Findings Of Fact As a part of its solid waste disposal program, the City of Naples operates a yard trash compost site adjacent to the Gordon River within the city limits. A fifteen (15) acre site has been leased from a private owner, and the lease requires that the City operate the site in compliance with permitting requirements. The site is intended to received only horticultural yard trash. The City picks up such trash in trucks, and delivers it to the site. Cells, or ditches, have been excavated at the site to a depth of approximately six (6) feet. The trash is deposited into the cells. The cells are excavated to a depth below the ground water level, so the trash is placed directly into the ground water. Although only horticultural yard trash is intended to be disposed of at the site, and although the City attempts to enforce this intention, household garbage including food waste frequently finds its way into the cells. The City has been utilizing this site in this manner for approximately fifteen (15) years, and for at least the past ten (10) years has operated under all required local and state permits. The City is presently operating the site in accordance with a permit issued by the Department of Environmental Regulation on December 31, 1976. The permit expires on January 1, 1980. Sometime in February, 1979, the Department first gave notice to the City that the yard trash compost site was not being operated in conformity with all applicable rules and regulations. Specifically the Department advised the City that the site violated the provisions of Rule 17-7.04(2)(a), Florida Administrative Code, because solid waste was deposited within 200 feet of a natural water body (the Gordon River) and Rule 17-7.04(2)(f), because solid waste was deposited in an area where the water table was less than five (5) feet below the normal ground surface. Rule 17-7.04(2)(f) was modified during the course of this variance application proceeding. The rule now requires that solid waste not be deposited directly into the ground water. The City's site neither conformed with the rule in effect in February, 1979, nor with the present modified rule. The Department and the City agreed that the City could continue to operate the site pending the completion of this proceeding, and, until all present cell excavations are filled. Yard trash compost sites such as that operated by the City do not involve as profound a threat to water quality as do more generalized solid waste disposal sites. Nonetheless placing of large quantities of yard trash at or in water bodies will cause infusion of large quantities of nutrients into the water body. The composting or breaking down of yard trash can take place under either aerobic or anaerobic conditions. Aerobic decomposition takes place where vegetation is exposed to oxygen. Anaerobic decomposition takes place where there is no oxygen. If vegetation is covered by water or soil it will not have oxygen. The materials will only partially decompose through a process called fermentation. Such material, when not fully decomposed, cannot be fully compacted nor reduced in volume as would happen with aerobic decomposition. The system utilized by the City of Naples therefore will result in a springy texture to the area. When decomposition takes place above ground, and vegetation is exposed to oxygen, the Vegetation can break down into its primary elements, resulting in a humus material which can be utilized to condition soil, and which will become part of the soil and stabilize the soil. The City's method of disposal introduces very concentrated amounts of organic substances into the ground water. There is thus a large increase in nitrogen and phosphates in the ground water. Placing such large quantities of organic material into the ground water effectively pollutes the ground water. There is a shallow water aquifer below the surface level at the trash compost site. Below this aquifer is a layer of sand, marl and rock which is not highly permeable. Below this layer lies a second aquifer which is an important source of drinking water in the area. Trash at the compost site under the City's present system is deposited directly into the upper aquifer. This water flows either into the Gordon River adjacent to the site, or more slowly permeates down into the lower aquifer. Placing the organic materials into the ground water thus constitutes a serious source of pollution either to the Gordon River, or to the lower aquifer, or to both. Certainly it serves to profoundly degrade the water quality of the ground water. The City has operated two (2) test wells adjacent to the site for the past eighteen (18) months. Results of samples taken from these test sites are inconclusive, and do not reveal that the City's disposal system has caused any pollution whatsoever. This does not mean, however, that no adverse impact could have been detected, or that none has taken place. The City's test wells were not placed so that they would intercept the flow of ground water from the site. Even if they had been so placed, testing has taken place only every six (6) months, and not in a manner so that any viable conclusions can be reached. The Department has recently installed test wells, and although data from them is not complete, it does reveal a definite flow of pollutants from the site to the test wells. Although the flow of ground water will serve to dilute the pollutants to some degree, it is inevitable that the ground water supply itself will be degraded, and that eventually either the waters of the Gordon River or of the lower aquifer will also be adversely affected. Under its present system the City estimates that it will be able to utilize the compost site for eight more years. The City has contended that operating the site as an above ground compost site would effectively cut in half the time period over which the site could be utilized and would increase the cost of maintaining the site by requiring additional equipment, and eventually requiring additional equipment for the transporting of yard trash to a remote site. These contentions are not supported by the evidence. In the first place the City could save money in operating the site as an above ground composting site because it would not be necessary to make excavations. Furthermore, above ground composting of the materials would result in usable compost which could be sold as land fill. This could constitute a source of revenue, and also open the site for additional usage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered granting the variance application filed by the City of Naples with respect to its request to be relieved from the requirements of Rule 17-7.04(2)(a), with conditions imposed as set out in the Department's notice dated June 21, 1979 (DER Exhibit 4). That a final order be entered denying the exemption request filed by the City of Naples with respect to the requirements of Rule 17-7.04(2)(f). RECOMMENDED this 28th day of November, 1979, in Tallahassee, Florida. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David W. Rynders City Attorney City of Naples 735 8th Street South Naples, Florida 33940 Ray Allen Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is liable to Respondent for costs it incurred in removing a drum containing gasoline and water that was located on Petitioner’s property.
Findings Of Fact At all times relevant to this proceeding, Petitioner owned a house (Petitioner's property or site), located at 217 20th Avenue North, St. Petersburg, Florida. The back of Petitioner's property was adjacent to an alley. Next door to Petitioner's property was another house owned by Petitioner. Between September 1995 and December 1995, Petitioner's property was unoccupied and undergoing extensive renovations. Petitioner hired Craig Quirk as the carpenter for the renovation project. Mr. Quirk worked on the project on a full-time basis during the entire period Petitioner's property was being renovated. One morning in late September when Mr. Quirk arrived at Petitioner's property to work, he discovered a wrought-iron stand and a 55-gallon drum in the backyard of Petitioner's property. Prior to that day, the drum had not been on Petitioner's property. Because the stand and drum were in the area where Mr. Quirk usually parked the vehicle, he and a helper dragged the drum and rack to the edge of the yard. The drum had a cap on it and was not leaking. Later that morning, when Petitioner came to the site, Mr. Quirk reported his discovery of the 55-gallon drum on Petitioner's property. At the time renovations were being made to Petitioner's property, Petitioner rented a dumpster which was used as a receptacle for construction debris. Mr. Quirk knew that the house owned by Petitioner and next door to Petitioner's property was on the market. Therefore, during the renovation of Petitioner's property, Mr. Quirk always utilized the dumpster in order to keep Petitioner's property clean. One or two days after learning about and observing the 55-gallon drum on the site, Petitioner telephoned a friend, Anthony Regan, to seek advice about removing the drum from Petitioner's property. At the time of Petitioner's call, Mr. Regan had two-and-a-half years of experience working as a truck driver for a hazardous waste facility. Although Mr. Regan is not a hazardous waste expert, because of his work experience, he is familiar with certain aspects related to hazardous waste and its disposal. Furthermore, Mr. Regan knows individuals within his company who can provide specific information regarding hazardous waste. At Petitioner's request, Mr. Regan went to the site to examine the 55-gallon drum and to assess what should be done with it. After being shown the drum by Petitioner, Mr. Regan temporarily removed the cap from the drum and inserted a stick in it. Based on his observation and assessment, Mr. Regan determined that the 55-gallon drum contained petroleum and water. When Mr. Regan observed the drum, it was not leaking and did not appear to be an environmental hazard. While at the site, Mr. Regan informed Petitioner that county amnesty program might provide assistance in removing the 55-gallon drum from Petitioner's property. Also, Mr. Regan told Petitioner that he would get an estimate from someone at the hazardous waste company for which Mr. Regan worked regarding the cost of removing the drum. Mr. Regan indicated that, after he checked on the county amnesty program and the estimate, he would report his findings to Petitioner. Between eight and ten days after going to Petitioner's property, Mr. Regan shared the results of his inquiries with Petitioner. First, Mr. Regan learned that the county amnesty program would not remove the drum because it did not belong to Petitioner, but had been dumped on Petitioner's property. Second, Mr. Regan reported to Petitioner that the hazardous waste company for which Regan worked could remove the 55-gallon drum from Petitioner's property for $350.00. Mr. Regan offered to look into the matter further, but prior to doing so went out-of-town for four or five weeks. Upon Mr. Regan’s return, Petitioner immediately contacted him to determine if additional information had been obtained concerning removal of the drum. While Mr. Regan had obtained no more additional information regarding removal of the drum, he suggested that Petitioner call the Sheriff’s Office. It was then that Petitioner made calls to several local agencies regarding the removal of the drum. Petitioner first called the police department, which in turn referred him to the county dump. The county dump could not assist Petitioner, but referred him to the Sheriff’s Office. Petitioner then called the Sheriff’s Office and spoke to Bob Aukenbaur, who told Petitioner that it was Petitioner's responsibility to have the drum removed. Because Petitioner was dissatisfied with Mr. Aukenbaur’s response, Petitioner called and attempted to speak to the Sheriff. Although unsuccessful in this regard, Petitioner did speak to an executive assistant, who promised to check into the matter. Approximately two days later, the executive assistant telephoned Petitioner and indicated that he was unable to find an amnesty program that would provide assistance to Petitioner. However, the executive assistant provided Petitioner with the telephone number of the Department of Environmental Protection and suggested that Petitioner call that agency for help. Petitioner then contacted the Department's regional office in Tampa, where he spoke to Jane Donnelly. The focus of Petitioner’s inquiry was whether it was his responsibility to remove the drum that had been “illegally dumped” on his property. After asking Petitioner several questions, Ms. Donnelly promised to get back with him. Several days after Petitioner contacted Department, Leslie Webster, an employee of the Department's regional office in Tampa and a Department trainee, visited the site to investigate the matter. When Ms. Webster arrived at the site, Petitioner and Paul Roney, the project design supervisor, were there. Petitioner showed Ms. Webster where the drum was located and explained to her that the drum had been dumped on his property. After Ms. Webster's on-site investigation, a form entitled "Initial Report of Emergency Response Incident" (Initial Report) was completed and forwarded to the Department's Tallahassee office. Petitioner was not provided with the Initial Report. The form bears the signature of Leslie Webster and is dated November 29, 1995. According to the Initial Report, the date of the incident was two weeks prior and the date the incident was reported to the Bureau of Energy Response was November 27, 1995. These dates do not accurately reflect the date of the incident and the date the incident was first reported. The Initial Report indicates that the incident was reported by Petitioner; that the “type of incident” is identified as “dumping“; that the incident description is noted as “abandoned drum(s)"; that the responsible party is “unknown”, and that the material in the drum is identified as from one to fifty- five gallons of gasoline and water. Also, the Initial Report has a “narrative” section. Nothing in this section indicates that Ms. Webster or anyone in the Department informed Petitioner that he was responsible for having the drum removed from the site. In situations such as this, the Department typically explains to the property owner what his responsibilities are with respect to a nonleaking drum. The property owner is then given a specified amount of time in which to remove the drum. The amount of time given to the property owner to remove the drum from his property varies, depending on the particular circumstances. The Department communicates this information to property owners in person, by telephone, or in writing. However, the Department's preferred manner of providing notice to property owners is to “talk face to face with people and let them know the circumstances they’re under.” When a Department investigator or other staff member visits a site and talks to the property owner about his responsibilities for removing pollutants or hazardous substances, no written notice is provided to the property owner reiterating the substance of the conversation. When Ms. Webster went to investigate the matter related to the drum on Petitioner’s property, there is no evidence that she told the Petitioner that he was responsible for removing the drum and that he was required to do so within a specified time. Likewise, there is no evidence that Ms. Webster told Petitioner that if he failed to remove the drum, the Department would have it removed and assess Petitioner the cost of such removal. Several days after Ms. Webster went to the site to investigate the matter, the drum remained on Petitioner’s property. Concerned that the drum had not been removed, Petitioner again called the Department's regional office in Tampa and spoke to Ms. Donnelly. During this conversation, Petitioner acknowledged that Ms. Webster had been to his property, but he expressed concern that the drum had not yet been removed. Ms. Donnelly then told Petitioner not to worry about it and stated, “I think we’re going to take care of it.” On or about November 29, 1995, the Department of Environmental Protection had the drum removed at a cost of $1,783. By letter dated August 5, 1996, more than eight months after the drum was removed from Petitioner’s property, the Department billed Petitioner $1,873.64 for costs and expenses incurred in removing the drum from Petitioner's property. This amount included administrative and investigative costs of $90.64 and $1,783 for the removal of the drum. Pursuant to the letter, Petitioner was given thirty days from the date of the letter in which to remit the amount due. Petitioner refused to pay the $1,873.64, and on the date of the hearing, the amount remained outstanding. The Department has incurred litigation costs of $2,090.93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department dismissing the claim against Petitioner, James J. Wooten, and finding that he is not liable to the Department for $3,964.57 in costs. DONE AND ORDERED this 18th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James J. Wooten, pro se 145 25th Street, South CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1997. St. Petersburg, Florida 33705 Kathelyn M. Jacques, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
The Issue The issue presented is whether the application of Respondent Robbie's Safe Harbor Marine Enterprises, Inc., for a general permit to construct and operate a solid waste transfer station should be granted.
