The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
Findings Of Fact The site of the proposed landfill is located near Seffner, Florida, and is northwest of and adjacent to two previously used landfill sites. The proposed site meets all zoning requirements, is not located in the vicinity of an airport so as to be subject to Federal Aviation Administration regulations, and no natural or artificial body of water is located within 200 feet of the site. Inasmuch as the operation of the earlier used landfills created much of the opposition presented at this hearing, a short history of Hillsborough County's landfill operation follows. Hillsborough County opened the old Taylor Road landfill, a tract containing 42 acres, in 1976 and closed it in 1980 when it became full. The old Taylor Road landfill site abuts to the southeast the site being applied for it these proceedings. In 1977, pursuant to a consent decree between the City of Tampa and the Federal Environmental Protection Agency (petitioners' Exhibit 14) , the City of Tampa's incinerator, at which most of the solid waste in Hillsborough County was disposed, was ordered closed by 1979. The City of Tampa engaged consultants to locate an acceptable site for use as a sanitary landfill. In 1978, Hillsborough County, pursuant to an agreement with the City of Tampa (Petitioners' Exhibit 15), assumed the responsibility for solid waste disposal throughout Hillsborough County. Thereafter, it was determined that the best site, from an ecological point of view, was adjacent to the old Taylor Road landfill. Prior to obtaining DER approval to expand this site, the selection of which the County Commission approved in April 1979, time for closing the incinerator was running out and the County was given permission to utilize a 10.6 acre borrow pit, adjacent to and west of the old Taylor Road site, which bad been given to the County by the State Department of Transportation. This approval was given by DER in January 1980. When Hillsborough County assumed the responsibility for waste disposal throughout the County, waste from Temple Terrace and Plant City was added which waste had not been disposed of by the City of Tampa incinerator. The County entered into a contract with Waste Management Inc., a large company specializing in developing and operating waste disposal facilities in many parts of the United States and abroad, to design and operate Hillsborough Heights Sanitary Landfill. The 10.6 acre site would quickly be filled so it was necessary for the County to `reapply to DER for a permit to operate a landfill capable of serving the County until 1984. At that time, modification to the incinerator to comply with clean air standards and operate as an energy recovery unit will be complete and it can be restored to operation. Before that hearing was held the 10.6 acre site filled, and it became necessary for the County to request an emergency permit from DER to operate a landfill on part of the proposed site. Following a hearing on this request, DER issued an order in July 1980, authorizing Hillsborough County to operate a sanitary landfill on 41.5 acres adjacent to the old Taylor Road landfill and the 10.6 acre borrow pit site. By the application here under consideration, as modified by Stipulation and Settlement Agreement, the Petitioners are seeking to expand this 41.5 acre site to 64 acres, thereby adding 22.5 acres to the already approved site. Two thousand tons of solid waste are deposited at this site daily, six days a week. The primary concern respecting a sanitary landfill in the proposed location is the potential for pollution of the Floridan aquifer which underlies this site and the fact that the site is located in a karst area. Unless an impervious surface lies naturally or is constructed between the base of the proposed landfill and the Floridan aquifer, pollution of the aquifer could occur should leachate from the site accumulate and percolate to the aquifer. All of Hillsborough County and much of Florida is underlain by limestone containing karst features. One unfortunate characteristic of the karst formation is the potential for the limestone to dissolve thereby creating cavities into which the surface overburden falls to create a sinkhole. Some liquids, including leachate, will dissolve limestone, thereby creating cavities into which the overburden can fall. This risk is reduced by the thickness of the clay layer over the limerock which inhibits the entry of surface water into the aquifer. The proposed site has a basal clay from five feet to twenty feet thick above the limerock. However, this base clay is not believed to be continuous throughout the site to this minimum thickness due to sand columns, pinnacles and other anomalies that have formed. Petitioners propose to remove some 35 to 45 feet of the overlying sand and intermediate clay down to the base clay to form the pit into which waste will be deposited. The thickness of this base clay over the limerock will then be tested. If at least five feet of clay is not over the limestone, Petitioners will install a minimum of five feet of recompacted clay liner with a density of at least 2.5 - X 10 (to the seventh power) cm/sec. over the bottom of the landfill. Impervious sidewalls around the edges of the landfill will be constructed of either a minimum of five feet of compacted lay or of Hypalon, a synthetic sidewall liner material, in accordance with the Stipulation Agreement. If Hypalon is used, it will be covered with at least two feet of soil before waste is put in the landfill. Petitioners will install a leachate collection system for monitoring and removing, if necessary, leachate that may collect in the bottom of this landfill. Perimeter ditches will be constructed around the bottom of the landfill with the floor of the landfill sloped toward the perimeter ditches. These ditches will contain perforated pipe to conduct leachate to sumps from which the leachate can be removed. Should leachate be generated before the landfill is closed, the leachate will be extracted by pumping; and discharged for absorption by solid waste at the landfill, or trucked to a treatment plant for processing. After each day's operations at this landfill, at least six inches of soil will be placed over the compacted solid waste accepted that day. This should provide reasonable protection for rodents and insects. Final soil coverage to be used as a top liner for this landfill will consist of at least eighteen inches of compacted clayey soil overlain by six inches of loosely compacted soil in order to provide a final cover to minimize infiltration of surface water runoff. The final surface of the landfill will be graded and sloped so rainfall will not puddle on the landfill but run off to the perimeter of the landfill. Thus, when completed, the deposited waste will be encased in a relatively impermeable container on all surfaces. Perimeter ditches will be installed to keep surface waters out of the landfill, and these ditches will be lined with 18 inches of clay to inhibit seepage of water to the landfill from these ditches. The ditches will discharge into holding ponds located south and southwest of the site. Surface waters in this vicinity flow south to southwesterly. Access to the landfill will be controlled by a perimeter fence and entry gate which will be manned during all hours of operation and locked when not manned. Disposal of hazardous or infectious waste will not be allowed. Spotters will be stationed at the dump site to inspect waste entering the site and to detect any hazardous or infectious waste that may reach the landfill. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. Litter will be controlled by temporary fencing or portable litter fences. Bare limestone exposed by excavation will be protected from flow of water from the active landfill area by berms until such time as the limestone is covered by the five feet of compacted base clay. During excavation of the landfill, a geologist or hydrologist will be stationed at the site by the operator of the landfill to determine the nature and extent of earth materials encountered. Anomalies found during excavation will be recorded and reported. This will serve to insure the impervious five feet clay base between the landfill and the limestone. Methane gas control will be provided by the base clay underlying the landfill, the liners to be constructed around the landfill perimeter, and the clay soil cover. Rising gas will vent through the soil cover. If odor problems occur, gas vents will be installed at the high point of the landfill to provide a controlled path for these gases which can then be flared. Groundwater monitoring wells will be installed around the perimeter of the site to detect any leachate which may escape. Wells upgrade of the site will be installed to determined whether metals or other impurities detected in the downgrade monitoring wells come from the landfill or are in the groundwater before it gets to the landfill. The geology of the site is complex. Numerous test borings have been taken in the 218.6 acre tract, sinkholes in the area have been studied, special photographs of the site have been taken to show where changes and moisture in soil occur as well as other geologic features. All available information shows the 64 acre parcel in the southern part of the 218.6 acre site to be the safest in the site from a catastrophic subsidence (sinkhole) Although the Intervenors contend that the site is subject to sinkholes, no credible evidence was presented that this site is more subject to a catastrophic subsidence than is the remainder of Hillsborough County. Competent evidence was presented that a sinkhole is less likely to develop at the proposed 64 acre site than in other areas of Hillsborough County. Intervenors' and the public witnesses' primary complaint and vehement opposition to the granting of the permit here requested stem largely from the manner in which the predecessor landfills in this area have been operated; and rightly so. Infectious waste has been dumped on the site on several occasions; inadequate daily cover has been provided; dogs have roamed the site; birds have been killed by insecticides dumped on the site; papers have blown over the site; surface waters from the site have been pumped outside the site in such a manner that well water could be contaminated; inadequate precautions have been taken to prevent rodent and insect infestation of the site; and unpleasant odors have emanated from the site. These complaints go to conditions that existed in the past; they are not necessarily harbingers of things to come. Hillsborough County's lease law should preclude dogs roaming the site. Strict adherence to the conditions of the permit will eliminate the vast majority of those complaints.
The Issue The issue in this case is whether Pasco County's application for a permit to construct a Class III landfill should be approved by the Department of Environmental Regulation (Department). Pasco County called Robert Hauser, Jr., who was accepted as an expert in sanitary landfills, and the Department called Kim Ford, who was accepted as an expert in professional engineering with expertise in solid waste. Petitioner Collins testified on behalf of the Petitioners. Two exhibits were received on behalf of Pasco County and two on behalf of the Petitioners. One exhibit offered by Petitioners (P-3) was rejected. No transcript of the hearing was filed. The parties were given ten days following the hearing to file their proposed recommended orders, including proposed findings of fact. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.
Findings Of Fact Pasco County filed an application with the department on or about January 29, 1983, to construct a Class III sanitary landfill. The location of the landfill would be near Hays Road and County Road 52, near Aripeka, in Pasco County, Florida. Pasco County owns the property on which the landfill would be located. After review, the Department issued an Intent to Issue on or about December 2, 1988, by which it proposed to issue Permit No. SC 51-144683 to Pasco County. The proposed landfill site is approximately 60 acres in size, with 20 acres to be used for disposal of household trash, yard trash consisting of grass clippings and other vegetative matter resulting from landscape maintenance or land clearing operations, construction or demolition debris, paper, cardboard, cloth, glass, street sweepings, vehicle tires, and other nonputrescible materials. Pasco County will install a 60 mil thick, high density polyethylene synthetic liner with a leachate collection system which is designed to eliminate discharge to the Floridan Aquifer within the landfill boundaries. An extensive geotechnical investigation of subsurface conditions at the site was conducted by the County's consultants in order to determine the suitability of the site for a Class III landfill, and to evaluate the ability of the site to provide an adequate foundation for the facility. Soil boring and ground penetrating radar were used. It was established that the site is of relatively uniform stratigraphy, characterized by a uniform layer of surficial sand, a reasonably continuous clay semi-confining layer from six to ten feet thick, under which lies the limestone groundwater bearing formation known as the Floridan Aquifer. The hydrogeological survey conducted by the County included a foundation analysis which demonstrates that the subgrade will support loads and stresses imposed by the proposed landfill. It also has a low potential for sinkhole development, and the synthetic liner and leachate collection system are reasonable mitigation steps which address sinkhole potentials. Pasco County's application includes a surface water management system, which has already received approval from the Southwest Florida Water Management District, and which is adequate to control surface water discharged from the Class III landfill site. The groundwater monitoring plan included in the application provides for no less that 10 pairs of monitor wells to be located approximately 100 feet from the boundary of the proposed landfill area. This meets the requirements of the Department, and is adequate to monitor both the surficial and Floridan Aquifer, and to provide early detection of any discharges to the groundwater. Reasonable assurances have been provided, through site specific geotechnical analysis and enhanced design features, that the site can be developed and operated as a Class III landfill without adverse impact to the Floridan Aquifer, despite the fact that the site is located in an area designated by the Southwest Florida Water Management District as a high recharge area. The County has demonstrated that it has the financial ability to construct, operate and close this Class III landfill in accordance with the Department's rules. The operations plan included in the County's application establishes the County's ability to operate the proposed landfill in accordance with rules of the Department. The proposed design of Pasco County's proposed Class III landfill offers reasonable assurances that the Department's standards will be met, and in fact, the design as proposed by the County exceeds the standards required by the Department for a Class III landfill, in that this project includes a liner and leachate collection system which are not mandatory. Competent substantial evidence was not presented by the Petitioners to establish that they would be substantially affected, or affected in any way, from the construction and operation of this Class III landfill.
