The Issue The issue is whether Tir-na-n'og, Inc.'s application for renewal of an operating permit for the operation of a residuals management facility in Okeechobee County, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 2, 2000, Respondent, Tir-na-n’og, Inc. (applicant), through its owner and operator, John G. Abel (Abel), made application with Respondent, Department of Environmental Protection (Department), to renew its domestic wastewater facility operating permit FLA016637 for a Residuals Management Facility (RMF). Although the existing permit’s expiration date was November 8, 2000, the application was filed at least 180 days prior to the expiration of the existing permit, and therefore the permit remains effective pending the outcome of this proceeding. Petitioners, Mark Hair (Hair), James and Brenda Burnsed (the Burnseds), and Jerry R. Holland (Holland), who all own property adjacent to or near the applicant's property, have challenged the renewal of the permit on the ground that the applicant is violating various statutes and administrative rules. It is fair to infer that an acrimonious relationship exists between Abel and his neighbors, including Petitioners, who have filed numerous telephonic and written complaints against Abel with the Department over the years. A Department witness asserted, however, that all "public" complaints were "unfounded." The facility is privately owned by Abel and is located on a 247-acre tract of land north of State Road 724 and just west of U.S. Highway 441 near Fort Drum in the northeastern portion of unincorporated Okeechobee County. Besides operating a RMF, Abel also uses the land as pasture to raise 150 head of cattle and award-winning horses, and to grow Callie Grass to make hay. Abel currently operates a 59,000 gallon-per-day lime stabilization facility (the RMF) for sludge, septage, and domestic food service wastes. Treatment of residuals consists of alkaline stabilization for 2.0 hours at a pH of 12 or higher followed by maintenance of a pH of 11.5 or higher for 22 additional hours. Treatment of septage consists of alkaline stabilization for 2.0 hours at a pH of 12 or higher or a pH of 12.5 for a minimum of 30 minutes. The pH is maintained at or above 11 until the septage is land applied, but is less than 12.5 at the time of land application. The RMF is a Type III facility consisting of one 1,250 gallon receiving/screening tank; one 1,250 gallon lime slurry mixing tank; nine 5,000 gallon stabilization tanks; two 6,500 gallon stabilization tanks; two 5,000 gallon emergency storage tanks; two blowers; one lime slurry pump; one irrigation transfer pump; and one tank truck loading pump. Under the proposed permit, flow will be measured in equivalent dry tons/year with a maximum of 242 dry tons/year. All physical components of the facility are in good working condition, are not leaking, and operate as intended. The engineering review concluded that there are no corrective actions required, no outstanding compliance issues, and the facility has no noted problems or deficiencies. The Department’s review concluded that there are no outstanding compliance issues or enforcement actions involving the facility. After treatment, the stabilized residuals are land spread on-site on Abel's property (the ranch) and an adjoining property of unknown size to the southeast known as the Fox property under Department-approved Agricultural Use Plans. Although the Fox property was sold to a third party sometime in 2001, Abel has represented that he has an oral agreement with the new owner to continue to use the land. Any changes in new, modified, or expanded land application sites call for a new or revised Agricultural Use Plan for the site that will be incorporated into the proposed permit as a minor permit revision. Treated, stabilized residuals from other RMF facilities are also land-spread at the site as described in the Agricultural Use Plan and the cumulative loading annual reports submitted to the DEP. Specific Condition II.33 requires the applicant to maintain records of application zones and application rates and to make these records available for inspection. Specific Condition II.34 requires the permittee to submit an annual summary of residuals application activity, including if more than one facility applies residuals to the same application zones. The pending application is for renewal of a permit issued in 1995, prior to the effective date of extensive amendments to Chapter 62-640, Florida Administrative Code, which governs the regulation of domestic wastewater residuals. The proposed permit contains updated reporting requirements and forms more particularly suited to the day-to-day operations of an RMF. Specific Condition I.A.3. of the proposed permit requires that incoming loads to the RMF be reported on Residuals Stabilization Reports or Septage Stabilization Reports and that incoming load manifests be maintained on-site and be readily available for Department inspection. These reports are to be submitted to the Department on a monthly basis as specified in Specific Condition I.A.9. Under the 1995 permit, the applicant is required to submit monthly reports on Discharge Monitoring Report forms (DMRs) to which is attached the DEP Form 62-640.900(3). That form is a Standard Domestic Wastewater Residuals Record Keeping Form and shows incoming load manifests and daily processing reports for the residuals and septage accepted at the RMF for treatment. Specific Condition II.18 of the 1995 permit requires the applicant to maintain records and have them available for inspection. Among other things, the records must include the amount of residuals applied or delivered. The applicant currently maintains these records on-site, and the information is provided to the Department as part of the annual summaries required under Specific Condition II.18. Rule 62-640.700(6)(a), Florida Administrative Code, requires that a minimum unsaturated soil depth of 2 feet above the water table level is required at the time the residuals are applied to the soil. The Agricultural Use Plan and the rule require that if the seasonal high ground water level will be within 2 feet of the surface or is undetermined, the permittee shall determine the groundwater level in one or more representative locations in each application zone prior to the application of residuals. When residuals cannot be applied due to the constraints of the rule, they must be stored in holding tanks at the plant. Under the 1995 permit the applicant must record water table levels at the time of application and cannot land- apply the residuals in a particular area if the unsaturated soil depth is less than 2 feet. To ensure compliance with the above rule, the applicant maintains 6 monitoring wells on-site in each application zone and near the RMF in order to check water table levels prior to spreading residuals in those areas. In addition, Abel has agreed to install 2 or more new monitoring wells "under lock and key" to be monitored exclusively by the Department. If the permit is renewed, such an agreement should be incorporated into the conditions. At the present time, the applicant operates on a rotation schedule based on ability to land-apply residuals, grow pasture grass, and allow the livestock to graze in a certain area after residuals have been applied in accordance with the applicable Department rules and the 1995 permit. To avoid runoff or erosion during rain events, which is proscribed by Rule 62-640.700(7), Florida Administrative Code, the land-spread residuals do not sit on top of the soil. Rather, they are disked into the soil after application using a mobile, self-retrieving, high-rate Rainbow irrigation system. The RMF facility uses lime stabilization to treat liquid residuals or septage for the purpose of meeting the pathogen (disease-causing organisms) and vector attraction (attraction of flies) reduction requirements of Rule 62- 640.600, Florida Administrative Code. These reduction requirements are met at the facility to the Class B level for use on restricted public access areas. The ranch is privately owned property and does not have unrestricted public access. Between 1997 and 1999, the Burnseds purchased 210 acres of land located immediately south of, and adjacent to, the ranch and the Fox property. Also to the south of the ranch and immediately adjacent to the west of the Burnsed property are 80 acres of land on which Roto-Rooter once spread residuals. After the Burnseds filed a complaint, Roto-Rooter ceased using the property for that purpose. The Burnseds desire to build a home on their land but are understandably reluctant to do so at this time given the nature of the activities on the ranch. To the north of the ranch is the Boggy Creek Branch and to the south of the Burnsed property is the Fort Drum Creek, both of which flow essentially northeast into the St. Johns River. The applicant's property varies in topography with the high point being in the northwest corner where the RMF is located and the low points being further south and southeast. Surface water generally flows south toward the Burnsed property. There is no ditch or other holding device to prevent runoff from the ranch or Fox property from going directly onto the Burnsed property during rain events. If the permit is renewed, such a device would be appropriate, given the topography of the land. The topographical map for the area shows a 65-foot contour on the ranch sloping down to a 60-foot contour on the Burnsed property to the south and the Fort Drum Creek and sloping down to a 60-foot contour to the north at Boggy Branch Creek. To the northwest of the ranch is a gated retirement community known as Indian Hammocks. Holland is a resident of that community and lives across the street from the ranch. Hair does not live directly adjacent to the ranch, but the trucks which haul residuals to the RMF use the road in front of his house. The Burnseds contend that the permit should not be renewed under the applicable renewal criteria in Rule 62- 620.335, Florida Administrative Code. More specifically, they contend that the applicant has operated the facility in violation of permit conditions and rule-reporting requirements, in violation of the 2-foot rule, and in violation of minimum setback requirements from surface waters. In addition, Holland contends that the site is not suitable for land-application of residuals, which endangers human health and the environment, and that Abel has violated the setback requirement for adjoining properties. Finally, Hair has contended that spillage or leaks from the trucks occur on the road where his children meet their school bus. The Burnseds first contend that the applicant has consistently and systematically underreported the amount of residuals applied and delivered to the property. To this end, they introduced evidence (Exhibit B1) consisting of a compilation and comparison of information gleaned from surveillance videotapes over the period from April 6, 2000, to May 9, 2001, compared with the information reported to the Department by the applicant in its monthly DMR reports. The tapes established that between April and December 2000, at least 285 trucks entered the facility that were not reported on the DMRs. In addition, for the first 5 months of 2001, at least 185 trucks were not reported on the DMRs. When annualized, the latter number is approximately 370 trucks per year. In response to this allegation, Abel pointed out that each year he receives around 280 truckloads of treated residuals under a contract with the Hutchinson Utility Authority (Authority) which are not carried to the RMF but go directly to land application areas. None of these shipments are required to be reported on the DMRs but rather are reported in the summary reports submitted to the Department on an annual basis. This explanation would account for virtually all of the unrecorded shipments in the year 2000, assuming that all of the Authority shipments occurred during the 9- month surveillance period. More than likely, however, these shipments were staggered throughout the year. In any event, there was no evidence (such as summary annual reports for the year 2000, or a copy of the contract with the Authority) to show the dates on which the Authority made deliveries, to demonstrate that the unreported trucks were actually carrying treated residuals, as opposed to untreated residuals, or to show that the claimed number of Authority shipments was accurate. Therefore, it is found that the applicant failed to report on his DMRs around 25 percent of the incoming loads of untreated septage or residuals during the year 2000. Likewise, even after giving credit for the Authority shipments, a significant underreporting would be occurring during the year 2001. These shipments collectively involved several million gallons of septage. Besides the Authority, there are 11 other facilities in the area which "might" transport treated residuals to Abel's property for land application only. There is no evidence of record, however, to show if any trucks hauling treated residuals were received from the other sources, and if so, the number. Moreover, as noted above, the annual summary reports were not made a part of this record so that those figures could be compared to the number of trucks identified in the surveillance tapes. In the absence of any credible evidence to the contrary, it is found that the applicant has violated a condition of his 1995 permit, namely, that he failed to accurately report all incoming loads on his monthly DMRs. The Burnseds further contend that the applicant is in violation of the 2-foot rule regarding the unsaturated soil depth, and therefore the property is no longer suitable for land application of residuals. To support this contention, the Burnseds sited 6 monitoring wells around the western and southern perimeters of the ranch and Fox