Findings Of Fact In April 1998 Respondent Robbie's Safe Harbor Marine Enterprises, Inc., filed an application with Respondent Department of Environmental Protection, seeking a general permit to construct and operate a solid waste transfer station at the end of Shrimp Road on Stock Island in Monroe County, Florida. The application was accompanied by the required supporting documentation, including a site plan and an engineering report. The site plan submitted with the application depicted access to the transfer station by using Shrimp Road. The access road was also designated as a private road. What the site plan and remainder of the application did not reveal is that Shrimp Road, the private road providing access from the public road system to the proposed solid waste transfer station, is not owned by Robbie's. Rather, the road is owned by the adjoining property owner, Petitioner Safe Harbor Enterprises, Inc. Robbie's is the holder of an easement allowing use of Shrimp Road. Robbie's published notice of its application for a general permit to construct and operate a solid waste transfer station. As a result of that notice, the adjoining property owner, Safe Harbor Enterprises, Inc., filed the petition initiating the instant proceeding, objecting to the issuance of a general permit to Robbie's. On February 2, 1998, prior to Robbie's filing its application for a general permit to construct and operate its solid waste transfer station, Robbie's entered into a Consent Order with the Department which resolved the Department's allegations that Robbie's had been operating a solid waste transfer facility without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Robbie's Safe Harbor Marine Enterprises, Inc.'s, application for a general permit to construct and operate a solid waste transfer station. DONE AND ENTERED this 29th day of January, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 29th day of January, 1999. COPIES FURNISHED: Roger M. Bernstein, Vice-President Safe Harbor Enterprises, Inc. Post Office Box 144235 Coral Gables, Florida 33144 Tracy J. Adams, Esquire Tracy J. Adams, P.A. 617 Whitehead Street Key West, Florida 33040 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether permit application SWO 13-5152, should be granted under Chapter 403, Florida Statutes. This case involves the application of Respondents City of North Miami and Munisport, Inc. to Respondent Department of Environmental Regulation (DER) for an operating permit under the provisions of Chapter 403, Florida Statutes, and Chapter 17-7, Florida Administrative Code, to operate a sanitary landfill located in North Miami, Florida. DER granted provisional approval of the application by the issuance of a Notice of Intent to issue the permit on January 27, 1978. Petitioners filed the instant petition of February 13, 1978, challenging the issuance of the proposed permit. Final hearing herein was originally scheduled for April 7, 1978, but at the instance of the parties was continued and reset to commence on October 18, 1978. During the course of the final hearing, 29 witnesses presented testimony, including six public witnesses. (List of public witnesses - Hearing Officer's Exhibit 3) A total of 35 exhibits were admitted in evidence. Three exhibits (Exhibits 5, 13 and 15) were rejected by the Hearing Officer.
Findings Of Fact By application dated November 14, 1977, Respondent City of North Miami, Florida, as owner, and Respondent Munisport, Inc. as the "responsible operating authority" requested Respondent DER to issue a permit to operate a solid waste resource recovery and management facility consisting of 345.90 acres located at 14301 Biscayne Boulevard, North Miami, Florida. The site, known as the North Miami Recreation Development, had been operating as a sanitary landfill under temporary operating permits (TOP) issued by the DER on May 8, 1975 and September 21, 1976. The 1976 TOP provided for an expiration date of July 1, 1977, and contained various conditions designed to give the permittees a reasonable period of time to conform to the DER regulations relative to sanitary landfills. These included standard requirements such as the rendering of reports on the operation of the facility and prohibiting the deposit of raw and infectious waste, or hazardous waste that had not been rendered safe and sanitary prior to delivery. Additionally, the permit conditions required the facility to be so operated that it would cause minimum adverse effects on the environment, such as objectionable odors, contaminated storm water runoff, or leachates causing degradation of surface of ground waters. Further, the permit provided for a three-month review program after its issuance to consider the feasibility of dumping solid waste in 63 acres of submerged land subject to previous filling with clean fill and/or construction debris, filling of land above mean high water with garbage either above clean fill or above trenches filled with wood and construction debris and covered with clean fill, and a six-week period of weekly water quality monitoring at agreed to sites for analysis by both permittees and the Dade County Environmental Resources Management (DERM). The permit further prohibited the placement of refuse waterward of the mean high water line or in trenches cut below the natural ground water table. (Exhibits 1, 4). By letter of January 27, 1978, DER gave notice to the applicant of its intent to issue the requested operation permit for the solid waste disposal facility and stated therein the following reasons for its determination: The solid waste disposal site is in the public interest. The Department feels that the site will not substantially affect the water quality or interfere with the area's wildlife. The applications and plans for this facility have been evaluated and found to be in conformance with Chapter 403, F.S., Chapter 17-4, FAC, and Chapter 17-7, FAC. The letter stated standard conditions to which the permit would be subject, including special conditions that had been noted in the 1976 TOP. It also prescribed specific conditions that no solid wastes could be placed within 30 feet of any existing or future lake area, no dumping below water at any time nor in any dewatered excavations, and that a quarterly water quality monitoring program at monitoring wells No. 4 through 12 be sampled for specified substances. Proposed Condition 16 stated as follows: Solid waste shall be deposited in locations consistent with those approved in the Army Corps of Engineers' dredge and fill permit #75B-0869. No solid waste shall be deposited in the areas commonly known as the wetlands and transitional zones of said wetlands, as shown on the attached map. Subject to the Corps approval of proposed modifications to permit #75B-0869, a revised DER solid waste permit will be issued consistent with the approved modifications. A sketch of the landfill site purporting to designate the landfill deposal area, wetlands and transitional zone, and mean high water line was attached. (Exhibit 3) The Petitioners consist of the Florida Audubon Society, which has some 2,000 members residing in Dade County, Tropical Audubon Society, which is affiliated with Florida Audubon Society; Keystone Point Homeowners Association, Inc., comprised of approximately 425 owners of mostly waterfront or canal homes in North Miami within a mile of the landfill site; Thomas Pafford, North Miami, Florida, who uses the waters of Biscayne Bay and nearby wetlands for recreational purposes; and Maureen B. Harwitz, who resides within a half mile of the landfill site and uses Biscayne Bay and the mangrove preserve adjacent to the landfill site for recreational purposes. Members of the above-named organizational groups use the waters surrounding the landfill site for recreational purposes and are concerned that the waters and fish and animal life therein will be adversely affected if the operation permit is granted. (Testimony of Lee, Brown, Pafford, Lippelman, Harwitz) Munisport has been operating the North Miami landfill under a lease with the City of North Miami since approximately 1974. The ultimate aim is to convert the area into a recreational complex consisting of golf courses, club house, and other sports facilities. The site was used as an unregulated dump for many years prior to initiation of the Munisport operation. The site has been the subject of previously issued state and Corps of Engineer dredge and fill permits which are not the subject of this proceeding. The landfill site occupies an area generally between Northwest 135th Street on the south and Northwest 151st Street on the north. It lies between Biscayne Boulevard on the west, and state mangrove preserves and land of Florida International University on the east. It is less than a mile to Biscayne Bay on the east side of the landfill. The nearest point of entry is in the southeast area where Arch Creek empties into the Bay. At this time, Munisport has filled approximately 210 acres at the site with ten feet or more of fill material. A final cover has been completed over about 70 acres of this land and a golf course is presently being constructed. Pursuant to the dredge and fill permits, five lakes approximately 35 feet deep are nearly completed and some six or seven more are to be dug in the future pursuant to those permits. These lakes are separated from the solid waste by a 30 foot wide dike of clean fill. Although some cover material has been trucked to the site, about 1.6 million cubic yards of fill from the excavated lakes have been or will be utilized in cover operations for the landfill. The solid waste layer averages 15 feet in depth and lies about two feet above the ground water table. About 230 acres lie within the upland fill area above the mean high water line which is not within the area of jurisdiction of the Army Corps of Engineers. The mean high water line has been established by appropriate procedures under Chapter 177, F.S., and the surveying procedures were approved by the Department of Natural Resources on April 6, 1978. Although not stated in the Notice of Intent to issue the requested permit, DER intends to restrict the life of any permit to the time when the Metropolitan Dade County Resources Recovery Facility commences operation in approximately two years. The applicants and Dade County also have a memorandum of understanding to this effect. (Testimony of Stotts, Checca, Exhibits 1, 2, 35, 36, Hearing Officer's Exhibit 1) Munisport receives solid waste from a variety of firms, institutions, and surrounding municipalities. Its procedures are for vehicles to enter and exit the site from an access road leading to Biscayne Boulevard. A sign is located along the road indicating the operating hours, fee schedule, waste restrictions and other pertinent information. A large portion of the site is virtually inaccessible due to dense mangroves and mosquito control canals and ditches. At the check-in gate, a cursory inspection of vehicle loads is made by Munisport personnel who check the contents for quantity. Each load is directed to a designated place at the site where Munisport employees spread and compact the waste. At this stage, they are instructed to look for any unauthorized materials, such as hazardous and infectious waste. If such wasted is found, the offending party is required to remove it from the site. compactors and bulldozers push the solid waste to the face of the landfill and spread it out to facilitate compaction. During the hours of 6:00 P.M. to 6:00 A.M., a watchman is on duty at the site to accommodate customers. If less than four or five truckloads arrive during the night hours, the material is not processed. If a larger quantity is involved, a Munisport employee moves and covers the material prior to the following workday. Due to the high ground water tabled, the area method is used for filling the site. This is a procedure by which refuse cells are constructed in lifts not to exceed ten feet in vertical height. They are composed of cells which constitute a one-day quantity of refuse. Six inches minimum cover of clean fill is applied daily, and a one foot intermediate cover is applied within a year after compaction. The cells are compacted in two-foot layers and, upon completion of a particular area, a minimum of two feet of final cover is applied. A dike constructed of compacted limerock borders the east side of the site and basically constitutes the present mean high water line. It is designed to protect the adjoining 129 acres of mangrove preserve and Biscayne Bay from any adverse water quality which might occur from runoff of degraded waters from the landfill site in the event of contamination. (Testimony of Haddad, Checca, Exhibit 1, 9) The shallow soil underlying the landfill at depths ranging to almost ten feet consists of a combination of organic matter and debris from prior dump use, muck, and sand. Soil borings taken at the site show that limestone or calcareous rock known as Miami oolite is about