Recommendation Based upon the foregoing, it is recommended that the Department issue Permit NO. SC 51-144683 to Pasco County. DONE AND ENTERED this 23rd of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1989. APPENDIX The Petitioners did not file Proposed Findings of Fact. Rulings on Pasco County's Proposed Findings of Fact: 1. Adopted in Finding of Fact 3. 2-4. Adopted in Finding of Fact 5. 5. Adopted in Finding of Fact 4. 6-8. Adopted in Finding of Fact 6. 9. Adopted in Finding of Fact 11. 10-11. Adopted in Finding of Fact 7. 12. Adopted in Finding of Fact 10. 13-14. Adopted in Finding of Fact 8. 15. Adopted in Finding of Fact 9. Rulings on the Department's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Rejected since this is a conclusion of law. Adopted in Finding of Fact 3. Adopted in Findings of Fact 4, 5, 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. COPIES FURNISHED: Robert G. Collins 1750 Blue Heron Lane Spring Hill, FL 34610 Robert D. Odell 12636 Box Drive Rolling Oaks Estates Hudson, FL 34667 J. Ben Harrill, Esquire 7530 Little Road, Room 203 New Port Richey, FL 34654 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale Twatchmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether Dr. Vigna and his corporation, AVA Hazardous Waste Removal and Disposal, Inc., should be disciplined for the improper disposal of hazardous waste.
Findings Of Fact Lyn-Rand, Inc., was a corporation in the metal fabrication and painting business in Dade County, Florida, during April and May of 1989. The industrial processes used by Lyn-Rand required the use of solvents, cutting oils, and other chemicals. Lyn-Rand employed Courtney Warrenfeltz as its quality control director. Mr. Warrenfeltz had met Dr. Anthony Vigna, who held himself out as a transporter of hazardous waste. Dr. Vigna offered to dispose of 55-gallon drums of waste which had accumulated at the Lyn-Rand facility. Dr. Vigna took samples of the waste, offered to use his federal EPA identification number in connection with the disposal, and do all the paper work involved with the disposal. Mr. Warrenfeltz believed, based upon his conversations with Dr. Vigna, that Dr. Vigna was knowledgable about hazardous waste disposal. Mr. Warrenfeltz made arrangements for Dr. Vigna to pick up nine drums of cutting oils and cleaning solvents on Saturday, April 29, 1989. Dr. Vigna was paid $500 per drum. Those drums had been marked with "x's" on the tops and sides. An employee of Lyn- Rand, Carlos Alayon, had been left instructions to expect Dr. Vigna, and had been given a check to give Dr. Vigna when the drums were picked up. While Dr. Vigna was at the Lyn-Rand site to pick the drums up, he asked Alayon for some black paint which Dr. Vigna used to paint over the labels on the drums. Alayon then helped Dr. Vigna load the drums into a rental truck. Dr. Vigna gave Mr. Alayon no paperwork, such as a manifest, receipt, or shipping papers. Mr. Warrenfeltz never received any paperwork from Mr. Alayon or from Dr. Vigna. The drums Dr. Vigna took from Lyn-Rand were discovered later, Saturday, April 29, 1989, at the business premises of Compliance Technology, Inc., a corporation located in Broward County, which is licensed to act as a broker for hazardous waste. Compliance Technology, Inc., does not, however, act as a transporter of hazardous waste. The employee of Compliance Technology who found the drums near the back loading dock, Mike Webb, was concerned, because their labels had been obliterated with black paint and the only marks on the drums were the "x's." The obliteration of the labels was a cause for concern and the bungs appeared to be leaking around the tops of two of the drums. The drums had been abandoned near a storm drain. The drums were not fenced or secured; if someone had driven into them due to their placement on the ground near the loading dock, the drums could have ruptured and the contents flowed into the storm drain and eventually into the Biscayne Aquifer. Mr. Webb notified the founder of Compliance Technology, Dr. Solon Cole, of the discovery of the drums, and the matter was reported on or about May 1, 1989, to the Broward County Environmental Quality Control Board and the City of Hollywood Police Department. Compliance Technology moved the drums away from the storm drain, barricaded them, and replaced bungs in two of the drums. On or about May 5, 1989, Dr. Cole notified Jeff Tobergte, of the Department of Environmental Regulation office in West Palm Beach, about the drums. Mr. Tobergte went to Compliance Technology the next day, and photographed the drums and sampled their contents. He found that the drums contained various solvents, including methylene chloride, ethylbenzene, toluene, xylene and phenol. The samples had a pH of less than 2 and a flash point of less than 60 degrees centigrade, and therefore were hazardous wastes. Dr. Cole and Mr. Tobergte were able to determine that one of the drums had a label which stated "Spray Iron Phosphatizer and Cleaner" "SC-283" from Novamax Tech in Atlanta, Georgia. After contacting Novamax Tech, Mr. Tobergte learned that SC-283 is an unusual product with only four buyers in Florida, three of them in Dade County, including Lyn-Rand. Mr. Tobergte then drove to all three locations in Dade County which were customers of Novamax Tech, and determined that the most likely source of the drums at Compliance Technology was Lyn-Rand. Mr. Tobergte visited Lyn-Rand on May 8, 1989, and verified that the drums he had photographed were drums which originated at Lyn-Rand. The verification was made by comparing the photographs of the drums left at Compliance Technology with drums at Lyn-Rand which still had labels. Mr. Warrenfeltz recognized the markings on the photos of the drums left at Compliance Technology. The pine needles found on the drums were also significant, since drums were stored in a manner at Lyn-Rand which lead to pine needles falling upon them. Mr. Warrenfeltz told Mr. Tobergte that Lyn-Rand had recently shipped nine drums and recognized the drums from the photographs as those delivered to Dr. Vigna. Lyn-Rand removed the drums from Compliance Technology's property and arranged for their proper disposal. Neither Dr. Anthony Vigna nor AVA Hazardous Waste Removal and Disposal, Inc., has any EPA identification number. After the discovery of the abandoned drums, Mr. Vigna mailed a letter to Compliance Technology on May 10, 1989. The letter was backdated to April 28, 1989, and states in part that it was sent to Dr. Solon Cole, the President of Compliance Technology, "to make you aware of a delivery of nine drums that my driver will be leaving off at your plant." The letter was an after-the-fact attempt by Dr. Vigna to cover himself, which is foiled by the postmark date the letter bears. The content of the letter itself, however, leaves the impression that Dr. Cole and Compliance Technology had no prior awareness of the delivery, which is consistent with the testimony of Dr. Cole, that he had not agreed to any delivery of hazardous waste by Dr. Vigna, because Compliance Technology is not a hazardous waste storage facility, or a transporter of hazardous waste. It had acted as a broker for entities needing to dispose of hazardous waste. Dr. Vigna had visited Compliance Technology, and should have known that it did not store hazardous waste. This after-the-fact letter is also inadequate to constitute a shipping manifest for the hazardous waste delivered by Dr. Vigna, for there is no designation of the source of the material, or explanation of the contents of the drums. It does not approximate the kinds of documents used by legitimate hazardous waste transporters. Perhaps most significantly, Dr. Vigna and his company never contacted Dr. Cole after the drums were dropped at the Compliance Technology site to make arrangements to pay Compliance Technology for handling the drums, as the letter of May 10, 1989, suggests. Dr. Vigna maintains that his delivery of the drums to Compliance Technology was the result of a misunderstanding he had with Dr. Solon Cole. Dr. Vigna maintained that he and Dr. Cole had discussions concerning possible business ventures and he told Dr. Cole that he would be delivering nine drums of cutting oils and cleaning solvents to Compliance Technology, Inc. This testimony is rejected as much less credible than that of Dr. Cole, and because of the rather significant problems with the letter Dr. Vigna mailed on May 10, 1989, which was designed to cover himself, not to notify Compliance Technology of a delivery before the delivery was to be made. There is some slight corroboration of Dr. Vigna's version of the facts which arises from the decision of Compliance Technology not to press criminal charges against Dr. Vigna. The lawyer for Compliance Technology, Arthur Luongo, wrote to the Assistant State Attorney on June 7, 1989, and said: I have a great concern that Compliance Technology may be liable for a malicious prosecution action should they [the employees of Compliance Technology] testify in a criminal proceeding against Mr. Vigna. I see the case as one of simple civil negligence arising out of an honest, though admittedly stupid, mistake. It is the intention of Compliance Technology to become a public corporation within a year, and being the defendant in such a suit could seriously effect the value of their stock. They do, however, intend to recover civil restitution for their time, efforts and energy in locating Mr. Vigna. At best, this letter demonstrates that Compliance Technology had its own reasons for not wanting to press any criminal proceedings, but does not show that Dr. Vigna's actions were proper. Dr. Vigna's position would have been much more persuasive if the letter sent to Compliance Technology had actually been sent near the time it was dated (April 28), or if he had made contact with Dr. Cole to discuss pricing for what Dr. Vigna contends would have been Compliance Technology's efforts in arranging for final disposal of the Lyn-Rand material. It is strange that Dr. Vigna arrived at a price to charge Lyn-Rand without knowing what his price for disposal would be from Compliance Technology. That cost to Dr. Vigna was not relevant if Dr. Vigna intended merely to dump the material. The Department's characterization of the material as abandoned by Dr. Vigna is sustained by the evidence. Dr. Vigna acted as a transporter of hazardous waste. Because the drums were rusted, two bungs had to be replaced, and were leaking, Dr. Vigna is properly regarded as having caused pollution in transporting and leaving them at Compliance Technology. The Department incurred $2,936.58 as costs and expenses in tracing the pollution back to Dr. Vigna and arranging for its proper disposal.
Recommendation It is RECOMMENDED that Dr. Vigna and AVA Hazardous Waste Removal and Disposal, Inc., be found guilty of the violations alleged in the Administrative Complaint, that a final order be entered directing them to refrain from the transportation of hazardous waste unless they first notify the Florida Department of Environmental Regulation, obtain an EPA identification number, demonstrate their financial security, and comply with all standards and procedures required by rules of the Department and applicable federal regulations; it is also RECOMMENDED that they be required, jointly and severally, to reimburse the Department $2,936.58. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April 1992. APPENDIX TO RECOMMENDED ORDER The Petitioner's proposed findings of fact are addressed as follows: Adopted in Finding 1. Generally adopted in Finding 1. Adopted in Finding 1. Adopted in Findings 1 and 2. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Rejected as redundant of Finding 1. Adopted in Finding 16. The Respondent's proposed findings of fact are addressed as follows: Adopted in Finding 1. Adopted in Finding 3. Adopted in Finding 10. Rejected, see Finding 13. Rejected as unnecessary. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 4. Rejected for the reasons stated in Findings 10-15. Rejected, see Finding 11. It is in the nature of a manifest that it needs to be delivered with the material it is designed to accompany. A "manifest" which Dr. Vigna maintained as his own record is no manifest. Rejected because the material was left unsecured near a loading dock. Its location near the storm drain, and the obliteration of the labels lead to the conclusion that the way was it was left did constitute an imminent hazard. Rejected, see Finding 3. Rejected because the leakage from the bungs, while not severe, did present the risk of pollution through contamination of the Biscayne Aquifer if any of the contents of the nine drums had been introduced into the storm drain. Rejected, see Finding 3. COPIES FURNISHED: Agusta P. Posner, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Steven N. Rosenthal, Esquire Suite 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On November 1, 1985, Broward County filed an application with the Department of Environmental Regulation (Department) for a solid waste construction permit, and on August 23, 1985, an application for a dredge and fill permit. The permits would have allowed Broward County to construct a Class I landfill in southwestern Broward County, Florida. On April 19, 1986, the Department gave notice of its intent to issue the requested solid waste permit, and on November 13, 1986, gave notice of its intent to issue the dredge and fill permit. Petitioners filed a timely request for formal hearing on each permit, and their petitions were consolidated for hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the solid waste permit and the dredge and fill permit sought by Broward County be ISSUED. DONE AND ORDERED this 18th day of May, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1987.