properties and introduced into evidence the results of samplings taken in September 2001. These samplings showed unsaturated soil depths in each well of less than 2 feet, and that 4 of the 6 wells had depths of less than 1 foot. As discussed in findings of fact 14-16, however, the 2-foot rule is required at the time residuals are applied to the soil. Nothing in the permit documents or Department rule requires an unsaturated soil depth at all locations at all times before a site can be used for residuals application. Petitioners Holland and Burnseds further contend that the low areas on the ranch and Fox properties where surface water exists are subject to the minimum setback requirements in the Department’s rules. In general, a 200- foot setback is required in a residuals application zone from surface waters that are classified as waters of the state. Through recent aerial photographs, Petitioners established that standing water is now found in multiple areas of the Abel and Fox properties for much of the year due to an alleviation of drought conditions that previously existed. However, these surface waters are located completely within the Abel and Fox property boundaries and have not been classified as waters of the state by the Department. Therefore, the setback requirement does not apply. The Agricultural Use Plan for the ranch establishes buffer areas where residuals are not applied. The buffer areas include any required setbacks from property boundaries and occupied buildings. While the Department witness was unable to give a precise distance for the required setbacks from property boundaries (except whatever the "rules" called for), it can be inferred that at least some minimal separation is required. As recently as 6 months before the hearing, Holland personally observed a truck spreading residuals no more than 8 feet from the property line. Other testimony supports a finding that spreading of this nature has occurred on other isolated occasions. These acts constitute a violation of the existing permit. Holland also contends that the land application of residuals at the ranch and Fox properties, over time, endangers human health and the environment. In support of this contention, he presented testimony from a physician who resides in Indian Hammocks and opined that the ranch is a public health problem and should be "eradicated" since the residuals contain numerous bacteria and viruses which can be spread to neighboring properties. He had no concrete evidence, however, to show that several illnesses in the general neighborhood were a direct result of the applicant's operation. That is to say, the evidence presented was speculative, and no direct causal connection was established between the illnesses and the existing operation. The Burnseds have further contended that Abel's RMF and land-application sites are a source of objectionable odors, in violation of Rule 62-296.320(2), Florida Administrative Code. That rule prohibits the "discharge of air pollutants which cause or contribute to an objectionable odor." Both Burnseds have smelled such an odor "several times each year" since purchasing their property a few years ago, especially if the winds are coming out of the west. In addition, a worker on their property became ill in July or August 2000 after smelling odors just after sludge was applied by a truck onto the nearby Fox property. The RMF facility is located near the northwest corner of the property away from the Burnsed property that is located to the south. While the Department points out that immediately adjacent to the Burnsed property is the former land-spreading site once used by Roto-Rooter, and that site was more than likely the source of any objectionable odors, Roto Rooter has ceased operations. Even so, given the fact that odors have been detected only "several times" over the past few years by the Burnseds, and appropriate chemicals are being applied in the tanks to control the odor, reasonable assurance has been given that the RMF is not in violation of the odor rule. Petitioner Hair, who lives near the Abel property, introduced photographs into evidence to demonstrate that trucks carrying residuals to the RMF either spilled or leaked materials at the intersection of U.S. Highway 441 and 325th Trail, which is the site of a school bus stop. Because his children must walk through that area to catch the school bus, Hair is concerned that his children may become ill from walking on the contaminated road. While this is a legitimate and valid health concern, and the leakage may constitute a violation of some regulation by the trucking company, it is not a ground to deny the renewal of the permit or a matter within the Department's jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Tir- na-n'og, Inc. for renewal of its domestic wastewater facility operating permit FLA0166637. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Jonathan Jay Kirschner, Esquire Kirschner & Garland, P.A. 101 North Second Street Fort Pierce, Florida 34960-4403 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark Hair 885 Northeast 336th Street Okeechobee, Florida 34792-3603 Jerry R. Holland 32801 U.S. Highway 441 North, Lot 101 Okeechobee, Florida 34792-0271 John G. Abel 24 Northeast 325th Trail Okeechobee, Florida 34792-0253
Findings Of Fact Bay County's application to construct a sanitary landfill comprising nearly 80 acres located at the north end of Bay County abutting Washington County near the intersection of S.R. 20 and S.R. 77 was initially submitted to the Department of Environmental Regulation (DER) in November, 1979 (Exhibit 1). The site is surrounded by 400 feet of pine woods which buffer the site from all roads and residences . There are no residences within several hundred yards of the proposed site and the nearest natural body of water is over one-fourth mile from the site. The noise generated by the operation of the landfill will be similar to the noise generated on S.R. 20 and S.R. 77 by passing vehicles. Following conferences between representatives of Bay County and DER and several revisions of the application of May 16, 1980 DER issued its notice of intent to grant the applied-for permit (Exhibit 10) and this proceeding was initiated by Petitioners. The site is located in an area of predominately "Lakeland series" sands which provides little barrier to the percolation of surface or ground waters into the Floridan Aquifer. The site is one of the highest in Bay County and the ground water table is located about 45 feet below the surface in this area. The Floridan aquifer lies some 100 feet below the proposed site and is in direct contract with the ground water table. Accordingly, contamination of the ground water by the proposed landfill would enter into the Floridan Aquifer and degrade the water quality of this aquifer. Additionally escaping leachate could contaminate and degrade the waters of the lakes in the general vicinity of the proposed site. As initially presented the application was denied by DER and recommended for denial by the other state agencies involved, viz. Florida Game and Freshwater Fish Commission and the Northwest Florida Water Management District. The reason for disapproval was that, absent some impervious surface between the aquifer and lakes in the vicinity could occur and was likely. Not only is the site located in a recharge area to the Floridan Aquifer but also in a karst area, in which the topography is marked by sinkholes resulting from the collapse of cavernous limestone under the ground. While the possibility exists that a sinkhole could develop under the proposed landfill this is no more likely than that a sinkhole will develop anywhere else in the northern half of Bay County. As finally proposed the site will be developed into cells some 400' x 500' x 28' deep which are expected to be filled in about six months, covered with a a clayey soil and vegetation replanted over the cell. To keep leachate from escaping to the lakes or aquifer the cells will be lined with a polyvinyl chloride (PVC) liner is 20 mils thick manufactured by B. F. Goodrich. If the liner functions as proposed there will be no escape of leachate and hence no degradation of the waters. Petitioners contend that reasonable assurances have not been given that the PVC liner will adequately perform this function and this was the only real issue presented at the hearing. PVC liners for landfills have been in use for only bout 10 years. However, numerous tests have been conducted and, projecting the deterioration of the PVC observed during the test period to the estimated life of the landfill, leads to an expected liner life well beyond the life of leachate production in the landfill. To give PVC the flexibility and elasticity necessary to lay it over uneven surfaces in sheets, plasticizers are added to the PVC during the manufacturing process. These plasticizers will be released from the PVC if exposed to sunlight for an extended period. However, as proposed for use here, even if the liner was exposed to sunlight for the entire six months the cell will be open, or even for one year, no significant loss of plasticizer will result. Once the cell has been closed, no further dynamic stresses will be placed on the liner. Accordingly, even if the liner lost all of its plasticizer and thereby lost its elasticity and flexibility, it would remain impervious and prevent the pasage of leachate through the liner. To protect the liner from solid waste, trash, and equipment used in the cell to compress the solid waste, the liner will be covered with two feet of sand before any solid waste is placed in the cell. Each night the solid waste dumped that day will be covered with six inches of on-site earth material to deter flies, odors, etc. The two feet of sand cover will protect the liner from puncture by solid waste or equipment. The liner will be placed on a tight slope with a sump provided near the low end of each cell from whence leachate will be pumped from the cell and treated, if necessary. Additionally, vents will be installed to exhaust gases from the cell once it is closed. Monitoring wells will be placed around the land fill to detect if leachate is escaping from the site. These wells would allow detection of escaping leachate before it could progress to the natural water bodies in the general vicinity. The three to one slope proposed for the sides of the landfill will result in some movement of free sand resting on the liner along the sides and could bare the liner. To insure there will be a minimum of two feet of soil between the fill material and the liner the cell will not be filled completely to the side of the liner to fill in the space left between the garbage and the side wall each day when the material dumped that day is covered. Hazardous wastes will not be allowed at the site. The site will be enclosed and have an attendant on duty at all times it is opened to receive solid waste. Public access will be restricted and the attendant on duty will monitor the waste dumped in the cell. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. The sand over the liner, the pumping out of the leachate and overall operation of the landfill are adequate to protect against these small amounts of hazardous materials. Bay County proposes to use an existing disposal site to dump tree and hedge trimmings and may provide a place to dump this woody trash at the proposed site other than in the cells. This will increase the capacity of the cells for solid waste and diminish the possibility of damage to the liner by woody products. The only credible evidence submitted regarding the availability of alternate sited for the proposed landfill was that other areas further south were investigated and were unacceptable because the groundwater table was above the bottom of the proposed cells. This would result in dumping solid waster directly into the water table, and is unaceptable. Petitioner's principal contention is that there has been insufficient experience with PVC liners and the tests that have been conducted were not sufficiently rigorous or extensive to provide assurances that leachate would no escape from the site and contaminate the waters of the State. Petitioners also contend that joining of sections of PVC in field, which will be necessary to cover that bottom of the cells (because a liner large enough to cover the bottom of one cell would be too large and heavy to handle), would also create unacceptable risks in the making of these "field seams". Bay County has arranged for the manufacturer of the PVC to provide personnel to supervise the "field seaming" of the sections of the PVC. These seams do not need to be wrinkle-free and no particular problem with respect to joining sections of PVC liner so as to make it watertight was shown. The tests conducted by the Environmental Protection Agency on PVC liners have been ongoing for nearly ten years. None of these tests to date show any reason to question the effectiveness of a PVC liner properly installed to provide an impermeable barrier to leachate in a sanitary landfill. Petitioners also object to the use of cover material proposed by Bay County when a cell is closed. The soil analysis submitted with the application for the cover proposed does not have a high clay content and is more permeable than would be desired. At the hearing, Bay County officials testified they would use a more impermeable soil to cover the cells. Failure to do so would increase the amount of water from rainfall that would penetrate the cell, thereby increasing the quantity of leachate to be pumped from the sump. This would increase the maintenance cost of the landfill to the point it would be uneconomical not to put a water-repellant cover on the cell when it is closed. No evidence was presented that the formation of additional leachate would increase the risk of leachate escaping from the cell.