eight feet below the soil layer. At this depth is found the Biscayne aquifer that carries the unconfined ground water in the area. The aquifer is approximately 160 feet deep under the site and constitutes the major source of water supply in Dade County. The gradient of the water table for the landfill site runs in a southeasterly direction toward Biscayne Bay. Approximately 75% of the surface soil layer consists of organic muck, whereas in approximately 25% of the area, which was previously filled in the southern and westerly portions before commencement of the Munisport operation, the soil is primarily of a sandy type. (Testimony of Checca, Pitt, Exhibit 1) Leachate is produced in sanitary landfills by precipitation that percolates down through decomposing refuse cells and picks up polluting substances created from the decaying solid waste. It can form a "plume" or "bubble" that takes the course of least resistance in flowing laterally or vertically through a landfill site. The strength and concentration of the leachate is dependent upon various factors including the composition, compaction, and the age of decomposing refuse, and the amount of water being introduced into the area. As it passes slowly through the soil beneath the solid waste material, the unsaturated soils act as filters and permit ion exchange which reduces the quantity of contaminants. Dilution takes place where leachate comes in contact with ground water and leachate movement occurs gradually through the ground water aquifer in its direction of the flow. The presence and movement of leachate normally can be detected by analysis of ground water samples taken at various places throughout the landfill site. (Testimony of Checca, Pitt, Coker, Exhibit 1) Commencing in 1975, a monitoring program was instituted at the sanitary landfill to determine its effects on the ground water regime. A number of monitoring wells at various depths were constructed at different sites at the landfill, and samples were withdrawn and evaluated periodically to determine the types and degrees of pollution being generated by the landfill. Background samples were also obtained from wells off the site to establish the general character of water quality in the area and to compare these samples with those obtained from the site. Additionally, "grab" samples were taken of water from the bay and nearby canals and wetlands. Locations of the background and sampling wells were established by the applicants in conjunction with the DER and the Environmental Protection Agency. To determine the amount of leachate that probably would be generated at the site, the "water balance method" of computing the estimated time required to produce leachate, as well as the quantity that probably would be generated upon completion of the landfill, was made by representatives of the EPA in 1975 utilizing specific climatological and surface conditions at the site. This study indicated that percolation of surface water would increase during the operation of the landfill and before final soil and vegetative cover were in place, and that leachate would occur in about a year in larger quantities than would be produced by a completed landfill. Tests conducted during the ensuing three-year period of both surface and ground water through the monitoring program have failed to produce evidence that water quality is not within acceptable parameters or that water quality in the area surrounding the landfill site has been degraded. No significant differences in the concentrations of various ground water constituents were found between samples obtained at the disposal site and those collected in the adjacent mangrove forest or background areas. Neither was any evidence of contamination from leachate found in samples of surface water collected in the vicinity of the landfill or in nearby natural areas. (Testimony of Checca, Pitt, Linett, Perez, Exhibit 1, Exhibit 33) Three basic factors have undoubtedly accomplished reduction in the amount of leachate generated at the landfill. These are (a) attenuation and filtration of pollutants by unsaturated soils between and beneath the refuse cells, (b) biological assimilation by organisms living within the refuse cells and underlying soils, and (c) dilution upon contact with the ground water. A hydrogeologic study shows that the uppermost 14 feet of the aquifer immediately below the landfill represents only 0.2% of the total discharges with a ground water velocity of less than 0.1 foot per day. This part of the aquifer therefore provides considerable detention time for the water that percolates through the landfill. The strata, as well as the overlying organic marine soils, provide the absorption and assimilation that removes pollutants from the water. After water percolates through this layer, it reaches the highly permeable Miami oolite that carries about 43% of the ground water flow. The effects of soil absorption, filtration through the upper 14 feet of the aquifer, and dilution within the aquifer have demonstrably been sufficient to assimilate the water that percolates through the landfill. It is estimated that the time of travel of ground water from the landfill site to the closest discharge point in Biscayne Bay is approximately 68 years. Although the attenuation capability of the organic muck soil underlying the greater part of the landfill is high, the older area of the site in the southwestern portion which had been filled before the Munisport operation commenced, has no muck and consists primarily of sand with a higher rate of permeability. (Testimony of Checca, Pitt, Teas, Exhibits 1, 33) The fact that the organic muck material under the landfill is not uniform throughout the site, plus the fact that there have been various breaches in the permeable oolite layer below the soil, will, in the opinion of some experts, eventually lead to the generation and movement of a leachate plume into such breaches and ultimately to Biscayne Bay. These breaches consist of the deep lakes at the site, the Arch Creek Canal to the south of the site and a dredged excavation at the exit of that body of water into the bay some 3,600 feet distant from the landfill. Additionally, these experts postulate that the dike located on the eastern border of the site will not prevent leachate from moving into the surrounding mangrove area. It is therefore estimated that in the above ways, large amounts of leachate would enter the bay and adjacent wetlands within a period of five to ten years. (Testimony of Coker, Hudson, Pasley, Browder, Exhibits 12, 14, 29, 30) Although water monitoring at various levels in and at probable discharge points near the site have not found degradation of water quality, the applicants propose to address any future leachate problems in a variety of ways. These include continuous periodic testing of water quality and monitoring wells, excavation of a canal on the upland side of the site to intercept leachate and treatment of any contaminated water therein or by pumping the water to an interior lake for treatment. Based on the particular type of any degradation, chlorination and precipitators would be utilized. Long-range problems will be further reduced by the ultimate construction of the golf courses and placement of final soil and vegetative cover to reduce percolation of surface water. This will be aggravated to an undetermined degree, however, by periodic irrigation of the golf courses. (Testimony of Checca, Pitt, Kelman, Exhibits 1,33) During the early years of the Munisport operation, a number of violations of the conditions of the temporary operating permit occurred, but for the most part these were caused either through simple negligence of landfill personnel, breakdown of equipment, or introduction of unauthorized materials to the site by Munisport customers. In these situations, Munisport usually took prompt and effective action to prevent recurrence and to remedy the problem. For example, on one occasion in 1977, some 12 drums containing residue of a chemical substance deemed to constitute "hazardous waste" was brought into the site by persons unknown and was found leaking into the ground. A number of violations and warning notices were issued to Munisport by the Dade County Department of Environmental Resources Management (DERM), primarily in 1976, involving the placement of tree cuttings and wood scraps into excavations containing water at the south end of the site. These occurred, however, during a period when Munisport was engaging in tests to determine the suitability of such operations in conjunction with DER. Additionally, in 1976 and 1977, Munisport was advised of violations in the placement of garbage in exposed water, uncovered garbage, and delivery of garbage after hours. Munisport has had a continuing problem over the years with the unauthorized delivery of hospital wastes from various customers to the landfill in spite of letters written to hospital facilities and delivery firms cautioning them concerning the prohibition against the introduction of such material to the landfill. DERM personnel concede, however, that the operation has been continuously improved and that it is well-conducted in comparison with other landfills in the country. However, they believe that lakes should not exist in landfills and that the North Miami landfill is too close to the wetlands. (Testimony of Morrissey, Karafel, Sobrino, Haddad, Checca, Exhibits 6-11, 17, 18, 20-24, 27, supplemented by testimony of Pafford and Exhibit 16) In a letter of January 17, 1977, DERM expressed concerns about the Munisport operation to DER. One of these concerns was that leachate would migrate to proposed golf course lakes and the resulting pollution would produce poor water quality. Although 1976 testing of then existing lakes at the site reflected unusually high amounts of fecal coliform, subsequent tests in late 1978 showed very little, but tests again in January, 1979, showed that several lakes were again somewhat high in coliform. Coliform is not considered to be a strong parameter in assessing the presence of leachate and amounts vary considerably from day to day in lake areas. Additionally, great numbers of birds are normally present on the landfill site during operations and contribute in raising coliform readings to some extent. Dade County has a current policy that does not permit lakes to be excavated on landfills operated by the county. (Testimony of Checca, Morrissey, Sobrino, Karafel, Kosakowski, Linett, Newman, Kelman, Perez, Exhibits 17, 19, 20, 24, 25, 31, 32, 37, 38)
Recommendation That a permit be issued to the City of North Miami, Florida and Munisport, Inc. to operate the solid waste disposal facility as described and under the conditions stated in the letter of the Department of Environmental Regulation, dated January 27, 1978, wherein it gave notice of its intent to issue the said permit. DONE and ENTERED, this 13th day of April, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Gluckman, Esquire 5305 Isabelle Drive Ken VanAssenderp, Esquire Tallahassee, Florida Smith, Young and Blue, P.A. Post Office Box 1833 Josepy D. Fleming, Esquire 620 Ingraham Building Marvin Sadur and 25 Southeast Second Avenue Richard J. Potash, Esquires Miami, Florida 33131 2000 L Street NW - Suite 612 Washington, D.C. 20036 Silvia Alderman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Beker Phosphate Corporation should be granted a hermit to construct an industrial waste water facility pursuant to chapter 403, Florida Statutes. By application, dated April 8, 1975, Beker Phosphate Corporation (hereinafter Beker) , sought a permit to construct an industrial waste water facility in Manatee County, Florida, from the Department of Pollution Control (now and hereinafter DER) . The application was received on April 11 and, after advising Beker that the application was incomplete a meeting was held on May 9th between DER and Beker representatives with the result that Beker filed a new application dated June 11, that was received by the DER in July. Further meetings were held in the fall of 1975 and additional in formation was received as to the application. On December 16, 1975, DER secretary. Jay W. Landers, Jr., issued a Notice Of Intent To Grant A Permit With Conditions. The conditions were unspecified in the letter of intent (Exhibit 1.) Subsequently, on December 23 and December 24, 1975, Sarasota County (hereinafter Sarasota) and the Town of Longboat Key (hereinafter Longboat Key), respectively, filed petitions with the DER alleging that their substantial interests would be adversely affected by approval of the permit application and setting forth in their petitions certain disputed questions of fact for determination. After a prehearing conference, Amended Petitions were filed by those parties to clarify and expand on such questions of fact and to resolve procedural matters. Additionally, during this period, George Browning, III, of Sarasota, Florida was granted status as an intervenor.