The Issue The issues considered at final hearing were those issues set out in Petitioners' Amended Petition For A Formal Hearing. At the conclusion of the final hearing the parties were given an opportunity to file a proposed recommended order and memorandum in support thereof. Such memorandum and proposed recommended order was received by the Hearing Officer from the Department of Environmental Regulation on November 10, 1976, from Leon County on November 12, 1976, and from the Citizens' Committee to Preserve Lake Lafayette on November 15, 1976. Having fully considered the matters presented herein, the Hearing Officer enters the following:
Findings Of Fact Respondent, Leon County, Florida, has applied for a construction permit to construct a sanitary landfill in Sections 4 and 5, Township 1 South, Range 2 East, Leon County, Florida. The proposed site consists of 79.9 acres off of U.S. Highway 27 South. The application is in proper form and contains all information required by the Department of Environmental Regulation. The area to be served by the proposed sanitary landfill is Leon County, Florida, with a projected average population of 155,200. The responsible operating authority as set forth in the application is Leon County. The evidence presented did not establish that the proposed sanitary landfill will attract high concentrations of rodents, insects, or birds which would do serious damage to the land and crops surrounding the site or which would adversely affect the health and welfare of the residents near the site. The application proposes a program for the extermination of any rats discovered on site and further proposes that the working faces of the landfill area will be kept as small as possible with all exposed waste materials covered as frequently as practical to minimize the problem of flies and insects during hot, humid periods. Evidence was presented indicating that construction of the proposed sanitary landfill site could adversely affect surrounding property value. However, the evidence was not sufficient to conclusively establish the extent of this affect nor the time at which it would occur or for which it would endure. As designed the proposed sanitary landfill would not cause any solid waste to be disposed of by being placed in or within 200 feet of any natural or artificial body of water or on the watershed of any surface water supply. Lake Lafayette is hydraulically connected to the Floridan Aquifer. The proposed sanitary landfill site is located at least 500 feet from the flood prone area of Lake Lafayette and 1,000 feet from Lake Lafayette proper. As designed the proposed sanitary landfill will not cause any solid waste to be disposed of by being placed in a sink hole or in the immediate area thereof. Solid waste will be disposed of by being placed in a trench and covered over with successive lifts similarly covered. There are no active sink holes on or in the immediate area of, the proposed sanitary landfill site. Three ponds exist in the immediate vicinity of the site, one of which is to be used for surface water runoff. These ponds were probably formed by past sink hole activity but from the site topography and water elevations it appears that the ponds are now stable and are probably not hydraulically connected with the Floridan Aquifer. No limestone or gravel pits exist on site. The entire proposed site is well above the +50' MSL contour line below which are found flood prone areas in the vicinity of the site. The water table of the site is more than 5 feet below normal ground surface. As designed the proposed sanitary landfill will not require the disposal of solid waste in an area immediately adjacent to or within the cone of influence of a public water supply. As designed the proposed sanitary landfill will not require the disposal of solid waste within 200 feet of any habitation or place of business served by a public water supply system or within 1,000 feet of any habitation or place of business served by an individual potable shallow water supply well with the following exceptions. There are three wells located on the property which would be owned by Leon County that may be within 1,000 feet of the disposal site for solid waste. Of these three wells one has been abandoned and will be sealed. A second is located south of the proposed site at an existing house and will be used as a source of non-potable water and for monitoring the potable aquifer. The third well is located on the northwest portion of the county property and will be maintained as a standby source of potable water. There are two other wells located on the property to be owned by Leon County which are more than 1,000 feet from the proposed disposal site for solid waste and could be used to monitor the Floridan Aquifer. There is a well which serves a private residence and farm located plus or minus 1,200 feet west of the proposed site for the disposal of solid waste. No solid waste shall be disposed of in any area open to public view from any major thoroughfare. The proposed site in not on any public highway, road, alley or the right-of-way thereof. The Lake Lafayette drainage basin is approximately six miles long elongated in a west-northwest, east-southeast direction. The width varies between one-quarter to one-half mile. The western end of the basin contains many sink holes which probably have open connections to the underlying bedrock. The eastern end of the basin, near the proposed landfill site, is swampy and contains many cypress trees. The Lake Lafayette drainage basin appears to be an area of recharge to the Floridan Aquifer. The proposed sanitary landfill site is not located in the Lake Lafayette drainage basin. The engineering firm of Ardaman & Associates, Inc., conducted a subsurface investigation of the hydrologic and soil conditions at the site of the proposed sanitary landfill. As part of their investigation they performed ten soil borings and installed seven deep ground water monitoring wells. The results of the investigation of Ardaman & Associates, Inc., indicates a low probability of sink hole occurrence. In the course of their investigation, Ardaman & Associates, Inc., discovered a depression in the ground water level at Test Hole No. 9. The significance of this ground water low is that it may be a localized area of recharge. However, as shown by the testimony of the engineers who conducted the investigation for Ardaman & Associates, Inc., as well as by the report of their investigation, this depression creates no realistic danger with regard to the introduction of pollutants into the aquifer or ground water supply, so long as no putrescible wastes are placed within a distance of 1,000 feet of Test Hole No. 9. The hydro-geologist testifying on behalf of the Petitioners stated that he believed the radius of influence of the depression at Test Hole No. 9 may actually be less than 1,000 feet and that maintaining 1,000 feet distance from Test Hole No. 9 is a conservative distance. As designed, the proposed sanitary landfill will not dispose of any solid waste or other putrescible waste within 1,000 feet of Test Hole No. 9. The soils found on the proposed sanitary landfill site are of low permeability and suitable for a sanitary landfill. The low permeability of the soils will limit both the lateral and vertical seepage of leachate. The vertical flow of potential leachate to the Floridan Aquifer has been estimated at a rate of 1.0 to 1.5 feet per year. The lateral flow rate of such leachate through the soils overlying the bedrock in the Lafayette drainage basin has been estimated at the rate of 2 feet per year. As has been noted above, the proposed sanitary landfill site is located approximately 1,000 feet from Lake Lafayette, and 500 feet from the +50' MSL contour line which has been used to describe the perimeter of the flood prone area of the Lake Lafayette drainage basin. At the estimated flow rate it would therefore take several hundred years for any leachate produced by the sanitary landfill to reach the Lake Lafayette drainage basin. The Floridan Aquifer underlies all of Leon County at depths of 100 to 500 feet. As designed the proposed sanitary landfill will have test wells constructed throughout the site to provide a means of detecting any lateral migration of contaminants from the landfill operation should such occur. Periodic samples will be taken from these test wells and analyzed. The monitoring wells will be set up in such a manner that regardless of the direction of flow of subsurface water they will pick up and detect any pollutants that may be passing from the landfill. Some of these test wells will be placed in close proximity to the proposed sanitary landfill site to give early warning of the existence of any leachate flow. If there is any problem with the flow of leachate from the proposed site it will be detected easily within the first five years of operation. Since it would take several hundred years to reach the Lake Lafayette drainage basin at the estimated flow rates this should provide adequate warning and reaction time for the alleviation of any potential pollution problem. A significant flow of leachate is not expected. The existing pond which will receive the surface runoff from the sanitary landfill site is likely of sink hole origin but after a reasonable investigation it appears that the pond is now stable and not hydraulically connected to the Floridan Aquifer. It is estimated that the pond can contain at least a 25 year storm rainfall though there might be some flooding from the pond in a 100 year storm rainfall. As designed, no significant amount of leachate, if any, will reach the surface water runoff retention pond. Petitioners' hydro-geologist did not state that the site is unsuitable for a sanitary landfill. Rather he testified that on the information he had reviewed, which information was that available to the Department of Environmental Regulation, it was his opinion that the Department of Environmental Regulation lacks sufficient information to determine if the proposed site is suitable from a water quality standpoint. Based upon all the testimony and evidence it appears as a matter of fact that the information available to the Department of Environmental Regulation is reasonably sufficient to determine the suitability of the proposed site. There has been no showing of a necessity for alining the proposed trenches which will receive the solid waste. The Planning Director for the Tallahassee-Leon County Planning Department, in a letter to the Department of Environmental Regulation stated that the use of the proposed site for landfill purposes is not inconsistent with the land use plan. He further stated his concern for traffic on U.S. Highway 27, the possible adverse aesthetic impact which he felt could be minimized and his concern that Lake Lafayette be protected from landfill leachate through engineering design. In their Amended Petition Petitioners raised the question of the present zoning of the proposed site. No evidence was presented by Petitioners to show that the site is not properly zoned. Based upon the testimony and evidence presented there appears little possibility that the proposed sanitary landfill will pollute or seriously damage Lake Lafayette, the Floridan Aquifer or any other source of public or private water supply. The proposed sanitary landfill as designed is not likely to cause any significant water pollution or to degrade water quality below those standards set by the Department of Environmental Regulation. None of the prohibitions set out in Section 17-7.04, F.A.C, exist so as to require the denial of the application for a construction permit for a sanitary landfill by Respondent, Leon County. The sanitary landfill criteria set out in Section 17-7.05, F.A.C., have been met by Respondent, Leon County.