Conclusions Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Petitioners' Exceptions, and Respondent's Response to Petitioners' Exceptions, it is, therefore: ORDERED that the Hearing Officer's Findings of Fact are adopted; his Conclusions of Law and Recommended Order, to the extent that they are consistent with this Final Order, are adopted; and ORDERED that the permit reflected in the Notice of Intent issued by the Department on May 16, 1980, be issued with the following additional conditions: The applicant shall notify the Department at least on week in advance of when the P.V.C. is to be installed and allow for on-site inspection of its installation by Department personnel. No operation permit will be issued unless the applicant has shown reasonable assurances that the P.V.C. has been properly installed and all other applicable rules of the Department and the applicable Florida Statutes have been complied with. Any operation permit issued shall be for only one cell and no permit for subsequent cells shall be approved in accordance with 2. above without a showing of proper operation for the previous cells. The final cover material for each cell shall be clay, substantially clay or other impermeable material. Any DER permits for this site shall only be valid until 24 months from the date of this order. ORDERED that the country shall submit within thirty days a plan with schedule by which this landfill site will be phased out in 24 months, which shall include selection of alternate acceptable sites or the implementation of a resource recovery program in accordance with 17-7, Part II, Florida Administrative Code. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980. JACOB D. VARN, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing "Final Order" has been furnished by United States Mail to Kenneth F. Hoffman, Esquire, Oertel and Laramore, P.A., 646 Lewis State Bank Building, Tallahassee, Florida 32302, Les W. Burke, Esquire, County Attorney, Bay County, Post Office Box 1818, Panama City, Florida 32401, and K.N. Ayers, Hearing Officer, Division of Administrative Hearings, Collins Building, Room 101, Tallahassee, Florida 32301, this 22nd day of December, 1980. DOUGLAS H. MacLAUGHLIN Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9730
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 Whether Polk County Comprehensive Plan Amendment 17D-08/DMS 59550, adopted by Ordinance 2017-049 on October 3, 2017 (the Plan Amendment), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2017).1/
Findings Of Fact The Parties and Standing Petitioner, WHS Visions of Lakeland, LLC (WHS Visions), is a limited liability company with its principal place of business at 2506 Longhorn Avenue in Lakeland, Florida. WHS Visions owns property in Polk County. William H. and Brandy L. Stanton are the managing members of WHS Visions, and Mr. Stanton is the registered agent. Petitioner, BS Ranch and Farm, Inc. (BS Ranch), is the operating company for the property owned by WHS Visions in Polk County. BS Ranch began operating a soil manufacturing facility on property owned by WHS Visions in Polk County in 2011. Ms. Stanton is the President and a Director of BS Ranch, and Mr. Stanton is a Vice President and Director thereof. The County has challenged Petitioners’ standing to bring the instant action, alleging Petitioners did not submit oral or written comments relating to the Plan Amendment to the County during its consideration of the Plan Amendment. Petitioners argue they made verbal comments concerning the Plan Amendment at both the transmittal and adoption hearings on the Plan Amendment through their agent, Stuart Cullen. Stuart Cullen is a registered Professional Engineer and Vice President of Engineering for George F. Young, Inc., an engineering consulting firm with a business address of 1905 South Main Street in Gainesville, Florida. On February 5, 2014, Mr. and Mrs. Stanton executed “Property Owner Affidavits” authorizing George F. Young and Mr. Cullen to represent “William H. Stanton, Jr. and/or Brandy L. Stanton and/or BS Ranch” in connection with “Land Use Changes and/or associated development plan or permitting applications” regarding the properties owned by them as evidenced by the attached legal descriptions. Petitioners’ Exhibit 12 is a copy of the executed Property Owner Affidavits attached to a development review application dated November 6, 2014, for conditional use approval for the soil manufacturing facility. Mr. Stanton testified that the Property Owner Affidavit was created by him, was a generic form for use by the Stantons, and was submitted with several different applications for land use approvals and permits from the County. In 2015, BS Ranch engaged George F. Young, Inc., on an hourly basis for services related to expansion of the soil manufacturing facility. Mr. Cullen was listed as the contact for George F. Young, Inc., on the contract with BS Ranch, and Mr. Cullen executed the contract on behalf of George F. Young, Inc. The scope of services for the contract included “design, engineering, permitting, meetings” among other services “as necessary for expanding the facility’s operations.” George F. Young, Inc., and Mr. Cullen’s representation has not been limited to permit approvals for BS Ranch operations. Mr. Cullen represented BS Ranch in an application for an amendment to the LDC in 2015 to allow soil manufacturing facilities in Industrial (IND) land use districts. All appearances by Mr. Cullen before the County Commission beginning in 2014 through the date of the final hearing have been on behalf of Mr. and Mrs. Stanton and BS Ranch.3/ The County considered the subject Plan Amendment, CPA 17D-08, concurrently with an amendment to the LDC, LDC 17T-10. On August 22, 2017, the County conducted the transmittal hearing on the Plan Amendment. The County opened a public hearing on the Plan Amendment together with the LDC amendment. Mr. Cullen appeared, introduced himself, and gave his business address in Gainesville. Mr. Cullen did not state whether he was speaking on behalf of any person or entity at the public hearing. Mr. Cullen testified that Mr. and Mrs. Stanton requested him to speak on their behalf and, that, given his numerous appearances in front of the County Commission on behalf of these same clients, it was “well known” that he was speaking on behalf of BS Ranch. Mr. Cullen explained that his representation of BS Ranch “was essentially the only reason I would have been talking.” Mr. Cullen’s comments were limited to the LDC amendment, rather than the Plan Amendment. The substance of his comments was a request to restore a previous version of the LDC which allowed Solid Waste Management facilities to be sited in IND land use districts. His concern was clearly with the effect of the LDC amendment on Petitioners’ existing operation. Mr. Cullen explained to the Commission, “So, in effect, you are taking a [use] that exists in an available land use category that is available for somebody to develop . . . and telling them, no, you can’t do it anymore because of your land use category.” On October 3, 2017, the County Commission opened a public hearing on the Plan Amendment together with the LDC amendment. Mr. Cullen appeared, introduced himself, and gave his business address. Mr. Cullen did not identify whether he was speaking on behalf of any person or entity. Mr. Cullen was the only speaker during the public hearing. Mr. Cullen addressed both the Plan Amendment and the LDC amendment. His comment on the Plan Amendment was limited to a procedural issue. His comments regarding the LDC amendment mirrored the comments he made at the transmittal hearing. Soil Manufacturing Facility The Comprehensive Plan contains the following definition of Soil Manufacturing, adopted in 2016: A facility that makes soil and soil-related products using natural products as the primary ingredients. The manufacturing process utilizes various waste product streams including, but not limited to, yard waste, tree trimmings, other plant materials, pre-consumer food waste, post- consumer food waste, septage, bio-solids, and sludge. These materials are then treated and processed using the natural aerobic and anaerobic decomposition process to create a soil product that is sold and removed from the facility. The Plan Amendment The Plan Amendment makes the following pertinent changes to Division 4.400, Glossary, of the Comprehensive Plan: MATERIALS RECOVERY FACILITY: A solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for re-use, repurposing, use as a fuel or soil amendment, or any combination of such materials including without limitation a Soil Manufacturing facility but shall not include soil manufacturing. * * * SOLID WASTE MANAGEMENT FACILITY: Any solid waste disposal facility, solid waste transfer station, materials recovery facility, volume reduction facility, other facility, or combination thereof, the purpose of which is resource recovery of the disposal, recycling, processing or storage of solid waste. Salvage Yards, Construction Aggregate Processing, and Construction Aggregate Storage and Soil Manufacturing are excluded from this definition, but may by [sic] accessory uses to a solid waste management facility. Generally, the change brings a soil manufacturing facility within the definition of a Solid Waste Management Facility. The full impact of the change is not apparent from the face of the Plan Amendment alone. The Plan Amendment must be analyzed in conjunction with the LDC amendment.4/ LDC 17T-10 deletes Soil Manufacturing from Table 2.1, the LDC “Use Table for Standard Land Use Districts,” and deletes Soil Manufacturing as a conditional use subject to regulations of Chapter 3. This change effectively eliminates soil manufacturing facilities as an allowable, albeit conditional, use in IND land use districts. LDC 17T-10 further deletes in its entirety the stand- alone criteria for conditional use approval of soil manufacturing facilities, instead regulating those facilities as follows: Section 303 Criteria for Conditional Uses Manufacturing, Soil All Soil Manufacturing facilities shall be regulated by the Solid Waste Management Facilities standards set forth in this LDC Section 303 and the Comprehensive Plan except as provided in subsection 2, below. Any Soil Manufacturing facilities with a valid level 4 review approval issued under the LDC as of the effective date of LDC 17T- 10 may continue to develop in accordance with the approval in place as of the effective date of LDC 17T-10. Any such previously approved facility shall continue to be governed the Soil Manufacturing regulations adopted by Ordinance 16-040. Any such previously approved facility may be modified or expanded pursuant to Section 120 without becoming subject to the Solid Waste Management Facility standards set forth in this LDC Section 303 and the Comprehensive Plan. This change brings soil manufacturing facilities under the County’s regulatory scheme for Solid Waste Management facilities. Both the existing Comprehensive Plan (Future Land Use Policy 2.125-O1) and the LDC restrict location of Solid Waste Management Facilities to Institutional land use districts. Together the Plan Amendment and the LDC amendment restrict soil manufacturing facilities to Institutional land use districts. Petitioners’ property and soil manufacturing operation is located in the IND land use category. Thus, together the Plan Amendment and the LDC amendment render Petitioners’ use non-conforming.5/ Solid Waste Siting Ordinance The LDC Amendment changes the development review process and criteria for siting, operating, and expanding a soil manufacturing facility, by bringing them under the purview of the Solid Waste Siting Ordinance (Siting Ordinance). The Siting Ordinance requires a Level 4 site plan review and consideration of the following: The haul routes from the nearest arterial roadway, and proposed points of access to the property; The proposed date the construction will commence; The volume of waste to be received; An explanation of the types of wastes to be received; A statement specifying the hours of operation; The source of the solid waste to be received; The levels of odor, dust, and noise anticipated to be generated by the facility and proposed mitigation thereof; Proposed buffering, which may include more landscape buffering than required by the code; and The height of all structures and other improvements. The Siting Ordinance prohibits direct access to a paved local commercial, collector, or arterial roadway, or to a local residential road. It also sets mandatory setbacks for Landfills, Incinerators, and Materials Recovery facilities. The setbacks applicable to Materials Recovery facilities are 100 feet on all sides, and 500 feet “when adjacent to residentially used or designated property.” The 2016 Amendment In 2016, upon application by BS Ranch, the County amended the Comprehensive Plan and LDC to create “Soil Manufacturing Facility” as stand-alone use, and created a “carve out” from the Siting Ordinance for soil manufacturing facilities. Under existing LDC section 303, soil manufacturing facilities are subject to a minimum size of 100 acres, located a minimum of one-half mile from residential uses and any school or hospital, 200 feet from any natural waterbody, and 1,500 feet from any wellhead supplying a public water system. The restrictions include a minimum setback of 300 feet from residential districts and a requirement to sequester all processed liquids on site either with a liner or other physical barrier. Under the existing regulations, a soil manufacturing facility must submit a Facility Operating Plan (Operating Plan) including the following: General explanation of the types of wastes to be received; Identification of the general sources of the waste to be received; Regulatory permits required to operate all phases of the proposed facility; Vehicle circulation on and off site; Methods for mitigation of all odor, dust, and noise anticipated to be generated by the facility to include: best management practices to address potential odor sources; the monitoring of odors at the project perimeter; the identification of potential off-site odor receptors; and a response protocol for complaints and the resolution of substantial complaints; Description of the treatment process in map and narrative form; Description and mitigation plan to address the facility’s interaction with environmentally sensitive areas, any structures, and the safety of residents. If a soil manufacturing facility is the “substantiated source of objectionable off-site odors,” the LDC requires the operator to “immediately take steps to resolve the odor event or curtail operations until the necessary course of action has been identified and implemented.” Lastly, the LDC deems any modification to the facility Operating Plan to be a major modification subject to Level 4 review. The Plan Amendment essentially reverses the 2016 amendment, restricting the location of soil manufacturing facilities to Institutional land use districts and subjecting them to regulation as a solid waste management facility pursuant to the Siting Ordinance. Challenges to the Plan Amendment Data and Analysis The overarching basis on which Petitioners challenge the Plan Amendment is a lack of supporting data and analysis. Section 163.3177(1)(f) requires all plan amendments to be “based on relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available on that particular subject at the time of adoption of the . . . plan amendment.” The County suggests the Plan Amendment is supported by three categories of data. Survey Data First, the County points to the data from a survey undertaken in 2016 during review of the BS Ranch application to treat soil manufacturing facilities as a stand-alone use. In 2016, staff