96-004995 Wci Communities Limited Partnership And George Sanders vs. Waste Management, Inc., Of Florida, And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, September 17, 1997.

Summary: Applicant provided reasonable assurance necessary to obtain permit to continue to operate landfill. There was no credible sign of missing leachate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WCI COMMUNITIES LIMITED )

PARTNERSHIP and GEORGE SANDERS, )

)

Petitioners, )

)

vs. ) Case No. 96-4995

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and WASTE MANAGEMENT, )

INC., OF FLORIDA, )

)

Respondents, )

)

and )

)

LEE COUNTY BOARD OF COUNTY )

COMMISSIONERS, )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled case on May 20, 21, and 22,

1997, in Fort Myers, Florida.

APPEARANCES

For Petitioners: Martin S. Friedman, Esquire

WCI Communities Limited Rose Sundstrom & Bentley

Partnership and 2548 Bl airstone Pines Drive

George Sanders Tallahassee, Florida 32301

Katherine P. English, Esquire

Pavese Gardner Haverfield

Dalton Harrison & Jensen

Post Office Drawer 1507

Fort Myers, Florida 33902

For Respondent: William D. Preston, Esquire

Waste Management, Inc., Michael P. Petrovich, Esquire

of Florida Hopping Green Sams & Smith

Post Office Box 6526

Tallahassee, Florida 32314-6526

For Respondent: W. Douglas Beason, Esquire

Florida Department of Department of Environ mental

Environmental Protection

Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenor: David S. Dee, Esquire

Lee County Board of Landers & Parsons

County Commissioners 310 West College Avenue

Tallahassee, Florida 32301

David M. Owen, Esquire

Lee County

Post Office Box 398

Fort Myers, Florida 33902

STATEMENT OF THE ISSUES

The issue in this case is whether the Florida Department of

Environmental Protection (agency or DEP) should issue renewal

permit No. SO36-26769E to Waste Management, Inc., of Florida

(WMI) for the operation of an existing Class I landfill, the Gulf

Coast Sanitary Landfill (GCSL) in Lee County, Florida. In the

prehearing stipulation, Petitioners specifically dispute whether

WMI has provided reasonable assurances:

(1) regarding control of off-site odors

emanating from the landfill, (2) that it has

an approved closure plan, and (3) that

leachate from the landfill will not pollute

the air and water.

PRELIMINARY STATEMENT

WMI filed an application with DEP to renew its operation

permit for the GCSL on or about March 21, 1995. On or about

September 25, 1996, the agency issued its notice of intent to

grant the permit.

Petitioners, WCI Communities Limited Partnership (WCI) and

George Sanders (Sanders), filed a petition requesting a formal

hearing on October 10, 1996. The Lee County Board of County

Commissioners (Lee County) filed its petition to intervene on

December 17, 1996. An order granting Lee County's petition was

issued on January 2, 1997.

At the final hearing, WMI called these witnesses: Ronald F.

DeBattista (accepted as an expert in solid waste management

permitting); David E. Deans (accepted as an expert in civil

engineering and sanitary landfill engineering); Joseph E.

Fluet, Jr. (accepted as an expert in civil engineering,

landfills, and liner/cover systems); Martin N. Sara (accepted as

an expert in hydrogeology, ground water assessments, and ground

water monitoring systems); John A. Baker (accepted as an expert

in water quality monitoring and analysis, water chemistry, and

regulatory standards for water quality); Jeffrey Gould (accepted

as an expert in geology and ground water regulations); William F.

Krumbholz (accepted as an expert in landfill inspections and

operations); Philip A. Barbaccia (accepted as an expert in

environmental permit administration); and Rudolph Bonaparte

(accepted as an expert in civil engineering, geotechnical

engineering, landfill design and construction, leachate

generation, and liner performance). WMI's Exhibits 1-21, 24-60,

62, 69-71, and 73-76 were admitted into evidence.

DEP adopted WMI's case-in-chief.

Lee County called Larry Johnson, the Director of the

County's Division of Environmental Services. Lee County also

introduced the deposition testimony of John A. Bove, who was in

North Carolina and unavailable to attend the hearing due to a

medical problem. Lee County's Exhibits 1 and 2, including the

Bove deposition, were admitted into evidence.

Petitioners presented t he following witnesses: Laura

Pechous, an employee of WMI; Gsousuddin Minhaj, a professional

engineer employed by the DEP; Marcus Pugh (accepted as an expert

in civil engineering and the planning and design of landfills);

and Thomas M. Missimer (accepted as an expert in hydrogeology,

water quality and water quality monitoring). Petitioners'

Exhibits 1-17 were admitted into evidence.

A transcript of the hearing was filed with the Division of

Administrative Hearings. Proposed recommended orders were

submitted by the parties on or before August 11, 1997. These and

all evidence of record have been considered in the preparation of

this recommended order. Proposed findings of fact have been

adopted when consistent with the greater weight of the evidence.

FINDINGS OF FACT

The Parties

1. The applicant, WMI, provides waste management services

in the state of Florida. These activities include the hauling,

transfer, and recycling of solid waste, as well as the

construction and operation of landfills.

2. WMI o perates GCSL, the facility that is the subject of

the permit application, in Lee County, Florida.

3. WCI is a Delaware limited partnership engaged in the

business of developing multiple use communities in Southwest

Florida. It owns or holds options to purchase lands adjacent to

or near GCSL. WCI is also the developer of a planned unit

development known as Gateway, which includes residential and

commercial properties in close proximity to the landfill.

4. George Sanders owns, personally or as trustee, lands

adjacent to or near GCSL.

5. Lee County is a political subdivision of the state with

statutory responsibility to plan for and provide efficient,

environmentally acceptable solid waste management. Lee County

has contracted with WMI to provide solid waste disposal services

to citizens of Lee County at GCSL.

6. DEP is the agency of the state with statutory

responsibility to regulate and permit landfills such as GCSL.

7. As stipulated, the Petitioners and Intervenor have

standing in this proceeding.

The Landfill Facility

8. The GCSL is a Class I landfill located at 11990 State

Road 82, East, in Lee County, Florida, east of Interstate I-75.