Findings Of Fact Bay County's application to construct a sanitary landfill comprising nearly 80 acres located at the north end of Bay County abutting Washington County near the intersection of S.R. 20 and S.R. 77 was initially submitted to the Department of Environmental Regulation (DER) in November, 1979 (Exhibit 1). The site is surrounded by 400 feet of pine woods which buffer the site from all roads and residences . There are no residences within several hundred yards of the proposed site and the nearest natural body of water is over one-fourth mile from the site. The noise generated by the operation of the landfill will be similar to the noise generated on S.R. 20 and S.R. 77 by passing vehicles. Following conferences between representatives of Bay County and DER and several revisions of the application of May 16, 1980 DER issued its notice of intent to grant the applied-for permit (Exhibit 10) and this proceeding was initiated by Petitioners. The site is located in an area of predominately "Lakeland series" sands which provides little barrier to the percolation of surface or ground waters into the Floridan Aquifer. The site is one of the highest in Bay County and the ground water table is located about 45 feet below the surface in this area. The Floridan aquifer lies some 100 feet below the proposed site and is in direct contract with the ground water table. Accordingly, contamination of the ground water by the proposed landfill would enter into the Floridan Aquifer and degrade the water quality of this aquifer. Additionally escaping leachate could contaminate and degrade the waters of the lakes in the general vicinity of the proposed site. As initially presented the application was denied by DER and recommended for denial by the other state agencies involved, viz. Florida Game and Freshwater Fish Commission and the Northwest Florida Water Management District. The reason for disapproval was that, absent some impervious surface between the aquifer and lakes in the vicinity could occur and was likely. Not only is the site located in a recharge area to the Floridan Aquifer but also in a karst area, in which the topography is marked by sinkholes resulting from the collapse of cavernous limestone under the ground. While the possibility exists that a sinkhole could develop under the proposed landfill this is no more likely than that a sinkhole will develop anywhere else in the northern half of Bay County. As finally proposed the site will be developed into cells some 400' x 500' x 28' deep which are expected to be filled in about six months, covered with a a clayey soil and vegetation replanted over the cell. To keep leachate from escaping to the lakes or aquifer the cells will be lined with a polyvinyl chloride (PVC) liner is 20 mils thick manufactured by B. F. Goodrich. If the liner functions as proposed there will be no escape of leachate and hence no degradation of the waters. Petitioners contend that reasonable assurances have not been given that the PVC liner will adequately perform this function and this was the only real issue presented at the hearing. PVC liners for landfills have been in use for only bout 10 years. However, numerous tests have been conducted and, projecting the deterioration of the PVC observed during the test period to the estimated life of the landfill, leads to an expected liner life well beyond the life of leachate production in the landfill. To give PVC the flexibility and elasticity necessary to lay it over uneven surfaces in sheets, plasticizers are added to the PVC during the manufacturing process. These plasticizers will be released from the PVC if exposed to sunlight for an extended period. However, as proposed for use here, even if the liner was exposed to sunlight for the entire six months the cell will be open, or even for one year, no significant loss of plasticizer will result. Once the cell has been closed, no further dynamic stresses will be placed on the liner. Accordingly, even if the liner lost all of its plasticizer and thereby lost its elasticity and flexibility, it would remain impervious and prevent the pasage of leachate through the liner. To protect the liner from solid waste, trash, and equipment used in the cell to compress the solid waste, the liner will be covered with two feet of sand before any solid waste is placed in the cell. Each night the solid waste dumped that day will be covered with six inches of on-site earth material to deter flies, odors, etc. The two feet of sand cover will protect the liner from puncture by solid waste or equipment. The liner will be placed on a tight slope with a sump provided near the low end of each cell from whence leachate will be pumped from the cell and treated, if necessary. Additionally, vents will be installed to exhaust gases from the cell once it is closed. Monitoring wells will be placed around the land fill to detect if leachate is escaping from the site. These wells would allow detection of escaping leachate before it could progress to the natural water bodies in the general vicinity. The three to one slope proposed for the sides of the landfill will result in some movement of free sand resting on the liner along the sides and could bare the liner. To insure there will be a minimum of two feet of soil between the fill material and the liner the cell will not be filled completely to the side of the liner to fill in the space left between the garbage and the side wall each day when the material dumped that day is covered. Hazardous wastes will not be allowed at the site. The site will be enclosed and have an attendant on duty at all times it is opened to receive solid waste. Public access will be restricted and the attendant on duty will monitor the waste dumped in the cell. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. The sand over the liner, the pumping out of the leachate and overall operation of the landfill are adequate to protect against these small amounts of hazardous materials. Bay County proposes to use an existing disposal site to dump tree and hedge trimmings and may provide a place to dump this woody trash at the proposed site other than in the cells. This will increase the capacity of the cells for solid waste and diminish the possibility of damage to the liner by woody products. The only credible evidence submitted regarding the availability of alternate sited for the proposed landfill was that other areas further south were investigated and were unacceptable because the groundwater table was above the bottom of the proposed cells. This would result in dumping solid waster directly into the water table, and is unaceptable. Petitioner's principal contention is that there has been insufficient experience with PVC liners and the tests that have been conducted were not sufficiently rigorous or extensive to provide assurances that leachate would no escape from the site and contaminate the waters of the State. Petitioners also contend that joining of sections of PVC in field, which will be necessary to cover that bottom of the cells (because a liner large enough to cover the bottom of one cell would be too large and heavy to handle), would also create unacceptable risks in the making of these "field seams". Bay County has arranged for the manufacturer of the PVC to provide personnel to supervise the "field seaming" of the sections of the PVC. These seams do not need to be wrinkle-free and no particular problem with respect to joining sections of PVC liner so as to make it watertight was shown. The tests conducted by the Environmental Protection Agency on PVC liners have been ongoing for nearly ten years. None of these tests to date show any reason to question the effectiveness of a PVC liner properly installed to provide an impermeable barrier to leachate in a sanitary landfill. Petitioners also object to the use of cover material proposed by Bay County when a cell is closed. The soil analysis submitted with the application for the cover proposed does not have a high clay content and is more permeable than would be desired. At the hearing, Bay County officials testified they would use a more impermeable soil to cover the cells. Failure to do so would increase the amount of water from rainfall that would penetrate the cell, thereby increasing the quantity of leachate to be pumped from the sump. This would increase the maintenance cost of the landfill to the point it would be uneconomical not to put a water-repellant cover on the cell when it is closed. No evidence was presented that the formation of additional leachate would increase the risk of leachate escaping from the cell.
Conclusions Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Petitioners' Exceptions, and Respondent's Response to Petitioners' Exceptions, it is, therefore: ORDERED that the Hearing Officer's Findings of Fact are adopted; his Conclusions of Law and Recommended Order, to the extent that they are consistent with this Final Order, are adopted; and ORDERED that the permit reflected in the Notice of Intent issued by the Department on May 16, 1980, be issued with the following additional conditions: The applicant shall notify the Department at least on week in advance of when the P.V.C. is to be installed and allow for on-site inspection of its installation by Department personnel. No operation permit will be issued unless the applicant has shown reasonable assurances that the P.V.C. has been properly installed and all other applicable rules of the Department and the applicable Florida Statutes have been complied with. Any operation permit issued shall be for only one cell and no permit for subsequent cells shall be approved in accordance with 2. above without a showing of proper operation for the previous cells. The final cover material for each cell shall be clay, substantially clay or other impermeable material. Any DER permits for this site shall only be valid until 24 months from the date of this order. ORDERED that the country shall submit within thirty days a plan with schedule by which this landfill site will be phased out in 24 months, which shall include selection of alternate acceptable sites or the implementation of a resource recovery program in accordance with 17-7, Part II, Florida Administrative Code. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980. JACOB D. VARN, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing "Final Order" has been furnished by United States Mail to Kenneth F. Hoffman, Esquire, Oertel and Laramore, P.A., 646 Lewis State Bank Building, Tallahassee, Florida 32302, Les W. Burke, Esquire, County Attorney, Bay County, Post Office Box 1818, Panama City, Florida 32401, and K.N. Ayers, Hearing Officer, Division of Administrative Hearings, Collins Building, Room 101, Tallahassee, Florida 32301, this 22nd day of December, 1980. DOUGLAS H. MacLAUGHLIN Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9730
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Voluntary Dismissal filed by the Petitioner. A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-056 CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 23-4 day of March, 2010. U.S. Mail: The Honorable D.R. Alexander Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Melvin Wolfe, Esq. Town of Medley 7777 N.W. 72nd Avenue Medley, Florida 33166 Jeffrey S. Bass, Esq. Shubin & Bass, P.A. 46 S.W. First Street, 3rd Floor Miami, Florida 33131 Hand Delivery: Richard Shine, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 Paula Ford Agency Clerk Douglas M. Halsey, Esq. White & Case, LLP Wachovia Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida 33131 Barbara J. Riesberg, Esq. 1000 Brickell Avenue, Suite 200 Miami, Florida 33131
The Issue The issue to be determined in this proceeding is whether Angelo's Aggregate Materials, LTD ("Angelo's") is entitled to permits from the Department of Environmental Protection ("Department") to construct and operate a Class I landfill in Pasco County.
Findings Of Fact The Parties The Department is the state agency with the power and duty under chapter 403, Florida Statutes, to review and take action on applications for permits to construct and operate solid waste management facilities, including landfills. Angelo's is a Florida limited partnership authorized to conduct business under the name Angelo's Recycled Materials. Angelo's filed the permit applications which are the subject of this proceeding. Angelo's owns the property on which the proposed landfill would be constructed and operated. Crystal Springs Preserve is a Florida corporation that owns approximately 525 acres in Pasco County, Florida on which is located Crystal Springs, a second magnitude spring that flows into the Hillsborough River. The property is about 10 miles south of Angelo's proposed landfill site. Crystal Springs Preserve's primary business activities are selling spring water for bottling for human consumption and operating an environmental education center that focuses on Crystal Springs and the Hillsborough River. Crystal Springs Preserve hosts approximately 50,000 visitors annually at the environmental education center. Crystal Springs Preserve holds a water use permit which authorizes it to withdraw up to 756,893 gallons of water per day (annual average) from Crystal Springs for production of bottled water. The water is transported about three miles to a water bottling facility operated by Nestlé. Nestlé is a private corporation engaged in the business of bottling and selling spring water. Nestlé purchases spring water from Crystal Springs Preserve. Nestlé's "Zephyrhills Spring Water" brand is composed of approximately 90 percent Crystal Springs water and 10 percent Madison Blue Spring water. The only water treatment applied by Nestlé is filtering the water to remove gross contaminants and passing the water through ultraviolet light or ozone to kill any potential bacteria before bottling. Nestlé has established "norms" for its spring water and would not be able to use the water from Crystal Springs if its chemical composition varied significantly from the norms. WRB is a Florida corporation that owns 1,866 acres in Pasco County known as Boarshead Ranch. Boarshead Ranch is adjacent to the east and south of Angelo’s property and is approximately 3,000 feet from the proposed landfill at its closest point. Boarshead Ranch is currently being used for agricultural, recreational, residential, and conservation purposes, including wildlife management. Nearly all of Boarshead Ranch is subject to a conservation easement held by the Southwest Florida Water Management District (SWFWMD). The conservation easement allows WRB to continue agricultural operations. Numerous agricultural water wells are located on Boarshead Ranch. WRB holds a water use permit which authorizes the withdrawal of 820,000 gallons per day (gpd) (annual average) for a number of uses, including production of agricultural products, animal drinking water, and personal use. The City of Zephyrhills is located in Pasco County and is a municipal corporation. Zephyrhills' water service area encompasses Zephyrhills and portions of Pasco County. Zephyrhills owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Zephyrhills holds a water use permit which authorizes nine potable water supply wells with a combined withdrawal of 2.9 million gallons per day ("mgd") (annual average). Zephyrhills has two new production wells located about two miles southeast of the proposed landfill. The City of Tampa owns and operates the David L. Tippin Water Treatment Plant, the Hillsborough River dam, and the City of Tampa reservoir on the Hillsborough River. Flows from Crystal Springs make up a substantial amount of the water in the Hillsborough River, especially during drought conditions when the spring flow accounts for about 50 percent of the flow. The City of Tampa holds a water use permit which authorizes the withdrawal 82 mgd (annual average). The City of Tampa owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Carl Roth, Marvin Hall, and Louis Potenziano own property in Pasco County near the