undertook a survey of 11 local government jurisdictions to evaluate the use classifications given to soil manufacturing facilities, land use districts in which they were allowed, the process by which they could be sited (e.g., use by right, conditional, special exception), required setbacks, and whether an operation plan was required. County staff surveyed the two adjoining jurisdictions, Highlands and Hardee Counties, and nine jurisdictions with “similar land use characteristics,” industries, and access to the I-4 corridor. County staff found, “[i]n the 11 counties, the proposed Soil Manufacturing use . . . is mostly considered a solid waste management facility and often limited to the same places that landfills are placed.” Of the 11 counties, six classified the facilities as solid waste management facilities or solid waste composting facilities, and a seventh as a landfill. Staff continued, “[h]owever, nine out of the 11 counties direct private landfills to industrial districts . . . . This supports the applicant’s request to locate these facilities in IND districts.” In 2016, staff analyzed the then-current regulating scheme which categorized soil manufacturing within a broad umbrella of Solid Waste Management facilities. In the staff report on the 2016 plan amendment, staff found that some uses under that umbrella “have manufacturing characteristics such as dust and noise . . . and the manufacturing of soil or soil amendments as described in the Materials Recovery facility.” In the report, staff concluded as follows: The applicant’s use has a significant manufacturing component and has more off site impacts than a typical Institutional Future Land Use designation which typically includes a school or fire station. Furthermore, Institutional Future Land Use designations are located throughout the County where manufacturing impacts would be significant to neighboring property owners. Therefore, this amendment better aligns a manufacturing component with the most appropriate land use which helps protect the environment and quality of life. In the 2016 staff report for the accompanying LDC amendment, staff concluded, “The IND district is the most appropriate location for this proposed use.” Staff made a finding that the 2016 amendment was internally consistent with Policy 2.113-A1 of the Comprehensive Plan governing the uses and activities allowed in the IND district. Based on this data and analysis, staff recommended allowing soil manufacturing facilities as a conditional use in IND districts requiring Level 3 review (Planning Commission approval). The County adopted soil manufacturing facilities as a conditional use in IND districts requiring Level 4 review (County Commission approval). With regard to off-site impacts, staff found as follows: Whenever solid and liquid wastes are brought onto a property, the immediate response is to be concerned about neighboring property values, particularly that of permanent residents. The best form of protection from the impacts associated with wastes (smell primarily) is separation. Staff reviewed the 11 counties surveyed for their setback requirements between residential properties and proposed salvage yards, solid waste facilities, and any uses that process septage waste. The majority of the setback distances exceeded 150 feet. The ones that were less required conditional use approval for which the setback could be established based on location. The County adopted a requirement to site soil manufacturing facilities a minimum of one-half mile from residential uses and require a minimum 300-foot setback from residential districts. Finally, staff addressed the risk of environmental effects. In the staff report, staff stated: As a condition of approval in the amendment, it is recommended that soil manufacturing processes have an operation plan. Such a plan not only assesses risk and provides for contingencies, but also demonstrates the applicant’s competency in running the facility. In the survey staff conducted, four of the 11 jurisdictions required this for their soil manufacturing equivalents. Key to all of the required operation plans are reporting of the type of waste coming in, the process and byproducts, as well as the environmental analysis and waste containment assurances. The County implemented staff’s recommendation by requiring the above-summarized Operating Plan. The County argues that the 2016 survey is relevant and appropriate data to support the Plan Amendment because the survey found that most jurisdictions classified soil manufacturing facilities as a solid waste management facility and often limited those uses to the same land use categories in which landfills are located. Staff did not testify at the final hearing. No evidence was introduced to counter staff’s 2016 findings that Institutional land use districts are located “throughout the County where manufacturing impacts would be significant to neighboring property owners”; that IND designations comprise less than .6 percent of the unincorporated land area; and staff’s opinion that “[t]he IND district is the most appropriate location for” soil manufacturing facilities. In support of the Plan Amendment, which regulates soil manufacturing facilities as solid waste management facilities, the County introduced expert witness opinions that soil manufacturing facilities exhibit many of the same characteristics as solid waste management facilities, and are, in fact, solid waste management facilities. For example, the waste streams accepted at a soil manufacturing facility are the same types of waste processed at a solid waste management facility; the soil manufacturing facility employs the same treatment operations as a solid waste management facility; the two types of facilities pose many of the same environmental, human health, and nuisance risks; and soil manufacturing facilities are subject to Department of Environmental Protection (DEP) permitting as solid waste management facilities. The expert witness testimony was persuasive: soil manufacturing facilities have many of the same characteristics as waste management facilities; thus regulation of those facilities as solid waste management facilities is entirely appropriate. DEP Enforcement Data The County’s conclusion that a soil manufacturing facility is practically identical to a solid waste management facility, and thus should be regulated the same, was based largely in part on DEP permitting and enforcement records the County deems to be data and analysis supporting the Plan Amendment. BS Ranch has obtained several permits from DEP. BS Ranch received a Source Separated Organics Processing Facility Registration in 2010, which was renewed annually through 2013. DEP issued an Environmental Resource Permit (ERP) for construction of certain facilities at the site on February 26, 2016. On March 25, 2016, DEP issued BS Ranch both an Industrial Wastewater Permit (IWP) and an Organic Recycling Facility permit. DEP conducted a wetlands jurisdictional determination on the property and issued a wetland delineation determination on May 3, 2016. As new data supporting the Plan Amendment, the County introduced documentation of DEP enforcement actions taken against BS Ranch’s Organic Recycling Facilities permit. The documents include an October 2014 Warning Letter which culminated in denial of BS Ranch’s Organic Recycling Facility permit, entry of a Consent Order on February 3, 2015, and a Consent Order with Corrective Action Plan on November 25, 2015. The County also introduced a Warning Letter and other correspondence from 2017 relating to alleged violations of BS Ranch’s IWP and ERP. Among the issues addressed in the Warning Letter are off-site odor mitigation and the unauthorized location of septage and biosolids on the property. Code Enforcement Data The last category of data relied upon by the County to support the Plan Amendment is the County’s own code enforcement actions against Petitioners’ operation. The County issued its conditional use approval of Petitioners’ operation, including its Operation Plan, on December 6, 2016. On March 24, 2017, the County issued notices of violation6/ citing WHS Visions with violating various LDC provisions based largely on Petitioners’ operation as “the reported source of objectionable off-site odors.” The notices both require WHS Visions to seek additional approvals of the facility and impose a deadline of April 5, 2017, for WHS Visions to correct the violations. The County also issued a “Cease and Desist Illegal Activity” letter to WHS Visions. The letter refers to “numerous instances of fugitive objectionable odor emissions severely impacting a large number of offsite residents, employees of nearby businesses, and Polk Parkway employees.” In the letter, the County required WHS Visions to “immediately cease and desist” operations, particularly receipt of “putrescible wastes such as vegetative wastes, food scraps, animal by-products, animal manure, wastewater treatment facility effluent, biosolids, septage, and organic sludges” until all levels of approval are completed. Petitioners argue these enforcement documents are not the type of data contemplated in section 163.3177(1)(f), which includes “surveys, studies, community goals and vision, and other data available at the time of adoption” to support the Plan Amendment. Petitioners are correct that the enforcement actions are neither quantitative nor qualitative data regarding the off-site impacts associated with soil manufacturing facilities. The documents are data, however anecdotal, regarding the experience of this one facility and its related permits. They are not categorically excluded from data contemplated by 163.3177(1)(f). Appropriate Reaction to the Data The statute requires the local government’s reaction to the data be “appropriate” and “to the extent necessary indicated by the data.” § 163.3177(1)(f), Fla. Stat. The DEP enforcement and code enforcement data arguably support the County’s decision to subject soil manufacturing facilities to a different regulatory scheme. Expert witnesses testified that the Siting Ordinance was superior to the existing regulations for the spatial location of waste streams on site, as well as the length of time wastes could remain on site.7/ The Siting Ordinance also contains a stop-work order enforcement tool. However, the Plan Amendment is not an appropriate reaction to anecdotal data regarding the off-site odor and environmental impacts of one soil manufacturing facility by allowing those facilities in land use districts which are more dispersed throughout the County. The enforcement actions do not overcome the County’s 2016 analysis and findings that the use “has more off site impacts than a typical Institutional Future Land Use designation,” that “Institutional Future Land Use designations are located throughout the County where manufacturing impacts would be significant to neighboring property owners,” and its conclusion that, for Polk County, “the IND district is the most appropriate location for this proposed use.” None of the expert planning witnesses had evaluated the proximity of Institutionally-designated properties to residential properties in the County or offered opinions regarding the appropriate placement of soil manufacturing facilities within the County. There is no record evidence that the County has fewer Institutional land use designations than it did in 2016, that those locations are less dispersed, or that fewer properties with those designations are located adjacent to residentially- designated properties. Armed with new data documenting fugitive air emissions from the existing facility, as well as potential for human health risks, the County made a decision to site similar facilities in the future in land use districts closer in proximity to residential properties. That decision was not an appropriate reaction to the data. Internal Inconsistency In the Petition for Administrative Hearing, Petitioners alleged the Plan Amendment “has created internal inconsistencies . . . by relying on the same data and analysis” relied upon in support of the 2016 amendments. Petitioners did not identify any specific Comprehensive Plan element, policy, or map with which the Plan Amendment is alleged to be inconsistent. Instead, Petitioners’ expert testified generally that the Plan Amendment created internal inconsistencies because the data on which it was based, namely the 2016 survey of jurisdictions, was likewise the basis for the County’s 2016 amendment establishing IND as the appropriate land use category in which to site soil manufacturing facilities. Petitioners’ evidence was insufficient to support a finding that the Plan Amendment creates an inconsistency with any element, policy, or map of the existing Comprehensive Plan. Meaningful and Predictable Standards Finally, Petitioners challenge the Plan Amendment as contrary to section 163.3177(1), which requires comprehensive plans to “guide future decisions in a consistent manner” and establish “meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.” Petitioners’ expert testimony on this issue was conclusory and the logic somewhat circular. The underlying criticism was, again, the inconsistency of using the same data to reach diametrically-opposed conclusions regarding the appropriate land use district to site soil manufacturing facilities. Further, the expert testified that because the Plan Amendment rendered Petitioners’ property non-conforming (both in its use and applicable development standards), it created “uncertainty . . . for any property owner wanting a reasonable and consistent development plan” for his or her property, and “uncertainty and inconsistency of standards for controlling the distribution of land uses” because it “changes the standards by which uses are classified as Industrial.” On the contrary, the Plan Amendment does not create uncertainty for siting soil manufacturing facilities in the future. Under the Plan Amendment those facilities are clearly limited to Institutional land use categories, subject to the Siting Ordinance and Level 4 development review. While the Plan Amendment renders Petitioners’ property non-conforming, that is not a sufficient basis on which to find that the Plan Amendment renders the entire Comprehensive Plan without “meaningful and predictable standards for the use and development of land” generally. Other Issues Petitioners included in the joint pre-hearing stipulation as disputed issues, whether the Plan Amendment was “vague” and permitted the County “to arbitrarily and capriciously approve or deny plan amendments or development approvals, thereby subjecting landowners to financial burdens and creating internal inconsistencies in the [Comprehensive Plan].” Respondent objected to these issues as outside the scope of this proceeding. The issue in this case is whether the Plan Amendment is “in compliance,” as that term is defined in 163.3184(1)(b). The governing statute does not include “vagueness,” “arbitrariness,” or “capriciousness” as a standard for compliance determinations, and Petitioners cited no authority supporting such a reading of the statute. Petitioners’ arguments on this point appear to recast the data and analysis argument in hopes of getting a second bite at the apple. Assuming, arguendo, the Plan Amendment could be invalidated on the basis of vagueness, arbitrariness, or capriciousness, Petitioners did not introduce any credible evidence to support a finding that the Plan Amendment is either vague, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining Polk County Comprehensive Plan Amendment 17D-08/DMS 59550, adopted by Ordinance 2017-049 on October 3, 2017, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 14th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of March, 2018.