The landfill is in a remote, undeveloped area and has been in

operation for over 20 years. The Gateway development is south of

the landfill.

9. The GCSL includes three parcels of land that have been

used for the disposal of solid waste. Parcel 1 and Parcel 2,

each about 40 acres, are unlined Class I landfills that have been

closed and no longer receive any solid waste. Neither liners nor

leachate collection were required when these parcels were

constructed and operated. Parcel 3 is a lined Class I landfill

that is approximately 80 acres in size. Approximately 50 acres

of Parcel 3 are closed and have received final cover.

Approximately 30 acres still are used for the disposal of solid

waste.

10. Parcel 3 was constructed in phases. In 1984, the

Department issued a permit authorizing the construction of the

"east hill" and "west hill"--i.e., two separate disposal areas in

Parcel 3 where solid waste was placed above grade. In 1989, the

Department issued a permit authorizing the construction of the

"valley fill"--i.e., a disposal area where solid waste was used

to fill in the valley between the east hill and the west hill.

Parcel 3 now consists of a single mound of solid waste. As each

phase of Parcel 3 was developed, liners and leachate collection

systems were installed in Parcel 3 before the commencement of

solid waste disposal operations. The liners and leachate

collection systems met or exceeded all of the applicable

regulatory requirements that were in effect at the time when the

waste disposal areas were permitted.

11. Parcel 3 is a well-designed, well-constructed, and

well-operated landfill. William Krumbholz is in charge of

landfill compliance and enforcement at DEP's district in

Ft. Myers. He reports that the GCSL has an "exceptional

operation record," and the GCSL is the "best operated Class I

landfill" in the district.

12. The GCSL currentl y is subject to a DEP operation permit

(DEP file number S036-180572), as modified. On March 21, 1995,

WMI filed an application for a renewal of its operation permit.

On or about September 25, 1996, DEP issued its notice of intent

to issue the permit to WMI. If issued, the permit would allow

WMI to operate the GCSL for an additional five years. See Rule

62-701.330(2), Florida Administrative Code. The landfill is not

yet at design capacity and is not expected to reach that capacity

during the next five years.

13. WMI desires to renew the operation permit for the GCSL

because WMI wishes to continue to provide solid waste management

services to Lee County, consistent with WMI's contractual

agreement to do so. WMI also wishes to continue operating the

GCSL in order to construct Parcel 3 to its final design grades

for closure. The design grades will maximize the site's ability

to shed stormwater and thus minimize the production of leachate.

Continuing to build Parcel 3 to its design grades is

environmentally preferable to closing Parcel 3 at this time in

its present configuration.

14. Prior to 1994, the GCSL received approximately 1000

tons of municipal solid waste each day. Approximately 90 per

cent of the solid waste was household garbage and about 10 per

cent was construction and demolition (C&D) debris. The GCSL did

not receive industrial waste.

15. The composition of the waste stream changed in August

1994, when Lee County began to operate a waste-to-energy

facility. All of the household garbage generated in the

incorporated and unincorporated areas of Lee County is taken to

the Lee County waste-to-energy facility, where it is burned, and

the ash residue is taken to the GCSL. Currently, the GCSL

receives only about 450 tons per day of solid waste, which

consists of 65-70 per cent ash residue from the waste-to-energy

facility, 30-35 per cent C&D debris, and approximately 2-5 per

cent municipal solid waste.

16. DEP would allow WMI to accept more solid waste at the

GCSL. However, Lee County has the contractual right with WMI to

dictate the types of materials deposited in the GCSL, and it is

the county's intent to use the waste-to-energy facility, not the

GCSL, for the disposal of putrescible wastes. Lee County is

contractually obligated to send all of the county's municipal

solid waste to the county's waste-to-energy facility, and the

county has a financial incentive to do so. Lee County will send

municipal solid waste to the GCSL only if an emergency occurs,

but even then the county will try to limit the duration and

extent of the County's use of the GCSL.

Objectionable Odors

17. Objectionable odors at a landfill typically are related

to the facility's operating practices (e.g., the size of the

working face) and the presence of putrescible, organic materials

that degrade and produce gases when they come in contact with

water. In this case, the GCSL's operating practices minimize

odors. The majority of the waste now received at the GCSL is ash

residue, which contains little or no organic material and thus

produces little or no odor. In addition, because the GCSL is a

"particularly dry landfill," any putrescible waste is not likely

to degrade and cause odors.

18. There have been no violations of the DEP odor rules at

the GCSL since 1991 and only two instances, in 1987 and 1991,

when off-site odors were verified by DEP's inspector. WCI filed

odor complaints in 1995, but the complaints were investigated by

DEP and the county and found to be invalid. Petitioners

presented no evidence of present or anticipated future odor

problems at the GCSL. To the contrary, the DEP inspectors and

other witnesses established that there are no objectionable odors

at the property boundary of the GCSL.

WMI's Approved Closure Plan

19. WMI has a closure plan for the GCSL that was approved

by DEP when DEP issued the existing operation permit. In the

current application WMI asked DEP for authorization to close the

remaining portions of Parcel 3 in the same manner that WMI used

when closing the other areas at the GCSL. If WMI's request is

not granted, WMI may be required to close Parcel 3 with a

geomembrane cover or "cap," in accordance with DEP's new

requirements for final closure plans. Although DEP's landfill

engineer recommends approval of WMI's request for authorization

to use an alternate cover material, no proposed agency action has

been taken on that request, and DEP will provide notice and a new

point of entry for affected persons when the agency decides

whether to grant WMI's request. It is, therefore, inappropriate

to address the merits of WMI's "alternate procedure" request in

this hearing. As provided in Rule 62-701.310(3), Florida

Administrative Code, the agency's decision is action subject to a

separate Section 120.57, Florida Statutes, proceeding.