proposed landfill site. Roth's property is 3.5 miles west of the proposed landfill site; Hall's property is located approximately one mile southwest of the site; and Potenziano's property is 1.6 miles to the south/southeast of the site. Roth, Hall, and Potenziano have water wells on their properties. The record does not establish that John Floyd owns property in the area. Floyd and Associates, Inc., owns about 55 acres in the area and holds a water use permit authorizing the withdrawal of water for agricultural uses. The Stipulated Agreement On March 1, 2010, Angelo's filed with DOAH a "Stipulated Agreement" signed by all parties. The Stipulated Agreement states in relevant part: Angelo's shall provide a final design, revised complete permit application and site investigation (referred to jointly as "Revised Submittal") to DEP with copies to all Parties and DEP shall make a completeness determination prior to this proceeding being set for a new final hearing date. * * * Angelo's shall not revise its permit application or supporting information beyond the Revised Submittal prior to or during the final hearing except in response to issues raised by DEP. It appears that the Aligned Parties did not remember the Stipulated Agreement until the commencement of the final hearing. They did not object before then to any of the evidence which Angelo's had prepared or intended to prepare for hearing on the basis that it violated the terms of the Stipulated Agreement. At the commencement of the hearing, Nestlé argued that the Stipulated Agreement barred Angelo's from revising its application or presenting new support for its project at the final hearing. The Stipulated Agreement is unusual and the necessity for Angelo's to make any concessions to the Aligned Parties in order to obtain their agreement to an abeyance was not explained. Allowing an applicant time to amend a permit application is usually good cause for an abeyance. The Stipulated Agreement allowed Angelo's to continue to respond to issues raised by the Department. Angelo's contends that all of the evidence it presented at the final hearing qualifies as a response to issues raised by the Department. The Proposed Landfill Angelo's applied to construct and operate a Class I landfill with associated buildings and leachate holding tanks. Application No. 22913-001-SC/01 corresponds to the construction permit application and Application No. 22913-001-SO/01 corresponds to the operation permit application. A Class I landfill is a landfill authorized to receive Class I waste, which is solid waste from households and businesses. Class I waste does not include hazardous waste, yard waste, or construction and demolition debris. See Fla. Admin. Code R. 62-701.200(13) and (14). The proposed landfill would be approximately 30 acres in size. It is part of a 1,020-acre parcel owned by Angelo's that is west of County Road 35 and south of Enterprise Road in Pasco County. The site is currently leased for cattle grazing and hay and sod production. There are also spray fields, orange groves, and a pond on the 1,020-acre parcel. Angelo's would construct the landfill by first clearing the 30-acre site. It would then excavate and fill to create the design subgrade or floor of the landfill with slopes required for the liner system. The subgrade would be compacted with a vibratory roller. After the subgrade compaction, the grouting plan would be implemented. The grouting plan calls for grouting 39 subsurface locations on the site that have voids, loose soils, or other unstable characteristics. A liner system would be installed after the grouting is completed and the subgrade is finished. From the bottom upward, the liner system would begin with a 12-inch layer of clay, over which a reinforcement geotextile would be installed, followed by another 12-inch layer of clay. This reinforcement geotextile is in addition to the double liner system required by Department rule. Its purpose is to maintain the integrity of the liner system in the event that a sinkhole occurs beneath the landfill. Installed above the reinforcement geotextile and clay layer would be a 60-millimeter high-density polyethylene ("HDPE") geomembrane, followed by a HDPE drainage net. These last two components comprise the secondary leachate collection system. Above the HDPE drainage net would be the primary leachate collection system, consisting of another 60-millimeter HDPE geomembrane and HDPE drainage net, followed by a geotextile, then a 12-inch sand layer for drainage, and an additional 12-inch sand layer for protection against puncture of the HDPE liner. A 48-inch layer of selected waste, free of items that could puncture the liner, would be the first waste placed over the primary leachate collection system. "Leachate" is "liquid that has passed through or merged from solid waste and may contain soluble, suspended, or miscible materials." See Fla. Admin. Code R. 62-701.200(66). Leachate would be collected through a system of perforated pipes that empty into a sloping trench with a leachate collection pipe. The leachate collection pipe would run down the center of the landfill to the lowest point where a pump would send the collected leachate through a force main 0.25 miles to storage tanks. Five above-ground storage tanks would be installed on a concrete pad with capacity to store 90,000 gallons of leachate. The stored leachate would be periodically transported to an offsite location, such as a wastewater treatment facility, for disposal. Sinkholes and Karst The terms "sinkhole" and "sinkhole activity" are not defined by Department rule, but the statutory definitions in chapter 627, a chapter dealing with insurance coverage for homes and other buildings, are generally consistent with the scientific meanings of these terms. The term "sinkhole" is defined in section 627.706(2)(h) as: a landform created by subsidence of soil, sediment, or rock as underlying strata are dissolved by groundwater. A sinkhole forms by collapse into subterranean voids created by dissolution of limestone or dolostone or by subsidence as these strata are dissolved. The term "sinkhole activity" is defined in section 627.706(2)(i) as: settlement or systematic weakening of the earth supporting the covered building only if the settlement or systematic weakening results from contemporaneous movement or raveling of soils, sediments, or rock materials into subterranean voids created by the effect of water on a limestone or similar rock formation. Sinkholes occur throughout Florida. There have been many reported and confirmed sinkholes in Pasco County. The more common type of sinkhole that has occurred on the Brooksville Ridge is a "cover subsidence" sinkhole, which is caused by voids in the limestone and the downward movement--"raveling"--of overlying soils into the cavity. Eventually, the loss of soils in the raveling zone will propagate upward until the soils at the ground surface also move downward and a depression is formed at the surface. Cover subsidence sinkholes develop slowly and are usually small, less than ten feet in diameter. Less common are "cover collapse" sinkholes, which can form in a matter of days or hours as the result of the collapse of the "roof" of a dissolved cavity in the limestone. These sinkholes are usually large and deep. The occurrence of a sinkhole does not always mean that areas near the sinkhole are unstable. However, the occurrence of a sinkhole is reasonable cause for concern about the stability of nearby areas and a reasonable basis for the Department to require thorough geologic investigations. "Karst" refers to limestone that is undergoing dissolution and it is common in Florida. A sinkhole forms in karst. "Epikarst" is limestone that was weathered while exposed above sea level millions of years ago before being submerged again. It is generally softer and more permeable than unweathered limestone. "Paleokarst" refers to karst that is very old in geologic time. Paleosinks are old sinkhole features in the paleokarst. A paleosink may no longer be unstable because it has been filled in for thousands or millions of years. A "lineament," or a "photolineament," is a relatively straight line seen in the topography or aerial photographs of the ground surface in an area. It might be defined by soil color, sloughs, ponds, wetlands, or other land features that follow a linear path. Lineaments are sometimes, but not always, associated with subsurface fractures in the bedrock where one would expect to also find active karst, sinkholes, and relatively rapid groundwater flow. Even where there is no lineament, there can be fractures in limestone that, when extensive enough, will allow for "fractured," "preferential," or "conduit flow" of groundwater. Fractured flow can occur in a small area or may go on for miles. Springs in Florida are usually associated with fractured flow or conduit flow that allows groundwater to move through the aquifer a long distance relatively rapidly, in weeks rather than decades. Geotechnical Investigation The Department's rules require subsurface conditions to be explored and described, including soil stratigraphy, soft ground, lineaments, and unstable areas, but the rules do not require the application of any particular geologic testing technique. An applicant's testing program is primarily a function of the professional judgment of the applicant’s geologist in cooperation with Department staff. The amount of geological testing done by Angelo's during its initial testing was similar to what was done for recent landfill applications. Angelo's conducted additional testing to respond to Department concerns and to prepare for the final hearing in this case, making the total amount of testing at Angelo's proposed site more extensive than is usual for a proposed landfill. The geologic investigation conducted by Angelo's experts to determine subsurface features, including any sinkholes, employed several technologies. Split Spoon Penetrometer Test (SPT) or SPT borings were drilled with a drill rig that advances a split spoon sampler into the ground with a 140 pound hammer. The hammer is dropped 30 inches and the number of blows required to drive the sampler each successive 12 inches is referred to as the "N" value and indicates soil strength and density. The higher the N value, the denser the soil. When the material is so dense the drill rod cannot (essentially) be hammered deeper, the N value is shown as "R," which stands for "refusal." SPT Bore logs also note any observed "weight of hammer," "weight of rod," or "loss of circulation." These terms describe areas where the drilling encounters very soft material or voids. Weight of rod, for example, means the weight of the drilling rod, by itself, with no hammer blow, was enough to cause the rod to fall deeper through the soil or rock. Cone Penetrometer Test ("CPT") borings were also conducted. CPT borings are relatively shallow, performed with a hand-held rod and special tip that the operator pushes into the ground. The CPT equipment continuously measures and records tip resistance and sleeve resistance as the rod moves downward through soils. It is helpful in some applications, but is less precise in determining soil type, strength, and compressibility than SPT borings and cannot be used to explore deep zones. Ground penetrating radar ("GPR") studies were used. GPR equipment transmits pulses of radio frequency waves into the ground. The manner in which the radio waves are reflected indicates the types of soil and rock encountered. It can also detect cavities and other features that would suggest karst activity. When the GPR identifies geologic features of interest, they can be further investigated with SPT borings. Another investigative tool used by Angelo's was Multiple Electrode Resistivity ("MER"). MER uses a grid of wires and electrodes and the equipment interprets the resistivity of electrical signals transmitted through the subsurface. MER data can be displayed in a two dimensional or three dimensional format, depending on the software program that is used to process the data. Like GPR, MER is useful for indentifying geologic features of interest that can be further explored with SPT borings. However, GPR generally has good resolution only near the ground surface, while MER has good resolution to a depth of 100 feet. The Regional Geology The proposed site is in a geologic transition zone on the eastern flank of a regional, geological feature known as the Brooksville Ridge. It is a transition zone for both the Suwannee Limestone and Hawthorn Group. The Brooksville Ridge was formed when it was part of the coastline. In its geologic past, the Brooksville Ridge experienced sea level changes, weathering, erosion of sediments, and beach reworking. The general layering of geologic features on the Brooksville Ridge, from the top down, begins with topsoil and a layer of sand. Under the sand layer is the Hawthorn Group, an older geologic layer consisting of a heterogeneous mix of limestone, clays, and sands which generally range in depth from slightly under 60 feet to 80 feet or more. It was formed by river and wind erosion, flushing, and re-deposition in a beach dune environment. Below the Hawthorn Group is the Suwannee Limestone Formation, which is present throughout eastern Pasco County. The upper surface of the Suwannee Limestone Formation is undulating, due to a gradual chemical weathering of its upper surface, representing a "paleokarst environment." Underlying the Suwannee Limestone Formation is the Ocala Limestone Formation. It extends throughout most of Florida. It is composed of nearly pure limestone and is considered the Floridan Aquifer. It extends across the site’s subsurface. Angelo's used the Florida Geologic Survey's data base to determine there are six sinkholes within five miles of the proposed landfill. A seventh sinkhole, not in the data base, is the 15- foot sinkhole at the Angelo's Enterprise Road Facility landfill, a Class III landfill (yard waste and construction and demolition debris) about a mile northwest of the proposed site. Angelo's contends that the sinkhole at its Class III landfill was "induced" during construction of the facility by the diversion of stormwater runoff to an area where overburden had been removed. The average diameter of the seven sinkholes is 11.9 feet. The Geology of the Proposed Site Rule 62-701.410(2)(c) requires a geotechnical site investigation and report, which shall: Explore and describe subsurface conditions including soil stratigraphy and ground water table conditions; Explore and address the presence of muck, previously filled areas, soft ground, lineaments, and sinkholes; Evaluate and address fault areas, seismic impact zones, and unstable areas as described in 40 C.F.R. 258.13, 258.14 and 258.15; Include estimates of the average and maximum high ground water table across the site; and Include a foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the landfill. It may include geotechnical measures necessary to modify the foundation to accommodate the imposed loads and stresses. The foundation shall be analyzed for short-term, end of construction, and long-term stability and settlement conditions. Considering the existing or proposed subgrade conditions and the landfill geometry, analysis shall include: Foundation bearing capacity; Subgrade settlements, both total and differential; and Subgrade slope stability. Angelo's conducted a geotechnical site investigation, but it was not adequate, as discussed below and in sections I. and J. The proposed landfill site is geologically complex, having features that are discontinuous horizontally and vertically. The site has karst features or areas where the limestone has dissolved. There is a clay layer in some areas, but it is not continuous and its depth and thickness vary. There are deposits of hard and soft sands at various depths. There are pinnacles of limestone surrounded by softer materials. Photographs from a quarry called the Vulcan Mine, located on the western flank of the Brooksville