02-002278EF Holmes Dirt Service, Inc., And William J. Holmes vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, December 24, 2002.

Summary: The Department proved, by a preponderance of the evidence, that Holmes did not control access to the C & D Facility, provide financial updates, and perform ground water monitoring.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 0 2 - 2278

)

HOLMES DIRT SERVICE, INC., and )

WILLIAM J. HOLMES, )

)

Respondents. )

)

FINAL ORDER

Pursuant to notice, this cause was heard by Charles A.

Stampelos, the assigned Administrative Law Judge of the Division

of Administrative Hearings, on November 21, 2002, in Tavares,

Florida.

APPEARANCES

For Petitioner Department o f Environmental Protection:

Lisa G. London, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondents Holmes Dirt Service, Inc., and

William J. Holmes:

Frank T. Gaylord, Esquire

Post Office Drawer 2047

Eustis, Florida 32727 - 2047

STATEMENT OF THE ISSUE

The issue presented is whether Respondents, Holmes Dirt

Service, Inc., and William J. Holmes, are in violation of

various rules and regulations as alleged in the Notice of

Violation issued by Petitioner, Department of Environmental

Protection (Department). 1

PRELIMINARY STATEMENT

On December 17, 2001, the Department issued a Notice of

Violation to Respondents, Holmes Dirt S ervice, Inc., and

William J. Holmes, finding both parties to be in violation of

various rules regulating management and operation of

Construction and Demolition Debris Disposal Facilities (C & D

Facilities). Respondents timely requested an administrative

hearing. Thereafter, this cause was transferred to the Division

of Administrative Hearings (Division) to conduct a final

hearing.

Petitioner and Respondents stipulated to the joint

admission of Exhibits A through J. The Department presented the

testimon y of Gloria - Jean DePradine, James N. Bradner, Randall C.

Cunningham, John Burton Turner, Charles F. LaBell and

Donald Strickland. Respondents offered no witnesses.

Respondents admitted to Count II of the Department's Notice of

Violation.

At the conclusi on of the hearing, the parties were granted

ten days from the filing of the transcript within which to file

their proposed final orders. The hearing transcript was filed

on December 4, 2002. Each party filed proposed final orders and

they have been consi dered in preparing this Final Order.

FINDINGS OF FACT

The Parties

1. The Department is charged with the duty to administer

and enforce the provisions of Chapter 403, Florida Statutes, and

the rules promulgated thereunder in Chapter 62, Florida

Administrativ e Code.

2. Respondent, Holmes Dirt Service, Inc. (Holmes, Inc.), is

a Florida corporation authorized to do business in the State of

Florida. Holmes, Inc., along with William J. Holmes (Holmes),

is responsible for the operation and management of a solid wast e

facility permitted by the Department under the name "Holmes Fill

Dirt Landfill" (Facility).

3. Holmes is a citizen of the State of Florida. Holmes was

also the Director of Holmes Dirt Service, Inc.

Background

4. On or about August 24, 1998, the Department issued

Permit/ Certification No. SO42 - 0133361 - 001 to Holmes Fill Dirt

Landfill for the operation and management of a C & D disposal

facility. The permit was sent to the attention of Holmes and

had an expiration date of August 24, 2003. This was a renewal

permit, with the initial permit issued in or around 1993.

5. On or about June 26, 2000, Respondents notified the

Department that the facility was temporarily closed. The

Facility has remained closed since that time.

6. Holmes, Inc., and Holmes own and operat e the Facility

known as Holmes Fill Dirt Landfill

7. Holmes testified by deposition that he received a

Conditional Use Permit from Marion County to operate the

Facility. This permit expired on June 1, 2000. The Facility

has been closed since at least June 1, 2000, although it has not

been officially closed pursuant to Department rules. 2 The

Facility has not received any additional C & D material after

June 1, 2000.

8. On December 17, 2001, the Department issued a Notice of

Violation to Holmes, Inc., and Holm es. On June 3, 2002,

Respondents requested an administrative hearing before the

Division.

Count I - Failure to Provide Department with Adequate Financial

Assurance Documentation

9. In Count I, the Department alleges "that from June 2000,

to the present, Re spondents have failed to provide the

Department with adequate financial assurance documentation." On

June 4, 2001, the Department sent Respondents a letter advising

that the financial assurance documentation was inadequate.