20. WMI's closure plan for the GCSL has little significance

in this proceeding. The closure plan is used to calculate the

cost of closure, which in turn is used to determine whether WMI

has the financial resources to pay the cost of closing the

landfill. As part of its approved closure plan, WMI previously

demonstrated that it has the financial ability to pay the cost of

closing the landfill. WMI could be required to spend an

additional $1,000,000 to close the GCSL if WMI's request for

approval of the alternate procedure is denied by DEP, but it is

undisputed that WMI has the ability to pay this additional cost

for closure.

21. WMI must submit a revised closure plan at the time when

WMI is prepared to close Parcel 3. DEP then will determine again

whether the closure plan for Parcel 3 is adequate and in

compliance with the DEP standards in effect at the time. ( See

paragraphs 38-42, "Specific Conditions," appended to the Intent

to Issue, WMI Exhibit 4)

Leachate Generation Rate at the GCSL

22. While evaluating WMI's request for approval of an

alternate closure plan, DEP noted that the amount of leachate

collected in Parcel 3 (i.e., approximately 900,000 gallons per

year) is relatively low when compared to the amount of leachate

generated at other landfills. DEP was concerned that the low

leachate collection rate may indicate a problem in the leachate

collection system, so DEP requested WMI to evaluate the leachate

generation rate at the GCSL in more detail. WMI subsequently

presented additional information to DEP.

23. Leachate is defined by DEP as the liquid that has

passed through or emerged from solid waste. Rule 62-701.200(50),

Florida Administrative Code. Leachate is generated when

rainwater falls on the landfill, sinks in, and percolates through

the garbage.

24. One of the primary factors reducing leachate at the

GCSL is the use of ash as cover material. The ash, which

contains lime, undergoes a reaction and "sets up like mortar."

It is extremely hard, cannot be penetrated easily, and has a very

low permeability. The permeability of the ash is in the same

range as the permeability of the barrier layer that is used in a

final cover material. The ash "sets up so well" that the surface

water runoff is much greater than with a normal cover material.

25. There is an additional, significant reason why Parcel 3

of the GCSL has a low leachate generation rate. Approximately 50

acres of Parcel 3 already have been closed with a final cover

which is designed to shed rainwater and thus minimize the

production of leachate. Since most or all of the remaining 30

acres of Parcel 3 have been covered with ash, virtually all of

Parcel 3 is covered with low permeability materials that minimize

leachate generation.

26. Leachate in Parcel 3 also is minimized because WMI

employs good operational practices to limit its generation. WMI

uses a small working face and stormwater berms to reduce the size

of the area where rainwater may infiltrate. WMI maintains

aggressively graded slopes that quickly direct stormwater away

from the working face and off of the landfill. WMI's "close-as-

you-go" strategy means that the waste at the GCSL is covered

before it becomes saturated with rainwater. Specific conditions

in the Intent to Issue require that these practices continue.

27. After DEP requested WMI to evaluate the leachate

generation rate in Parcel 3, WMI hired a firm to clean the inside

of all of the pipes in the leachate collection system in Parcel

3. A television video camera was used to visually inspect the

inside of all of the pipes. This work confirmed that "at least

99.9 per cent" of the leachate collection pipes are clean and

functional. WMI promptly repaired the leachate collection pipes

in two small areas where there was blockage due to a crushed

riser and a valve that was left closed.

28. It is highly unlikely that leachate is mounding up

inside the landfill or overtopping the perimeter berm that

surrounds Parcel 3. The leachate levels inside Parcel 3

generally are and historically have been less than two feet. The

leachate levels at the GCSL do not threaten the liner's

integrity. The pipes are working, and no seepage has been

observed through the side slopes.

29. WMI verified that the liner and leachate collection

systems in Parcel 3 were constructed properly and in accordance

with the DEP-approved design. Construction Quality Assurance

reports were prepared by professional engineers when the liner

systems were installed in Parcel 3. In these reports, the

engineers certified that each section of the liner was installed,

inspected, and tested appropriately to ensure that there are no

holes in the liner. Where necessary due to failed tests, the

reports reflect that repairs were made before any waste was

deposited.

The HELP Model

30. In response to DEP's questions about the leachate

generation rate at the GCSL, WMI's staff attempted to calculate

the rate by using a computer program referred to as the HELP

model. WMI initially ran the model with default input values

which produced a predicted rate of 7.5 million gallons per year

(MGY). WMI questioned the validity of the model results, but

submitted the results to DEP because it was the best data then

available. Given the discrepancy between the model results and

the actual field data, WMI hired a nationally recognized

consulting firm, Post, Buckley, Shuh, and Jernigan (Post

Buckley), to perform a more refined analysis using the HELP

model.

31. The HELP model is used to calculate water balances at

landfills. The model calculates the amount of water that will

move across, into, and through landfills under different

conditions. The model is a useful tool for comparing the

performance of two alternate landfill designs, but it has limited

value when used to predict the actual performance of an operating

landfill.

32. The model can be run with default values or with site-

specific information. However, the model is designed to be

conservative and overpredict the actual leachate generated.

33. In its application of the model, Post Buckley adjusted

several input parameters to reflect the actual conditions at the

GCSL. Most significantly, Post Buckley adjusted the input

parameters for the moisture content of the waste in the GCSL and

for the U.S. Soil Conservation Service's (SCS) Curve Number.

These adjustments were "reasonable and well-considered."

34. The HELP model assumes that the solid waste in the

landfill is at field capacity--i.e., saturated with rainwater.

However, it is well established that the solid waste in landfills

is not saturated. At the GCSL, the ash cover material and WMI's

"close-as-you-go" practices would reduce the likelihood that the

waste would be saturated. Indeed, Post Buckley's on-site

inspections revealed that the GCSL is a "particularly dry

landfill."

35. The users' manual for the HELP model indicates that the

Curve Number should be adjusted in certain cases to account for

increased stormwater runoff that will occur during short

duration, high intensity storms. The default value is used in

areas where the rainfall occurs over a 24-hour period. In this

case, Post Buckley concluded that the SCS Curve Number should be

adjusted because the GCSL receives about 54 inches of rainfall

annually during approximately 90 short duration, high intensity

storms. Accordingly, Post Buckley adjusted the model's input

parameters to increase runoff by 23 per cent of precipitation.

