began working on the repairs at the home at 102 Williams Street, on November 2, 1998. He testified that he replaced broken lines, cleaned a grease trap, and snaked the kitchen and bathroom. These repairs concluded on or about November 12, 1998.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Department of Health enter a final order waiving the fine and payment as stated in the Citation for Violation. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1999. COPIES FURNISHED: Ron Harvey Route 2, Box 1650 Palatka, Florida 32177 Ann B. Harvey 102 Williams Street Palatka, Florida 32177 Susan E. Lindgard, Esquire Department of Health 1000 Northeast 16th Avenue Box 19 Gainesville, Florida 32601 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 95-SE-0248 may be recovered from Petitioners pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Spill Response, Inc. (Spill Response) is a corporation which was formed in approximately 1986 or 1987, and is presently inactive and without any assets. At all times material to the instant case, George Gordon has been the sole owner, president and director of Spill Response, and, as such, has directed the operations of the corporation. Spill Response was previously in the oil spill response business, as its name suggests. At such time, it had an office in Port Everglades and stored its equipment on fenced and gated property located at 3211 Southwest 50th Avenue, Davie, Florida, on which approximately a dozen large aboveground petroleum storage tanks (surrounded by concrete containment areas) also were situated. At all times material to the instant case, the property located at 3211 Southwest 50th Avenue, Davie, Florida (FPR site) has been owned by Florida Petroleum Reprocessors, Inc. (FPR), an inactive corporation that previously was in the waste oil recovery business. The FPR site, which is presently FPR's only asset, is the subject of a pending foreclosure action initiated by Charles Green, who, at all times material to the instant case, has held a first mortgage on the property. At all times material to the instant case, George Gordon has been the president and director of FPR, and, as such, has directed the operations of the corporation. In the latter part of 1994, the storage tanks on the FPR site were no longer in commercial use. At that time, Gordon, on behalf of FPR, hired Fred Rice to clean and maintain the site in preparation for its closure. Rice was instructed to remove the petroleum residue and sludge from the tanks and from the containment areas. Rice engaged in these petroleum and sludge-removal activities on a part-time basis until the spring of 1995, when he stopped working on the project after not having received timely payment for work he had performed. Rice placed the petroleum residue and sludge that he had removed, as well the rags and other materials that he had used in the removal process, in 55-gallon drums. He filled approximately six or seven such drums. A number of other 55-gallon drums containing petroleum residue and sludge (that some person or persons other than Rice had filled) were already on the FPR site. Rice put the six or seven drums that he had filled on a truck that was parked on the site and had “Spill Response, Inc.” and “Florida Petroleum Reprocessors, Inc.” markings on its sides. The truck was owned by Spill Response and had been on the site for some time. It had no battery and was inoperable. Rice told Gordon that he had put the drums he had filled with petroleum residue and sludge on the Spill Response truck. The next time Gordon went the FPR site, in late May of 1995, he discovered that the locks on the gates had been changed and that there were vehicles and equipment on the property that did not belong there. Gordon telephoned the Davie Police Department to complain about the unauthorized use of the FPR site. A police officer was dispatched to the site to investigate. When the officer arrived on the scene, he encountered Gordon outside one of the gates. Although the gate was locked, Gordon and the officer gained access to the site by squeezing through an opening in the gate. Upon entering the site, they looked around. Based upon what they saw, they correctly "figured out" that Certified Crane and Rigging, Inc., d/b/a Certified Equipment Management Company (Certified) was storing its crane equipment and trucks on the site. At all times material to the instant case, Certified has been owned and operated by William "Skip" Walton. Walton is an acquaintance of the aforementioned Charles Green, the holder of the first mortgage on the FPR site. Certified's telephone number was painted on the equipment and vehicles it was storing on the FPR site. The police officer called the number and spoke with Walton. Following his telephone conversation with Walton, the officer informed Gordon that Walton had indicated, during the conversation, that he was leasing the FPR site from Green. Gordon advised the officer that he did not want to press criminal charges (for trespassing) against either Certified or Walton. Gordon subsequently telephoned Green. Green told Gordon that it was true that he had leased the FPR site to Walton. Green explained to Gordon that he "needed to earn some money from the property." (It had been some time since Green had received any mortgage payments from FPR or Gordon.) Gordon contacted his attorney to discuss with her what legal action, if any, he could take to regain possession of the FPR site and be compensated for the unauthorized use of the property. Gordon's attorney advised him that he "would have recourse if [he] wished to pursu[e] the matter in court," but that it might not be cost-effective for him to do so. Gordon took no action, "in court" or otherwise, to regain possession and control of the FPR site; nor did he take any action to retake possession and control of the Spill Response truck or the filled drums that were in the truck and elsewhere on the site. Furthermore, he made no effort to make sure that the drums and their contents were stored and disposed of properly, believing that the proper storage and disposal of these items were now the responsibility of the new occupant of the site. He did not return to the FPR site for over a year. On or about June 6, 1995, the Department was notified (after its regular business hours) that the Spill Response truck had been discovered abandoned on the side of the road a few blocks from the FPR site. The following day,1 Ann Meador, an Environmental Specialist III with the Department, went to the location where the truck had been abandoned and served as the Department's on- scene coordinator. The truck was in poor condition and still inoperable. It had been brought (not driven) to the location by someone other than Gordon. The truck contained 37 sealed 55-gallon drums, which were in poor condition (but not yet leaking) and had oil residue on the outside. It could not be reliably determined exactly what was in the drums without