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July 1989. COPIES FURNISHED: Lee B. Sayler, Esquire 50 South U.S. Highway One Suite 303 Jupiter, Florida 33477 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner is the owner of several acres of land which are a part of a platted subdivision in Orange Park, Florida. At an undisclosed date in 1979, Petitioner orally applied to the Clay County Health Department for septic tank permits for Lots 3, 4, 5N, and 5S. The only documentation submitted with his application was a site plan for Lot 5S. By letters of March 26 and 30, 1979, the Clay County Health Department advised the Petitioner that his application was denied because the lots were not in compliance with specified provisions of Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. By letter of May 3, 1979, Petitioner requested an administrative hearing to contest the denial of his application. At the hearing, officials of the Clay County Health Department predicated the denial on the fact that the lots in question were not sufficiently large to permit the required setbacks imposed by law and regulation. (Testimony of Bray, Hickey, Exhibits 1-3) A stream runs in an easterly direction across the property in question to the St. Johns River which lies approximately 300 years to the east of the property. A curved extension of the stream located on Lot 4 has been filled at some time in the past. A pond is located at the center of Lots 5N and 5S. The size of the lots vary from over one-third to less than one-half acre. The City of Orange Park has a 20 foot wide easement on both sides of the stream bed for maintenance purposes. The easement precludes the construction of permanent structures but does not proscribe other uses of the land area. There is not a public water supply or sewage disposal system available at the present time, although an artesian well located on adjacent Lot 2 provides water for homes which have previously been constructed on that lot and adjacent Lot 1. It is adequate to supply water needs of the lots in question. However, local health officials informed Petitioner that the artesian well cannot be used as a central water supply for the additional lots. Petitioner proposes to install individual septic tanks and drainage fields on each of the lots. Service easements are also located on Lots 4,5, and 5S. (Testimony of Petitioner, Exhibits 1,4) By exclusion of the easement area on all four lots, together with the pond area of 4,000 square feet on Lot 5N and 3,000 square feet on Lot 5S, the remaining land area of Lots 3 and 4 is more than one-third but less than one- half acre each in size. Lot 5S is slightly less than one-quarter acre in size. Lot 5D is slightly less than one-quarter after exclusion of the pond and easement area. (Testimony of Bray, Exhibit 4) There is sufficient area in Lots 3 and 4 to provide for set back requirements for individual sewage disposal facilities, i.e., not within five feet of property line or within fifty feet of the high water line of lakes, streams, or other waters, as provided in Rules 10D-6.24(3) and (4), F.A.C., respectively. There is sufficient area in Lots 5N and 5S to meet the above setback requirements when consideration is given to the area necessary for septic drain fields. (Testimony of Bray, Exhibit 4)
Recommendation That Petitioner's application for septic tank permits be denied. DONE and ENTERED this 6th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert D. Woolverton 3551 St. Johns Avenue Jacksonville, Florida 32205 Robert M. Eisenberg, Esquire District IV Counsel Post Office Box 2417F Jacksonville, Florida 32231
The Issue The issues considered at final hearing were those issues set out in Petitioners' Amended Petition For A Formal Hearing. At the conclusion of the final hearing the parties were given an opportunity to file a proposed recommended order and memorandum in support thereof. Such memorandum and proposed recommended order was received by the Hearing Officer from the Department of Environmental Regulation on November 10, 1976, from Leon County on November 12, 1976, and from the Citizens' Committee to Preserve Lake Lafayette on November 15, 1976. Having fully considered the matters presented herein, the Hearing Officer enters the following:
Findings Of Fact Respondent, Leon County, Florida, has applied for a construction permit to construct a sanitary landfill in Sections 4 and 5, Township 1 South, Range 2 East, Leon County, Florida. The proposed site consists of 79.9 acres off of U.S. Highway 27 South. The application is in proper form and contains all information required by the Department of Environmental Regulation. The area to be served by the proposed sanitary landfill is Leon County, Florida, with a projected average population of 155,200. The responsible operating authority as set forth in the application is Leon County. The evidence presented did not establish that the proposed sanitary landfill will attract high concentrations of rodents, insects, or birds which would do serious damage to the land and crops surrounding the site or which would adversely affect the health and welfare of the residents near the site. The application proposes a program for the extermination of any rats discovered on site and further proposes that the working faces of the landfill area will be kept as small as possible with all exposed waste materials covered as frequently as practical to minimize the problem of flies and insects during hot, humid periods. Evidence was presented indicating that construction of the proposed sanitary landfill site could adversely affect surrounding property value. However, the evidence was not sufficient to conclusively establish the extent of this affect nor the time at which it would occur or for which it would endure. As designed the proposed sanitary landfill would not cause any solid waste to be disposed of by being placed in or within 200 feet of any natural or artificial body of water or on the watershed of any surface water supply. Lake Lafayette is hydraulically connected to the Floridan Aquifer. The proposed sanitary landfill site is located at least 500 feet from the flood prone area of Lake Lafayette and 1,000 feet from Lake Lafayette proper. As designed the proposed sanitary landfill will not cause any solid waste to be disposed of by being placed in a sink hole or in the immediate area thereof. Solid waste will be disposed of by being placed in a trench and covered over with successive lifts similarly covered. There are no active sink holes on or in the immediate area of, the proposed sanitary landfill site. Three ponds exist in the immediate vicinity of the site, one of which is to be used for surface water runoff. These ponds were probably formed by past sink hole activity but from the site topography and water elevations it appears that the ponds are now stable and are probably not hydraulically connected with the Floridan Aquifer. No limestone or gravel pits exist on site. The entire proposed site is well above the +50' MSL contour line below which are found flood prone areas in the vicinity of the site. The water table of the site is more than 5 feet below normal ground surface. As designed the proposed sanitary landfill will not require the disposal of solid waste in an area immediately adjacent to or within the cone of influence of a public water supply. As designed the proposed sanitary landfill will not require the disposal of solid waste within 200 feet of any habitation or place of business served by a public water supply system or within 1,000 feet of any habitation or place of business served by an individual potable shallow water supply well with the following exceptions. There are three wells located on the property which would be owned by Leon County that may be within 1,000 feet of the disposal site for solid waste. Of these three wells one has been abandoned and will be sealed. A second is located south of the proposed site at an existing house and will be used as a source of non-potable water and for monitoring the potable aquifer. The third well is located on the northwest portion of the county property and will be maintained as a standby source of potable water. There are two other wells located on the property to be owned by Leon County which are more than 1,000 feet from the proposed disposal site for solid waste and could be used to monitor the Floridan Aquifer. There is a well which serves a private residence and farm located plus or minus 1,200 feet west of the proposed site for the disposal of solid waste. No solid waste shall be disposed of in any area open to public view from any major thoroughfare. The proposed site in not on any public highway, road, alley or the right-of-way thereof. The Lake Lafayette drainage basin is approximately six miles long elongated in a west-northwest, east-southeast direction. The width varies between one-quarter to one-half mile. The western end of the basin contains many sink holes which probably have open connections to the underlying bedrock. The eastern end of the basin, near the proposed landfill site, is swampy and contains many cypress trees. The Lake Lafayette drainage basin appears to be an area of recharge to the Floridan Aquifer. The proposed sanitary landfill site is not located in the Lake Lafayette drainage basin. The engineering firm of Ardaman & Associates, Inc., conducted a subsurface investigation of the hydrologic and soil conditions at the site of the proposed sanitary landfill. As part of their investigation they performed ten soil borings and installed seven deep ground water monitoring wells. The results of the investigation of Ardaman & Associates, Inc., indicates a low probability of sink hole occurrence. In the course of their investigation, Ardaman & Associates, Inc., discovered a depression in the ground water level at Test Hole No. 9. The significance of this ground water low is that it may be a localized area of recharge. However, as shown by the testimony of the engineers who conducted the investigation for Ardaman & Associates, Inc., as well as by the report of their investigation, this depression creates no realistic danger with regard to the introduction of pollutants into the aquifer or ground water supply, so long as no putrescible wastes are placed within a distance of 1,000 feet of Test Hole No. 9. The hydro-geologist testifying on behalf of the Petitioners stated that he believed the radius of influence of the depression at Test Hole No. 9 may actually be less than 1,000 feet and that maintaining 1,000 feet distance from Test Hole No. 9 is a conservative distance. As designed, the proposed sanitary landfill will not dispose of any solid waste or other putrescible waste within 1,000 feet of Test Hole No. 9. The soils found on the proposed sanitary landfill site are of low permeability and suitable for a sanitary landfill. The low permeability of the soils will limit both the lateral and vertical seepage of leachate. The vertical flow of potential leachate to the Floridan Aquifer has been estimated at a rate of 1.0 to 1.5 feet per year. The lateral flow rate of such leachate through the soils overlying the bedrock in the Lafayette drainage basin has been estimated at the rate of 2 feet per year. As has been noted above, the proposed sanitary landfill site is located approximately 1,000 feet from Lake Lafayette, and 500 feet from the +50' MSL contour line which has been used to describe the perimeter of the flood prone area of the Lake Lafayette drainage basin. At the estimated flow rate it would therefore take several hundred years for any leachate produced by the sanitary landfill to reach the Lake Lafayette drainage basin. The Floridan Aquifer underlies all of Leon County at depths of 100 to 500 feet. As designed the proposed sanitary landfill will have test wells constructed throughout the site to provide a means of detecting any lateral migration of contaminants from the landfill operation should such occur. Periodic samples will be taken from these test wells and analyzed. The monitoring wells will be set up in such a manner that regardless of the direction of flow of subsurface water they will pick up and detect any pollutants that may be passing from the landfill. Some of these test wells will be placed in close proximity to the proposed sanitary landfill site to give early warning of the existence of any leachate flow. If there is any problem with the flow of leachate from the proposed site it will be detected easily within the first five years of operation. Since it would take several hundred years to reach the Lake Lafayette drainage basin at the estimated flow rates this should provide adequate warning and reaction time for the alleviation of any potential pollution problem. A significant flow of leachate is not expected. The existing pond which will receive the surface runoff from the sanitary landfill site is likely of sink hole origin but after a reasonable investigation it appears that the pond is now stable and not hydraulically connected to the Floridan Aquifer. It is estimated that the pond can contain at least a 25 year storm rainfall though there might be some flooding from the pond in a 100 year storm rainfall. As designed, no significant amount of leachate, if any, will reach the surface water runoff retention pond. Petitioners' hydro-geologist did not state that the site is unsuitable for a sanitary landfill. Rather he testified that on the information he had reviewed, which information was that available to the Department of Environmental Regulation, it was his opinion that the Department of Environmental Regulation lacks sufficient information to determine if the proposed site is suitable from a water quality standpoint. Based upon all the testimony and evidence it appears as a matter of fact that the information available to the Department of Environmental Regulation is reasonably sufficient to determine the suitability of the proposed site. There has been no showing of a necessity for alining the proposed trenches which will receive the solid waste. The Planning Director for the Tallahassee-Leon County Planning Department, in a letter to the Department of Environmental Regulation stated that the use of the proposed site for landfill purposes is not inconsistent with the land use plan. He further stated his concern for traffic on U.S. Highway 27, the possible adverse aesthetic impact which he felt could be minimized and his concern that Lake Lafayette be protected from landfill leachate through engineering design. In their Amended Petition Petitioners raised the question of the present zoning of the proposed site. No evidence was presented by Petitioners to show that the site is not properly zoned. Based upon the testimony and evidence presented there appears little possibility that the proposed sanitary landfill will pollute or seriously damage Lake Lafayette, the Floridan Aquifer or any other source of public or private water supply. The proposed sanitary landfill as designed is not likely to cause any significant water pollution or to degrade water quality below those standards set by the Department of Environmental Regulation. None of the prohibitions set out in Section 17-7.04, F.A.C, exist so as to require the denial of the application for a construction permit for a sanitary landfill by Respondent, Leon County. The sanitary landfill criteria set out in Section 17-7.05, F.A.C., have been met by Respondent, Leon County.