Post Buckley's adjustment to the Curve Number and runoff value is

consistent with the findings contained in a report by Benson and

Pliska, which in the opinion of WMI's expert is the best study

performed to-date on the calibration of the HELP model and which

is similar or equivalent to the Peyton and Shroeder calibration

relied on by Petitioner's expert.

36. Post Buckley ran the HELP model with three differ ent

sets of conditions. In one run, Post Buckley adjusted the input

parameter for the moisture content of the waste and calculated an

leachate generation rate of 100,000 gallons per year. In the

second run, Post Buckley adjusted the Curve Number and calculated

a rate of 1.3 MGY. In the third run, Post Buckley adjusted both

the Curve Number and the moisture content and calculated a rate

of zero gallons per year. Given Post Buckley's landfill

experience and its knowledge about the operational practices at

the GCSL, the ash used as cover material, the climatological

conditions in southwest Florida, and the limitations of the HELP

model, Post Buckley concluded that 1.3 MGY is a reasonable

estimate or approximation of the actual leachate generation rule

for Parcel 3 of the GCSL.

37. The leachate generation rate for the GCSL also has been

evaluated by other witnesses. Mr. Joe Fluet calculated that

approximately 960,000 gallons to 1,030,000 gallons of leachate

are generated annually in Parcel 3. Mr. Fluet is a nationally

recognized landfill expert who was selected by DEP to serve as

the chairman of a technical advisory group that helped DEP

develop the current DEP landfill rules. Mr. Fluet's conclusion

is consistent with the leachate collection data for the GCSL, the

Post Buckley analysis, the measurements of leachate in the sumps

at the landfill, and his own personal observations of the

landfill and WMI's operational practices.

38. It is unlikely that leachate generation in Parcel 3 is

as high as 2.0 MGY. This rate would produce about three feet of

leachate on the liner. WMI's field data show that the "head"

(depth) of leachate over the liner in Parcel 3 generally is less

than two feet. By comparison, Post Buckley's estimated rate of

1.3 MGY would produce about 1.8 to 2.5 feet of leachate over the

liner, which is more consistent with WMI's field data.

39. Petitioners also attempted to calculate leachate

generation for Parcel 3 by running the HELP model. Using default

values, Petitioners calculated a rate of approximately 7 MGY.

Petitioners also ran the model after adjusting several input

parameters. Among other things, Petitioners decreased the slope

from 20 per cent to 4 per cent, and Petitioners increased runoff

by 30 per cent, as compared to the default value. With these

adjustments, Petitioners calculated a rate of 4.2 MGY.

40. The various experts' calculations with the HELP model

produced leachate generation rates of 0 to 7.5 MGY. The

magnitude of the range reflects the limitations of the model and

underscores the need for sound professional judgment when

adjusting the input parameters. In this case, the most

persuasive and credible testimony was presented by Mr. Bonaparte,

a recognized landfill expert who is assisting EPA with its

efforts to calibrate the HELP model, and Mr. Fluet. Consistent

with their testimony, the greater weight of the evidence

indicates that the leachate generation rate for Parcel 3 of the

GCSL is most likely to range between 960,000 gallons and 1.3 MGY.

41. The Petiti oners' calculated range of 4.2 to 7.0 MGY is

not credible. Even the low end of Petitioners' range is more

than twice as much (2.0 MGY) estimated by any other witness. In

addition, Petitioners' entire range of calculated leachate

generation rates is inconsistent with the other evidence of

record, as described below.

42. Petitioners' leachate generation calculations were

prepared by Marcus Pugh, who has not visited the GCSL nor

performed any site specific field work concerning the GCSL.

Mr. Pugh had never used the HELP model before to predict the

generation rate of an operating landfill, but rather has used it

as others commonly do, to size and design facilities. Although

Mr. Pugh initially criticized Post Buckley's calculation of the

slopes at the GCSL, he subsequently conceded that the HELP model

results obtained by Post Buckley are independent of slopes.

Missing Leachate?

43. Based on their HELP model calculations that Parcel 3

actually is generating 4.2 to 7.0 MGY of leachate and since WMI

is collecting 900,000 gallons per year, Petitioners speculate

that there is "unaccounted for" or "missing" leachate (i.e., 3.3

to 6.1 MGY), which must be leaking through the GCSL's liner or

seeping out of the sides of the GCSL, or both. Petitioners'

allegations, however, are not supported by the evidence of

record, which favors a finding that the facility is simply not

generating the vast amounts of leachate predicted by Petitioners.

44. The liner and leachate collection systems under Parcel

3 were "state-of-the-art" and in full compliance with all of the

applicable DEP rules at the time of their installation. These

systems were installed properly, in accordance with standard

quality assurance procedures, as certified by a professional

engineer. Mr. Bill Krumbholz, the DEP inspector, personally

witnessed the installation of portions of the liner. Mr. Fluet

also was personally involved with the certification for the

landfill. Even the Petitioners' witness, Mr. Pugh, conceded that

he had no concerns about or disagreements with the certifications

for Parcel 3. Thus, there is no reason to believe that the liner

or leachate collection systems were damaged at the time when they

were installed. Petitioners theorize that the liner in the GCSL

may have been damaged after it was installed, but Mr. Pugh

readily admits that this contention is based on "pure

speculation" based on the notion that a minimum wage laborer on

heavy equipment might damage the liner. Petitioners presented no

direct or credible evidence to support their contention.

45. After the completion of construction and the

commencement of operations large scale breaches of a landfill

liner are not a common or even occasional occurrence. As part of

its standard management practices, WMI places a four-to six-foot

thick "fluff" layer of select household garbage over any new

landfill liner system. The fluff layer is used to protect the

liner and ensure that the liner is not accidentally damaged.

This WMI policy was followed when the liners were installed in

Parcel 3 of the GCSL. As a result, there is no reason to believe

that the liner in Parcel 3 was damaged after installation.