Ridge, show exposed features in the top 20 to 30 feet of the Suwannee Limestone in the region. The features at the Vulcan Mine are roughly similar to features at the Angelo's site. There are a number of shallow depressions on the surface of the ground on the Angelo's site. The origin and significance of these depressions was a matter of dispute. The Aligned Parties believe they represent sinkhole activity, but the evidence presented did not rise to the level of proof. However, Angelo's did not prove they were unassociated with geotechnical issues that could affect the proposed landfill. Angelo's offered no reasonable explanation for the depressions. Determining the exact cause of the depressions may not be possible even with more extensive investigation, but it was Angelo's responsibility as the permit applicant, pursuant to rule 62-701.410(2)(c), to make a greater effort to account for them. Angelo's initial permit application identified two intersecting lineaments on Angelo's property, based on aligned lowlands, enclosed valleys, and ponds. Angelo's contends the lineaments do not reflect an unstable subsurface or fractured limestone. The Aligned Parties contend that the lineaments are regional features and reflect fractures in the bedrock. They also contend that the onsite pond, which is located along the lineament, is an old sinkhole. The Aligned Parties did not prove the proposed landfill site is above an area of fractured bedrock, but the evidence presented by Angelo's was incomplete and insufficient to show there are no fractures. The limestone on the site was not adequately investigated for voids and fractures. Angelo's did not refute the possibility that the lineaments reflect a significant subsurface feature that could affect both site stability and groundwater movement. The Regional and Local Hydrogeology Rule 62-701.410(1) requires a hydrogeological investigation and site report, which shall: Define the landfill site geology and hydrology and its relationship to the local and regional hydrogeologic patterns including: Direction and rate of ground water and surface water flow, including seasonal variations; Background quality of ground water and surface water; Any on site hydraulic connections between aquifers; For all confining layers, semi-confining layers, and all aquifers below the landfill site that may be affected by the landfill, the porosity or effective porosity, horizontal and vertical permeabilities, and the depth to and lithology of the layers and aquifers; and Topography, soil types and characteristics, and surface water drainage systems of the site and surrounding the site. Include an inventory of all the public and private water wells within a one-mile radius of the proposed landfill site. The inventory shall include, where available: The approximate elevation of the top of the well casing and the depth of each well; The name of the owner, the age and usage of each well, and the estimated daily pumpage; and The stratigraphic unit screened, well construction technique, and static water levels of each well. Identify and locate any existing contaminated areas on the landfill site. Include a map showing the locations of all potable wells within 500 feet of the waste storage and disposal areas to demonstrate compliance with paragraph 62- 701.300(2)(b), F.A.C. Angelo's conducted a hydrogeological investigation, but it was not adequate, as discussed below. Angelo's and the Aligned Parties disputed the hydrogeological characteristics of the proposed landfill site and region. The principal disputes related to the direction and velocity of groundwater flow. Angelo's contends that groundwater flows from the landfill site to the west, making the proposed landfill site part of the Withlacoochee River groundwater basin. The Aligned Parties contend that groundwater flows south toward Crystal Springs and, therefore, the site is within the "springshed" of Crystal Springs. A United States Geological Survey map of the Crystal Springs springshed shows Angelo's proposed landfill site within the springshed. A springshed study done for SWFWMD also indicates the site is within the Crystal Springs springshed, but the District has not always been consistent in its statements about the groundwater basin boundaries in this area. A water chemistry analysis of the groundwater in the area of Angelo's proposed landfill indicates that the site is an area of higher recharge and within the Crystal Springs springshed. The springshed boundary can shift, depending on rainfall. Angelo's hydrogeological evidence was not sufficient to refute the reasonable possibility that the proposed landfill site is within the Crystal Springs springshed. Therefore, the Department's determination whether Angelo's has provided reasonable assurances must account for the threat of contamination to Crystal Springs and the other public and private water supply sources to the south. There are no creeks or streams and only a few lakes in the area between Crystal Springs and the Angelo's site. The absence of surface runoff features indicates it is an area of high recharge to the groundwater. Crystal Springs is in an area of conduit flow. The hydrologic investigation conducted by Angelo's was not thorough enough to characterize surficial aquifer flow and flow between aquifers. The preponderance of the evidence shows more groundwater recharge to the Floridan Aquifer in the area than estimated by Angelo's. Angelo's hydrogeological investigation was inadequate to refute the possibility of fractured flow or rapid groundwater movement at the proposed landfill site. Angelo's contends there is a continuous clay confining layer that would prevent contamination from moving into deep zones, but the preponderance of the evidence shows discontinuity in the clay and large variations in thickness and depth. The landfill's impermeable liner will impede water movement downward from the landfill, but groundwater will still recharge from outside the landfill to carry any contaminants deeper. If fractured flow or conduit flow extends south from the proposed landfill site, any leachate released into the groundwater beneath the landfill could travel rapidly toward the water supply sources of the City of Zephyrhills, Crystal Springs, Nestlé, and the City of Tampa. Whether the Proposed Landfill is in an Unstable Area Rule 62-701.200(2)(a) prohibits the storage or disposal of solid waste "[i]n an area where geological formations or other subsurface features will not provide support for the solid waste." However, the Department has adopted by reference a federal regulation, 40 C.F.R. 258.15, which allows a landfill to be constructed in a geologically unstable area if the permit applicant can demonstrate that engineering measures are incorporated into the design to ensure that the integrity of the landfill’s structural components "will not be disrupted." The parties presented evidence on many disputed issues of fact at the final hearing, but most of the case involved two ultimate questions: whether the proposed landfill site is unstable and, if so, whether Angelo's has proposed measures that would eliminate the unstable conditions and make the site suitable for a landfill. as: An "unstable area" is defined in 40 C.F.R. § 258.15 A location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terrains. There is overwhelming evidence that the proposed landfill site is an unstable area. A considerable amount of evidence presented by Angelo's supports this finding. For example, Angelo's experts agreed there are loose soils, evidence of raveling, and sinkhole activity. These conditions make the site susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from the proposed landfill. The Department's landfill permitting staff requested a sinkhole risk assessment from the Florida Geologic Survey ("FGS"). The State Geologist and Director of the FGS, Dr. Jonathan Arthur, believes the potential for sinkhole formation at the proposed site is moderately high to high. That potential is consistent with the characterization of the area as unstable. Whether the Proposed Engineering Measures Are Adequate Because the site is unstable, Angelo’s must demonstrate that engineering measures have been incorporated into the landfill's design to ensure that the integrity of its structural components will not be disrupted. See 40 C.F.R. § 258.15(a). The engineering measures proposed by Angelo's are discussed below. Because it was found that Angelo's hydrogeological and geotechnical investigations were not sufficient to characterize all potentially unstable features of the subsurface, it was not demonstrated that the proposed engineering measures would overcome the instability and make the site suitable for a landfill. Roller Compaction Angelo's would use roller compaction on the graded floor of the landfill to compact the soils to a depth of about five feet and eliminate any voids within that depth. The Aligned Parties did not contradict Angelo's evidence that its proposed roller compaction will be done in a manner exceeding what the Department usually requires as far as roller force and the number of roller "passes." However, roller compaction will not affect deep voids. Liner System In order to ensure that the landfill’s liner system components will not be disrupted in the event of a sinkhole, Angelo’s proposes to include the reinforcement geotextile discussed above. The Department previously approved the use of geotextile reinforcement, combined with grouting, to demonstrate site stability for the Hernando County Northwest Landfill, which had a comparable risk of sinkhole formation according to the Department. The reinforcement geotextile can span a 15-foot diameter sinkhole without failure. As found above, the average diameter of the seven sinkholes within five miles of the proposed landfill is 11.9 feet. Angelo's proved that the proposed liner system meets all applicable criteria, except the requirement of rule 62- 701.400(3)(a) that the liner be installed upon a geologically stable base. Grouting Plan Angelo's grouting plan would be implemented to fill voids and stabilize areas of loose or weak material. The grouting plan was first designed to grout all locations where there was a Weight of Hammer, Weight of Rod, Loss of Circulation, or loose sands, as indicated by a low blow count. Angelo's revised the grout plan to include several more areas of concern identified later, for a total of 39 locations. Each grout location would have seven grout points, one in the center and six others equally-spaced on a ten-foot radius from the center. If more than ten cubic yards of grout is needed, additional grout points further outward would be injected until the void or loose soils are filled or stabilized. Although Angelo's proposes to grout every boring of concern, that still ties the integrity of the grouting plan to the thoroughness of the borings. The geologic evidence indicates that there are unstable areas which the grouting plan does not address. The Aligned Parties' MER analysis was persuasive in identifying potential areas of instability that were omitted from Angelo's investigation and from its grouting plan. There are other unstable areas existing on the site that should be grouted or otherwise engineered to provide support for the landfill. The grouting plan does not provide reasonable assurance that the integrity of the structural components of the landfill will not be disturbed. Other Issues Raised by the Aligned Parties The Aligned Parties raise a number of other issues, some of which begin with the assumption that the site is unstable and a large sinkhole would form at the landfill. This sometimes mixes issues inappropriately. It has been found that Angelo's did not provide reasonable assurance that the site will support the proposed landfill, but other project elements must be reviewed on their own merits where possible, assuming the site was engineered for stability. Leachate Collection System There is a single leachate collection trench in the center of the two landfill cells, which makes the landfill operate much like a single cell. The two halves of the cell slope toward the center, so that leachate will drain to the leachate collection trench, and the entire landfill slopes to the west, so that the trench will drain to a sump from which the leachate is pumped to storage tanks. At full capacity, the landfill will generate about 40,000 gallons of leachate per day. Careful cutting and grading of the earth is necessary to create the slopes that are essential to the proper functioning of the project’s leachate collection system. Settlement analyses are necessary to assure that the slopes are maintained. Rule 62-701.410(2)(e) requires a foundation analysis which must include a study of "subgrade settlements, both total and differential." "Total settlement" refers to the overall settlement of a landfill after construction and the loading of solid waste. "Differential settlement" compares settlement at two different points. Angelo's did not meet its burden to provide reasonable assurance on this point. The settlement analysis conducted by Angelo's was amended two or three times during the course of the final hearing to account for computational errors and other issues raised by the Aligned Parties. The analysis never came completely into focus. The final analysis was not signed and sealed by a professional engineer. The settlement analysis is dependent on the geologic analysis, which is inadequate. Without adequate settlement and geologic analyses, it cannot be determined that leachate collection would meet applicable criteria. Storage Tanks The Aligned Parties contend that the leachate storage tanks cannot be supported by the site. Because it was found that Angelo's geologic investigation was not adequate to identify all unstable areas, it is also found that Angelo's failed to provide reasonable assurance that the site would support the leachate storage tanks. In all other respects, the Aligned Parties failed to refute Angelo's demonstration that the storage tanks would meet applicable criteria. Groundwater Monitoring Plan The Aligned Parties contend that there is an insufficient number of monitor wells proposed by Angelo's to detect a leak from the landfill and the wells are too shallow. Because it was found that Angelo's did not adequately characterize the geology and hydrology of the proposed landfill site, the monitoring plan does not provide reasonable assurance of compliance with applicable criteria. Cell Design The Aligned Parties contend that the "mega-cell" design proposed by Angelo's provides less flexibility to respond to and isolate landfill problems than other landfill designs with smaller cells, and the mega-cell design could generate more leakage. No evidence was presented to show whether Angelo's design was one that had been approved or rejected in the past by the Department. Although it is not the best landfill design, the Aligned Parties did not show that the proposed design violates any permitting criteria. Operation and Closure The evidence presented by the Aligned Parties in support of their issues regarding the operation of the proposed landfill, such as noise, odor, and traffic, was not sufficient to refute Angelo's evidence of compliance with applicable criteria, with one exception: Angelo's has not provided an adequate contingency plan to show how it would respond to a sinkhole or other incident that required the landfill to be shut down and repaired. Assuming the site was engineered to support the landfill, there is nothing about the Closure Plan that the Aligned Parties showed does not meet applicable criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny Angelo's Permit Application Nos. 22913-001-SC/01 and 22913- 002-SO/01. DONE AND ENTERED this 28th day of June, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2013. COPIES FURNISHED: Carl Roth, Qualified Representative 8031 Island Drive Port Richey, Florida 34668-6220 Christopher M. Kise, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 