Findings Of Fact Beker proposes to construct a phosphate rock mine and beneficiation plant on a tract of approximately 11,000 acres in a predominately agricultural and ranching area of Manatee County about 10 miles from Myakka City, Florida. The mining will be performed by two dredges. One will mine overburden and return it to the mined-out area and the other will mine phosphate rock matrix which will be pumped to the beneficiation plant. The plant will consist essentially of two circuits. The first is a washer where the matrix pumped from the dredging operation is partially cleaned of clay and fine sand, and the coarser phosphate particles "pebbles" are separated as a product. The "fines" from the washing operation consist of small phosphate rock particles, sand, and clay. This mixture will be treated in the second section of the plant by "flotation" methods to recover the small phosphate rock particles as a product. During initial operation, the sand and clay will be stored in a temporary waste material storage area, but as the mining proceeds and the dredge pits open up, the sand and clay material will be pumped back to the dredge pits so that sand, and overburden will be mixed and redeposited to reclaim the land. Approximately 8 million gallons of fresh water per day will be drawn from the Floridian aquifer to be used in the flotation circuits. From the plant the water flows in two types of streams--one containing sand suspended in water and one containing clay suspended in water. Both streams flow into a settling pond surrounded by an earthen dam where sand and clay solids settle to the bottom. The clarified water is then decanted through six spillway structures into a hydraulic recirculation ditch outside the dam and flows back to the plant for re-use. The ponds and canals that make up the hydraulic circuit are planned to have sufficient capacity to contain rainwater falling on the site and pond system during the wet season when there are heavy rainfalls (approximately from May to September). Excess water will be decanted from the hydraulic recirculation ditch through a structure into a pipe and then discharged into Wingate Creek. The settling pond will occupy approximately 225 acres and its capacity will be about 8,458 acre- feet. The pond itself can be used to act as a reservoir and water can be built up in the pond during periods of high rainfall. It will not be necessary to release the water at any particular time. It can be released at will when the effluent contains a minimum of pollutant materials (Exhibit 1). Matrix is an unconsolidated mixture of phosphate pebbles and boulders of partly phosphatized limestone, quartz and clay. The washing operation removes unwanted oversized material and fine clays. The purpose of the flotation plant is to recover fine phosphate rock that might otherwise be lost. In the flotation process, flotation reagents, including sulfuric acid, number 2 fuel oil, tall oil, sodium hydroxide, and amines are used for treatment. The wastes are then moved to the settling pond where over a period of time the "slimes", (sands and clays) will settle to the bottom forming an impervious layer which will seal the pond. The settling process removes more than 90 percent of the contaminants from the influent. The coarser clay particles settle first and many of the fine particles settle in a process called "flocculation" by which electrical forces bring the particles together. However, some of the particles will not flocculate and remain suspended in the water. These extremely small particles constitute the total suspended solids that remain in the effluent when it is discharged from the settling area. They probably will not settle out entirely during their course from Wingate Creek into the Myaaka River and eventually to the Gulf of Mexico. However, even if it were assumed that such materials would settle somewhere between the point of discharge and Charlotte Harbor, over the entire 20 year proposed life of the mine they would form a deposit much less than 1/10th of an inch. Although it is technically possible to treat water to the degree that it would result in distilled water, realistic concepts of treatment establish that an additional settling or "polishing" pond for the proposed facility might not improve the quality of the wastewater finally discharged in state waters to any appreciable degree. Alternative proposals for the reduction of pollutants by additional processing, such as the intentional growth of water hyacinths in settling areas or use of chemical coagulants would result in creating other waste materials and thus be counterproductive (Testimony of Bromwell; Exhibit 1). The applicant's discharge of wastewater to Wingate Creek will average approximately 3.19 million gallons per day. However, since discharge will be effected primarily during periods of excessive rainfall, actual discharges can reach a maximum of about ten million gallons per day during this period. The effluent contained in such discharge will meet the test of at least 90 percent removal of organic and inorganic wastes specified by Rule 17-3.04(1), Florida Administrative Code, when measured by the influent into the settling pond and the effluent leaving that area. This treatment, however, will not produce an effluent equivalent to that produced by the "highest quality municipal waste treatment." The highest degree of treatment that has been reached by municipalities is "advanced waste treatment" as defined in Rule 17-3.04(2)(b), Florida Administrative Code. The water quality characteristics of the effluent will meet the standards of Rule 17-3.05 as to concentrations of those pollutants reasonably anticipated to be fond in the wastewater based on samples taken where the waters are discharged into Wingate Creek (Testimony of Gilgallon, Davis, Edwards, Heinzman, Bromwell, Bartow, Wellford, Exhibit 1). In preparing the application, no consideration was given to the need of meeting treatment standards for highest quality municipal waste treatment or advanced waste treatment. Neither did the recommending official of the DER, Mr. Edwards, then Regional Administrator for the Southwest Region, consider this standard because he had been advised by the DER legal staff that Rule 17-3.04(2) did not apply to Wingate Creek since it was not a tributary to one of the bodies of water listed in subparagraph (c) of the rule 17-3.04(2). This determination was based upon Resolution No. 74-83, September 17, 1974, of the Florida Pollution Control Board that was issued after legal challenges had been made to an interpretation by the Department of Pollution Control legal staff that Rule 17-3.04(2) required advanced wastewater treatment for industrial waste discharges. The Board, in its resolution, determined that since evidence had not been taken concerning treatment standards for industrial waste discharges at the time of adoption of the effluent standards for sanitary waste contained in Rule 17-3.04(2), the advanced wastewater treatment standards in the aforesaid rule would not be enforced against industrial dischargers pending full hearings on a new Rule to clearly express the Board's intent in this regard (Testimony of Gilgallon, Edwards; Exhibit 1). Special conditions that the Southwest Region, Department of Environmental Regulation, recommends should be attached to any issuance of a construction permit, other than standard conditions and those relating to other types of permits, are as follow: Approval by DER prior to the construction of any above grade phosphatic clay storage facility other than the initial settling pond. Removal efficiencies for oil and grease shall be a minimum of 90 percent and shall not exceed 14 milligrams per liter measured in the discharge effluent. Discharge effluent to Wingate Creek shall meet the water quality standards of Chapter 17-3.05(2) at the point of discharge prior to mixing with the receiving stream. Further treatment of the discharge will be required in the event compliance with proviso (c) above cannot be achieved or significant degradation of the receiving stream occurs as determined by the DER. In addition to required routine monitoring, a detailed analysis of the untreated and treated wastewater to be conducted once on representative samples during (1) month of July and (2) month of February. Such analyses shall, as a minimum, include all the parameters listed in 17-3:05(2). Applicants shall conduct an investigation into total retention possibilities of the effluent including, but not limited to, the following areas: recharge wells retention and storage of excess water during the "wet" season with subsequent reuse during the "dry" season for process and/or irrigation purposes. A report of these investigations shall be submitted prior to submission of operation permit application The location of monitoring wells shall be down gradient from the settling pond. Detailed proposal, subject to the DER approval, regarding exact location and number of wells to adequately ascertain the impact of seepage to be submitted no later than 90 days prior to commencement of operation. Bond to be posted for damages that may result from a clay settling area dam failure. Oral and written communications from the public were received at the hearing and included the following: Announcement by the County Attorney, Manatee County, that the county did not plan to appeal the DER Notice of Intent to Grant the permit (Statement of E.N. Fay, Jr.). The Division of Recreation and Parks, Department of Natural Resources, fears that the construction of the phosphate mine up-stream from the Myaaka diver State Park poses a serious potential threat to its aquatic habitat due to the possibility of a dam failure. It also fears that pollutants from the project will tend to settle as the river waters flow through the two lakes in the park. It therefore, opposes the construction until assurance can be given that proper safeguards have been taken to prevent such problems (Testimony of Alverez). The Longboat Key Garden Club believes that the project would involve too much water consumption and also that phosphate mining should be halted until further government studies are made to assure that the safety and health of the populace and the environment will not be endangered through polluted runoff and phosphate spills (Testimony of Monroe). The Save Our Bays Association in Manatee County has collected petitions from citizens in Manatee County requesting a referendum on a ballot this November for or against phosphate mining. The Association believes that such a vote should be taken before final decision is made on the subject. Its spokesman fears that if the quality and quantity of the drinking water is disrupted, it will interfere with continued tourist trade (Testimony of Howard Greer). The Palma Sola Parks Association opposes the Beker Application until there is greater assurance of environmentally safe mining (Testimony of Blankenship) A former physical and health education director is concerned about the fact that there has not been sufficient data collected on the effect of radioactive materials in runoff and waste. She believes there should be more research in these areas and asked that the public be protected from such hazards (Testimony of Mary Kay Greer). The Manasota-88 project for environmental qualities of 1968 and 1988 believes that issuance of the permit should be withheld until health implications can be determined concerning potential hazards to the Myakka and Manatee Rivers' watersheds (Exhibit 7). A former member of the Manatee County Planning Commission that approved the Beker application prior to action by the County Commission of Manatee County is in favor of the proposed project because Beker's plan to impound water will augment the water facilities of the county (Testimony of Reasoner). The City of Bradenton believes that since it is being required to meet advanced water treatment standards of discharge for sanitary sewage, Beker Phosphate Corporation should be required to meet similar standards (Testimony of Mayor A.K. Leach). A member of the Myakka City Civic Association who is an adjacent land owner to Beker Phosphate Corporation feels that the project is necessary in order to produce jobs for individuals in that area of the county (Testimony of Mizell). The U.S. Fish and Wildlife Service is concerned that proposed construction of two dams by the applicant will destroy approximately (4) acres of mangrove areas, three acres of pasture land and about 185 acres of bottom land or hardwood habitat. It recommends an alternative method of backup levies constructed around the primary settling bases on the applicant's land to contain any spills and prevent destruction of the streams and associated wetlands (Testimony of Johnston) The Conservation Council of Manatee County believes that Beker's unique mining and reclamation plan will help the farming industry and also create necessary water reserviors and recreation areas, and therefore endorses its proposal to mine in Manatee County (Testimony of Kent, Exhibit 14). Petitions were submitted at the hearing from approximately 3,000 individuals living in Manatee and Sarasota Counties opposing the issuance of the permit because they believe that phosphate mining is dangerous to the quality and supply of the water and endangers the health of the people (Composite Exhibit 9, Testimony of Humphrey).
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.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has standing to bring this action and, therefore, whether the Intervenor has standing; whether the applicant has provided reasonable assurances of its entitlement to a construction permit for the facility; whether the applicant is precluded from availing itself of a separate biohazardous waste storage general permit through notification to the Department; whether the Petitioner is entitled to challenge the notice requirements of the general permit; and whether the facility to be permitted should be characterized as a biological waste incineration facility or a biohazardous waste treatment facility.