(Respondents admit the letter was sent, but deny their

documentation was inadequate.) The Department specifically

contends that Respondents did not provide an annual update of

the closing costs to the Department and that the assurance bond,

previously issued in 1998, see Finding of Fa ct 11, was no longer

acceptable to the Department.

10. Rule 62 - 701.730(11), Florida Administrative Code,

requires an owner or operator of an off - site construction and

demolition debris disposal facility to provide to the Department

proof of financial assurance "issued in favor of the State of

Florida in the amount of the closing and long - term care cost

estimates for the facility." This information is required to be

submitted with the permit application for the facility.

11. Financial assurance is required should t he State of

Florida have to take over closure or long term care of a

facility. On May 29, 1998, Holmes, Inc., and Holmes (as Vice

President of Holmes Inc.) entered into a Trust Agreement with

United Southern Bank, as Trustee, to provide financial assuranc e

for the Facility. This agreement contained a cost estimate of

$76,551.72 for closure and post - closure of the Facility. On

April 29, 1998, a bond was executed between Holmes, Inc., and

Frontier Insurance Company (Frontier) in this amount. Thus,

when th e C & D permit was renewed in 1998, Respondents obtained

financial assurance in the form of a closure cost/long - term care

bond from Frontier.

12. Rule 62 - 701.630(3), Florida Administrative Code,

pertaining to "cost estimates for closure," provides that the

ow ner or operator shall estimate the total closure cost for the

permitted potions of the landfill for the period in the

operation "when the extent and manner of its operation make

closing costs most expensive."

13. Rule 62 - 701.630(4)(a) - (d), Florida Administrat ive

Code, pertaining to "cost adjustments for closure," requires the

financial assurance to be updated annually to account for the

inflation factor of 1.01. Once a bond is in place, as here as

of 1998, these subsections require the permittee, here Holmes

Inc., to provide the Department, on an annual basis, with an

update to the closure cost, which includes the inflation factor.

Additionally, the Department requires notification from the

owner or operator that the annual update has been made.

14. Prior to 20 01, there was no set time for a facility to

report this information. As of 2001, each facility was required

to report by March 1 of each year.

15. In 2000, the Department's Tallahassee office notified

its Central District Office that the financial assurance f or the

Holmes Fill Dirt Landfill was inadequate.

16. On June 14, 2000, the Central District Office mailed a

letter to the Holmes facility notifying Respondents that there

was a problem with financial assurance in that as of June 1,

2000, Frontier was no lon ger listed as an acceptable surety and,

as a result, Respondents were requested to "submit proof of

alternate financial assurance," or risk an enforcement action.

17. A letter dated November 15, 2002, from Frontier to

Judith Holmes, who is listed in the letter as the President of

Holmes Dirt Service, Inc., was sent to Respondents to notify

them that premiums were still due and outstanding on their

closure/long - term care financial assurance bond for the past two

years. This letter also informs that it was the p osition of

Frank Hornbrook of the Department "that all of the requirements

covered by our bond have not been satisfied and our bond has not

been officially closed by the obligee. As a result, this bond

still carries liability and premiums due." (The Depa rtment does

not release a bond until a facility is officially closed and the

Facility is not officially closed.) Invoices for "01/02 and

02/03 renewal premium due" were enclosed with the letter.

Holmes admitted that the premium is past due and that he ha s no

money to pay the premium.

18. Even though the bond renewal premiums are past due,

there is no persuasive evidence that Frontier has been relieved

of its obligations under the bond issued in 1998. Rather, the

Department wants a replacement bond from Res pondents, but the

original bond will remain in place until a replacement bond is

furnished by Respondents. In fact, the Department will look to

Frontier for potential payment under the 1998 bond, if

necessary. However, Respondents have not provided the

D epartment with the inflation update financial assurance in

2001. As a result, the current financial assurance for Holmes

Fill Dirt Landfill is inadequate.

Count II - Failure to Provide Ground Water Monitoring Reports

19. The Department alleged that from "Ju ne 2000 to

June 2001, Respondents failed to sample and analyze the ground

water in accordance with the approved ground water monitoring

plan for two consecutive sampling events." Respondents admit

these allegations. Apparently, the last report was submit ted to

the Department in 2000. The Department does not allege that the

ground water on and off - site violate Department rules. Holmes

testified during a deposition that "the water tests have been

clean. . . . until he stopped the sampling process." Holme s

says he does not have "any money" -- "[he is] broke."