removing them from the truck and examining and analyzing their contents. Meador made arrangements for OHM Remediation Services Corporation (OHM), with whom the Department had a contract to perform such services on an emergency basis, to assist in the removal of the drums from the truck. OHM personnel (with "Level B" protective clothing and equipment) responded to the scene and removed all 37 drums from the Spill Response truck. After the drums were unsealed, their contents were examined and sampled to the extent possible2 (as were the contents of three additional drums which were filled with the "Level B" protective clothing and equipment that OHM personnel had used during the cleanup operation and then discarded). Each of the drums was assigned a number for identification purposes. To save time and money, samples from some of the drums were composited. The drums were then overpacked and taken to the Department’s hazardous waste storage facility in West Palm Beach, Florida. The Department paid OHM $7,046.93 from the Water Quality Assurance Trust Fund for the services OHM performed. In requesting OHM to perform these services and in paying OHM $7,046.93 for having done so, the Department acted reasonably and prudently. The amount it paid OHM was not excessive. The Department hired Laidlaw Environmental Services (Laidlaw) to analyze the samples that OHM had collected and to then properly dispose of the drums and their contents. Laidlaw's analysis revealed the following: drums numbered 1, 2, 3, 4, 5, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 34, 35, 36, 37, and 38 contained oily sludges, oil, oil mixed with water, or oily residues; drum numbered 6 contained benzene and had a flash point between 73 and 140 degrees Fahrenheit; drum numbered 29 contained benzene and lead and had a flash point of less than 73 degrees Fahrenheit; drums numbered 10 and 11 contained benzene and lead; drums numbered 7, 8, 31, 32, 33 and 39 contained benzene, lead, and cadmium. Laidlaw properly disposed of the drums based upon the results of its analysis. The Department paid Laidlaw $21,163.90 from the Water Quality Assurance Trust Fund for the services it performed. In requesting Laidlaw to perform these services and in paying Laidlaw $21,163.90 for having done so, the Department acted reasonably and prudently. The amount it paid Laidlaw was not excessive. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $129.82 in connection with its response to the report it had received concerning the abandonment of the Spill Response truck. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the drums on the truck properly removed and disposed of was $28,340.65. It was not until Gordon received a letter from the Department advising him of the costs the Department had incurred and requesting that Spill Response and he reimburse the Department for these costs that Gordon became aware of the fact that the truck and the drums had been moved from the FPR site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Petitioners, pursuant to Chapters 376 and 403, Florida Statutes, the $28,340.65 in costs the Department reasonably incurred in connection with its response to Incident Number 95-SE-0248. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998.
The Issue The issue presented is whether Respondent, Kimmins Recycling Corporation (Kimmins), is entitled to use the General Permit issued under Rule 62-701.801, Florida Administrative Code (the General Permit) of the Department of Environmental Protection (Department) to operate a solid waste transfer station in the City of Jacksonville (the City).
Findings Of Fact Background On December 12, 2000, Kimmins filed a Notification of Intent to Use a General Permit to Construct and Operate a Solid Waste Transfer Station (Notice of Intent) pursuant to Rules 62- 701.801 and 62-4.530, Florida Administrative Code, using DEP Form 62-701.900(4). The Notice of Intent includes revised documents which appear in the record. Kimmins filed an addendum to its Notice of Intent on December 21, 2000, substituting a service agreement between Kimmins and Peninsular Pest Control Services, Inc. (Peninsula) dated December 19, 2000, providing for insect and vector control at the proposed facility. This addendum also contained an Emergency Services Spill Response Agreement with Environmental Remediation Services, Inc. dated January 1, 2000. Kimmins also supplemented its Notice of Intent with a revised pest control service agreement with Peninsular dated January 19, 2001. Kimmins published a Public Notice of Application for a General Permit in the Florida Times Union, Jacksonville, Florida, on December 22, 2000. On January 11, 2001, the Department issued a "Notification of Use of a General Permit to Construct and Operate a Solid Waste Transfer Station from the Kimmins Recycling Corporation General Permit Number 0017894-002-50." The Department did not object to the use of the general permit, provided several changes were made to the project. The evidence indicates that these changes have been incorporated by Kimmins. See, e.g., Findings of Fact 5 and 6. As part of its Notice of Intent submitted to the Department, Kimmins submitted a Site Plan and a Floor Plan, Figures 2 and 3, respectively. In response to the Department's Notice of Use, Kimmins submitted amended Figures 2 and 3 for the Notice of Intent. The revised site plan added two notes (i) regarding the base flood elevation at McCoys Creek and the elevations of the developed portions of the site, and (ii) a notation that "the site shall be designed and managed in such a way to divert stormwater [or] floodwaters away from the solid waste storage area," and showing the one-hundred (100) year flood plain delineation. The revisions to the floor plan contain the same note with respect to diversion of stormwater or flood waters and shows a three-inch by eighteen-inch rounded curb along the north end of the building. The facility depicted in the Notice of Intent and the revised Site and Floor Plans is a graphical description of Kimmins' intent to operate the facility, although these plans were sealed by a professional engineer, Mr. Gauntt. The service area for the facility extends from just south of Savannah, Georgia, to Dade City, Florida, inland from the Atlantic Ocean in an arch almost reaching the Gulf of Mexico and passing north through Chiefland, Florida, and further north to Valdosta and Odom, Georgia. Proposed Solid Waste Transfer Station Location/Surrounding Area The facility site for the proposed transfer station is located at 140 Stockton Street in Jacksonville, Florida. The area to the east, and north of the facility to Beaver Street, is generally industrial in nature, although there is an open portion of property immediately north of the facility. Residential homes appear on the north side of Beaver Street. There is a commercial truck business on the southwest corner of Beaver Street and Stockton. There are also industrial