Findings Of Fact The Petitioner, Hamilton County Board of County Commissioners ("County"), is the governing body of Hamilton County, a political subdivision of the State of Florida. The operation of the political subdivision of Hamilton County is conducted by and through its duly-elected Board of County Commissioners. The County conducts a variety of official functions, including but not limited to, the levy and collection of taxes, construction and maintenance of county-owned buildings, roads, bridges and other facilities, the funding and maintenance of county recreational parks and related facilities, and the funding and operation of county health and welfare programs, as well as the regulation and disposal of solid waste and sewage. TSI is a Florida corporation organized to specialize in the construction and operation of incineration facilities, including biohazardous waste incineration facilities. The project sub judice is the first incinerator facility proposed for construction by TSI. The corporation and its directors, officers or operational personnel have not participated in the construction or operation of any type of incinerator facility in the past. DER is an agency of state government charged with the responsibility of regulating the quantity and quality of emissions from facilities such as the incinerators involved in the case at bar, and with reviewing applications for permits for the construction and operation of air pollution source facilities, including incinerators, as well as biohazardous waste disposal and treatment facilities and solid waste resource recovery and management facilities. Its reviewing responsibility is performed by weighing such permit applications against the yardsticks set forth in Chapter 403, Florida Statutues, and Rule Chapters 17-2, 17-4, 17-6, 17-701 and 17-712, F.A.C., which it employs to determine, among other parameters, whether a particular air pollution source facility can be reasonably assured to comport with the standards embodied in those rule chapters. The Intervenor, City of Jasper ("Jasper"), is a municipality located within Hamilton County, Florida. The Jasper Industrial Park is the site of the proposed biohazardous waste incinceration facility. That site is within the city limits of Jasper. Description of Facility and Process Incineration is the most commonly used procedure for treating medical waste. The combustion of waste is especially appropriate for hospital "redbag" waste, also known as medical waste. The combustion of medical waste destroys pathogens infectious materials and spores. TSI proposes to burn medical waste in two Basic Model 3500 biohazardous waste incinerators. The incinerators will be enclosed within a large building at the Jasper Industrial Park in Jasper, Florida. Each has a charging capacity of 35 tons per 24-hour day. The proper incineration of medical waste requires a residence time of one second in a secondary chamber, having a temperature of at least 1,800 degrees Fahrenheit. These time and temperature requirements will be achieved by the proposed Basic incinerator. The incinerator's loading door will not open until the secondary chamber temperature reaches 1,800 degrees Fahrenheit. Unlike other systems, the patented Basic incinerator system has three combustion zones in the incinerator, the main chamber, the secondary chamber, and the tertiary chamber. By means of these three stages, the Basic incinerator minimizes emissions of hydrocarbons, CO and nitrogen oxide. It is characterized by a "ram feeder" which allows the waste material to enter the incinerator through an air lock so as not to disturb control of the air within the furnace. It also has a "mechanical pulse hearth" which moves and tosses the burning material while moving it through the incinerator, shaking it up, much like logs in a fireplace. It thus mixes the waste material in the air for more complete combustion. Finally, a backhoe-type device digs the ashes out of the ash pit for disposal after combustion. The third stage of the Basic incinerator changes vapors coming from the main chamber to superheated gas. The "thermal exciters" in the third stage increase turbulence and mixing in this upper zone. With the addition of air in this third stage of burning, the gas burns like natural gas, thereby completely destroying the products of incomplete combustion from the previous stages. The gas will have a residence time of at least one second in the last combustion chamber, at no less than 1,800 degrees Fahrenheit, as required by Rule 17- 2.600(1)(d)4.A., F.A.C. The Basic incinerator is designed with an air lock door which prevents it from opening until the chamber temperature reaches the required 1,800 degrees Fahrenheit. This insures more complete combustion of waste and insures that the ignition of waste does not commence until the last combustion chamber temperature requirement of Rule 17-2.600(1)(d)4.D., F.A.C., is attained. After the tertiary stage, the gases resulting from combustion go to a heat recovery boiler system incorporating a heat exchanger involving water- filled tubes. The superheated gas flows past these heat exchanger tubes which reduce the gas temperature to approximately 250 degrees Fahrenheit. This serves to start condensing the HCL acid gas so that it will be amenable to reduction and conversion by the injection of finely-powdered lime on the way to the "baghouse" scrubber device. Additionally, at this stage, a portion of the superheated gases are recirculated to the combustion chamber for further exposure to combustion temperatures in order to achieve optimum burnout of all combustible materials. When the superheated gases reach the boiler-heat recovery, steam- generating device, they are at approximately 1,800 degrees Fahrenheit. In part, they consist of metallurgical fumes containing salts, oxides, heavy metals, leads and zincs. In order to prevent these salts from clogging the boiler, the cooling device reduces their temperature so that the oxides and metals form powders. Then if any of the resultant powder adheres to the boiler tubes, conventional coal-blowing equipment blows the resulting powders on through the boiler to the emission control device or "baghouse". This, in turn, maintains the temperature reduction efficiency of the boiler heat exchanger. Because of the various combustion stages or chambers incorporated in the incinerator, as well as the heat exchanger and gas recirculation feature, the Basic incinerator prevents burning particulate particles from entering the baghouse and burning holes in the Gortex filter bags. This, of course, insures optimum emission control efficiency. After the combustion gases exit the heat exchanger-boiler device, their temperature has been reduced to approximately 250 degrees Fahrenheit. Lime is injected at this point, which reacts with the HCL acid gas and neutralizes it in part; the reaction occurring as the gas flows toward the baghouse, with the reaction being completed on the surface of the Gortex bags of the baghouse, as the lime collects thereon. The County does not contest that the Basic Model 3500 incinerator, as proposed, will perform in a manner that will satisfy most of the criteria set forth in Rule 17-2.600(1)(d), F.A.C. It will achieve approximately 95% burnout in the combustion chambers. Mr. Cross, the County's expert witness, was concerned that DER had no criteria for a standard of "burnout" of the bottom ash. In fact, DER interprets the term "complete combustion" (in the above Rule), as requiring ash burnout of approximately 95%. The Basic incinerator will achieve 95% burnout. The high rate of burnout is achieved both by the multiple combustion chambers and the use of the moving pulse hearth which constantly shakes or stirs the burning material, ending with chains suspended at the end of the pulse hearth to impede bulky waste materials from exiting the combustion chamber before they are completely combusted. Odor is controlled, in accordance with Rule 17- 2.600(1)(a)2., F.A.C., by using air for combustion purposes which is drawn by blowers from the storage area of the untreated waste. The combustion blowers pull air from the waste storage area into the incineration system. The best means of odor control is by burning, which this incinerator will achieve. The County agrees that CO emissions from the incinerators will not exceed 100 parts per million by volume, dry basis, corrected to 7% 02, on an hourly average basis. Thus, CO will be within acceptable regulatory limits and is not at issue in this proceeding. Pursuant to stipulation, the only emissions at issue with regard to the proposed facility and permit are visible emissions, particulate matter and hydrochloric acid (HCL). Particulate matter consists of finely divided solids or liquid, and the hydrochloric acid is formed when chlorinated plastics are burned. Emissions are reduced in two ways. First, emissions from the stack of the incinerator will be diluted by ambient air which dilution increases as the stack height above ground increases. Airborne emissions are also reduced by directing combustion gases through pollution control equipment before they exit the stack. The pollution control equipment proposed for the incinerators at issue is an acid gas, dry lime scrubber baghouse, with dry lime injection. The incinerator facility cannot meet particulate and hydrochloric acid standards without the addition of a pollution control device, such as a dry lime scrubber baghouse. The baghouse is the best available technology for controlling particulates and hydrochloric acid, as well as controlling metals emissions. The baghouse works much like a vacuum cleaner with a vacuum cleaner bag to trap particulate matter. Baghouses have been in use since 1970, and the technology has been scientifically demonstrated and accepted. The proposed baghouse would consist of a multiple number of bags in excess of ten feet long. They are made of fiberglass, coated with Gortex, a permeable membrane material. They have an air to cloth ratio of 3 to 1. The Gortex bags are capable of trapping 99.5% of particles in the range of 1/10th of a micron in diameter. They are, thus, capable of trapping cigarette smoke, for instance, and are resistant to acids, certain alkalines, and temperatures up to 500 degrees Fahrenheit. The bags are wrapped around a wire cage and attached to a steel plate, anchoring them to the flues, which conduct the gases to them. All of the flue gases enter the baghouse and go through the bags and then exhaust to the atmosphere through the stack. The bags, thus, trap most particulate matter and metals. Additionally, lime will be injected into the flue gas stream for acid control before the flue gases reach the bags. The lime dust, a base, reacts with HCL, an acid, to produce calcium salts, which are PH neutral. The dry lime will be conducted from a silo or other means of storage in the form of fine dust or talc which enters a metering hopper so that the amount of lime injected into the system can be controlled. The lime is injected immediately after the gases are condensed and cooled to a 250 degree Fahrenheit level. This causes optimum reaction of the acid gases with the lime which then travel together to the bags. The Gortex bags are coated by the lime dust which further enhances the HCL removal reaction. Because of the recirculation of the superheated gases and the cooling of them through the heat exchanger device, it is very unlikely that any sparks or embers from the incinerator chambers will land on the bags to burn holes in them and, thus, reduce their efficiency. This is an inherent advantage of the design of the Basic incinerator when used with the Gortex' baghouse scrubber. There is a biohazardous waste incineration facility in operation at Stroud, Oklahoma. It uses a Basic incinerator also employing an acid gas, dry lime scrubber baghouse, in essence like the one proposed here. That incinerator has been tested for visible emissions, particulate matter emissions, and HCL emissions. The tests occurred while the incinerator was actually combusting twice the amount of medical waste proposed for the proposed incineratcrs. The visible emissions test at that facility resulted in an opacity of less than 5% (visible emissions). The PM test resulted in 0.014 grains per dry standard cubic foot. HCL emissions from the incinerator were tested at 43.6ppm (parts per million). The Stroud system thus achieved a 97.2% removal of HCL. A medical waste incineration facility is located at Fairfax, Virginia, which uses a baghouse and lime injection system. The Fairfax facility test results also establish that a baghouse lime injection system reduced particulate matter and HCL emissions to below the Florida standards. Experts testifying on behalf of both the applicant and the County agree that the design characteristics and pollution control capabilities of various lime injection systems and baghouses differ markedly. Certain baghouse designs would not be appropriate for the pollution control application at issue. The County's expert noted that the method of lime injection is a critical component of overall HCL control. Certain baghouses incorporate intermittent lime injection systems which are effective for protecting the individual baghouse components, but inappropriate for HCL removal purposes. The applicant's expert, Mr. Basic, also recognized the importance of the type of lime injection system involved. Various baghouse manufacturers inject lime at differing points within the system; and certain injection applications are, in his opinion, inappropriate for effective HCL control. Temperature is a critical factor in the effectiveness of the lime injection procedure in neutralizing the acid gases (HCL). The method proposed by the applicant of cooling the gases to approximately the range of 250 degrees Fahrenheit before injection of the lime has been shown to be effective in neutralizing the HCL gases at issue, when coupled with the Gortex-laminated, fiberglass bags upon which further neutralization will occur as the dry lime powder is deposited thereon and the gas passed through it. The baghouse cleaning system is also a component of major importance. Baghouse cleaning involves the removal of calcium chloride particulate buildup from the surface of the filter bags. They eventually become clogged with the precipitate, reducing the systems effectiveness unless they are periodically cleaned. Baghouses can be cleaned while the incineration system is shut down which is known as "off-line cleaning". They can also be cleaned during operation by "on-line cleaning". "Pulse-jet" cleaning involves taking a portion of the bags off line with a damper system bypassing the flue gases to other bags which remain in operation. The bags taken off line are then injected with a rapid pulse or pulses of compressed air, thereby removing the calcium chloride cake from the bags. The County's expert opined that pulse-jet cleaning is less effective than off-line cleaning and that it also requires a dedicated air compressor, as air from within the plant may contain moisture, oil or other contaminants, which are inappropriate for injection into the baghouse since they may permanently clog or otherwise harm the bag material. The applicant's expert, Mr. Basic, expressed like concerns regarding the baghouse cleaning system. He testified at length about the characteristics and appropriateness of on-line versus off-line cleaning. He established that off-line cleaning, also knowh as "reverse air" or "reverse jet" cleaning, is the most effective under the situation prevailing in this project and, in essence, agreed with the County's expert on this subject. Reverse air cleaning involves both the incinerator and the air pollution control system being shut down, with air from the blower being blown in reverse through the bags to remove the calcium carbonate residue. Mr. Basic's testimony establishes that a reverse air, off- line cleaning process can maintain the effectiveness of the Gortex- fiberglass filter bags and, thus, assure that emission and ambient air standards are continuously met by the facility. Stack Emissions Modeling of the stack emission results predicted at the facility with the originally-proposed 40-foot stack height was performed by Mr. David Buff, the applicant's expert witness in this regard. The model he employed demonstrated compliance with all ambient air quality standards set forth in Chapter 17-2, F.A.C. There is no ambient air quality standard in the rules at the present time for HCL, however. DER does have a policy, established without dispute in this record, that an acceptable ambient level of HCL would be 150 micrograms per cubic meter for a three-minute value and 7 micrograms per cubic meter on an annual average. Shortly prior to hearing, a "re-modeling" of the stack and resultant emissions was done, postulating a stack at 98 feet high. Five years of meteorological data from the Valdosta, Georgia, weather station were used to include such factors as prevailing winds, etc., which modeling ultimately demonstrated a three-minute maximum HCL concentration of 16.4 micrograms per cubic meter. This resulted in a maximum HCL concentration at ground level of a factor of 10 below the 150 micrograms per cubic meter level, which is acceptable under DER policy. The average annual impact of HCL concentrations would be 0.2 micrograms per cubic meter, well below the acceptable level of 7 micrograms per cubic meter annual average. Mr. Buff's model also predicted a maximum annual average impact at any location in the vicinity of the proposed incinerator of HCL at .16 micrograms per cubic meter. This maximum value is a factor of more than 40 below the administrative level of 7 micrograms per cubic meter on an annualized basis. A spatial distribution of the annual average hydrochloride concentrations in the vicinity of the incinerator demonstrates an annual average concentration declining to 0.09 micrograms per cubic meter in the direction of the City of Jasper. The 98-foot stack proposed by TSI thus meets all ambient air requirements. Although the stack height was changed from the 40 feet shown in the application to 98 feet, all other design elements of it, such as stack diameter, stack temperature, and gas flow rate, remain unchanged. The modeling of the 98-foot stack