Count III - Objectionable Odors

20. The Department alleged that "[d]uring the period

June 2000 to the present, the Department has received numerous

complaints from residents in the area, alleging objectionabl e

odors emanating from the landfill." Respondents deny that there

have been "objectionable odors."

21. Chapter 62 - 701, Florida Administrative Code, pertains

to "Solid Waste Management Facilities." Rule 62 - 701.730(7)(e),

Florida Administrative Code, provides that C & D debris disposal

facilities "shall be operated to control objectionable odors in

accordance with Rule 62 - 296.320(2), F.A.C. If objectionable

odors are detected off - site, the owner or operator shall comply

with the requirements of paragraph 62 - 70 1.530(3)(b), F.A.C." 3

Rule 62 - 701.200(84), Florida Administrative Code, incorporates

the definition of "objectionable odors" found at Rule 62 -

210.200(181), Florida Administrative Code.

22. "Odor" is defined as "[a] sensation resulting from

stimulation of the human olfactory organ." Rule 62 -

210.200(182), Florida Administrative Code. Rule 62 -

210.200(181), Florida Administrative Code, defines an

"objectionable odor" as "[a]ny odor present in the outdoor

atmosphere which by itself or in combination with other o dors,

is or may be harmful or injurious to human health or welfare,

which unreasonably interferes with the comfortable use and

enjoyment of life or property, or which creates a nuisance."

23. Rule 62 - 296.320(2), Florida Administrative Code,

provides that "[n ]o person shall cause, suffer, allow or permit

the discharge of air pollutants which cause or contribute to an

objectionable odor." See also Rule 62 - 210.200(19) - (20), Florida

Administrative Code.

24. Joint Exhibit I is a study currently being done by

Professo r Timothy Townsend, Ph.D., of the University of Florida,

Department of Environmental Services, which states that disposal

of drywall, which contains gypsum, has caused hydrogen sulfide

generation ("rotten egg" smell) at numerous C & D landfills in

Florida. (Dr. Townsend is recognized as an authority on

landfills.) Further, the primary constituents in the gas

creating the problem is, among other reduced sulfur compounds,

hydrogen sulfide. The main ingredient for these compounds is

gypsum drywall. The stud y finds that hydrogen sulfide possesses

a very strong odor at very low concentrations and is known to be

toxic at high concentrations. The discussion of human health

impact with regard to odor problems is raised and culminates

with the observation that wh ile hydrogen sulfide concentrations

in ambient air surrounding C & D waste landfills are less than

those thought of as harmful, some studies indicate that long -

term exposure even to low concentrations can have a health

impact. 4

25. Holmes admitted that there is an odor problem at the

Facility caused by gypsum and drywall and that the odor is worse

in rainy weather. Holmes also admitted attempting to correct

the problem by previously inviting individuals from the

University of Florida to the facility, but repo rted that there

was nothing they could do at that time, except for keeping the

area covered with dirt.

26. Individuals residing near the Facility offered opinion

testimony that they suffered various problems resulting from the

odor emanating from the Facility. Neighbor Charles F. LaBell,

who resides 500 to 600 feet from the landfill, testified that

the odor began as a rotten egg smell and evolved into what they

"assumed was a hydrogen sulfide" odor. Mr. LaBell testified to

being familiar with the odor of hydr ogen sulfide due to his work

experience at a wastewater treatment plant. Mr. LaBell further

stated that the odor was unpredictable and not constant, but he

equated rainy periods and "foggy mornings" with times when the

odor would occur. The neighbors hav e found that outdoor

activities have been severely impacted, resulting in a loss of

use of portions of their property and diminished enjoyment of

their outdoor life. Neighbor Donald L. Strickland confirmed

Mr. LaBell's testimony, stating, in part, " Y ou ca n't go

outdoors, you can't stand it."