buildings to the west of the facility. By stipulation, the existing building on the proposed facility site is located north and 214.7 feet from the top of the nearest (northern) bank of McCoys Creek (Creek). A minority residential neighborhood, the closest residential area to the facility, is located south of the Creek and McCoys Creek Boulevard (Boulevard). The Boulevard is the northern boundary of this neighborhood. (The Creek and the Boulevard are referred to herein as "McCoys," see Transcript, page 430, notwithstanding the different spelling used through the Transcript, Exhibit i-1, and post-hearing submissions.) The Creek is a tidally influenced creek, which floods at the intersection of Stockton Street and the Boulevard, when the incoming tides coincide with heavy rainfall. See also Findings of Fact 104-114. There are trees which act as a buffer between the facility and the residential area to the south. Looking south from the facility at ground level, nothing can be seen other than trees. In response to concerns about the traffic impact of the proposed transfer station on the residential area south of the facility, Kimmins submitted a revised transfer route that would bring collection vehicles and transfer vehicles in and out of the facility by way of Stockton Street north of the residential area and south of the facility. The transfer vehicles will utilize a route to the landfill that will avoid residential areas. The trucks leaving the facility with waste will travel north on Stockton Street to Beaver Street, travel west to McDuff Avenue, then south and access I-10. This is generally considered an industrial route. In terms of siting a solid waste transfer station, the Stockton Street facility is an acceptable location as it is located close to waste generation and centrally located in the City of Jacksonville, making it an acceptable transition point for solid waste. Further, it is located near major traffic corridors, I-95 and I-10, and there is a large amount of acreage available for the proposed land use and adequate buffering and screening from the standpoint of vegetation. Prior Use The building proposed to be used as a transfer station has previously been utilized by Kimmins as a construction/demolition debris recycling center. The center also handled and stored municipal solid waste (MSW). Municipal solid waste coming onto the facility and under the City of Jacksonville's Ordinance could remain on site for up to ninety (90) days. The recycling center was operated in a way that caused excessive noise in the neighborhood, e.g., a chipping machine operated outside, and also caused other problems due to the way in which it was operated, including causing offensive odors and attracting vectors. Ms. Kerr noticed garbage washed from the facility into McCoys Creek during heavy rains. Kimmins has not had any operations at the site for approximately three and one-half (31/2) years. The problems associated with the former facility are not indicative of the manner in which Kimmins expects to operate the transfer facility. Change in Ownership/Management Kimmins was a wholly-owned subsidiary of Eastern Environmental, but was acquired by Waste Management in December 1998, when Eastern was acquired. No former Kimmins managers or employees will be employed at the transfer station. Kimmins Recycling Corporation is owned by Waste Management Holdings, Inc., which in turn is owned by Waste Management Incorporated. Waste Management Holdings, Inc., also owns Waste Management, Inc. of Florida. Proposed Operations The facility is proposed to be operated as a solid waste transfer station, which involves smaller solid waste collection vehicles transporting their loads to the facility, where the waste is segregated as either MSW or construction and demolition (C & D) waste. This waste is deposited on the floor of the transfer station and loaded by excavator or backhoe (and potentially a front-end loader) into larger transfer trucks, which then take the waste to one of the landfills designated in the Notice. The average daily volume of the transfer station is expected to be 300 tons of waste, although it is designed to handle up to 1,000 tons per day. If the facility reached its emergency capacity volume, Kimmins has the right to refuse the waste. Absent emergency conditions, the maximum waste storage time will be twenty-four (24) hours. On an emergency basis such as the aftermath of a hurricane, waste, which would be principally C & D waste, could be held for up to three (3) days. The proposed building is fairly common in design, other than the fact that it is larger than normal. The additional size is sufficient to allow separate vehicles on the tipping floor for the two different types of waste (MSW and C & D) with separate entrances for those trucks. There are no apparent restrictions on vehicle movement. In the event that waste can not be properly processed, due to equipment failure and the inability to secure backup equipment or adverse weather conditions, waste would not be accepted at the transfer station. The purpose of the proposed transfer station is to more effectively and efficiently transport waste to the landfill, i.e., rather than a large number of smaller collection vehicles traveling 30 to 40 miles to the landfill, a much smaller number of large transfer vehicles would deliver the waste from the transfer station to the landfill. In this manner, truck traffic would be reduced at the landfill. The result of the efficiencies derived from the transfer station may result in lower cost in delivering solid waste to the landfill, cost reductions that would be realized by Waste Management and, if the City of Jacksonville chose to utilize the transfer station, would be shared by the City and its taxpayers. There is an additional benefit because fewer trucks will travel the lengthy route to the landfill and the overall air emissions for the City of Jacksonville are expected to be generally reduced, although the specific reductions were not quantified. Rule Requirements not in Dispute A review of the Pre-hearing Stipulation reveals that the following subsections of Rule 62-701.801, Florida Administrative Code, are not in dispute: (2), (2)(c)(1), (2)(c)(6), (3)(a), (3)(d), (3)(e), (4)(b), and (4)(e)-(g). Rule Requirements in Dispute Rule 62-701.801(2)(c)2., Florida Administrative Code- Machinery and Equipment Section 4.2 of the Notice of Intent describes the machinery and equipment to be used and specifically names the loader, excavator, and transfer trailers and their respective cubic yard capacity. Table 2 of the Notice of Intent specifically sets forth the loading capacities of the excavator and loader, including cubic yards per hour, tons per hour and tons per day. The loading capacities of either the excavator or wheel loader individually (respectively 1,166 and 1,604 tons per day) exceeds the anticipated handling capacity of approximately 1,000 tons per day. The requirements of