46. There is no circumstantial evidence to support

Petitioners' claims. Since 1976, WMI has monitored the water

quality at the GCSL in accordance with a DEP-approved ground

water monitoring plan, which is designed to detect any

significant leakage from the landfill. No groundwater quality

violations have been recorded at the GCSL. However, if one were

to assume that Petitioners' theory is correct, then one also

would have to assume that over the last five years approximately

16.5 to 30.5 million gallons of leachate have leaked through the

liner in Parcel 3 and entered the adjacent groundwater, but

somehow have evaded detection in the monitoring wells.

47. Respondents' witness Mr. Fluet calculated that a

maximum of 56,000 gallons per year of leachate might possibly

leak through the liner system in Parcel 3. His calculation

conservatively assumed that there may be as many as ten 0.1 cm 2

holes in each acre of the liner in Parcel 3. Petitioners have

offered no credible theory that would produce a leakage rate of

several million gallons per year. To create a leakage rate of

even one million gallons per year, there would have to be at

least ten and perhaps dozens of large holes in the liner. Each

of the holes would need to be 10-feet long and several inches

wide. However, large holes or breaches in a liner system

normally are identified and repaired during the installation and

quality assurance process.

48. There is no evidence of poor quality assurance or poor

operational practices at the GCSL to support Petitioners'

speculation. WMI witness, Rudolph Bonaparte, has never

encountered a situation where there was evidence of the kinds of

"major flaws" that would be necessary to generate the leakage

rates hypothesized by Petitioners. Mr. Fluet also was unable to

identify any plausible scenario that would support Petitioners'

theory. Petitioners' witness, Mr. Pugh, conceded that he has

never worked on a lined landfill where 4-to 7-MGY of leachate

leaked through the liner.

49. Petitioners questioned whether settlement would affect

the liner or leachate collection systems in Parcel 3. Since ash

is denser than MSW, the disposal of ash in the GCSL may affect

the settlement of the subsurface soils to some extent, but there

will be no shearing or failure of the liner due to any

differential settlement. The amount of differential settlement

that may occur would be extremely small. Settlement could create

a 1000 gallon "puddle" of leachate in the valley fill portion of

Parcel 3, or the slope in some portions of the leachate

collection system may flatten, but these are relatively minor

impacts. Conversely, increased settlement in the base of Parcel

3 would help improve the overall drainage of the east hill and

the west hill areas.

50. Petitioners contend that the "unaccounted for" leachate

may be escaping from the GCSL through side slope seepage, but

this theory is not supported by any direct or credible evidence.

It was undisputed that any significant amount of side slope

seepage from a landfill is readily apparent. Leachate seeps

typically "look ugly and smell bad." When seeps occur, the soil

is discolored, the vegetation is killed, and there is sheering,

gullying, rilling, and other signs of erosion.

51. There has been no side slope seepage from Parcel 3, as

established by numerous site visits and personal observations of

the DEP staff, county representatives, and other witnesses.

Petitioners' witnesses have not observed any side slope seepage

at the GCSL. Although Petitioners noted that there are

discolored areas on Parcel 3, those are the areas where WMI

recently excavated into the sides of the GCSL to complete the

repairs to the leachate collection system.

52. The leachate would have to mound up inside the landfill

before there would be the amount of seepage predicted by

Petitioners. This mounding would create tremendous head pressure

in the cleanout pipes. However, no such pressure has been found

in the cleanout pipes at the GCSL.

53. Petitioners suggest that leachate may be seeping from

the toe of Parcel 3 into the drainage ditch that leads to the

stormwater retention pond. Again, the evidence does not support

this hypothesis. The liner in Parcel 3 goes over the top of a

berm which is built completely around the perimeter of Parcel 3.

The berm and the liner rise 3 feet above the base of the leachate

collection system. Leachate could not seep from the toe of

Parcel 3 unless the leachate level rose above the functioning

leachate collection pipes, avoided being drained away by the

leachate collection system, and then flowed uphill over the berm.

Even if the leachate went up and over the berm, the leachate

would enter the ditch from the top of the berm, where it would be

readily visible to site inspectors as side slope seepage. No

such seepage has been observed at the GCSL, even when people were

looking for it.

Ground Water Monitoring at GCSL

54. There are three aqu ifers underlying the GCSL: (a) the

surficial water table aquifer; (b) a sandstone aquifer; and

(c) the Hawthorne formation. Each of the aquifers is separated

by a low-permeability, confining layer of varying thickness. The

confining layer below the surficial water table aquifer is

between 40 and 80 feet in thickness. Based on field data and

reports of other scientists, including Petitioner's expert,

Thomas Missimer, hydrogeologist Martin Sara derived a vertical

flow rate of approximately 0.1 feet per year. At this rate,

ground water would take approximately 40 to 50 years to move

vertically downward through the confining layer.

55. Petitioners contend that the GCSL is affecting the

surficial water table aquifer.

56. The surficial water table aquifer contains fresh water

and is used extensively as a source of potable water in Lee

County, but not in the area of the GCSL. Ground water samples

collected from the surficial water table aquifer on Petitioners'

property had average total dissolved solids (TDS) concentrations

of approximately 500 mg/l. Similar TDS values have been reported

for the surficial water table aquifer in the area surrounding the

GCSL.

57. In general, the regional groundwater flow in the

vicinity of the GCSL is to the northwest. There is a

northwesterly flow from WCI's property onto the GCSL that is

consistent year after year and during all seasons. Extensive

historical monitoring data for the site confirm that the ground-

water flow under the GCSL also primarily is to the northwest, but

with some likely localized flow to the west, at least during

special events such as landfill dewatering in 1982. The only

significant exception to this trend occurs in the area of the

stormwater retention pond, where the groundwater usually flows

radially outward in all directions.

58. Groundwater monitoring began at the GCSL in 1976, when

the facility opened. The groundwater monitoring system at the

GCSL has complied with or exceeded the DEP requirements at all

times since 1976. Currently there are seven groundwater

monitoring wells, each approximately 30-feet deep, in the

surficial water table aquifer at the GCSL. These wells surround

the perimeter of the GCSL.