27. James Bradner, an employee with the Department for

twenty - three years and current manager of the Department's solid

and hazardous waste program, offered opinion and expert

testimony on the issue of odor problems at C & D debris disposal

facilities. Mr. Bradner has served in a technical advisory

capacity to a technical awareness group on odors caused by

gypsum drywall in C & D debris facilities and has had experience

at various C & D debris facilities in the State of F lorida

contending with odor problems. Mr. Bradner has experienced

hydrogen sulfide odors at water treatment plants and would

characterize the odor as a rotten egg odor. He has also had

experience with C & D debris disposal facilities dealing with

gypsum - related odor problems and testified that there are

various methods to deal with the odor problems, such as putting

an impervious cap (excluding water and liquids) of a clay liner

and actually closing the Facility.

28. Mr. Bradner has never been on the Facili ty site.

29. The Department's rules do not define "health." Odor

is a subjective measure, according to Mr. Bradner.

30. Department employee John Turner was responsible for

taking air samples in order to assess the odor problems at the

Facility. Mr. Turner has be en with the Department for 26 years,

and in his experience with the Department, has smelled the

rotten egg odor of hydrogen sulfide at sewage treatment plants

and municipal solid waste facilities. Mr. Turner met with

neighbors residing near the Facility a s a results of complaints

of odor. He visited the Facility five times to collect air

samples. He detected an odor during his initial three visits,

but did not take any samples because the aired smelled was not

representative of a strong odor. For Mr. Tu rner, during each

visit, the odor was the same in quality. There was some

variation in strength. "It was periodic in some cases and less

periodic in other cases."

31. He collected samples during his fourth and fifth

visits, but the "samples were below the mi nimum detection levels

for the method." Mr. Turner offered no scientific evidence that

would indicate that the air was harmful on the dates when

samples were taken and analyzed . Nevertheless, Mr. Turner

opined that the odor was objectionable in accordanc e with the

definition found in Rule 62 - 210.200(181), Florida Administrative

Code, on all five occasions.

Count IV - Failure to Control Access

32. The Department alleged that "access to the Facility

was not completely controlled." Respondents deny the

allegatio n.

33. Rule 62 - 701.730(7)(c), Florida Administrative Code,

provides: "Operation requirements. Owners and operators of

construction and demolition debris disposal facilities shall

comply with the following requirements by May 1, 1997, or at the

time of permit issuance, whichever is sooner: . . .(c) Access

to the disposal facility shall be controlled during the active

life of the facility by fencing or other effective barriers to

prevent disposal of solid waste other than construction and

demolition debris."

34. Department employee Gloria - Jean DePradine testified

that Florida Rules require that all C & D facilities have an

effective barrier so as to prevent unauthorized disposal of

waste. An effective barrier could be fencing, although the

Department does not req uire a specific type of fencing. It

depends on the situation.

35. Holmes originally owned a 46 - acre tract (the

property). The Facility is located on 13 acres of this

property. Holmes resided on the property until he sold his

residence in 2000 to Valentina E llis.

36. The property has an earthen berm along Highway 42, the

southern boundary of the property, which is a barrier. The

entrance to the property is controlled by a gate, which provides

access to the property. There is no fence separating the

Facility fro m the residence. A fence exists along the perimeter

of the property. The property is in the same condition today as

when the Department originally issued the permit in 1993.

37. When the Facility was permitted and operated by

Holmes, the Department found the access control to be

acceptable. However, when a portion of the property (10 acres)

was sold to Ms. Ellis, access was no longer being controlled

completely because Holmes had provided the necessary security

for the Facility, being the owner of the entire 46 - acre tract.

Because there are two separate property owners, Ms. Ellis can

now directly enter the Facility property, or any other members

of the public that entered her property, could enter the

Facility and dump unauthorized waste.

38. Randall Cunning ham has been employed with the

Department since May 1999, and has been working in the solid

waste section since October 2000. On November 19, 2001,

Mr. Cunningham conducted an inspection of the Facility site in

response to an odor complaint and found that there was no

barrier between the property owned by Ms. Ellis and the

Facility. Mr. Cunningham was able to drive from Ms. Ellis’

property onto the landfill. Mr. Cunningham saw a fence leading

onto Ms. Ellis' driveway with a swinging gate attached to a

po st, which was attached to a fence. Mr. Cunningham did not

visit the Facility while it was in operation.

39. There is no effective barrier between Ms. Ellis'

property and the Facility. Additionally, the Facility is not

yet officially closed.

Count V - Investiga tive Costs

40. The Department alleged that it incurred expenses of

not less than $500 while investigating this matter.