the rule with respect to machinery and equipment have been met. Rule 62.701.801(2)(c)3., Florida Administrative Code- Transfer Plan Section 4.3 of the Notice of Intent, in conjunction with the revised transfer route in Kimmins' Exhibit j, sets forth the proposed transfer plan. The transfer plan sufficiently describes the transfer route, which has been amended to avoid having collection vehicles and transfer vehicles traverse the neighborhood south of the facility. The new route generally transgresses an industrial area. Kimmins will ensure that this specified route will be followed by controlling Waste Management's own trucks; contract provisions with other users of the facility; and video monitoring to ensure that trucks enter and leave Stockton Street north of the facility. Ultimately, a carrier's failure to comply with this requirement will result in the withdrawal of that carrier's right to use the transfer station. The types of transfer vehicles to be used are described in Section 4.3.2. While the average number of trucks can be determined by dividing the average expected daily volume of 300 tons per day by the legal limit of 22 tons per transfer trailer, it is anticipated that volume will vary. To meet this varying demand, Kimmins will subcontract out the hauling of waste by transfer trailers, so that trucks will be available on an as- needed basis. With respect to the timing of the transfer of solid waste, Section 4.1.3.4 provides that waste will be handled "on a first-in, first-out basis to the extent practical. Transfer trucks will be loaded as soon as waste is available." Kimmins has provided a transfer plan meeting the requirements under the rule for the General Permit. Rule 62.701.801(2)(c)5., Florida Administrative Code- Staffing Section 4.5 of the Notice of Intent describes the personnel procedures for the proposed transfer station and sets forth the hiring plan in Section 4.5.1 and the training plan in Section 4.5.2. The minimum personnel listed in the Notice of Intent is based on the average of 300 tons per day. If that amount of waste were exceeded, the number of trained employees would be increased to meet the increased load. Waste Management encourages its employees to become certified and, to encourage that training, it not only pays for the training, but also provides a wage incentive. As a result that program is typically utilized by its employees. The laborer listed in Section 4.5.1 as part of the staffing component would be a person trained as a "spotter," i.e., a person who could identify unauthorized waste as well as putting trucks in the correct area to dump their load. In addition to the training described by Mr. Mathes, there is periodic retraining of employees including review of prohibited and restricted material as well as emphasis on compliance with permits. Rule 62-701.801(3)(b), Florida Administrative Code- Ventilation for Tipping, Processing, Sorting, Storage, and Compaction Areas Section 4.7.2 of the Notice of Intent describes the ventilation system design and states that all tipping, storage and loading areas are located within the building. The facility is completely open on its north face which serves as ventilation. Additionally, there are three (3) fans that can be utilized to provide ventilation for the facility, either drawing air in or drawing out as needed. The ventilation system for the facility, although minimal from an equipment standpoint, complies with the requirements for the General Permit. Rule 62-701.801(2)(c)4., Florida Administrative Code- Drainage Section 4.4 of the Notice of Intent describes the drainage and water supply systems for the proposed facility, which also serves as the leachate control system. See also Kimmins' Exhibit f (revised site plan). The following discussion regarding drainage overlaps significantly with the later discussion of the leachate control system and potential contamination of McCoys Creek. Some of the findings are repeated in light of the specific issue discussed. The purpose of the leachate control system is to collect all liquids that come in contact with the waste to be routed through some form of treatment process, in this case an oil/water separator and then into the sanitary sewer system for ultimate treatment at the publicly-owned wastewater treatment plant. All of the concrete floors in the facility will be finished to provide a positive slope to the floor drains, which will have traffic bearing clean-outs and gutters. The building walls and the three-inch curb will also serve to confine leachate within the building and prevent it from mixing with stormwater. See also Findings of Fact 54-68. The system, which utilizes an eight-inch pipe for ease of operations to clean out and for maintenance, is more than adequate to handle the anticipated liquids. If the pipe were sized to handle the amount of leachate generated, it would need to be only two-to-three inches in diameter. The stormwater management system is planned to prevent rainwater from being directed from the parking area into the building. Instead, rainwater is expected to be diverted around the building into the existing retention pond. The parking area "apron" slopes up to the building to prevent water from flowing inside the facility. It is expected that the rainwater will flow east or west to the stormwater retention pond. Additionally, the proposed three-inch curb would prevent stormwater from flowing into the facility, notwithstanding the slope. Ms. Clem, an expert in stormwater design and permitting, noted that she has reviewed the existing stormwater permit and, because no additional impervious area is being proposed to be added near the site, believes there is no reason that a permit modification would be required, nor would the change in use require permit modification. Fires at transfer stations are not at all common. With the updated and modernized sprinkler system anticipated to be part of the building improvements, there would be zoning of the sprinkler system and the ability to shut off a leaking source from the system. If a fire occurred during the day, there would be people on-site to deal with the fire and there would be appear to be very little sprinkler water involved. Even if a fire were to happen at night, there are approximately one to two hours of storage capacity within the facility even if the drains were blocked, and if the drainage systems were operating, it is anticipated that they would be able to adequately handle the sprinkler water without overflowing the curb, although the design has not yet been completed. There is no reason to believe that the stormwater management system would not operate as required to keep stormwater out of the facility and to drain into the permitted retention pond, which is south of the facility. Further, the stormwater system, which will be maintained and operated by facility personnel, is sufficient to prevent the mixing of leachate with stormwater and will prevent