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit or the grant of a variance from the rule by which that permit application was denied so as to be authorized to install an on-site sewage disposal system (septic tank system) for his property near the Suwannee River in Dixie County, Florida within the purview of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Desmond Harbroe, owns real property in Dixie County, Florida consisting of a lot described as lot 28 of Riverbend Estates. The lot in Riverbend Estates is located at "Hinton's Landing" on the west bank of the Suwannee River. The lot itself is located approximately 1500 feet west of the shoreline of the Suwannee River on a connected canal. The canal is characterized by high banks at the location of the lot and the lot is one of the highest lots in the subdivision, with overstory vegetation consisting of large pines and live oaks. The lot is gently sloping and characterized by well- drained soil consisting of sand down to a depth of 72 inches (a "slight limited" soil). The lot is approximately one and one quarter acres in size and was purchased May 29, 1976. The Petitioner contemplates constructing a single family residence on the lot and it does not presently contain an OSDS. The proposed residence would consist of a two bedroom dwelling with a heated or cooled area of approximately 1200 square feet. A dwelling of this size and type is equated in the standards in the Department's rules with production of 450 gallons per days (GPD) of sewage flow. Although no specific evidence of expected sewage is of record, there is no dispute regarding that figure. Herbert H. Raker is a registered land surveyor located at Box 626, Cross City, Florida 32628. Mr. Raker surveyed the subject lot and established a benchmark elevation of 13.72 feet above main sea level (MSL). That benchmark is six inches above the actual ground or grade level at the location of the benchmark. The site of the proposed installation itself is at an elevation of 13.22 feet above MSL. The ten-year flood elevation for the subject property is 15 feet above MSL. That elevation was established through data supplied by the Suwannee River Water Management District to the Petitioner and submitted to the Department in the application process. That information and the document upon which it is predicated is hearsay, but was not objected to at hearing and, in any event, constitutes an exception to the hearsay rule in the category of government records, compilations and reports for purposes of Section 90.803(8), Florida Statutes, and is, thus, admissable and accepted by the Hearing Officer. The subject property purchased by the Petitioner was for building a single family residence as described above. On December 12, 1989 the Petitioner received a letter from the Suwannee River Water Management District advising that there was no objection by the District to filling the lot in order to bring the surface grade level of that property to a sufficient height so as to comport with the "two year flood" elevation. The critical elevation in relation to the rules at issue however is the ten-year flood elevation. This advice from the Water Management District does not address the issue of filling the lot to bring it up to a level so that the bottom of the subject drain fill proposed would be above the ten-year flood elevation and thus comport with the rules at issue. In this connection, the property is located within the ten year flood plain based upon the evidence establishing that flood plain level to be at IS feet above MSL. The property is also located within the "regulatory floodway" of the Suwannee River. This is a geographical area closer in proximity to the actual free flowing portion of the river than is the boundary of the ten-year flood elevation demarcated area. The rule cited below provides that mounded systems requiring a placement of fill material, or construction above grade, will not be authorized in the regulatory floodway unless there is certification by registered engineers that the placement of fill or the structure placed would not increase the water surface elevation of the "base flood". That certification must be substantiated by data and the method of calculation used by the engineer must be provided. Here there is only a two and one half foot difference between the grade level of the property involved at the site of the proposed installation and the 15 foot ten-year flood elevation. Thus, as Mr. Harbroe indicates, given the overall size of his lot, it would be possible to fill the property to the proper grade level so that the bottom of the drain field trenches, when installed in the resulting mound, would be above the ten- year flood elevation. The Petitioner however supplied no detailed information about how such an alternative system might be installed and operate and, most particularly, did not supply the requisite engineering certification and information which might show that the installation of such a mounded system would not raise the level of the base flood. This might have been done, for instance, by establishing that a sufficient volume of fill could be removed from his property, elsewhere, to build the requisite mound and thereby not alter the surface elevation of the base flood. Such evidence is lacking in this proceeding however and cannot therefore serve as a basis for a grant of the permit, by means of illustrating an alternative system or approach for treating the sewage effluent which will comport with the rules. Pursuant to the authority of the statutes cited in the conclusions of law below and in related rules, lots platted before 1972 are accorded special consideration in determining whether to grant septic tank system permits (or variances). The Petitioner, however, did not adduce evidence of whether the subdivision known by the name "Riverbend Estates" of which his lot 28 is a part, is a platted subdivision at all, and did not establish that even if it is that it was platted and recorded before 1972. Thus no evidence has been adduced which will justify the special consideration provided for in the authority cited below. The grant of variances from the permitting rules involve the demonstration of hardship as a basic consideration. Hardship involves a demonstration that there is no reasonable means by which an on-site disposal system can be installed which will comply with the permitting rules, that is, impossibility of compliance is the bellwether for demonstration of hardship. It is also provided in the variance statute and rules cited below that the hardship may not be intentionally caused by the action of the applicant for the permit or variance himself. The Petitioner, having the burden of proof here, did not adduce direct evidence to establish that any hardship preventing compliance with the permitting rules was not intentionally caused by the Petitioner. However, the overall tenor of the Petitioner's testimony establishes inferentially, without doubt, that the hardship involving the Petitioner's impossibility of compliance with the permitting rules, given the presently prevailing grade level of his lot and installation site, was caused merely by his purchase of the property. He took no action involving that purchase to place himself in a position where he intentionally could claim a hardship situation and a justification of variance from the permitting rules and thus render himself legally capable of installing the subject system. He merely purchased the lot in good faith with, the intention of using it for a single family dwelling and did not intend by that mere act to place himself in a position to claim a hardship situation and thus circumvent the permitting rules. The similar use of the nearby lots in the subdivision for single family dwellings and which he was aware already had permitted septic tank type on-site disposal systems in place and operating led him to believe he could install a similar system. He was thus an innocent purchaser and did not intentionally create a hardship situation to thereby avoid compliance with permitting rules. In fact, however, the Petitioner has not truly established that he is in a hardship situation, that is, that he can not possibly comply with the permitting rules. This is because, by his own admission, he has sufficient land area on his lot to permit the "mounding" of an on-site disposal system. If this were accomplished it is quite likely that he could comply with the permitting rules and not require a variance, based upon a showing of hardship. The problem with this approach is that the Petitioner's proof fails because he did not adduce the requisite engineering certification and testimony justifying the grant of a permit based upon the building of the lot and mounding of the system. If this were accomplished in the future, it is quite likely that a permit could be granted for this lot. In a like vein, in terms of the variance issue portion of this proceeding, it has not been demonstrated by the Petitioner that no reasonable alternative exists for the treatment of the sewage involved nor has it been demonstrated that the discharge from the Petitioner's proposed sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. In this last regard, it although soil conditions prevailing at the proposed installation site and water table elevations beneath the surface of the property are appropriate as that relates to the requisite interval of "slight limited" soil between the bottom of drain field absorption beds and the water table elevation, the fact remains that these trenches or beds are beneath the ten-year flood elevation and thus pose the potential to degrade ground or surface testers. Thus the other requisite elements for establishment of entitlement to a variance from the permitting rules have not been made out by the Petitioner's proof. In fact, the Petitioner's proof establishes that a reasonable alternative may indeed exist for the treatment of the sewage involved with mounding of the system, since his grade elevation is only approximately 2.5 feet below the relevant flood elevation and unrefuted evidence shows that he has sufficient area on his lot to permit the mounding of the system with the requisite adjacent "buffer area". This constitutes a reasonable alternative which may comply with the permitting rules. Unfortunately, however, Petitioner's proof did not include the requisite engineering information and certification so that a recommendation for grant of the permit in the regulatory floodway can be made at this time. Having been denied his permit application on December 19, 1989 the Petitioner on March 5, 1989 applied for the subject variance referenced above. On April l9, 1990 the Petitioner was advised by the Respondent that it was useless to proceed with a variance application and that a formal administrative hearing should be sought before Division of Administrative Hearings instead. This is because of Executive Order 90-14 entered by the Governor, which incorporated the "Suwannee River Task Force" recommendation in evidence and, specifically, "recommendation #36." That portion of the report in effect recommended that on-site sewage disposal systems within the ten year flood plain area should be prohibited. The Department interpreted the effect of that executive order, incorporating the recommended prohibition from the task force report, to mean that such variances absolutely could not be granted by the Department, hence, its recommendation to the Petitioner and others similarly situated, that they should immediately seek a formal administrative hearing on the question, rather than expend time and expense pursuing the Department's internal variance procedure. The Department has thus in this in similar cases interpreted that executive order to create, and effect, a conclusive presumption that variances can not be granted in any case in which the installation site for the on- site sewage disposal system is at or beneath the ten-year flood elevation. In effect, therefore, it declines to exercise any discretion when confronted with variance request related to lots or property where the installation site for the proposed system occurs beneath the ten-year flood elevation.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered denying the Petitioner's application for an on-site sewage disposal permit and denying a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above. DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administration Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4170 Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted but not directly material to resolution of the issues presented for adjudication. Petitioner's Proposed Findings of Fact: (None submitted) COPIES FURNISHED: Desmond Harbroe 4550 N.W. 43rd Street Ft. Lauderdale, FL 33319 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