41. Investigative costs are recoverable pursuant to

Section 403.141(1), Florida Statutes, which states: "Whoever

commits a violation specified in s. 403.161(1) is liable to the

state for . . . reasonable costs and expenses of the state in

tracing the source of the discharge, [and] in controlling and

abating the source and the pollutants. . . ."

42. Mr. Bradner’s salary is approximately $35.00 per hou r.

He spent approximately 20 to 30 hours on this case which would

total approximately $700.00.

43. Mr. Turner’s salary is approximately $25.00 per hour.

Mr. Turner visited the Facility on five separate occasions in

order to attempt to collect an air sample. It took him an hour

and a half, to one hour and 45 minutes to get to the Facility.

He usually spent approximately one half hour at the Facility.

44. The Department conducted the two sampling events

referred to above, which were sent to a lab in Los Angeles for

analyses. Each analysis cost $250.00.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Sections 120.57(1) and 403.121(2)(d), Florida Statutes.

46. The Department has the burden of proving, by a

preponderance of the evidence, that Respondents are responsible

for the violations. Section 403.121(2)(d), Florida Statutes.

See Saporito v. Bone , 195 So. 2d 244, 245 (Fla. 2d DCA 1967) for

a definition of the test of preponderanc e of the evidence.

47. Respondents are the owners and operators of the Holmes

Fill Dirt Landfill Facility, a C & D debris disposal facility.

48. Respondents admit they did not provide the Department

with ground water monitoring reports. A penalty of $1,000.00 is

appropriate. See Section 403.121(4)(d) and (f), Florida

Statutes.

49. Rules 62 - 701.730(11), 62 - 701.630(3), and 62 -

701.630(4)(a) - (d), Florida Administrative Code, require the

owner or operator of a facility to obtain adequate financial

assurance, update th at assurance annually to adjust for

inflation costs and submit the annual update information to the

Department. Respondents have not submitted their annual

payments to the bonding company (Frontier), although the 1998

renewal permit bond has not been canc elled and, on this record,

the Department can look to Frontier if necessary because the

renewal bond has not been cancelled. However, Respondents have

not provided the Department with the 2001 annual update.

Consequently, the financial assurance is inade quate and

Respondents are in violation of Rules 62 - 701.630(3) and 62 -

701.630(4)(a) - (d), Florida Administrative Code. A penalty of

$1,000.00 is appropriate. See Section 403.121(4)(a) and (f),

Florida Statutes.

50. Respondents are in violation of Rules 62 - 701. 730(7)(e)

and 62 - 296.320(2), Florida Administrative Code, which require

that C & D debris disposal facilities shall be operated to

control objectionable odors. The Department defines an

"objectionable odor" as "[a]ny odor present in the outdoor

atmosphere which by itself or in conjunction with other odors,

is or may be harmful or injurious to human health or welfare,

which unreasonably interferes with the comfortable use and

enjoyment of life or property, or which creates a nuisance."

Rule 62 - 210.200 (181 ), Florida Administrative Code.

51. The Department proved that the odor detected

unreasonably interferes with the neighbors comfortable use and

enjoyment of their life and property. However, the Department

did not prove, by a preponderance of the evidence, th at the odor

"is or may be harmful or injurious to human health or welfare."

The Department reasonably interprets Rule 62 - 210.200(181) to

prohibit, in the disjunctive, three separate problems. Compare

with Section 403.031(7), Florida Statutes, and Rule 62 -

210.200(20), Florida Administrative Code. Accordingly,

Respondents are in violation of Rules 62 - 701.730(7)(e) and 62 -

296.320(2), Florida Administrative Code. Additionally, the

Facility should be properly closed in order to foreclose the

release of "obje ctionable odors" in the future. See pages 22 -

24, infra. A penalty of $500.00 is appropriate. See Section

403.121(5), Florida Statutes.

52. Respondents are in violation of Rule 62 - 701.730(7)(c),

Florida Administrative Code, which provides in part: "Operat ion

requirements. Owners and operators of construction and

demolition debris disposal facilities shall comply with the

following requirements by May 1, 1997, or at the time of permit

issuance, whichever is sooner: . . . .(c) Access to the disposal

facilit y shall be controlled during the active life of the

facility by fencing or other effective barriers to prevent

disposal of solid waste other than construction and demolition

debris." There is no fencing or any other type of effective

barrier blocking anyo ne on Ms. Ellis's property from entering

the property on which the Facility is located. (This was not a

problem according to the Department, when Holmes operated the

facility and resided nearby. It became a problem when Ms. Ellis

bought the property.) A lso, the Facility is not yet closed.