contamination of McCoys Creek. Rule 62-701.801(3)(c), Florida Administrative Code- Leachate Control Section 4.7.3 of the Notice of Intent generally describes the leachate control system, i.e., catch basins located in the central portion of the unloading area and one catch basin located in the center of the loading area (where the transfer vehicles will park). The floor of the building will be sloped to drain toward the catch basin, and the liquids thus collected will be directed through pipes to an oil/water separator and then the system will be connected to an existing sanitary sewer system. See also Finding of Fact 46. By definition, the term leachate means that the substance leaches through or moves through a body. There is a significant difference between the composition of the leachate at a landfill versus a solid waste transfer facility. The transfer station leachate is substantially weaker and less concentrated in strength than leachate from a landfill. There are very few liquids generated by the waste in a transfer station as most of the water which comes in contact with the floor is wash water and, at days end, the floor is washed down, which constitutes the majority of the water travelling into the system. The Kimmins' leachate control system has been designed to keep all leachate within the building, to be ultimately transported through the leachate control system to the sanitary sewer system. The system is designed to be more than adequate to handle the small amounts of leachate that would be generated at a transfer station. The leachate control system is comprised of the concrete transfer station floor, which is sloped toward the floor drains, the walls of the facility, and the three-inch curb that would confine the leachate to the facility. The substance flows into collection gates at two locations on the floor. The effect of the system is that water, including water contaminated by leachate, cannot leave the facility other than through the floor drains or by overflowing the three-inch curb. Given the large storage capacity of the floor and the "pit," where the transfer trucks pull into the facility, the only scenario under which water might overflow into the retention pond from the facility would be if a fire occurred at the facility at night and the drains for the leachate control system were blocked. If that were to occur, the retention pond has the capacity to contain the water produced by the worse case scenario with respect to fire. Any leachate that overflowed into the retention pond could be held until tested and if it was unacceptable to go into McCoys Creek, it could be handled in a number of ways, such as pumping into a nearby sanitary sewer system. There is an oil/water separator included as part of the leachate control system to remove oil and any chemicals that might cling to the oil. The system, however, is not designed nor required to treat leachate. The leachate will be treated at the publicly-owned wastewater treatment plant. See also Finding of Fact 46. The connection of the leachate system to the sanitary sewer system is an appropriate way to collect, treat, and dispose of the leachate in accordance with the rules for General Permit for a Transfer Station. The sanitary sewer system is operated by the local wastewater utility, JEA, and it is unclear at this time whether an industrial wastewater permit will be required for the facility. If such a permit were required, it would be obtained, assuming one were necessary, before the facility began operation. There is no requirement that Kimmins obtain a permit from JEA prior to requesting the General Permit. To the extent that a JEA permit is required and there is a testing requirement, it would not have to be done on a batch sampling, but could be done in a manner that would allow continuous operation of the leachate control system. Kimmins is more likely than not to be able to comply with JEA's requirements if they are applicable, particularly given the fact that leachate generated at a transfer station is extremely diluted, i.e., "primarily wash water." The facility and its stormwater management system are designed to prevent stormwater from mixing with the leachate by preventing water outside of the building from entering the building and preventing leachate from exiting the building. There is asphalt paving approximately twenty feet to the north of the building, sloping up to the northern entrance into the building. This system includes the walls of the building and the three-inch curb at the north end of the building that would keep out water. The water is expected to flow to the east or west of the building to the stormwater retention pond to the south of the building. See also Findings of Fact 46-47. There was some suggestion by the City that there would be a problem resulting from leachate leaking from trucks onto the facility’s parking area. It was noted, however, that seals on trucks are standard requirements. Additionally, there is an economic incentive for haulers of waste to the facility, which are weighed and pay a fee based on weight, not to pay for processing water. The hauler would be required to correct the problem in order to continue to use the facility. At worst, leachate falling onto the parking area would flow through the stormwater management system and be treated in the swales and retention pond. As Ms. Nogas stated, she did not consider this significant, stating that it would be "the same kinds of things that fall on roadways that presently drain in McCoys Creek, nothing particular or special." The overall effect of the system is to divert stormwater around the facility to the retention pond at the south end of the site. The facility has thus been designed with a leachate control system that would prevent discharge from leachate and the mixing of leachate with stormwater as required by rule. Rule 62-701.801(4)(a), Florida Administrative Code- Unauthorized Waste Section 4.1.3.1 of the Notice of Intent states that "Any unauthorized or prohibited wastes will not be accepted at the site," and explains that "[I]f the unauthorized waste is encountered following unloading, that waste will be immediately returned to the delivery vehicle. If the vehicle is not available, then the prohibited waste will be temporarily stored in a [forty-yard capacity box] designated as 'unauthorized waste' on the Floor Plan (Figure 3). Transport and disposal of the unauthorized waste would be performed by Environmental Remediation Services, Inc." This description of the operating procedure was confirmed by Mr. Mathes who stated that there are certain types of waste that would be unauthorized and not accepted at the facility. To the extent that a problem is discovered in time, the truck that delivered it would take it back. If that course of action was not available, it would be put aside in the forty- yard container and the environmental remediation service would remove the waste. The service