59. At the final hearing, Lee County attempted to address

concerns about the groundwater monitoring program for the GCSL by

agreeing to pay for the redevelopment and installation of

additional groundwater monitoring wells. Lee County and WMI

stipulated that two existing groundwater monitoring wells (wells

14-S and 18-S) will be redeveloped and a new ground water

monitoring well will be installed in the surficial aquifer

between existing wells 20-S and 21-S. The two redeveloped wells

and the new well will be sampled on a semiannual basis for

chloride and the field parameters of pH, specific conductivity,

field turbidity, and temperature for the life of the permit. The

monitoring may be discontinued if the GCSL closes.

60. The monitoring well network at the GCSL is adequate to

monitor the type of area-wide plume that might originate from the

GCSL. The evidence demonstrates that any holes in the liner in

Parcel 3 are likely to be small and spread widely across the

entire site. Although the plume from a single hole may be narrow

and elongated, the plume from the entire landfill would be

approximately 2400-feet wide. Under most if not all plausible

scenarios, leachate leaking out of the liner beneath Parcel 3

will move with the regional groundwater flow toward the

monitoring wells located along the western and northern

perimeters of Parcel 3. Potential leakage from Parcel 3 will be

pushed toward these monitoring wells by the regional groundwater

flow and the radial flow from the retention pond.

61. DEP has concluded and the evidence confirms that WMI's

groundwater monitoring plan, as modified by Lee County's

stipulation, is protective of the environment and satisfies all

applicable DEP requirements. Under the facts of this case, it is

not necessary to add any additional monitoring wells or otherwise

modify the groundwater monitoring plan, except as stipulated by

Lee County.

62. It was undisputed that the leachate generated at the

GCSL is and always has been "very weak" in comparison to the

leachate from other landfills. The leachate contains relatively

few contaminants and has low contaminant concentrations. The

GCSL's leachate has few volatile or hazardous constituents.

63. It also was undisputed that there have been no

violations of DEP groundwater standards detected in any of the

groundwater monitoring wells at the GCSL. There have been one-

time exceedances or anomalies, but such events do not constitute

a violation of the DEP standards.

Chloride In the Ground Water

64. Chloride is present in the GCSL's leachate. Over the

last ten years, the average chloride concentration in the

leachate has been 1021 parts per million (ppm), and the highest

concentration has been 2070 ppm.

65. The Department has no primary (i.e., health-based)

groundwater quality standard for chloride. The only groundwater

quality standard for chloride is a secondary standard of 250 ppm.

Secondary standards are intended to address concerns about odor,

taste, and aesthetics. If chloride concentrations become too

high in drinking water, people simply stop drinking the water

before there are any health implications, because the water is

too salty.

66. WMI evaluated Petitioners' claim that chloride leaking

from Parcel 3 may affect the water quality on Petitioners'

property. First, WMI performed a mass balance calculation and

concluded that the maximum rate of leakage from Parcel 3 would

increase the chloride concentrations beneath the landfill by only

7 to 14 ppm. WMI then used a dispersion model and determined

that the maximum leakage rate would increase the chloride

concentrations in the groundwater only 3.5 ppm at a distance of

100 feet from the landfill. This increase in chloride could not

be distinguished from the existing background concentrations in

the groundwater.

67. WMI also analyzed the groundwater data to determine

whether the GCSL is causing an increase in the chloride

concentration measured in monitoring well 21-S. WMI plotted the

data on trilinear diagrams, consistent with techniques that have

been commonly used by hydrogeologists for many years. The

trilinear diagrams clearly show that the increased levels of

chloride in monitoring well 21-S are not caused by the leachate

from the GCSL. The trilinear diagrams do not identify the source

of the chloride found in monitoring well 21-S. However, it

appears that the chloride originated from a source of "brackish"

water.

68. There are several potential sources of the chloride in

well 21-S. In the past, there was an irrigation well on WCI's

property that pumped water with high chloride concentrations and

created a large plume of chloride-enriched groundwater on WCI's

property. Historic groundwater monitoring data indicate that the

chloride plume was approximately 6000-feet wide and flowing

towards the GCSL. This large plume may have reached the GCSL and

affected the water quality in well 21-S. There also were

irrigation wells located on the site of the GCSL that may have

contributed to the chloride concentrations in well 21-S.

Historic water quality data indicate that these irrigation wells

produced elevated chloride concentrations in the groundwater at

the GCSL.

Petitioners' Stormwater Data

69. On May 12, 1997, Petitioners collected samples of the

water in the stormwater retention pond at the GCSL. Petitioners

also collected a sample of the water in a concrete culvert that

carries stormwater runoff from Parcel 3 to the retention pond.

The samples were collected during a severe rainstorm when it was

"raining cats and dogs." Based on these samples, Petitioners

speculate that the "unaccounted for" leachate is entering the

stormwater retention pond via a perimeter drainage ditch and the

concrete culvert. This speculation is not supported by the

evidence.

70. Leachate generated in the GCSL has an ammonia-nitrogen

concentration in the range of 700 to 800 ppm. The stormwater

collected from the culvert pipe had an ammonia-nitrogen

concentration of 1.7 ppm. The disparity between these two values

belies the possibility that the stormwater in the ditch contains

leachate from the GCSL. Although Petitioners contend that

ammonia-nitrogen in the leachate could be oxidized while flowing

in the ditch, it would be virtually impossible for the oxidation

of stormwater in the ditch to reduce ammonia-nitrogen levels from

700 or 800 to 1.7 ppm. WMI's extensive experience with leachate

has demonstrated that it is "very difficult" to treat and reduce

the ammonia-nitrogen levels in the leachate through volatization

and aeration.

71. The water collected by Petitioners in the culvert had a

chloride concentration of 2900 ppm, which significantly exceeds

the highest chloride level ever found in the GCSL's leachate

(2070 ppm). The pH in Petitioners' sample (8.87) also was

notably higher than the pH found in the landfill's leachate

(e.g., 7.20 in WCI Exhibit 14). The disparity between the values

found in Petitioners' sample and the values found in the

landfill's leachate suggests that the Petitioners' sample is not

representative of leachate from Parcel 3.