Wayne E. Flowers, Esquire Lewis, Longman and Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32202-4931 Janice M. McLean, Esquire City of Tampa 7th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 Joseph A. Poblick, Esquire City of Zephyrhills 5335 8th Street Zephyrhills, Florida 33542-4312 Doug Manson, Esquire William Bilenky, Esquire Brian A. Bolves, Esquire Manson Bolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 Jacob D. Varn, Esquire Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler, White, Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32302-1547 David Smolker, Esquire Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A. Suite 200 500 East Kennedy Boulevard Tampa, Florida 33602-4936 Stanley Warden, Esquire Christopher Dale McGuire, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On November 29, 1988, Respondent, Trans Pac, Inc., (Trans Pac), a development company, filed its initial application for a construction permit to build a hazardous waste treatment and storage facility in Escambia County, Florida. Trans Pac's stock is owned by James Dahl of Los Angeles, California. Trans Pac's president is Steven Andrews. Steven Andrews is also president of The Andrews Group, d/b/a Chemical Development Company. Chemical Development Company is in the business of developing hazardous waste facilities. Sometime after filing its application, Trans Pac advertised for interested persons to contact it about the possible sale of the facility. At the time of the hearing, Trans Pac had not had any serious offers for the property and had not finally decided whether it will sell the facility. Trans Pac is seriously considering a joint venture arrangement, although no specifics as to such an arrangement have been formalized or finalized. When consideration is given to the unripe nature of this "proposed sale", it cannot be concluded that the above facts constitute competent and reliable evidence which would support the conclusion that Trans Pac had failed to give such reasonable assurances that the facility would be operated in accordance with Florida law. Too much speculation is required before such a conclusion can be reached. However, Trans Pac has stipulated that it will publish a notice of any sale prior to the closing of that sale if that event should occur. The notice would be published in accordance with the provisions and time periods established in Rule 17-103.15, Florida Administrative Code, and should afford an affected person a reasonable time to challenge the sale before the sale closes. Any contract of sale would incorporate the notice requirements and the sale would be made contingent upon compliance with the above conditions. Such a notice would afford any affected person the opportunity to challenge the ability of the transferee to operate the facility. With the above stipulation made a part of any permit, there is no failure by Trans Pac to provide reasonable assurances that the facility will be operated in accordance with Florida law. Escambia County is within the West Florida Planning Region. The West Florida Planning Region consists of Bay County, Escambia County, Holmes County, Okaloosa County, Santa Rosa County, Walton County and Washington County. The proposed site for the facility is just outside the community of Beulah, on County Road 99, northeast of and adjacent to the Perdido Landfill. The site is not within, but adjacent to the area designated by the West Florida Regional Planning Council as an area on which a hazardous waste temporary storage and transfer facility could be located. 2/ The proposed site is approximately one mile away from the Perdido River, an outstanding Florida water. The area is primarily a rural area. When the proposed location of this facility was announced in the local news, the value of property around the proposed site decreased. One person, who was within a few miles of the proposed site, lost the contract of sale on his property and was advised by the purchasers that no reduction in price would renew their interest. Another individual's property in the same area decreased in value by approximately $10,000. Many people in the Beaulah area had their dreams and the quiet enjoyment of their property threatened by the location of this facility. Some cannot afford to sell their property and relocate. At present there is no mechanism by which any of the property owners in proximity to the proposed site can recoup their losses. Some property owners believe that such a mechanism should include the establishment of some type of independent trust fund funded with enough money to cover an estimate of such losses, and an independent review of any disputed claims of loss. However, there is no provision under Florida law to impose a permit condition which establishes a procedure to cover the pecuniary losses of property owners close to the facility. The proposed facility will be a permanent storage and treatment facility and will have a maximum waste storage capacity of 106,000 gallons and a maximum treatment capacity of 2,000 gallons per day for neutralization, 5,000 gallons per day for organic separation, 2,000 gallons per day for ozonation, and 4,000 gallons per day for solidification. Hazardous waste is a solid waste which exhibits one or more of the following characteristics: a) ignitability, b) corrosivity, c) reactivity, d) EP toxicity. Such waste can be further classified as a toxic waste or as an acute hazardous waste. 3/ An acute hazardous waste is a solid waste which has been found to be fatal to humans in low doses or, has been shown in studies to have an oral, inhalation or dermal toxicity to rats or rabbits at a certain level, or has been shown to significantly contribute to an increase in serious irreversible, or incapacitating reversible, illness. A toxic waste is any waste containing any one of a number of specified constituents. A "characteristic" of hazardous waste is identified and defined only when a solid waste with a certain type of characteristic may: a) cause or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or b) pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed, and the characteristic can be: a) measured by an available standardized test, or b) can be reasonably detected by generators of solid waste through their knowledge of their waste. Put simply, hazardous waste is very dangerous to both humans and the environment and will kill or permanently incapacitate living beings and/or make the environment unlivable. Such waste has the potential to create a hazardous waste desert. A solid waste has the characteristic of ignitability if: a) it is a liquid, other than an aqueous solution containing 24 percent alcohol, which has a flashpoint of 60.C (140.F), b) it is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited burns so vigorously and persistently that it creates a hazard, c) it is an ignitable compressed gas, or d) it is an oxidizer. A solid waste has the characteristic of corrosivity if: a) it is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5 (strong acids or bases), or b) it is a liquid and corrodes steel at a rate greater than 6.35 millimeters (0.250 inch) per year at a test temperature of 55.C (130.F). A solid waste has the characteristic of reactivity if: a) it is normally unstable and readily undergoes violent change without detonating, b) it reacts violently with water, c) it forms potentially explosive mixtures with water, d) when mixed with water, it generates toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment, e) it is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment, f) it is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement, g) it is readily capable of detonation or explosive decomposition or reaction at standard temperature and pressure, or h) it is a forbidden or Class B explosive as defined in another federal rule. A solid waste has the characteristic of EP toxicity, if, using certain test methods, the extract from a representative sample of the waste contains certain contaminants (arsenic, barium, cadmium, chromium, lead, mercury, selenium, silver, endrin, lindane, etc.) at a concentration greater than or equal to specified levels for that contaminant. Although the above definitions sound exotic, the wastes which are defined are more often than not the waste generated by routine, normal living. Such waste is the result of almost any type of motor vehicle or machinery maintenance, such as oil and battery changes, metals manufacturing and finishing services, including auto body repair services, transportation services, construction and building repair services, medical and laboratory services, boat building and repair services, dry cleaning, printing of newspapers and 4/ magazines or agriculture, such as gardening. Further, such waste is generated by almost every commercial business category. Almost every person is either directly responsible through use or manufacture, or indirectly responsible through demand for a product or life-style, for the generation of hazardous waste in small quantities. These small individual quantities of hazardous waste add up to a significant portion of all the hazardous waste generated in this state and a significant portion of this waste is not disposed of properly. Improper disposal includes sending the waste to a local landfill or pouring such waste down the drain. Trans Pac's proposed facility will not be permitted for radioactive waste. The types of waste which will be treated and/or stored at the proposed facility are: Singularly or in any combination: D002 Waste --- A solid waste that exhibits the characteristic of corrosivity, but is not listed as a hazardous waste in Subpart D of 40 CFR 261. D003 Waste --- A solid waste that exhibits the characteristic of reactivity, but is not listed as a hazardous waste in Subpart D of 40 CFR 261. D004 Waste --- EP toxicity, contaminant arsenic D005 Waste --- EP toxicity, contaminant barium D006 Waste --- EP toxicity, contaminant cadmium D007 Waste --- EP toxicity, contaminant chromium D008 Waste --- EP toxicity, contaminant lead D010 Waste --- EP toxicity, contaminant mercury D011 Waste --- EP toxicity, contaminant silver Singularly or in any combination: F001 Waste --- TOXIC -- Spent halogenated solvents used in degreasing: tetrachloroethylene trichloroethylene, 1,1, 1-trichloroethane, methylene chloride, carbon tetrachloride, and chlorinated fluorocarbons, all spent solvent mixtures/blends used in degreasing containing, before use, 10 percent or more of one or more of the above halogenated solvents or those listed in F002, F004, or F005; still bottoms from the recovery of these solvents and mixtures F002 Waste --- TOXIC -- Spent halogenated solvents: tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1- trichloroethane, chlorobenzene, 1, 1, 2-trichlor-1, 2, 2-trifluoroethane, ortho-dichlorobenzene trichlorofluoromethane, 1, 1, 2 - trichloroethane, spent solvent mixtures/blends containing, before use, a total of 10 percent or more of one of the solvents listed in F001, F004, F005; and still bottoms from the recovery of these spent solvents and mixtures F003 Waste --- IGNITABLE -- Spent non-halogenated solvents: xylene, acetone, ethyl acetate, ethyl benzene, ethyl ether, methyl isobutyl ketone, n-butyl alcohol, cyclohexanone, methanol, all spent solvent mixtures/blends containing, before use, one or more of the above non-halogenated solvents and a total of 10 percent or more of the solvents listed in F001, F002, F004, F005; and still bottoms from the recovery of these spent solvents and mixtures F004 Waste --- TOXIC -- Spent non-halogenated solvents: creosols and cresylic acid, nitrobenzene, spent solvent mixtures/blends containing, before use, a total of 10 percent or more of the above non-halogenated solvents or the solvents listed in F001, F002, F005; and still bottoms from the recovery of these spent solvents and mixtures F005 Waste --- IGNITABLE, TOXIC -- Spent non- halogenated solvents: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, benzene, 2-ethoxyethanol, 2- nitropropane, spent solvent Mixtures/blends containing, before use, a total of 10 percent or more of the above non-halogenated solvents or those solvents listed in F001, F002, F004; and still bottoms from the recovery of these spent solvents and mixtures F006 Waste ---TOXIC -- Wastewater treatment sludges from electroplating from certain specified processes Singularly or in any combination: F007 Waste --- REACTIVE, TOXIC -- Spent cyanide plating bath solutions from electroplating operations F008 Waste --- REACTIVE, TOXIC -- Plating bath residues from the bottom of plating baths from electroplating operations where cyanides are used in the process F009 Waste --- REACTIVE, TOXIC -- Spent cleaning and stripping bath solutions from electroplating operations where cyanides are used in the process F010 Waste --- REACTIVE, TOXIC --Quenching bath residues from oil baths from metal heat treating operations where cyanides are used in the process F011 Waste --- REACTIVE, TOXIC -- Spent cyanide solutions from salt bath pot cleaning from metal heat treating operations F012 Waste --- TOXIC --Quenching wastewater treatment sludges from metal heat treating operations where cyanides are used in the process Singularly or in any combination: Petroleum refining: K048 Waste --- TOXIC -- Dissolved air flotation (DAF) float from the petroleum refining industry K049 Waste --- TOXIC -- slop oil emulsion solids from the petroleum refining industry K050 Waste --- TOXIC -- heat exchanger bundle cleaning sludge from the petroleum refining industry K051 Waste --- TOXIC -- API separator sludge from the petroleum refining industry K052 Waste --- TOXIC --- tank bottoms (leaded) from the petroleum refining industry Iron and steel: K062 Waste --- CORROSIVE, TOXIC -- spent pickle liquor generated by steel finishing operations of facilities within the iron and steel industry Ink formulation: K086 Waste --- TOXIC -- solvent washes and sludges, caustic washes and sludges, or water washes and sludges from cleaning tubs and equipment used in the formulation of ink from pigments, driers, soaps and stabilizers containing chromium and lead Secondary lead: K100 Waste --- TOXIC -- wastewater leaching solution from acid leaching of emission control dust/sludge from secondary lead smelting The federal law which governs hazardous waste is the Resource Conservation and Recovery Act (RCRA) and its amendments. The RCRA was part of the initial federal effort to manage hazardous waste and expressed a clear preference for the reduction of hazardous waste over managing such wastes at treatment, storage or disposal facilities. The Act required EPA to develop a national plan to manage and regulate hazardous waste and provide states with incentives to develop state hazardous waste management plans. Most of the incentives were based on the availability of federal funds. The federal funds were contingent on the states assuring EPA that a particular disposal site would be available for disposal of any waste generated by a remedial action taken under the Act. In 1980, Congress passed the Comprehensive Emergency Response Liability Act (CERCLA). The Act granted EPA the authority and funds to respond to uncontrolled site cleanup, emergency remedial activities, spills and other incidents due to hazardous waste. 