contract with Environmental Remediation Services, Inc. includes emergency services and states that the company will be available on a "24/7 basis" with a contact number to be reached at "any time." Further, the City has a "household hazardous waste" program. In light of these programs, there is a small, and decreasing, amount of hazardous waste encountered in solid waste. The proposed method for dealing with unauthorized waste would result in it being handled in a way that would satisfy rule requirements. Rules 62-4.530(2) and 62-701.801(4)(c) and (d), Florida Administrative Code- Air Quality; Litter, Odor, and Vectors Overview Section 4.1.3.3 of the Notice of Intent to Use describes how litter, insect, odor, and vector control will be handled. It states that all waste transfer activities will be within the closed area of the building thus minimizing litter. The facility will utilize, as necessary, extermination services of Peninsular Pest Control Services, Inc. to control flies, rats, or other vectors. Odor control will be implemented through daily maintenance of the building area; storage times will be kept to a minimum to eliminate the potential for litter, odor, vectors or insects. The parties stipulated that the Notice of Intent included both an "odor control program" and an "insect and vector control program." Litter Section 4.7.2 of the Notice of Intent again reiterates that all tipping storage and loading areas are located within the building so that litter is expected to be minimal and facility staff will maintain the facility to keep all litter within the building. Kimmins did not describe a litter control program in its Notice of Intent to control on and off-cite litter. However, Kimmins expects a minimal amount of litter to be generated outside of the building from the waste transfer activities, which are planned to be conducted in the enclosed area of the building. Kimmins does not expect litter to be generated from the transport vehicles, either arriving at or leaving the facility. The facility will be maintained by staff to keep all litter within the building. The Department representative, Ms. Nogas, a licensed professional engineer in Florida, was satisfied with the proposal to prevent litter from washing into the retention pond. To the extent that litter entered the retention pond, she noted that it would be picked up by the facility operator as part of its normal daily operations and would not wash into McCoys Creek. "It's part of their housekeeping. It's part of what they do daily." Consistent with the Notice of Intent, the engineer of record testified that he anticipated little if any litter to be generated outside the building during normal operations, consistent with his experience at other facilities operated by Waste Management. The references in the Notice of Intent as to how litter will be handled were consistent with his experience of how it is handled at other transfer stations. Air Quality; Odors While the issue of what applicable air quality standards might be applied to solid waste transfer stations will be discussed in the Conclusions of Law, the only relevant evidence concerning this matter dealt with (i) odors and (ii) dust. MSM includes waste which can generate offensive odors. However, the parties stipulated that "[o]dors at a solid waste transfer station can be controlled by proper waste handling and sanitation procedures." To the extent odors are present, there are a number of ways to control the odors. For example, waste that is considered inappropriate from that standpoint could be rejected; specific loads could be deodorized upon arrival. Moving the waste in and out quickly would prevent odors from becoming a problem as it is primarily an operational issue. The specific plans and procedures that would be utilized to deal with potential objectionable odors would be first and foremost housecleaning, i.e., as waste comes in it is immediately loaded onto trucks and transported to the landfill. Thus, waste will not remain on the floor long enough to develop odors. At night there would be no waste left on the tipping floor, the floor would be cleaned and washed down with water at the end of the day. Cutoff time for accepting certain types of waste could be established to coordinate with the landfill closing times in order to ensure daily removal of waste from the tipping floor. To the extent that waste would remain in the facility overnight, it would be loaded into the transfer vehicles and would be tightly tarped to contain odors. With respect to particular loads that are odoriferous, there are chemical mists or gels that could be applied to neutralize the odor. Additionally, it could be mixed with other waste material to encapsulate it temporarily until it is loaded out. Mr. Mathes also noted that if there is a commercial carrier for garbage routinely bringing odoriferous loads to the facility, that carrier would not be allowed to continue to use the transfer station. The facility would have available to it the resources of Waste Management, and specifically its corporate-based odor initiative group that reviews technology and chemicals that have been used successfully and that knowledge base would be available to managers in Florida. With respect to suggestions of the City as to how odor might be better controlled, these were shown to be impractical or unworkable. For example, designing a facility with negative air pressure would not be practical or reasonable; entirely enclosing the facility, if it were in fact possible, would require ventilation and might in fact be more detrimental than natural dispersion; the lack of a deodorizing system is of little significance and it is very rare that a transfer station would have such a system. Ms. Nogas indicated that while "most transfer stations have huge doors on them to let the trucks in," every transfer station she saw "had large open areas that are open during the time that the transfer station is operating." Ms. Nogas noted that controlling odors basically involved good housekeeping and she determined that the odors could be controlled adequately. Many transfer stations have one open side. To the extent that complaints are received about odors, the management can be expected to resolve the problems. With respect to design issues, the engineer for the Notice of Intent stated that dust control is usually an operational issue and that he did not believe that dust could be better controlled if air filters had been included as part of the design. The Department's expert also considered the absence of air filters not to be significant. Moreover, there is nothing in Rule 62-701.801, Florida Administrative Code, requiring solid waste transfer stations to specifically control dust, and it is not a typical design feature in transfer stations. Mr. Gauntt stated, however, that placing C & D material in back of the building helps the ability to control dust. Operationally, the Notice of Intent referenced