included all of the design criteria found in the application. There is, in essence, no dispute regarding the efficacy of the modeling performed by Mr. Buff. All modeling and modeling results were not controverted. In addition to the main stack, there is an emergency relief stack, also known as a "dump stack". The dump stack does not have pollution control equipment. It is opened when the system is first started up in order to purge the system. No waste is burned at that time. The stack is also opened after a shutdown during a cooldown period after all waste has been removed from the furnace. The likelihood that the relief stack will operate outside of a startup and cooldown period is very slight. The facility will have an electrical generator backup emergency power source in case of power failure. The primary reason for the stack's opening, power loss, is thus eliminated by the system as proposed. There is a relief valve in the steam line so that if steam pressure in the boiler exceeds operating pressure, the system can be relieved through the relief valve with the only loss being steam which would have to be replenished with soft water. Such a malfunction would not result in the emergency stack opening, however. The only other circumstance under which the emergency stack would open, and vent gases to the atmosphere without emission control, would be a malfunction of the blower or induced draft fan system which pulls the gases out of the main stack. This could be caused by failure of the drive belts or a burnout of a motor. With proper maintenance, the belts will not fail and the motors will function for years without replacement. In an emergency situation, however, if a shutdown does occur, the frequency of the pulse hearth can be increased to push the waste stream into the quench pit in approximately 20 minutes, thus, eliminating emission of pollutants through the stack. The County's expert, Mr. Cross, also agreed that most of the causes of the opening of the emergency dump stack have been eliminated by the proposed Basic design. In any event, even in an emergency situation where the dump stack must open, the inherent design capabilities of the incinerator, related to operating temperature, residence time and the multiple combustion chambers, result in only one part per million CO, as well as very low nitrogen oxide and hydrocarbon levels being emitted from the facility even with no other pollution emission control provisions. In the event the emergency stack opens, the highest HCL emissions occur immediately, but then quickly drop to acceptable levels. This is so because combustion of materials immediately in the furnace would be finished, but no other charging of the furnace would occur until the malfunction is alleviated. Rule 17-2.250, F.A.C., allows, in any case, with an emergency opening of dump stack, the excession of permit limits for up to two hours. The results of modeling the operation of the dump stack at a 40-foot height and at 30 pounds per hour of HCL emissions shows that the 7,500 threshold limit value ("TLV"), which the Occupational Safety and Health Administration ("OSHA") sets to protect worker safety, will not be exceeded anywhere off the plant property, which boundaries lie 50 meters or more from the stack location. The HCL administrative level set by DER (by policy) of 150 micrograms per cubic meter will be exceeded in an area out to approximately 400 meters from the stack. Beyond 400 meters, the level is less than that and drops off rapidly thereafter so that at 800 meters, under the model prediction, the level of HCL concentration would be only 57 micrograms per cubic meter and at 2,000 meters, 37 micrograms per cubic meter. The county prison site, the Hamilton County landfill, recreation park, middle school, county road camp, senior citizens center, other schools and a nursing home, of which concern was expressed about proximity to incinerator emissions, are all 900 meters or more from the site of the incinerator and the location of the stack. It has thus been established that ambient HCL concentrations will not reach the prohibited level of 150 micrograms per cubic meter for the three-minute average at any of these locations. The permit applied for is a "minor source construction permit". Such a permit allows the applicant to construct the source, having an initial startup and performance compliance testing period to demonstrate that the facility can meet emission standards provided for in the permit and related rules. After demonstrating compliance, the applicant can then seek an operating permit. The test methods required as conditions by DER's proposed grant of the permit and the "draft permit" are standard ones sanctioned by the U.S. EPA. They are reliable and acceptable and have undergone independent testing and development and are used by all states. Thus, the combustion chamber exit temperature must be monitored for the purpose of determining if the unit complies with the 1,800 degree Fahrenheit rule, the criteria for complete combustion. Oxygen must also be monitored for the purpose of determining if the incinerator is operating properly and achieving good combustion which is essential to control of hydrocarbons, nitrogen oxides, CO and other pollutants. When oxygen falls below certain levels, the computerized micro- processor monitoring system shuts down the loader to prevent charging of the furnace until combustion standards are again reached to prevent insufficient combustion due to low oxygen and excession of pollutant limits. In order to insure that the CO limit of 100 parts per million is not exceeded, a continuous CO monitoring capability will be installed within the incinerator. The lower the CO, the better the combustion efficiency. Although the rules require a 100 parts per million limit, CO test results at the Stroud facility, which is essentially identical to the one proposed, averaged 1.1 parts per million. Test results at the Stroud facility also demonstrated that the dry lime scrubbers installed there accomplish high HCL and particulate removal. The Stroud facility meets all Florida rule standards. Mr. Cross acknowledged that the test results on that facility demonstrate that dry lime scrubbers on medical waste incinerators "will do the job". Design details of the 98-foot stack and the lime injection baghouse scrubber facility were not included in their entirety in the application and the evidence adduced. Design details of the 98-foot stack, however, were provided in the application on page 6 as to the 40-foot stack. The changing of the stack height to 98 feet does not change the remaining design details, and they are still valid and have been proven so. Although no design or plans for the lime injection baghouse proposed have been adduced, the testimony of Mr. Basic establishes that such a facility will meet all pertinent emission standards prevailing in the Florida rules and policies, as such a facility did in the Stroud tests. Mr. Basic's testimony was unrefuted and establishes that the dry lime injection baghouse scrubber facility, such as he proposes and about which he is knowledgeable, based upon his manufacture, installation and operation of other incineration facilities, will reasonably assure that all pertinent disputed emission standards will be met (for particulate matter, opacity and HCL). Mr. Basic, as equipment vendor for the project, has responsibility for the entire incineration facility. He will oversee construction, installation and testing of the incinerators and emission control equipment (baghouse and stacks). He has guaranteed that all Florida emission standards will be met as the manufacturer and vendor for the project. A grant of the permit at issue should be conditioned upon Mr. Basic performing, as testified at the hearing and as agreed to by the applicant, as overseer for the construction, installation and testing of the proposed facility. Specific Condition No. 14 in DER's notice of intent to grant the permit requires the applicant to test the resultant ash to see if it is hazardous. Ash from the proposed facility must be tested in accordance with 40CFR 262.11, which requires testing and characterization of the waste. Ash from the proposed facility will be tested; and if it tests as hazardous, it will be handled as hazardous waste by sending it to an approved hazardous waste landfill or treatment facility. In any event, it has been stipulated by the applicant that the ash will not be deposited in a Hamilton County landfill; and the permit should be so conditioned. Most ash coming from infectious waste incineration is non-toxic. Controlled air incineration produces a sterile ash, which is a non-combustible residue, and may be disposed of in an ordinary landfill. Ash tested at the Stroud facility, after burning medical waste of the type to be incinerated in the instant facility, tested as non-hazardous. The ash will be removed from the facility in closed containers. Storage of Biohazardous and Biomedical Wastes DER regulates biohazardous waste incineration under the air permitting program, requiring an air permit, as sought in the instant case. DER does not require a separate solid waste treatment and sewage permit. Biomedical waste is regarded as a special waste which requires an element of care beyond solid waste, but does not require the extraordinary care required of hazardous waste. Sections 17-712.420 and 17-712.800, F.A.C., deal with the permitting of biohazardous waste storage. There are two ways in which an applicant can notify DER of its intent to use a general permit for the storage of biohazardous waste: It can apply for a general permit by notifying DER on a specific form of its intent to use a general permit for the storage of the waste; or It can include the information as part of an air permit application. With either option, there is no difference in the way DER processes the two types of notification. DER reviews the information submitted to make sure that it indicates that the facility will meet the requirements of Rule 17-712.420, F.A.C. The DER district waste program administrator, Mr. Mike Fitzsimmons, established in his testimony that the applicant has met the qualifications for the general permit for biohazardous waste storage. Five areas have been designated for storage of the biomedical waste to be incinerated at the TSI facility. It is anticipated that most of these areas will normally be empty. The storage areas are available, however, in case one of the incinerators is inoperative for any reason. There are contingency plans for re-routing the waste in the event one or both incinerators are inoperative for a significant period of time. Area A is the primary area of the facility where boxes are loaded onto a conveyor system and continuously fed into the furnaces. Area B is considered a secondary storage area where palletized boxes can be stored pending their placement onto the conveyor system for charging into the incinerators. The secondary area here can also be used for backup storage. Areas C and D are truck unloading docks,. The trucks, themselves, also can be used for storage capacity. Area E on Exhibit 7, the permit drawings, shows an outdoor storage area which will hold a number of trucks which transport the biohazardous waste. All of the trucks bringing waste into the facility will remain locked until brought to the unloading dock for unloading and incineration of their contents. The loading docks for the trucks located at the back of the facility are designed with drainage to prevent storm water runoff. Both the indoor and outdoor storage areas will be concrete. The concrete joints will be grouted and sealed, and the concrete will have an impermeable sealant placed on it. To maintain a sanitary condition, the area will be swept daily; and any spill area will be disinfected. The indoor areas will be disinfected weekly regardless of spills. Access to the proposed facility will be restricted to prevent entry of unauthorized persons. The outer perimeter will be enclosed with an 8-foot cyclone fence. It will be monitored with closed-circuit television. The building itself will only be accessible by authorized persons. The fence and all of the entrances will be marked with the international biohazardous symbol with the words "biohazardous wastes or infectious wastes". The facility will be operated so as to prevent vermin, insects or objectionable odors offsite. All materials will be packaged according to Rule 17-712.400(3), F.A.C. Refrigeration is not contemplated because EPA guidelines on management of infectious waste do not recommend refrigeration. Instead, storage times will be kept as short as possible prior to incineration. There will be minimal handling of boxes at the facility. Semi-trailers will be unloaded by means of an extendo conveyor system which will convey the boxes directly to the incinerators. If a box is dropped, breaks or a spill occurs, the area will be disinfected immediately. All floor drains, which will be installed both indoors and outdoors, will have a slight slope in the direction of the drain so that the floors can be scrubbed and hosed down and disinfected with all liquid material being flushed down those drains. Liquid waste created by the disinfection process can be safely disposed of thereafter in the city sanitary sewer system. The storm water management system on the site and the drainage sewage system are entirely separate, however. Employees will be required to wear either rubber or plastic gloves and white disposable clothing. All biohazardous waste generators (hospitals, etc.) and transport companies will be required to put the waste in "red bags", strong plastic bags. The medical waste will be required to be sealed in strong plastic bags, which are then placed by the generator of the waste in sealed cardboard boxes having a 275-pound bursting strength. All boxes must be marked with the name and address of the generator of the waste (hospital, etc.). The transporter of the waste, typically a trucking company, will be required to keep the trailers transporting the waste locked and the boxes intact and unopened. The applicant, as a condition of the permit, will not accept delivery of any waste shipments not so packaged and maintained. In fact, in addition to the rules governing the packaging and transport of biomedical waste contained at 17- 712.400, 17-712.410, F.A.C., TSI will require, by written contract, generators and transporters of the biomedical waste to insure delivery of waste properly packaged in accordance with Florida law regardless of which State the waste is generated and transported from. Additionally, the applicant will maintain records of waste origins and shipments in accordance with Rule 17-712.420(7), F.A.C., in its computerized record system. A detailed contingency plan will be prepared for the proposed facility by Lloyd H. Stebbins, P.E., an expert in environmental incident planning. The contingency plan will include more detail than is required by the biohazardous waste rules. The plan will address how medical waste is handled in order to insure public safety and the safety of employees as it is transported to and enters the plant and how ash will be safely handled when it exits the plant. Mr. Stebbins will also prepare an operation plan which will include personnel training in disinfection procedures and a description of those procedures for submittal to DER as a condition of a grant of this permit. That operation plan will contain procedures for all three types of disinfection methods authorized by Rule 17-712, F.A.C. This will enable the applicant to have the flexibility to use all three procedures, hot water, sodium hypochlorite, iodine or an EPA approved germicide. Mr. Stebbins will direct and provide training to insure that personnel comply with the regulations concerning disinfection and proper application of disinfectants. As an additional safety factor, the facility is designed to operate efficiently at approximately 85% of its actual capacity in order to allow for "down time" and maintenance. Standing TSI has challenged the County's standing to participate in this proceeding, asserting that Hamilton County, through its duly-elected Board of County