Findings Of Fact On January 31, 1979, Respondent Okaloosa County Board of County Commissioners filed an application with the Northwest Florida District Office of Respondent Department of Environmental Regulation (DER) to construct a solid waste resource recovery and management facility near Baker, Florida at the intersection of State Road 4 and State Road 4B. The proposed facility would be a sanitary landfill approximately 36 acres in size which would receive solid waste for disposal from the municipalities of Baker, Milligan, Holt, Crestview, and Blackman. Approximately six to eight additional acres at the site were previously used by the County as a dump for household trash and garbage for a period of approximately eight years. Some of the waste was burned and the remainder was buried. (Testimony of Rogers, Long, Exhibit 1) The proposed landfill is located in a rural area primarily used for agriculture which is sparsely populated. The site is surrounded by forested lands but some recent removal of trees has opened a portion of the site to public view from State Road 4. The land at the site slopes gradually in a west- east direction, and the slope is more pronounced on county land adjoining the east border of the site for a distance of about 900 feet. At this location, several springs form the headwaters of Mill Creek which flows cast through two lakes located on about 224 acres of private property owned by Petitioners Donald C. and Mary Ann Long. Mill Creek becomes a defined water course after leaving the Long property and flows into the Yellow River which is approximately two and one-half miles from the Mill Creek headwaters. The Yellow diver flows some 10 to 20 miles into Blackwater Bay near Milton. A shallow well from which potable water 15 obtained is located on the Long property but not within 1,000 feet of the landfill site. (Testimony of Rogers, Long, Exhibits 1-2) The applicant intends to use the trench method in disposing of solid waste. Trenches will be excavated to a depth of about 15 feet, but in no case will the bottom of a trench be underlain by less than two feet of the "fine sandy loam" which occurs in a layer of varying depth beneath the overlying Lakeland sand soil. Test holes dug in the landfill site indicate that the bottom of the "fine sandy loam" layer in depths of some three to twelve feet is located about eighteen feet below the surface of the ground. The applicant intends to check at 100 foot intervals while digging trenches to insure that at least two feet of that material underlies the trench bottom. If not, sufficient additional amounts of the material will be placed in the trench and compacted to make a two-foot thick layer. There will be a distance of 50 feet between centers of trenches. The trenches will be 30 feet wide at the top and 15 feet wide at the bottom. The bottom of each trench will have a slope of less than 5 percent designed to drain the trenches and lifts of rainwater before they are filled. The upper lift will vary in depth from 5 to 7 feet depending upon the final contour desired. Wastes will be deposited either at the top or bottom of the working face of the trench and will be spread by a crawler tractor in two foot layers and then compacted. Compacted waste will be covered daily with one foot of soil and a final cover of at least two feet of sandy clay material will be obtained from a county borrow pit adjacent to the landfill and placed over trenches to prevent the movement of water into the buried solid waste. (Testimony of Rogers, Edmisten, Exhibits 1-2) The applicant plans to construct a barrier to contain the movement of leachate along the eastern border of the landfill which will be a minimum of five feet wide and as deep as necessary to "tie-in" with the existing layer of "fine sandy loam" beneath the site. The barrier is designed to prevent leachate from moving horizontally downslope toward Mill Creek. The barrier material will be compacted, but not the sides of the trenches. (Testimony of Rogers, Edmisten) The groundwaters under the site are from 55 to 65 feet below the surface of the land. Although the elevation of groundwaters normally will follow the contour of the land surface, borings at the site have not been made to the depth of the watertable. The approximation of the depth of the groundwaters was obtained from data of two monitoring wells located on county land directly east of the proposed landfill site. Twenty-four holes were dug across the site to determine the location of the "fine sandy loam" soil layer which exists below the surface. Eight additional holes were dug to obtain samples of the material for a texture analysis. In its natural state, this material has a permeability rate of about 2.5 to 5 inches per hour. After compaction, the permeability rate will be about .02 to .2 inches per hour. No permeability rate is required by pertinent DER regulations for liner material. Recent soil tests of material taken from the county borrow pit some 200 yards west of the landfill site showed a permeability rate of .004 inches to .0027 inches per hour. A recent sample taken from the bottom of an existing pit at the landfill reflected a permeability rate of .01 inch per hour. Proposed guidelines of the U.S. Environmental Protection Agency contemplate a permeability rate of only .00014 inches per hour for liner materials to restrict the rate of flow of leachate from the bottom of a landfill. The material proposed to be used by the applicant for liner material therefore will permit fairly rapid movement of leachate through the sides and bottoms of trenches, and under the eastern barrier. Further, the coarser sand underlying the "fine sandy loam" liner layer has a much higher permeability rate. As a result, an unknown amount of leachate will eventually reach the groundwater table and flow laterally downslope in an easterly direction. Leachate generation will be impeded by the vegetated, relatively impervious final top layer over the landfill, the wedge of soil located between each trench, and the eastern barrier. These measures will serve also to attenuate suspended solids in the leachate, but not organic materials and most metals. There will also be a certain amount of dilution after any leachate reaches the groundwater table. (Testimony of Rogers, Edmisten, Meister, Tomlinson, Exhibits 1-2, 5, 7) Water samples taken from in and around the area of the springs located both on county and private property to the east and from wells in the general area show that the water generally is of high quality. There is no indication that past landfill operations at the site have degraded the water quality in the vicinity of the nearby creeks, ponds and wells. (Testimony of Meister, Rogers, Long, Exhibits 1-2, 8-9) The applicant plans to control surface runoff and any consequent erosion by means of terraces, berms, and swales. However, other than notations on engineering plans of provision for a highway drainage swale, no design of such items is shown in the application. Prior erosion in the area has been satisfactorily corrected in the past by the county by the use of similar methods to those planned for the landfill site. (Testimony of Rogers, Long, Exhibit 2) The application was reviewed by DER's Southwest District permitting engineer. He found that the application and supporting documents met the statutory and regulatory criteria for the issuance of a construction permit. However, soil borings did not extend at least ten feet below the proposed excavations. (Testimony of Diltz, Exhibit 2) By letter of March 27, 1979, the Northwest District Manager of DER issued a Notice of Intent to issue a construction permit for the proposed sanitary landfill under standard and special conditions. The special conditions required construction of two approved monitoring wells east of the landfill and analysis of water samples from the wells and from a surface water sampling point in the headwaters of Mill Creek prior to issuance of an operation permit. A further condition required the applicant to submit verification that the bottoms of trenches contained at least two feet of the material specified in the application. At the hearing, DER and Okaloosa County submitted a stipulation wherein they agreed that additional monitoring wells should be placed upgradient from the site, at the downstream boundary of the first trench, at the north end of the clay barrier, and immediately east of boring number 8 prior to issuance of an operation permit. The conditions further required that well logs will be kept on all monitoring wells and reports on soils, geology and groundwater elevation he submitted to DER prior to issuance of an operating permit. Further, any identification of leachate contamination in the wells by a method to be spelled out in any operation permit will require extension of the earthen barrier west to State Road 4. Finally, a special condition required that the bottom lining material of all trenches and the barrier must be compacted prior to the issuance of an operating permit. (Exhibit 4)
Recommendation That the requested permit be issued to the Okaloosa County Board of County Commissioners as herein specified. DONE and ORDERED this 28th day of March, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Douglas H. MacLaughlin, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Wright Moulton, Esquire Post Office Box 591 Pensacola, Florida 32593 John R. Dowd, Esquire Okaloosa County Attorney Post Office Box 1964 Ft. Walton Beach, Florida 32548
Findings Of Fact On May 3, 1977, DOT advertised for bids to construct 4.034 miles of interstate highway in Charlotte County, Florida, from a point north of Oilwell Road to a point north of Green Gulf Boulevard. This project, which is the subject matter of this proceeding, was designated as join No 0l075-340l. The closing for bids was 10:30 A.M. on March 30, 1977. On January 27, 1977, DOT advertised for bids to construct 5.027 miles of interstate highway in Charlotte County, Florida, from the county line to a point north of Oilwell Road. This project, which was adjacent to the "3401 job" was designated as job No. 01075-3407 . The closing date for the bids on this contract was changed from February 23, 1977, to March 23, 1977, by Addendum No. 3 dated March 9, 1977. Petitioner is a corporation which has been involved in the construction of various types of roads in the sate of Florida for many years, and, for the last 19 years has constructed roads in the area of the state generally north of Tampa. Petitioner was the successful bidder on both the aforementioned projects. Prior to submitting its bid, representatives for Petitioner visited the construction site, observed that the site consisted of flat country with lakes and standing water, and inquired of local residents about area weather conditions. Petitioner's representatives were advised that the area experienced frequent rainfall, but made no inquiry about historical rainfall statistics, either independently or through DOT. On May 26, 1977, Petitioner entered into a contract with DOT in the amount of $5,884,703.32 to construct the "3401 job" consisting of 4.034 miles of interstate highway in Charlotte County, Florida, from a point north of Oilwell Road to a point north of Green Gulf Boulevard, including construction of Green Gulf Boulevard to U.S. 41. In that contract, Petitioner agreed, in part ". . . to fully complete all necessary work . . . within not more than nine hundred calendar days. " On May 19, 1977, Petitioner entered into a contract with DOT in the amount of $5,734,417.40 to construct the "3407 job" consisting of 5.027 miles of interstate highway in Charlotte County, Florida, from the county line to a point north of Oilwell Road and agreed, in part, to complete necessary work on this project within not more than seven hundred calendar days. Prior to the advertising and letting of bids on the two above-described projects, a feasibility study was conducted during the 1960s as mandated by federal law, which study was followed by a 4F Environmental Impact Statement approved by the U.S. Secretary of Transportation locating the aforementioned portions of the proposed interstate highway in the Cecil M. Webb Wildlife Area in Charlotte County, Florida. One of the requirements of the 4F Statement is that necessary embankment material for the construction of the portions of the interstate highway herein disputed be excavated from a designated location in the wildlife area, thereby creating a lake to be stocked for public fishing. Soil samples were taken from the proposed lake borrow area by borings during the period from March 20, 1972 through April 10, 1972. These soil samples were analyzed by DOT personnel, which analysis resulted in a soil report which was entered into evidence in this proceeding. Samples of two strata of A- 2(4) soil, from the proposed borrow area were forwarded to DOT's Gainesville laboratory for X-ray diffraction. These tests resulted in a memorandum dated July 29, 1972, which indicated that the test results showed the materials to contain a small amount, approximately one part in ten of the clay fraction, of montmorillonite. Montmorillonite is a mineral whose chief characteristic is an affinity for attracting and tenaciously holding excess water, thereby becoming highly plastic and difficult to compact. The presence of montmorillonite is common in coastal areas of Florida, such as Charlotte County. The July 29, 1972, memorandum also contained the further provision that: Caution is advised in the use of these materials, as we do not have enough background data, historical data, etc. to determine the effect of different amounts of montmorillonite on material handling