72. Stormwater flowing over the ash residue on the top of

Parcel 3 is the most probable source of the elevated chloride and

high pH found in Petitioners' sample. The ash at the GCSL has

elevated chloride concentrations. It also has high pH, due to

the addition of lime at the waste-to-energy facility. Both WMI's

witness, Mr. DeBattista, and Petitioner's witness, Dr. Missimer,

saw stormwater washing over the ash and entering the stormwater

conveyance system that led to the culvert where Petitioners'

sample was collected while Petitioners were at the GCSL

collecting samples.

73. Petitioners noted that the water in the stormwater

ditch was discolored. However, Petitioners' photograph of the

site (WCI Ex. 10) reveals that the water in the ditch is the same

color as the mulch (compost) that is stockpiled on Parcel 3 and

used for intermediate cover. During Petitioners' site visit,

stormwater was flowing over the mulch on Parcel 3 before entering

the stormwater ditch. Dr. Missimer conceded that the color of

the water in the ditch could be caused in part by the mulch and

stormwater runoff.

74. Dr. Missimer raised a number of other issues about the

GCSL. He claimed that the sediments in the stormwater retention

pond have elevated metals concentrations, but he does not contend

that the metals concentrations in the sediments violate any

applicable DEP standard. He also does not contend that the

metals are leaving the site. Dr. Missimer noted that there was

"foam" in a stormwater ditch. However, Petitioners presented no

competent evidence about the source of the foam or its chemical

composition. Finally, Dr. Missimer heard gas escaping from a

cleanout pipe at a different location on the landfill, but there

were no odors associated with it. There is no evidence to

demonstrate that gas in the riser pipes is a cause for concern.

75. In response to Petitio ners' chloride data, WMI is

taking steps to manage its stormwater better. WMI has placed

intermediate cover over 10 acres of exposed ash, thus reducing

the potential for the rainwater to come in contact with the ash

and convey chloride into the stormwater management system. WMI

also is determining whether it should remove a culvert that

served as a conduit for the runoff from Parcel 3 to the retention

pond.

76. It was undisputed that the GCSL is an "existing

installation," as that term is defined by DEP. Parcels 1 and 2

of the GCSL were unlined and were reasonably expected to release

contaminants into the ground water on or before July 1, 1982.

The GCSL has operated consistently with the applicable DEP

statutes and rules relating to groundwater discharges in effect

during the time of its operation. Since the GCSL is an existing

installation, WMI is entitled to a zone of discharge that extends

to WMI's property boundary. The groundwater within the zone of

discharge is not required to meet the DEP water quality

standards.

Modifications to Conditions of Draft Permit

and Summary of Findings

77. In addition to the modification to the ground water

monitoring plan described in paragraph 59 above, WMI has

requested and DEP has agreed to make minor changes to the

language in Specific Conditions 10, 19, 32, 38, and 45(e) of the

draft permit. These changes relate respectively to gas

monitoring, daily cover, acceptance of C & D debris, data to

support the alternate procedure request for final cover, and the

zone of discharge. These modifications are reasonable, supported

by the evidence, and consistent with DEP rules.

78. Moreover, WMI has provided reasonable assurance of

compliance with all applicable DEP rules for continued operation

of the GCSL. As amply demonstrated in this proceeding, highly

competent professionals can disagree. Petitioners' witness

Dr. Missimer, has had years of experience in studying the

hydrogeology of Lee County and the area of the landfill and

Gateway. His data collected during the development of Regional

Impact Studies for Gateway have been relied on by DEP and others.

His conclusions, however, regarding enormous amounts of leachate

escaping the landfill are simply not supported by the results of

years of monitoring the landfill's operations. With continued

monitoring, the applicant should be permitted to continue to

operate.

CONCLUSIONS OF LAW

79. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes. As stipulated, WCI, Sanders, and

Lee County have standing to participate in this proceeding.

80. Rule 62-4.070(1), Florida Administrative Code, requires

that an applicant for a permit from DEP affirmatively provide DEP

with reasonable assurance based on plans,

test results, installation of pollution

control equipment, or other information that

the construction, expansion, modification,

operation, or activity of the installation

will not discharge, emit, or cause pollution

in contravention of Department standards or

rules.

The reasonable assurance standard does not require the applicant

to perform every known test concerning an issue in order to

establish entitlement to a permit. Booker Creek Preservation,

Inc. v. Mobil Chemical Co. , 481 So. 2d 10, 13 (Fla. 1st DCA

1986). Rather, reasonable assurance means a "substantial

likelihood" that the project will be successfully implemented.

Metropolitan Dade Co. v. Coscan Florida, Inc. , 609 So. 2d 644,

648 (Fla. 3d DCA 1992).

81. As the applicant in this proceeding, WMI has the

ultimate burden of persuasion. Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778, 787-790.

(Fla. 1st DCA 1981). WMI also has the initial burden of

presenting prima facie evidence demonstrating that WMI has

complied with all applicable DEP standards and rules. Id. The

Petitioners then must present "contrary evidence of equivalent

quality" proving the truth of the allegations in their petitions.

Id. In this case, WMI presented competent, substantial evidence

to demonstrate that the GCSL complies with all of the applicable

DEP landfill rules in Chapter 62-701, Florida Administrative

Code. Petitioners speculated about potential defects in the

liner or leachate collection systems, but presented insufficient

(substantially lesser quality) evidence to support their

speculation.

82. Rule 62-522.200(1), Florida Administrative Code,

defines an "existing installation" for the purpose of Chapters

62.520 and 62-522, Florida Administrative Code, as

any inst allation which had filed a complete

application for a water discharge permit on

or before January 1, 1983, or which submitted

a ground water monitoring plan no later than

six months after the date required for that

type of installation as listed in Rule 17-

4.245, F.A.C., (1983) and a plan was

subsequently approved by the Department, or

which was in fact an installation reasonably

expected to release contaminants into the

ground water on or before July 1, 1982, and

operated consistently with statutes and rules

relating to ground water discharges in effect

at the time of the operation.

It was undisputed that the GCSL is an existing installation.