Accordingly, Respondents are not controlling access as required

by Rule 62 - 701.730(7)(c), Florida Administrative Code, and a

penalty of $500.00 is appropriate. See Section 403.121(5),

Florida Statutes.

53. The penalties a ssessed in this proceeding are below

the amount requested by the Department and the statutory

schedule. However, the facility has not been operational since

June 2000 and the remedial efforts outlined by the Department in

its Notice of Violation and incor porated herein, are extensive

and appear to require the expenditure of money by Respondents,

which they apparently do not have. See Finding of Fact 19. See

also Section 403.121(10), Florida Statutes. Nevertheless, these

provisions shall be complied with in order to avoid further

problems with the Facility.

54. Evidence was presented that investigative hours and

costs in excess of $500 were spent on this case. The Department

is entitled to recover investigative costs pursuant to Section

403.141(1), Florida S tatutes, of $500.00.

CONCLUSIONS

Based on the foregoing Findings of Fact and Conclusions of

Law, it is, therefore ORDERED:

1. Respondents shall forthwith comply with all Department

rules regarding solid waste management as related to the

disposal of C & D debris. Respondents shall correct and redress

all violations in the time periods required below and shall

comply with all applicable rules in Chapters 62 - 296 and 62 - 701,

Florida Administrative Code.

2. Within 30 days of the effective date of this Fin al

Order, Respondents shall prevent unauthorized waste disposal at

the Facility, and shall provide access control by the use of

fencing, gates, or other effective barriers on the portion of

property that is contiguous with property owned by Ms. Valentina

E llis.

3. Within 30 days of the effective date of this Final

Order, Respondents shall obtain adequate financial assurance and

shall provide the Department with proof of financial assurance

issued in favor of the State of Florida, in the amount of the

closi ng and long - term care cost estimates for the Facility, if

the 1998 renewal bond is no longer in full force and effect.

(If the renewal bond is in full force and effect, Respondents

shall provide the Department with an appropriate financial

update.) Other wise, proof of financial assurance shall consist

of one or more of the following instruments which, comply with

the requirements of Rule 62 - 701.630(6), Florida Administrative

Code: trust fund agreement; certificate of deposit; surety

bonds guaranteeing pa yment; surety bonds guaranteeing

performance; irrevocable letter of credit; closure insurance; or

financial test and corporate guarantee.

4. Respondents shall continue to monitor and analyze the

ground water at the Facility in accordance with the approved

monitoring plan through the active life of the Facility, and for

five years after closure activities are completed. The ground

water monitoring results shall be submitted to the Department

for review within 45 days of each sampling event.

5. Respondents shall control any objectionable odors

emanating from the Facility in accordance with Rule 62 -

296.320(2), Florida Administrative Code. Since strong odors

have been detected off - site, beyond the disposal area boundary,

Respondents shall comply with the re quirements of Rule 62 -

701.530(3)(b), Florida Administrative Code. See Endnote 3.

Therefore, within 30 days of the effective date of this Final

Order, Respondents shall implement a routine monitoring program

to determine the timing and the extent of any o ff - site odors.

If the monitoring program confirms the existence of

objectionable odor, Respondents shall submit to the Department

for approval an Odor Remediation Plan (Plan) within 60 days of

confirmation of objectionable odors. The Plan shall describe

the nature and extent of the problem and the proposed remedy.

The Plan shall be implemented within 30 days of approval.

6. Upon review of the Plan, the Department may request

additional information. Any additional information shall be

submitted to the Department within 30 days of receipt of the

Department’s written request. If additional information is not

submitted in a timely manner, the Department will approve or

deny the Plan as submitted. Upon approval, the Plan shall be

incorporated herein and m ade part of this Final Order and the

Respondents shall implement the conditions in the Plan pursuant

to an approved schedule. If the proposal is denied, Respondents

shall submit a new plan or modifications to the plan within 30

days and the review process shall continue as detailed herein.

7. Respondents shall submit monthly reports to the

Department. The reports shall include all data collected during

the monitoring. The first report shall be submitted to the

Department within 45 days of the implement ation of the plan and

shall continue every 30 days thereafter.