Commissioners, does not possess a substantial interest in the outcome of this proceeding different from that of the public generally. It contends that the concerns various members of the general public might have concerning location and installation of the incinerator facility are the only concerns that the County has in participating in this proceeding; and, therefore, that the County has no substantial interest of its own justifying its standing to be a party to this proceeding. The record, however, reveals a strong citizen opposition in the County and City of Jasper to the applicant's proposed project. During the public comment portion of these proceedings, it became obvious that the citizens of Hamilton County have a variety of health and safety concerns which have engendered wide spread opposition to the applicant's project. Principal concerns are the matters of transportation and potential spillage of infectious hospital- generated medical wastes which the incinerator will be treating. Additionally, a strong concern has been expressed by various citizens of Hamilton County and the City of Jasper, concerning potential HCL emissions and their potential negative health effects on residents of the city and county, particularly those who utilize the many publicly-owned facilities located in proximity to the project site. These facilities include a middle school, a senior citizen center, a county road camp or prison, the county landfill, county equipment, a bridge and other buildings, as well as the fact that the material to be incinerated will be transported on trucks through a residential area. Additionally, the Hamilton County Correctional Institution is immediately adjacent to the proposed project site and employs several dozen county residents. Concerns were also expressed about increased traffic flow resulting from trucks bringing waste through the county and city to the proposed incinerator site, as well as the health and safety of the citizens who will be employed at the proposed facility itself, and the lack of sufficient emergency equipment and facilities within Hamilton County. Many citizens expressed their opposition to the proposed facility at the public comment portion of the hearings, through petitions submitted to their city council and the board of county commissioners and at public meetings conducted by those two governmental bodies. Thus, it can be inferred that there is a concensus of opposition by citizens of the city and the county which has been expressed to their respective governing commissions, who are the Petitioner and Intervenor in this proceeding. There is no question that the proposed project has the potential to cause some pollution or degradation of air and water in Hamilton County and the City of Jasper. Section 125.01(1), Florida Statutes, delegates broad powers and duties to county governments. Those powers and duties are enumerated in the Conclusions of Law below and include such authority as to establish and administer programs of air pollution control; to provide for and regulate waste and sewage disposal; to operate solid waste disposal facilities pursuant to Section 403.706(1), Florida Statutes; to establish, coordinate and enforce zoning and such business regulations as are necessary for public protection; to perform other acts not inconsistent with the law which are in the common interest of the people of the county, and to exercise all powers and privileges not specifically prohibited by law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and aguments of the parties, it is therefore, RECOMMENDED that DER enter a final order approving TSI's applications for permits for the subject two biological waste incineration facilities in accordance with the conditions specified in the notice of intent to grant the permit and enumerated in this Recommended Order. DONE AND ENTERED this 24th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6824 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-11. Accepted, although not necessarily dispositive of material issues presented, standing alone. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not, in itself materially dispositive of material disputed issues. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject[matter and as not directly relevant in the de novo context of this proceeding. 15-22. Accepted. 23. Accepted, but not itself materially dispositive. 24-31. Accepted, but in themselves materially dispositive of disputed issues and subordinate to the Hearing Officer's findings of fact on this subject matter. 32-43. Accepted. 44-48. Accepted, but subordinate to the Hearing Officer's findings of fact on these subject matters and not, standing alone, dispositive of material disputed issues. 49. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence. 50-55. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 58-64. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, contrary to the preponderant weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 68-73. Accepted. Respondent, TSI Southeast, Inc.`s Proposed Findings of Fact: 1-15. Accepted. 16. Rejected, as a discussion of testimony and not a finding of fact. 17-52. Accepted. 53-70. Accepted. 71-73. Rejected, as not materially dispositive of disputed issues in the de novo context of this proceeding. 74-75. Accepted. 76. Rejected, as unnecessary and immaterial. 77-123. Accepted. 124-129. Accepted, but not themselves dispositive of the material disputed issue of standing. Respondent, DER's Proposed Findings of Fact: 1-41. Accepted. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 David D. Eastman, Esq. Patrick J. Phelan, Esq. Parker, Skelding, Labasky & Corry 318 North Monroe Street Tallahassee, FL 32301 John H. McCormick, Esq. McCormick & Drury 2nd Street at 2nd Avenue Northeast Jasper, FL 32052 Ross A. McVoy, Esq. Vivian F. Garfein, Esq. Fine, Jacobson, Schwartz, Nash, Block & England Suite 348 315 South Calhoun Street Tallahassee, FL 32301 William H. Congdon, Esq. Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact Petitioner operates a cattle feeding lot near Bartow, Florida consisting of 6 sheds, 1600 feet long by approximately 25 feet wide. These sheds are two story structures with the cattle fed on the upper story. The upper floor is slotted to permit cattle droppings to fall to the lower level. From there the manure and urine is processed in the waste treatment facilities consisting of a concrete sump and anerobic ponds. These treatment facilities qualify as pollution control equipment for purposes of tax assessment. Petitioner installed metal roofs over these feeding sheds which Petitioner claims also constitute pollution control equipment. Shade for cattle is required and could be provided by a fibre screen which would cost some $37,000 as compared to the metal roof costs of approximately $171,000. The difference between the costs of the metal roof and a fabric sun screen is $133,882.06 which Petitioner desires to have reduced from its assessment for tax purposes. The Property Appraiser Polk County recommended to the DER that this amount be approved as a deduction for pollution control equipment. Petitioner contends that the primary purpose of the metal roof is to divert the rainwater from mixing with the cattle droppings. As constructed rainwater is presently collected from the roofs of the feeding lots and transported via viaduct to a runoff pond required by federal EPA regulations which acts as a settling pond. From this pond, which EPA regulations requires have a ten-year storm rainfall capacity, the water is pumped for irrigation purposes. If the rainwater is allowed to fall onto the upper platform on which the cattle are kept, it will go through the slots and mix with the fecal matter on the ground floor. If this were allowed to occur it would be necessary for Petitioner to greatly increase the size of its sump and anerobic ponds to treat this waste thus increasing the cost of this portion of its plant which is clearly pollution control equipment as defined by Section 193.621 F.S. As presently operated the solids are removed from the droppings in the sump before the remaining liquid is processed in the waste treatment facilities consisting of the anerobic ponds. The efficiency of the anerobic process is increased as the concentration of the waste material is increased. Adding rainwater to this waste material would therefore decrease the efficiency of the operation as well as require a larger capacity sump and anerobic ponds. In addition to keeping rainwater out of the cattle droppings, the roof provides needed shade to the cattle, provides better shelter for cattle in rainy or cold weather, and eliminates need for adding covers over the feeding troughs. Cattle fed in open lots are as healthy, or healthier, than those fed in covered feeding lots.
The Issue The issues for determination in this matter are: (1) whether Petitioner, MW Horticulture Recycling Facility, Inc. (MW), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration; (2) whether Petitioner MW is an irresponsible applicant; and (3) whether Petitioner MW Horticulture Recycling of North Fort Myers, Inc. (MW-NFM), is entitled to renewal of its Yard Trash Transfer Station or Solid Waste Organics Recycling Facility registration.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and the Registration Denials Petitioner MW is a Florida corporation that operates an SOPF located at 6290 Thomas Road, Fort Myers, Lee County, Florida. The site is commonly referred to as the "South Yard." Petitioner MW-NFM is a Florida corporation that operates an SOPF located at 17560 East Street, North Fort Myers, Lee County, Florida. The site is commonly referred to as the "North Yard." The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of part IV of chapter 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Chapters 62-701 and 62-709. Pursuant to that authority, the Department determines whether to allow SOPFs to annually register in lieu of obtaining a solid waste management facility permit. On April 25, 2019, Petitioner MW submitted its application for registration renewal for the South Yard. On August 22, 2019, the Department issued a notice of denial. The listed reasons for denial focused on non-compliance with orders for corrective action in a Consent Order (Order) between Petitioner MW and the Department entered on February 22, 2019. The Order was entered to resolve outstanding violations in a Notice of Violation, Orders for Corrective Action and Administrative Penalty Assessment (NOV), issued on November 20, 2018. The notice of denial stated that, as of August 9, 2019, Petitioner MW had not completed the following corrective actions of the Order by the specified timeframes: (a) within 90 days of the effective date of this Order, Respondent shall remove all processed or unprocessed material (yard trash) from the Seminole Gulf Railway Right of Way and the swale along Old US 41 and establish a 20 foot wide all-weather access road, around the entire perimeter of the site; (b) within 90 days of the effective date of this Order, Respondent shall reduce the height of the piles to a height that the facility’s equipment can reach without driving (mechanically compacting) onto the processed or unprocessed material; and (c) within 90 days of the effective date of this Order, Respondent shall have all the processed and unprocessed material be no more than 50 feet from access by motorized firefighting equipment. The notice of denial also stated that when Department staff conducted compliance visits on April 29, 2019, June 27, 2019, July 7, 2019, and July 18, 2019, the following outstanding violations were documented: (a) unauthorized open burning of yard waste; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) an all-weather access road, at least 20 feet wide, around the perimeter of the Facility has not been maintained and yard trash has been stored or deposited within the all-weather access road; and (d) yard trash is being stored more than 50 feet from access by motorized firefighting equipment. On April 25, 2019, Petitioner MW-NFM submitted its application for registration renewal for the North Yard. On August 22, 2019, the Department issued a notice of denial. The notice of denial stated that compliance and site observation visits were conducted on July 9, 2019, July 30, 2019, August 1 and 2, 2019, and the following non-compliance issues were documented: (a) unauthorized open burning; (b) unauthorized mechanical compaction of processed and unprocessed material; (c) yard trash received has been stored or disposed of within 50 feet of a body of water; and (d) yard trash received is not being size-reduced or removed, and most of the unprocessed yard trash has been onsite for more than six months. The notice of denial also stated that on March 27, 2018, May 10, 2018, and October 3, 2018, Department staff conducted inspections of the North Yard. A Warning Letter was issued on November 2, 2018. The Warning Letter noted the following violations: (1) unauthorized burning of solid waste; (2) the absence of the required 20-foot-wide all-weather perimeter access road along the southern unprocessed yard trash debris pile; (3) inadequate access for motorized firefighting equipment around the southern unprocessed yard trash debris pile (lake pile); (4) the lake pile not size-reduced or removed within six months; (5) mechanical compaction of processed and unprocessed material by heavy equipment; and (6) yard trash storage setbacks from wetlands not maintained. Petitioners' SOPFs The North Yard is located in North Fort Myers and is bound by the southbound lanes of Interstate 75 to the east and a lake to the west. The South Yard is slightly larger than the North Yard and abuts Thomas Road to the west and a railroad owned and operated by the Seminole Gulf Railway Company to the east. Petitioners' facilities accept vegetative waste and yard trash (material) from the public in exchange for a disposal fee before processing and size-reducing the material into retail products such as organic compost, topsoil, and mulch. The unprocessed material is staged in various piles generally according to waste type until it can be processed by grinding or screening. As of the date of the final hearing, both the North Yard and the South Yard were completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meander between the piles themselves. As the material in the piles decomposes, heat is produced from the respiration and metabolization of organic matter. This heat ignites the dry material and can cause substantial fires. Both the North Yard and South Yard are susceptible to fires caused by spontaneous combustion as a result of their normal operations of collecting and stockpiling organic waste. Fires Although spontaneous combustion is an inherent risk with SOPFs, the evidence at the hearing established that the material at Petitioners' facilities catches fire at an abnormally high rate as a result of poor pile management. Piles need to be turned and wetted to keep down incidents of spontaneous combustion. Monitoring temperatures, rotating the piles, and removing the material at a faster rate would help reduce the incidence of fires. Large piles with no extra land space cannot be managed in a way "to aerate and keep the temperatures at a level where you're not going to have spontaneous combustion." See Tr. Vol. I, pg. 32. Fire Marshal Steve Lennon of San Carlos Park Fire and Rescue regarded the South Yard as a fire hazard compared to other similar sites in his district. He testified that the pile heights, widths, and lengths at the South Yard are not in compliance with applicable fire-code size requirements. He also testified that if the pile sizes were in compliance, Petitioner MW would not have to put their motorized firefighting equipment on top of the piles "because [they] would be able to reach it from the ground." See Tr. Vol. I, pg. 41. As of the date of the hearing, San Carlos Park Fire and Rescue had responded to 43 active fire calls at the South Yard in the last two years, and three times in 2020 alone. In 2018, the active fire calls at the South Yard were multi-day suppression operations. In 2019, the active fire calls were mostly hotspots and flare-ups. Captain Doug Underwood of the Bayshore Fire Rescue and Protection Service District (Bayshore Fire District) testified that his department had responded to approximately 75 fire calls at the North Yard in the last two years. The most common cause of the fires was spontaneous combustion. The piles were not in compliance from a size standpoint. Captain Underwood testified that the majority of the 75 calls were to the lake pile at the North Yard. See Tr. Vol. I, pg. 59. The lake pile was a temporary site on the southern end of the lake that borders the North Yard, and for most of 2018 and 2019, contained debris from Hurricane Irma.1 The lake pile temporary site was completely cleared by the time of the hearing. Captain Underwood testified that in 2018, he recommended to Petitioners that they engage the services of an expert fire engineer. Petitioners engaged Jeff Collins who met with Captain Underwood on multiple occasions. They discussed how to address fires and hotspots and that the facilities should have a written fire protection safety and mitigation plan. Such a plan was created and Captain Underwood was satisfied with its provisions. Although the lake pile temporary site was completely cleared by the time of the hearing, it was not an entirely voluntary effort on Petitioners' part. Captain Underwood testified that Petitioners' "initial plan of action was to leave it there for . . . eight months or greater, depending on the time frame needed to have the product decompose and cool down to a temperature that they could remove it." See Tr. Vol. I, pg. 83. It took Lee County code enforcement efforts "to compel MW to remove this material off-site as quickly as possible." See Tr. Vol. I, pg. 82. 