83. The evidence demonstrated that the only aquifer

reasonably likely to be affected by a groundwater discharge from

the GCSL, the surficial water table aquifer, is not currently

used as a potable water source and is not reasonably likely to be

used as a potable water source in the area near the GCSL. There

is no evidence of record to suggest that discharges from the GCSL

have caused violations of the secondary drinking water standards

at any private or public water supply well outside the GCSL's

zone of discharge.

84. The only evidence of groundwater contamination offered

by the Petitioners in this proceeding concerns elevated

concentrations of chloride, allegedly caused by discharges from

the GCSL's liner, leachate collection system, or stormwater

retention pond. The only applicable DEP standard for chloride is

a secondary drinking water standard. See Rule 62-550.320 (Table

4), Florida Administrative Code. Since the GCSL is an existing

installation, the GCSL is exempt from the secondary drinking

water standards for chloride outside of the GCSL's zone of

discharge, and the Petitioners' evidence does not demonstrate

that the GCSL has caused a violation of the DEP groundwater

standard for chloride, no matter what amount of leachate is being

discharged. See Rule 62-522.300(6), Florida Administrative Code.

There is no DEP standard limiting the amount of leachate

generated at a solid waste management facility.

85. DEP has no standards limiting the depth of the leachate

over the GCSL's liner. Current DEP rules limit the head over the

liner to one foot ( See Rule 62-701.400(3)(b)(2.), Florida

Administrative Code), but those requirements do not apply to the

GCSL because it was built prior to the current rules becoming

effective. See Rule 62-701.220(1), Florida Administrative Code.

In any event, the weight of evidence established that the head

levels at the GCSL pose no threat to the liner's integrity.

86. Rule 62-701.200, Florida Administrative Code, defines

"monitoring wells" as

strategically located wells from which water

samples are drawn for water quality analysis.

The GCSL currently has monitoring wells strategically located

around the perimeter of the facility. WMI demonstrated that the

GCSL's ground water monitoring plan meets the requirements of

DEP's rules and is protective of human health and the

environment. To provide additional assurances, WMI and Lee

County agreed to include additional wells in the monitoring

network. The addition of three monitoring wells increases the

protection provided by the ground water monitoring plan and

complies with DEP's rules.

87. Dr. Missimer contends that the groundwater monitoring

plan is inadequate, but his opinion is based on his erroneous

belief that the groundwater monitoring plan must be able to

detect leakage from any position in the landfill. The most

credible evidence in this case established that any potential

plume from the GCSL would be the result of many small holes

located across the entire breadth and width of the liner system.

The holes would produce a very wide plume, which would be

detected by the monitoring wells. Since the leachate at the GCSL

is weak and contains relatively few substances, the monitoring

plan is adequate, and Lee County's decision to add additional

monitoring wells effectively obviates dispute about the direction

of groundwater flow at the site or the adequacy of the ground-

water monitoring plan.

88. WMI concedes that stormwater came into contact with the

ash on top of Parcel 3 at the GCSL, most probably causing the

elevated chloride levels in Petitioners' samples. WMI already is

taking steps to remedy this situation. Petitioners, however,

introduced no evidence to prove that the stormwater from the GCSL

is causing any violations of any applicable surface water

regulations.

89. Rule 62-701.400, Florida Administrative Code, provides

that a landfill shall not cause objectionable odors beyond the

facility's property boundary. The evidence in the record

demonstrates that the GCSL has not caused any objectionable odors

since 1991 and is not likely to produce objectionable odors in

the future. Therefore, the GCSL complies with the applicable DEP

rules concerning objectionable odors.

90. The Department's rules require that all facilities have

a landfill closure plan in place. The GCSL has, as part of its

existing permit, a valid closure plan that was previously

approved by DEP.

91. WMI has filed a request for approval of an alternative

landfill closure procedure pursuant to Rule 62-701.130, Florida

Administrative Code. The Department has not yet officially

decided whether WMI's request will be granted. If DEP grants

WMI's request, DEP must issue a notice of intended agency action

and provide a new point-of-entry for Petitioners and other

members of the public. In the instant case, WMI's pending

request for approval of an alternative closure procedure is

relevant only to the extent that there may be a question as to

whether WMI has the financial resources to pay for closure.

Mr. Battista's testimony was uncontroverted that WMI does have

adequate financial resources and, therefore, WMI has provided

reasonable assurance of its financial responsibility.

92. It is well-settled that an Administrative Law Judge has

the authority to recommend permit conditions that will make a

project permittable, if such conditions are supported by

competent substantial evidence, as they are in this case. See

Hopwood v. Department of Environmental Regulation , 402 So. 2d

1296 (Fla. 1st DCA 1981). The renewal of WMI's operating permit

should be conditioned by the inclusion of (a) a specific permit

condition regarding the additional ground water monitoring

stipulated to by Lee County, WMI, and DEP; (b) the changes to

Specific Conditions 10, 19, 32, and 38 in the draft permit that

are set forth in WMI's Exhibit 6; and (c) a revision to Specific

Condition 45(e) that increases the zone of discharge at the GCSL

to the property boundary, consistent with rules relating to

existing facilities.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED:

That the Department of Environmental Protection enter a

Final Order approving Waste Management, Inc., of Florida's

application for a permit renewal to continue to operate the Gulf

Coast Sanitary Landfill, subject to the parties' stipulation

regarding additional groundwater monitoring wells and subject to

the revisions to the draft permit that are described herein.

DONE AND ENTERED this 17th day of September, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of September, 1997.

COPIES FURNISHED:

W. Douglas Beason, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

William D. Preston, Esquire

Michael P. Petrovich, Esquire

Post Office Box 6526

Tallahassee, Florida 32314-6526

Neale Montgomery, Esquire

Pavese Garner Haverfield Dalton

Harrison & Jensen

Post Office Box 1507

Fort Myers, Florida 33902-1507

David S. Dee, Esquire

John T. LaVia, III, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

David M. Owen, Esquire

Lee County Assistant Attorney

Post Office Box 398

Fort Myers, Florida 33902

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000