8. Respondents are ordered to close the Facility within 60

days of this Final Order, unless the time is extended by the

Department. Respondents shall implement closure activities in

accorda nce with Rule 62 - 701.730(9)(b)(c)(d) and (10), Florida

Administrative Code. Closure activities shall include, but not

be limited to the following:

A. Grade and compact the disposal area to

eliminate ponding, promote drainage and

minimize erosion.

B. E stablish and maintain side slopes no

greater than three feet horizontal to one foot

vertical rise in all above - grade disposal

areas.

C. Establish and maintain final cover

consisting of a 24 - inch thick layer of clean

soil, the upper six inches of which sh all be

capable of supporting vegetation.

D. Seed and/or plant vegetative cover over

the disposal area.

Respondents shall monitor the effectiveness of the cover for a

minimum of five years following completion of closure

activities, and acceptance by t he Department.

9. Within 30 days of the completion of the closure

activities, Respondents shall provide the Department with

"Certification of Closure Construction Completion" and a final

survey report, conducted by a Professional Land Surveyor in

accorda nce with Rule 62 - 701.610(3) Florida Administrative Code,

if the disposal operation has raised the elevation higher than

20 feet above natural land surface.

10. Within 60 days of the effective date of this

Order, Respondents shall pay $3,000.00 to the Depa rtment for the

administrative penalties assessed above. Payment shall be made

by cashier's check or money order payable to the "State of

Florida Department of Environmental Protection" and shall

include thereon the OGC Case No.: 01 - 1946 and notation

"Eco system Management and Restoration Trust Fund." The payment

shall be sent to the Department of Environmental Protection,

Central District Office, 3319 Maguire Boulevard, Suite 232,

Orlando, Florida 32803 - 3767.

11. In addition to the administrative penalti es,

within 60 days of the effective date of this Final Order,

Respondents shall pay $500.00 to the Department for costs and

expenses. Payment shall be made by cashiers check or money

order payable to "State of Florida Department of Environmental

Protecti on" and shall include OGC Case No. 01 - 1946 thereon with

the notation "Ecosystem Management and Restoration Fund." The

payment shall be sent to the Department of Environmental

Protection, Central District Office, 3319 Maguire Boulevard,

Suite 232, Orlando, Florida 32803 - 3767.

12. Respondents will remain liable to the Department for

any damages resulting from the violations alleged herein and for

the correction, control, and abatement of any pollution

emanating from Respondents' Facility.

13. Respondents may request and the Department may extend

the time limits imposed by this Final Order.

DONE AND ORDERED this 24th day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Jud ge

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 Heari ngs,

this 24th day of December, 2002.

ENDNOTES

1 / Pursuant to Section 403.121(2)(d), Florida Statutes, the

parties have been re - aligned.

2 / A facility is not officially closed until, for example, it

reaches its final gr ade, and a final survey is conducted and

submitted to the Department "on a certificate of completion."

3 / Subsection (3)(b) provides:

(b) Odor remediation plan. The Facility

shall be operated to control objectionable

odors in accordance with Rule 62 - 2 96 - 320(2),

F.A.C. If gas concentrations cause

objectionable odors beyond the landfill

property boundary, the owner or operator

shall:

1. Implement a routine odor monitoring

program to determine the timing and extent

of any off - site odors; and

2. If th e monitoring program confirms the

existence of objectionable odors, submit to

the Department for approval an odor

remediation plan for the gas releases. The

plan shall describe the nature and extent of

the problem and the proposed remedy. The

remedy shal l be initiated within 30 days of

approval.

4 / Footnote one in the study notes: “A ceiling limit of 10 ppm

over a 10 minute period was set as a recommended guideline by

the National Institute for Occupational Safety and Health

(NIOSH). Ambient concentrat ions in air surrounding C & D waste

landfills is most often in the low ppb range.” The OSHA

standards for workers in the workplace is 50 pm over a 10 minute

period.

COPIES FURNISHED :

Frank Gaylord, Esquire

Post Office Drawer 2047

Eustis, Florida 327 27 - 2047

Lisa G. London, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

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

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who i s adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notic e of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of Appeal

in the Appellate District where the party resides. The notice

of appeal must be filed within 30 days of rendition of this

Final Order.