characteristics, under varying moisture conditions. As previously indicated, because of the requirements of the 4F Statement, construction plans and special provisions relating to these two projects required that all material for road embankment was to come from the construction of a lake area in the Cecil M. Webb Wildlife Area. Because of the aforementioned soil analysis, information was placed in the project plans indicating the presence of plastic materials in the Sample 3, 5, and 6, and the following notation was placed in the project plans concerning embankment and sub-grade material: The material from Strata No. I, 2, and 4 appears satisfactory for use in the embankment. The material from Strata No. 3, 5, and 6 appears satisfactory for use in the embankment above the water level existing during construction. However, extreme caution should be followed in the use of these materials as they are likely to retain excess moisture and may be difficult to dry. The material from Strata No. 7 and 8 appears satisfactory for use in the embankment. However extreme caution should be followed in the use of these materials as they are likely to retain excess moisture end may be difficult to dry. The material from Strata No. 9 is muck. (Emphasis added) In addition, the following notations were contained in the Special Provisions portion of the contract between Petitioner and DOT, in Paragraph 11 entitled "Embankment": Source: The Contractor shall obtain all required material for the proposed embankment from areas within the Cecil M. Webb Wildlife Area. This excavation shall be performed in accordance with the lake construc- tion plans. . . . (f) Soil Analysis: The Contractor's attention is directed to the strata which are likely to retain excess moisture and may be difficult to dry. Prior to commencement of construction on the projects, a pre- construction conference was held between representatives of Petitioner and DOT in Punta Gorda, Florida, on June 0, 1977. At the pro-construction conference, discussions were held which indicated that all embankment material for the two projects would come from the planned lake area as shown on the plans and specifications, and it was again pointed out to Petitioner's representative that the embankment material might be difficult to dry. Petitioner's job superintendent was present at the preconstruction conference, had read the soil notes concerning the affinity of the embankment material for retaining moisture, but made no further inquiry of representatives of DOT concerning the soil test results contained in the project plans. It is undisputed that DOT did not furnish petitioner the results of its laboratory tests, nor did DOT advise Petitioner specifically of the presence of montmorillonite. Section 8-8.1, Florida Department of Transportation Standards Specifications for Roads and Bridge Construction, 1973, which was made a part of the contract between Petitioner and DOT, provides, in pertinent part, that: Time is an essential element of the con tract and, as delay in the prosecution of the work will inconvenience the public, obstruct traffic, and interfere with business, it is important that the work be pressed vigorously to completion. Moreover, the cost to the Department of the administration of the contract, including engineering, inspection, and supervision, will be increased as the construction period is lengthened . . . . Section 8-7.1, of the aforementioned document further provides that: The contractor shall perform fully, entirely and in accordance with the specifications, the work contracted for, within the contract time specified in the proposal , or as may be extended in accordance with the provisions herebelow.. Section 8-7.3.2 of the Standard Specifications Provides that: No allowance in contract time will be made for delay or suspension of the prosecution of the work when such delay is due to fault or negligence of the contractor. Finally, Section 8-8.3 provides, in part, as follows: (i) The Department may grant extensions of time during the prosecution of the work, as allowed under the Standard Specifications and special provisions for the work, regardless of the Contractor's delinquency status. If is incumbent upon the Contractor to request the Department for such extensions of time as he feels he is entitled to. (j) The Department may recognize as grounds for granting time extensions only those conditions which are beyond the control of the Contractor and which could have not been reasonably anticipated at the time bids were received. Rains or other inclement weather conditions will be considered only when such are unseasonable, and provided that job records indicate that such weather was sufficient to cause serious obstacle prosecution of the work. (Emphasis added) Section 8-8.3 of the Standard Specifications provides, in part, that: A contractor may be declared delinquent because of unsatisfactory progress on a contract with the Department, when the contract time allowed has not been entirely consumed, but the Contractor's progress at any check period does not meet at least one of the following two tests: The percentage of dollar value of completed work with respect to the total amount of the contract is within ten percentage points of the percentage of contract time elapsed. The percentage of dollar value of completed work is within ten percentage points of the dollar value which would have been performed according to the contractor's own progress schedule previously approved by the Engineer. . A contractor will be declared delinquent because of unsatisfactory progress on a contract with the Department, under the following circumstances: The contract time allowed has been consumed and the work has not been completed. The contract time allowed has not been entirely consumed, but the contractor's progress at any check period does not meet either of the two tests described under the paragraphs headed (a) above. As previously indicated, and as stipulated by both Petitioner and DOT, both the contract for the 3401 job and for the 3407 job were what is known in the industry as "calendar day contracts," as opposed to "work day contracts.' The first chargeable day under the contract under consideration in this proceeding was June 22, 1977. Petitioner's records show that the first day on which it had employees on the job site was July 11, 1977. During the course of construction on the 3401 job, Petitioner was granted time extensions which increased the number of allowable days under the contract form the original 900 to 974. In addition the original contract amount of $5,884,703.32 was increased to $6,191,921.43. As previously indicated, the first chargeable day under the contract for the 3401 job was June 11, 1977, and Petitioner's first day on the job site was July 11, 1977. During August, 1977, Petitioner began excavation on the main channel in the lake area, which area was to serve as the source for materials to be used of embankment on the 3401 and 3407 jobs. Placement of embankment material on the 3401 job began on November 28, 1977, Petitioner was approximately 3 percent ahead of schedule on the 3401 project. However, by September 2, 1979, Petitioner was 20.51 percent behind his progress schedule and 31 percent behind due to lapse of contract time, both of which parameters exceeded the 20 percent range allowed under the contract. Factoring in time extensions and additions to the original contract amount approved by the supplemental agreements dated November 25, 1979, Petitioner had completed approximately 55 percent of the work, although almost 89 percent of the contract time had elapsed, which placed Petitioner in default under the contract terms. A preliminary Notice of Delinquency due to unsatisfactory progress on the 3401 job was sent by certified mail dated November 8, 1979, to Petitioner from DOT's representative. In response to this preliminary Notice, by letter dated November 21, 1979, Petitioner requested a 345 calendar day extension to the 3401 contract, asserting as reasons therefor, unsuitable embankment material and unusual amounts of rainfall on the job site. A final Notice of Delinquency due to unsatisfactory progress on the 3401 job was sent by certified mail to Petitioner on November 30, 1979. Petitioner timely requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, on these matters contained in the final Notice of Delinquency. Petitioner's request was sent by certified mail to the Secretary of DOT on December 6, 1979. Both Petitioner and DOT have stipulated that the calendar days allowed under the terms of the 3401 contract and previously authorized extensions, expired prior to completion of the work. It is abundantly clear from the record in this proceeding that one of the major contributing factors to Petitioner's exceeding the number of allowable contract days was difficulties encountered in the handling of embankment material due to the presence of the mineral montmorillonite. That mineral's high affinity for attracting and binding water made it extremely difficult to stabilize the subgrade of the roadway in order to meet DOT's compaction requirements. Petitioner's continuing efforts to sufficiently dry this material for use in the embankment did, in fact, cause some delays in completion of the work. This record does not establish, however, that this eventuality is something that could not have been reasonably anticipated by Petitioner, or that the presence of montmorillonite in the embankment material was the only cause of Petitioner's failure to timely complete work on the 3401 job. In fact, the above described contract provisions clearly warned Petitioner of the very problems that it eventually encountered with the use of this embankment material--that is that the material was ". . . likely to retain excess moisture and may be difficult to dry." In fact, Petitioner's own expert witnesses, who were qualified to testify as experts in the areas of soil dynamics, soil analysis and engineering, geology, minerology and soil stabilization as it relates to highway construction, each testified that the inclusion of the above quoted language on the soil notes were sufficient notice to trigger further inquiry into the potential presence of "troublesome soils." In addition, it further appears from the record in this proceeding that construction methods utilized by Petitioner on both the 3401 and 3407 jobs were not optimum for proper handling for the type of minerals found in the embankment material. For example, Petitioner placed these embankment materials on the subgrade in layers so thick that proper aeration was not facilitated in order to properly dry the material. In addition, petitioner attempted to compact the already wet material with heavy equipment, further exacerbating difficulties encountered with excess moisture content. Furthermore, problems were caused by petitioner's failure to construct the embankment in a manner which would have prevented "ponding" of rainfall on the subgrade surface. Naturally, by allowing "ponding" of rainfall on the embankment, the problems encountered with the embankment materials' high moisture retention were further aggravated. Although Petitioner has asserted in this proceeding that it is entitled to time extensions due to unusually heavy rainfall in the area during tie course of construction on the 3401 job, the record in this proceeding is insufficient to conclude that "unseasonable" amounts of rainfall in fact occurred, or that weather conditions were in any way ". . . sufficient to cause serious obstacle to prosecution of the work." Petitioner did submit daily precipitation data compiled for various stations in the State of Florida, including Naples and Punta Gorda, for the period from June, 1977 through August, 1979. Other than this data, the only other evidence of record in this proceeding concerning rainfall amounts are the uncorroborated hearsay assertions of Petitioner's accountant that ". . . [n]ormal rainfall in the he area is somewhere around 52 inches," and that rainfall for the first calendar year of the contract was 8.73 inches "over normal." There is, in fact, no competent evidence in this record from which a determination can be made as to the average annual rainfall in the area of the project, or the amount, if any, by which actual rainfall in the first year of the contract exceeded the annual average. Although the Petitioner submitted data on rainfall experienced at two stations located five and twenty miles distant from the job site for the period June, 1977, through August, 1979, this date is both insufficient to allow a determination that rainfall, in fact, so contributed to delay in the prosecution of the work as to merit an extension of contract time. Finally, it appears from the record in this Proceeding that substantial amounts of contract time were lost by petitioner due to delays in obtaining and placing lime rock on the job site, end by attempting to conduct work on the 3401 job and the 3407 job as one contract, despite the fact that these jobs were the subject of separate bids, separate contracts and differing time requirements. Counsel for both Petitioner and DOT have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact have not been adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