5/ As of November, 1989, five such remedial sites are located in Escambia County. The Act also defines the liability of businesses that generate, transport and dispose of hazardous waste. Generators of hazardous waste, generally, have "cradle to grave" liability for the waste they generate. In 1980, the Florida Legislature enacted the state's first hazardous waste law. The law primarily adopted the federal regulations and guidelines on hazardous waste and established separate procedures for permitting and site selection of hazardous waste facilities. The act also directed DER to develop and implement a state hazardous waste management plan. The portions of the 1980 law relative to site selection (403.723, Florida Statutes) provided a cabinet override of a local decision adverse to the location of a hazardous waste facility. In order to obtain a cabinet override, the facility had to have been issued a permit by DER. Need for a hazardous waste facility was not addressed in either the permitting or site selection processes of the Act. In 1983, the legislature passed the Water Quality Assurance Act. The Act amended 403.723, Florida Statutes, to provide that each county prepare a Hazardous Waste Facility Needs Assessment and "designate areas within the County at which a hazardous waste storage facility could be constructed to meet a demonstrated need." The Act further provided in 403.723, Florida Statutes, that, after the counties had completed their assessments, each regional planning council, likewise, would prepare a regional Hazardous Waste Facility Needs Assessment and "designate sites at which a regional hazardous waste storage or treatment facility could be constructed." The regional Assessment included a determination of the quantities and types of hazardous waste generated in the region, a determination of the hazardous waste management practices in use within the region, a determination of the demand for offsite hazardous waste management services, a determination of existing and proposed offsite management capacity available to hazardous waste generators, a determination of the need for additional offsite hazardous waste facilities within the region, and the development of a plan to manage the hazardous waste generated in the region and/or to provide additional offsite hazardous waste treatment or storage facility needs. As noted earlier, these plans and designations were required to be made part of the county and regional comprehensive plans. The regional Assessment was completed by the West Florida Regional Planning Council in August of 1985. The assessment was based on a survey of suspected hazardous waste generators in the region. An overall response rate of 76.8 percent was received. The study showed that all types of hazardous waste, except for cyanide waste, are generated within the West Florida Planning Region. 6/ The quantity of hazardous waste produced annually within the region was estimated to be 14,245,064 pounds. The estimates for each County were as follows: Escambia County, 4,582,872 pounds; Okaloosa County, 3,203,534 pounds; Bay County, 2,433,343 pounds; Santa Rosa County, 1,866,831 pounds; Holmes County, 381,840 pounds; Walton County, 229,984 pounds; and Washington County, 170,244 pounds. Based on the survey responses, the study estimated that 11,903,738 pounds (83.6%) of hazardous waste generated annually within the region was not being properly treated or disposed of. The vast majority of the waste (78.1%) found to be improperly treated was a combination of waste oils and greases, spent solvents, and lead-acid batteries. Neither the waste oil and greases or lead- acid batteries are wastes which will be managed at the proposed Trans Pac facility. The study found that a recycling or reuse market existed for waste oil and greases, spent solvents and lead-acid batteries; and therefore, there was no need for a transfer/temporary storage facility. The remaining 2,602,630 pounds of hazardous waste not being properly managed was generated by both large and small quantity generators and is subject to a variety of appropriate waste management methods. The management plan adopted by the West Florida Regional Planning Council sought to encourage first waste reduction, second waste recycling, reuse or recovery, third onsite treatment or incineration methods, and fourth transporting wastes to offsite temporary storage facilities. One of the goals of the plan was to discourage, as much as possible, the importation of hazardous waste from outside the region, and particularly, with the close proximity of the Alabama state line, from outside the state. The plan concluded that due to the small quantity of mismanaged hazardous waste in the region there was no need for a permanent treatment and storage facility. The only need found to exist within the region was for a temporary transfer and storage facility. That need has since been met by a temporary transfer and storage facility located in Pensacola, Florida. 7/ However, Escambia County issued a Certificate of Need for a hazardous waste transfer, storage and treatment facility to Trans Pac on February 28, 1989. The Certificate of Need was issued pursuant to County Ordinance Number 85-7. The ordinance provides in relevant part that a Certificate of Need may be issued upon the Board's determination that the service or facility for which the certificate is requested "answers a public need, is necessary for the welfare of the citizens and residents of the county, is consistent with any solid waste management plan adopted pursuant to [this ordinance], and will not impair or infringe on any obligations established by contract, resolution, or ordinance." The ordinance further provides that no Certificate of Need may be denied solely on the basis of the number of such certificates in effect at the time. The issuance of that certificate appears to have been granted on the sole representations of need given by Trans Pac to gain issuance of the certificate and at a time when the Board's attention and consideration of the facility was on matters other than the true need as established in the regional plan or the exact service Trans Pac would actually provide. The evidence suggests that no formal or informal investigation of Trans Pac's representations or on the actual need of the region was conducted by the Board. Such an investigation was informally conducted by some of the Board members after the proposed facility became apparent to members of the public. The members of the public raised a great hue and cry of opposition towards the construction of the facility and prompted a closer look at Trans Pac's representations. The Board members who did conduct the informal investigation found there was no need for the facility within the county or region and discovered that the Certificate of Need had been issued in error. No evidence was presented that the County had ever formally rescinded the issuance of Trans Pac's certificate. However, the evidence did show that there was a de facto rescission of Trans Pac's certificate when the County authorized the filing of this administrative action. 8/ Trans Pac would have the ability to treat and store some of the waste generated in the region and some waste which is not generated in the region. Trans Pac would not treat or store a large part of the waste generated in the region. The small amount of regional waste which Trans Pac would be capable of handling would not be profitable. In order to be profitable, most of Trans Pac's waste would have to come from outside the region and/or the State. In 1986, Congress passed the Superfund Amendments and Reauthorization Act (SARA). The Act amended CERCLA to provide that, three years after the Act's effective date, a state could not receive any superfund monies unless the state entered into an agreement with the President providing assurance of the availability of hazardous waste treatment or disposal facilities which would have enough capacity for the treatment, disposal or storage of all hazardous waste generated within the state over the next 20 years. SARA was enacted because Congress did not believe that Superfund money should be spent in states that were taking insufficient steps to avoid creation of more superfund sites. Such steps included some provision for the future secure disposal or management of hazardous waste generated within that state. It was feared that certain states, because of public opposition and political pressure, could not create and permit enough hazardous waste facilities within their borders to properly manage, either through disposal or treatment, the hazardous waste generated within those states. Put simply, SARA requires each state to keep its own house clean and be responsible for the hazardous waste generated within its borders. SARA did not require the states to develop or permit hazardous waste facilities. The Act only required that each state provide assurances that the state possessed the capacity to manage or securely dispose of hazardous waste produced in that state over the next 20 years. Such assurances could take the form of developing hazardous waste treatment and storage facilities within that state's borders or by exporting its waste to another state. However, in order to provide adequate assurances of capacity if a state chose to export its hazardous waste, that state must enter into an interstate or regional agreement with the importing state. Such agreements could include contracts to ship hazardous waste to public or private facilities. Other assurances of capacity could be obtained through programs for the reduction of hazardous waste within the state. Whatever method of assurance adopted by a state, the goal of SARA was to force the states to provide assurances that their legislative program for the management of hazardous waste generated within their borders could work and would be used. In October, 1979, Florida entered into a Capacity Assurance Plan (CAP) with the President. The CAP established and implemented the statewide management plan required under the state statutes described earlier and under the SARA. The CAP is made up of four major components and includes a regional agreement between Florida and the other EPA Region IV Southeastern States. The four major components of the CAP are: 1) an assessment of past hazardous waste generation and capacity at facilities within or outside of Florida; 2) documentation of any waste reduction efforts that exist or are proposed for the future; 3) future projections of waste generation and capacity either within or outside of Florida and an assessment of any capacity shortfalls; and 4) descriptions of plans to permit facilities and a description of regulatory, economic, or other barriers which might impede or prevent the creation and permitting of such new facilities. The data gathered for the CAP showed that Florida currently has and will have a shortfall in its capacity to properly manage and dispose of its own hazardous waste. Therefore, Florida must provide and implement a way to increase its capacity for the management and disposal of the waste it now generates and will generate in the future or lose its funding for cleanup of superfund sites. Florida's plan to meet that shortfall consists of the interstate agreement, a commitment to a multistate treatment and storage facility and underfunded and understaffed incentives to reduce the generation of hazardous waste. The interstate agreement between the EPA Region IV Southeastern States is an effort at cooperative planning between these states for the management of hazardous waste. In reality, every state, including Florida, imports some hazardous waste from other states. Florida's imports are predominantly spent solvents and waste which can be burned as fuel. All of the imported waste was treated at recovery facilities located within the state. The majority of these imports came from Alabama, Georgia, Louisiana, Virginia and South Carolina. However, even with these imports, Florida is primarily an exporter of hazardous waste. The main recipients of Florida's exports are Alabama and South Carolina. 9/ The agreement, therefore, includes provisions on applicable interstate waste flow characteristics and quantities and on projected exports and imports between and among the participating states. The agreement provides that hazardous waste facilities presently exist or will be created and permitted to manage such exported waste. Besides the interstate agreement, Florida's plan includes a commitment to permit a multipurpose hazardous waste storage and treatment facility. The site selected for the facility is located in Union County. The permit has not yet been issued for this facility. However, the application for the facility is being processed by DER under the special statutes dealing with the Union County facility. Trans Pac's proposed facility is not required for the state to meet its assurances under the CAP entered into with the President. The hoped for benefit of the commitment to a statewide multipurpose facility is to allow Florida to reduce the amount of waste requiring export, but, at the same time allow enough waste to be exported, in accordance with the interstate agreement, to supply a sufficient waste stream to facilities in other states which need such additional waste in order to stay open. Florida's CAP also includes a waste reduction plan. The waste reduction plan is embodied in its Waste Reduction Assistance Program. The philosophy of the program is that recycling (particularly waste oil) and reduction of hazardous waste will produce greater long term across-the-board cost savings to both business and government, as well as the obvious benefit of having less of this very dangerous pollutant around in the environment. The program is not mandatory and is information-oriented. It consists of technical assistance, limited economic incentives (some of which have not been funded by the legislature), research and development, education and a waste exchange program operated by FSU and the Chamber of Commerce. The waste exchange program puts businesses in touch with other businesses who can use their waste for recycling or recovery. Additionally, in conjunction with Florida's CAP, the legislature passed Senate Concurrent Resolution #1146. The resolution states in part that, except for the siting of the Union County facility, "the Legislature has not and does not intend to enact barriers to the movement of hazardous waste and the siting of hazardous waste facilities for the storage, treatment, and disposal, other than land disposal, of hazardous waste." As can be seen from an overview of Florida's CAP, Trans Pac's proposed facility, while not being directly a part of the CAP, will have an impact on the implementation of that plan should state need not be a criteria for the issuance of a permit. A few of these potential impacts are listed below. First, a facility the size of Trans Pac's proposed facility has the potential to divert some waste away from the proposed Union County facility and may cause that facility to be unprofitable and inoperable. Second, Trans Pac's proposed facility may enable the State to handle more of its waste within its borders, thereby reducing its exports and Florida's dependency on the good offices of other states. Such reduction may or may not have an adverse impact on the interstate agreement contained in the CAP if Florida cannot meet the amount of waste established for export under that agreement. Third, Trans Pac's proposed facility has the potential to decrease the effectiveness of the State's hazardous waste reduction program by encouraging the use of its facilities instead of reduction, recycling or recovery methods. Such a decrease would be highly dependent on the prices charged by various hazardous waste facilities vis. a vis. reduction, recycling or recovery expenses, the cost of transportation to the various types of facilities, and the ease of use among the various types of facilities and reduction methods. Fourth, not considering at least the needs of the State for a hazardous waste facility allows the state to become a dumping ground for hazardous waste generated in other states. 10/ No evidence was presented on any of these points and because of the conclusions of law such an issue is not ripe for consideration in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order granting the application of Trans Pac, Inc., for a permit to construct a hazardous waste treatment and storage facility in Escambia County, Florida subject to a permit condition requiring a pre-sale notice as described in this Recommended Order. DONE and ENTERED this 16th day of April, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990.