that the "[t]he facility will maintain on-site at all times adequate equipment to perform" "[d]ust control," and the person ultimately in charge of operations of the facility stated that a street sweeper would be present for dust control. Additionally, there were a number of operational methods described for controlling dust including: not allowing dusty MSW into the facility as a first line of defense; putting up mesh screens at open bay areas; placing other material on top of a dusty load; and wetting down a dusty load if needed. The Department, in its review of the Notice of Intent, reasonably believed that Kimmins could adequately control dusty material. Vectors and Vermins Pests and other vectors are not normally a serious problem in a transfer station due to housekeeping techniques. Mr. Mathes reiterated that the best control of vermin and other pests is through good housekeeping methods and making sure the tipping floor is cleaned on a daily basis. In addition, a pest control service will provide vector and vermin control, utilizing bait and traps for vermin and for vectors using a gel-type material to put in cracks and crevices where insects would be expected to be. If needed for any problems, the pest control service could be called on. The ability to have the pest control company come out as needed, above and beyond the quarterly treatments, is set forth in the contract. The experience of those with extensive involvement with transfer stations indicates that generally traps or baits for rodents is adequate. Even Mr. Pearson agreed that vectors can be controlled without spraying by maintaining good sanitary procedures. The facility can be operated in such a way that pest and vermin can be adequately controlled. Rule 62-701.801(4)(d), Florida Administrative Code- Waste Handling/Cleaning Section 4.1.3.4 of the Notice of Intent addresses waste handling and cleaning, noting that waste "will be handled on a first-in, first-out basis to the extent practical" and "[t]ransfer trucks will be loaded as soon as waste is available. All waste storage areas shall be cleaned at the end of daily operations or during continuous operation, as necessary to prevent odor and vector problems. All floors will be free of standing liquids; any liquids will be directed to the catch basins along the center of the floor (Figures 2 and 3). The catch basins are part of the leachate collection system described in Section 4.7.3." As Section 4.7.3 notes, the leachate collection system connects to a sanitary sewer system so that the drainage from cleaning areas is discharged into a sanitary sewer system. These statements made in the Notice of Intent were confirmed by Mr. Mathes, who testified that "[a]s waste comes in, it will be immediately loaded onto the trucks and transported to the landfill. At night there would be no waste left on the tipping floor." With respect to cleaning, the floors would first be cleaned utilizing the loader which has a rubber-type strip at the bottom of the bucket to scrape any waste and get it off the floor. The floor would then be washed with water at sixty pounds of pressure with the water running to the leachate collection system, all done on a daily basis. A similar description of the cleaning, i.e., an initial "dry clean-up" removal of waste and then washing down the floor was also provided by Ms. Clem. She stated that the water would be entering the leachate collection system and then into a sanitary sewer. This is appropriate to meet the requirements of the rule. Rules 62-701.801(1) and 62-701.300(2)(g), Florida Administrative Code- Proximity to Residential Neighborhood and Potential Contamination of McCoys Creek The primary objection of the City to the Kimmins project is that the proposed transfer station is located too close to a residential neighborhood, particularly given the potential odor, noise, and pests that the City anticipates from the operation of the transfer station. Contrary to the City's position, there was ample evidence that transfer stations can be operated, without problems, in close proximity to residential neighborhoods. Another issue raised by the City is the potential for contamination of McCoys Creek should the General Permit be granted. Mr. Gauntt testified that he has designed and visited a number of operational solid waste transfer stations in very close proximity to residential areas. In one case, the adjacent property was near an apartment complex and in another area was within sight of "some very high-valued homes." In these cases, there did not seem to be any serious odor problem. Mr. Mathes testified that it is not unusual to have residential neighborhoods near waste transfer stations. He identified a large facility in downtown Denver processing 4,000 to 5,000 tons of waste a day near a residential neighborhood and a facility in the Houston area with neighbors right next door, within 200 to 300 feet. Ms. McCreedy testified that there are solid waste transfer stations in Florida in similar proximity as the Stockton Street facility is to residential areas and that those facilities have had no noise, odor or vermin complaints. With respect to the issue of noise, there is nothing specific in the General Permit rule that addresses noise or requires noise studies to be conducted. Nevertheless, the orientation of the building, which opens to the north and closes to the south, and the fact that the southeast and southwest and east walls and roof are insulated will abate noise to the south. With respect to operations, all heavy equipment will operate inside of the building, the facility will comply with local and federal noise requirements, if applicable, and back-up alarms on trucks using the facility will either be muffled or disengaged on a temporary basis to comply with the facility’s operating rules to minimize noise. The parties stipulated that the existing building is located 214.7 feet from the top of the nearest bank of McCoys Creek. There was no evidence presented that there would be a change to the dimensions of the existing building. The Notice of Intent indicates that all storage of solid waste, including the tipping and loading areas, will occur within the building that is enclosed on three (3) of its four (4) sides and will thus be more than 200 feet from McCoys Creek. There was extensive testimony by Ms. Kerr, an active member of the community, to the effect that McCoys Creek Boulevard is frequently flooded after rain events and the water overflows the bank and becomes a lake. Ms. Kerr, familiar with the prior operation on the site, also observed litter and garbage flowing into the Creek, under dry and flood conditions. She has also observed flood waters from the Creek flowing into the property connected with the facility, but not onto or into the facility. Flood waters have also caused the Creek beds to erode, undermining the tree line. However, the weight of the evidence indicates that this flooding would not adversely