1 Throughout this proceeding, the lake pile was referred to by various names in testimony and exhibits, such as, "southern unprocessed yard trash debris pile," "lake yard," "trac[t] D," and "temporary site." As recently as February 12, 2020, a large pile of hardwood, green waste, and compost at the North Yard caught fire as a result of spontaneous combustion. The size of the fire was so large and hot that the Bayshore Fire District could not safely extinguish the fire with water or equipment, and allowed it to free-burn openly for 24 hours in order to reduce some of the fuel. The fire produced smoke that drifted across the travel lanes of Interstate 75. The free-burn allowed the pile to reduce in size "down to the abilities of the district and the equipment on-site." See Tr. Vol. I, pgs. 51-52. Captain Underwood testified that "once we started putting water on it, then the MW crews with their heavy equipment covered the rest of the smoldering areas with dirt." See Tr. Vol. I, pg. 56. Rule Violations By Petitioners' own admission, the facilities have repeatedly violated applicable Department rules throughout the course of their operations over the last two and one-half years. The most pertinent of these violations center around the Department's standards for fire protection and control to deal with accidental burning of solid waste at SOPFs. Renee Kwiat, the Department's expert, testified that the Department cited the South Yard nine times for failing to maintain a 20-foot all-weather access road. The South Yard consistently violated the requirement to maintain processed and unprocessed material within 50 feet of access by motorized firefighting equipment, and the North Yard has violated this requirement twice. The North Yard consistently violated the requirement to size-reduce or remove the lake pile material within six months. Both the North Yard and South Yard were cited multiple times for mechanically compacting processed and unprocessed material. Following a period of noncompliance and nearly 11 months of compliance assistance at the South Yard, Petitioner MW told the Department it would resolve all outstanding violations by July 1, 2018. The July 1, 2018, deadline passed and on October 18, 2018, the Department proposed a consent order to resolve the violations at the South Yard. However, Petitioner MW did not respond. On November 20, 2018, the Department issued the NOV to Petitioner MW regarding the South Yard. The violations included failure to maintain a 20-foot all-weather access road around the perimeter of the site, failure to ensure access by motorized firefighting equipment, mechanical compaction, and the unauthorized open burning of solid waste. On February 22, 2019, the Department executed the Order with Petitioner MW to resolve outstanding violations in the NOV. By signing the Order, Petitioner MW agreed to undertake the listed corrective actions within the stated time frames. Compliance visits to the South Yard on April 29, 2019, June 7, 2019, June 27, 2019, July 18, 2019, and August 22, 2019, documented that many violations outlined above were still present at the site. At the time of the final hearing, the preponderance of the evidence established that none of the time periods in the Order were met. The preponderance of the evidence established the violations listed in paragraphs 5 and 6 above. At the time of the final hearing, the preponderance of the evidence established that Petitioner MW still had not reduced the height of the piles such that their equipment could reach the tops of the piles without driving (mechanically compacting) onto the processed or unprocessed material. Thus, all the processed and unprocessed material was not more than 50 feet from access by motorized firefighting equipment. At the time of the final hearing, the preponderance of the evidence established more incidents of unauthorized open-burning of solid waste; and continuing unauthorized mechanical compaction of processed and unprocessed material. The evidence also established that the South Yard does not encroach on Seminole's real property interest. The Department did not issue an NOV for the North Yard. The preponderance of the evidence established that there were repeated rule violations at the North Yard. These violations formed the basis for denying the North Yard's registration as outlined in paragraph 8 above. The Department deferred to Lee County's enforcement action for violations of County rules as resolution of the violations of Department rules. At the time of the final hearing, however, the preponderance of the evidence established more incidents of unauthorized open burning of solid waste, and continuing unauthorized mechanical compaction of processed and unprocessed material at the North Yard. Petitioners' Response and Explanation Approximately two and one-half years before the date of the hearing in this case, Hurricane Irma, a category four hurricane, made landfall in the state of Florida. It was September 10, 2017, and Hurricane Irma significantly impacted the southwest coast of Florida, where Petitioners' facilities are located. Hurricane Irma caused extensive damage, including the destruction of trees, vegetation, and other horticultural waste which required disposal. Massive amounts of such yard waste and horticultural debris were deposited on roadways and streets throughout Lee County, creating a significant issue that needed to be addressed by local governments, and state and federal agencies. Due to the threat posed by Hurricane Irma, the state of Florida declared a state of emergency on September 4, 2017, for every county in Florida. This state of emergency was subsequently extended to approximately March 31, 2019, for certain counties, including Lee County, due to the damage caused by Hurricane Irma. An overwhelming volume of material needed to be processed and disposed of following Hurricane Irma. The Petitioners' facilities were inundated with material brought there by Lee County, the Florida Department of Transportation, the Federal Emergency Management Agency, and others. After Hurricane Irma, haulers took considerable time just to get the materials off the streets, and processors like the Petitioners, ran out of space because there was limited space permitted at the time. As a result, these materials stacked up and had to be managed over time at facilities, including Petitioners' facilities. To accommodate the material, Petitioner MW-NFM added the temporary site that was labeled the "lake pile" or "southern unprocessed yard trash debris pile" in Department inspection and compliance reports of the North Yard. In order to address the volume of material on the site after Hurricane Irma, Petitioner MW-NFM requested approval from the Department to move the material off-site to other locations in order to reduce the size of the piles at the North Yard's lake pile. For reasons that remain unclear, such authorization was not obtained, and Petitioner MW-NFM believes that this would have size-reduced the piles and prevented accumulation of material in violation of Department rules. In order to process the North Yard's lake pile and move it off-site more quickly, Petitioner MW-NFM requested permission from Lee County and the Department to grind unprocessed material on site, which would have size-reduced the lake pile and allowed it to be moved off-site more quickly. Because existing zoning did not authorize this grinding, the request was denied in spite of the fact that a state of emergency had been declared which Petitioner MW-NFM believes would have permitted such an activity. This further hampered Petitioner MW-NFM's ability to size-reduce the lake pile leading to more issues with hot spots and fires. Because the material was of such volume, and was decomposing, a major fire erupted in 2018 at the North Yard's lake pile. Petitioners' fire safety engineer, Jeff Collins, wrote reports to address this issue and recommended to the local fire department that the pile be smothered in dirt until the fire was extinguished. The request was denied by the Bayshore Fire District, which instead directed that Petitioners break into the pile in order to extinguish the fire. When Petitioners did so, the piles immediately erupted into flames as predicted by Petitioners' fire safety engineer. Moving the smoldering material to the South Yard also led to fires at the South Yard. In spite of the large volume of material at the North Yard's lake pile, Petitioners made steady progress in size reducing the material and moving it off-site. However, as of the date of the final hearing, both the North Yard and the South Yard were still completely full of large, tall, and long piles of processed and unprocessed material except for a perimeter roadway around each site and paths that meandered between the piles themselves. Mechanical Compaction Each party presented testimony regarding the question of whether Petitioners' facilities violated the prohibition that any processed or unprocessed material shall not be mechanically compacted. The parties disagreed over how the prohibition against mechanical compaction was applied to yard trash transfer facilities. In March of 2018, Petitioners' representative, Denise Houghtaling, wrote an email to the Department requesting clarification of the Department's definition of "mechanical compaction" because it is undefined in the rules. On April 3, 2018, Lauren O' Connor, a government operations consultant for the Department's Division of Solid Waste Management, responded to Petitioners' request. The response stated that the Department interprets "mechanical compaction" as the use of heavy equipment over processed or unprocessed material that increases the density of waste material stored. Mechanical compaction is authorized at permitted disposal sites and waste processing facilities, but is not permissible under a registration for a yard trash transfer facility.2 Mechanical compaction contributes to spontaneous combustion fires, which is the primary reason for its prohibition at yard trash transfer facilities. Petitioners' interpretation of mechanical compaction as running over material in "stages" or "lifts" was not supported by their expert witnesses. Both David Hill and Jeff Collins agreed with the Department's interpretation that operating heavy equipment on piles of material is mechanical compaction. The persuasive and credible evidence established that Petitioners mechanically compact material at their facilities. Mechanical compaction was apparent at both sites by either direct observation of equipment on the piles of material, or by observation of paths worn into the material by regular and repeated trips. Department personnel observed evidence of mechanical compaction on eight separate inspections between December 2017 and January 2019. Additional compaction was observed at the South Yard on June 7, 2019, and in aerial surveillance footage from August 28, 2019, September 5, 2019, January 30, 2020, and February 12, 2020. Petitioners' fire safety engineer, who assisted them at the North Yard lake pile, testified that the fire code required access ramps or pathways for equipment onto the piles in order to suppress or prevent fire. However, Captain Underwood and Fire Marshal Lennon testified they do not and have never required Petitioners to maintain such access ramps or paths on the piles. The fire code provision cited by Petitioners' expert does not apply to their piles. See Tr. Vol. II, pgs. 78-80. In addition, Fire Marshal Lennon testified that placing firefighting equipment on top of piles is not an acceptable and safe way to fight fires at the site by his fire department. 2 Rule 62-701.710 prohibits the operation of a waste processing facility without a permit issued by the Department. See also Fla. Admin. Code R. 62-701.803(4). Rule 62- 701.320(16)(b) contemplates the availability of equipment for excavating, spreading, compacting, and covering waste at a permitted solid waste disposal facility. Despite receiving clarification from the Department in April of 2018, Petitioners choose to ignore the Department's prohibition against mechanically compacting unprocessed or processed material piles. In addition, the persuasive and credible evidence suggests that Petitioners blanket the piles with dirt to both suppress fires and accommodate the "access roads" or "paths" on the piles.3 Ultimate findings The persuasive and credible evidence established the violations cited in the Department's registration denial for the North Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established the violations cited in the Department's registration denial for the South Yard. The Department also established by a preponderance of the evidence the alleged subsequent violations through to the time of the final hearing. The persuasive and credible evidence established that Petitioners did not consistently comply with Department rules over the two and one-half years prior to the final hearing. However, Petitioners established through persuasive and credible evidence that because of the impacts of Hurricane Irma, and the subsequent circumstances, they could not have reasonably prevented the violations. The totality of the evidence does not justify labeling the Petitioners as irresponsible applicants under the relevant statute and Department rule. However, Petitioners did not provide reasonable assurances that they would comply with Department standards for annual registration of yard trash transfer facilities. 3 The evidence suggests that Petitioners may prefer to follow the advice of their hired experts with regard to the practice of mechanical compaction and blanketing the piles with dirt. See, e.g., Petitioners' Ex. 16. However, the evidence suggests that the experts' level of experience is with large commercial composting and recycling facilities that may be regulated by solid waste management facility permits and not simple annual registrations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioners' annual registration renewal applications for the North Yard and South Yard. DONE AND ENTERED this this 17th day of September, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2020. COPIES FURNISHED: Clayton W. Crevasse, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Sarah E. Spector, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 (eServed) Carson Zimmer, Esquire Department of Environmental Protection Mail Station 49 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