effect vehicles entering the transfer station from the north along Stockton Street, which is elevated north of McCoys Creek to the entrance to the facility. Ms. Kerr also admitted that there were other entrances to Interstate I-10, west of McCoys Creek, besides the planned entrance from McDuff. Ms. Kerr admitted that the facility did not cause the flooding and would not affect the flooding that had been occurring. She also agreed that the flooding was not caused by Kimmins or its predecessors operating a facility on Stockton Street. The preponderance of the evidence indicates that any flooding of McCoys Creek would not adversely impact the operations of the facility and that the operation of the facility is not likely to contaminate McCoys Creek as long as Kimmins maintains the facility in the manner presented in this proceeding. See also Findings of Fact 45-68. Kimmins' Compliance Program The facility is configured in such a way that it could be operated in compliance with the Department's rules and that Kimmins would be able to operate the facility in such a way as to meet the appropriate requirements. Waste Management, under Mr. Mathes' direction, operates Trail Ridge Landfill under contract for the City of Jacksonville. The same type of environmental compliance that Waste Management utilizes at that landfill would be applied to the proposed transfer station. Even the City's representative admitted that his experience with Waste Management's operation at Trail Ridge Landfill has been satisfactory. The Landfill Gas management that Mr. Pearson was not satisfied with has not been owned by Waste Management for more than three (3) years. Additionally, Kimmins is now a Waste Management entity and would be subject to the Waste Management compliance program headed by Ms. McCreedy in Florida. That compliance program, puts the responsibility on the district manager (in this case Mr. Mathes) for overseeing the facility. Nevertheless, Ms. McCreedy reviews permits periodically to ensure that a facility operates in compliance with the permit through site inspections and periodic review of permit applications, operating records and any applicable maintenance records. There is also a compliance assurance system creating a database of permits, permit conditions and periodic recording responsibilities that she is responsible for reviewing, along with the district managers. Her experience in Florida in compliance includes overseeing thirteen (13) solid waste transfer stations and this compliance responsibility would extend to the Stockton Street facility if it is permitted. With a newly-permitted facility there is a start-up procedure that would include putting operating permit requirements into the compliance database, ensuring that operators are properly trained and that personnel have received training on specific operation plans within the permit application, all of which would be reviewed periodically. With respect to the Stockton Street facility she did not see any proposed practices or contingencies that would create compliance problems. In addition to the submission of the Notice for the General Permit, there would be additional steps taken before operations could occur, i.e., detailed construction plans and specifications, overseeing of construction by an engineer, preparation of as-built drawings and certification by an engineer that construction has been done in compliance with the General Permit, with the as-built drawings and certification being submitted and accepted by the Department prior to operations beginning. Additionally, other permits would be required that if not obtained, would preclude the facility from becoming operational, including the City of Jacksonville's certificate of need permitting procedure. Kimmins' Experience The witnesses presented by the City objecting to the proposed transfer station have no experience or familiarity with transfer station operations. Mr. Pearson has never obtained a permit for, operated, or managed a transfer station. His familiarity with transfer stations consists primarily of visiting three (3) facilities in northeast Florida, none of which were controlled by Waste Management. With respect to the two (2) stations handling MSW, he was not aware of the procedures they use to control vermin and odors, and conceded that facilities in relatively rural locations (as those stations were) might have different procedures for controlling odor and vermin than one located on Stockton Street, and agreed that he had not reviewed the permits for those stations and thus has no idea what DEP was told as to how they would operate. Ms. Kerr has never visited an operating transfer station, and her only information is derived from speaking to people from Marietta where there were problems with a transfer station where procedures were not followed, and the problems were the result of the failure to follow procedures. In contrast, the witnesses supporting the proposed transfer station have substantial experience with the permitting and operation of solid waste transfer stations. Mr. Gauntt, who prepared the engineering plan for the Notice of Intent to Use, has designed and permitted transfer stations in a number of states, including Florida, and was accepted as an expert in solid waste transfer station design and permitting. Mr. Mathes is an expert in solid waste management and has visited a number of operating Waste Management transfer stations. Ms. Clem, accepted without objection as an expert in solid waste management design and permitting and stormwater design and permitting, has had experience in reviewing solid waste transfer station permits when she was with the Department and is familiar with the permitting requirements for such transfer stations. Ms. McCreedy, accepted without objection as an expert in solid waste facility siting and permitting, permit compliance and solid waste management has been involved with the above- described compliance program for Waste Management's transfer stations within the State of Florida. Ms. Nogas is a solid waste section supervisor for the Northeast District Office for the Department and in that capacity is responsible for permit review for all solid waste permits and has been since 1989. Those supporting the proposed transfer station and testifying as to its compliance with the requirements of the General Permit and its ability to operate in compliance with those requirements have extensive experience with solid waste transfer stations, while those who would suggest that there may be problems in operating a solid waste transfer station, particularly one proximate to a residential neighborhood, totally lack such experience and expertise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Kimmins' proposed Stockton Street solid waste transfer station qualifies for the General Permit. DONE AND ENTERED this 6th day of September, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 7th day of September, 2001.
