Title: Groundwater Discharges by Jacob Varn and Susan Miller
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004308/00001
 Material Information
Title: Groundwater Discharges by Jacob Varn and Susan Miller
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Groundwater Discharges by Jacob Varn and Susan Miller (JDV Box 89)
General Note: Box 19, Folder 11 ( Groundwater Discharge Permitting Materials Solid & Hazardous Waste Management Short Course - 1989 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004308
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


by Jacob D. Varn and Susar Miller

On January 22, 1990, DER Secretary Dale Twachtmann entered a

final order in the case of J.T. McCormick, et al. v. The City of

Jacksonville, OGC Case No. 88-0389, DOAH Case Nos. 88-2283, 88-

2352, 88-2462, 88-2967, 88-2968, 88-2969, 88-2970, 88-2971, 88-

2972 and 88-4699. The foregoing proceeding involved a number of

permits (landfill permits, dredge and fill permits, water

management and storage permits and surface water permits) and a

variance needed by the City of Jacksonville for the construction

of a landfill in southeast Duval County. As is generally the

case, there is no groundwater discharge permit at issue in this

matter. All of the requirements and criteria for a groundwater

discharge are included as part of the review and terms and

conditions for the landfill construction permit.

As part of the foregoing proceeding, a number of issues

arose concerning the impact of the proposed landfill on

groundwater. More specifically, the foregoing proceeding

involved several issues directly related to groundwater

discharges and represents one of the most significant decisions

on groundwater discharge criteria to date.

Issue One: The "Free-From" Rule

Rule 17-3.402, Florida Administrative Code, which is

commonly referred to as the "free-from" rule, provides in part:

"All ground water shall at all places and at all times be free

from discharges in concentrations which are

carcinogenic, mutagenic, teratogenic, or toxic ." The

Hearing Officer found that the proposed landfill would violate

the "free-from" rule and recommended that the landfill

construction permit be denied.

In reversing the Hearing Officer's recommendation of denial,

the Department rejected the Hearing Officer's interpretation of

the "free-from" rule. The Hearing Officer found that the

landfill would leak and the leachate would have hazardous

constituents and, therefore, the landfill would violate the

"free-from" rule. The Department ruled that to accept the

Hearing Officer's interpretation of the "free-from" rule would

have the effect of banning the construction of all landfills.

The Department explained that the proper interpretation of the

rule requires one to examine the concentration in the

groundwater, not the leachate The rule's intent is to protect

the groundwater, not prohibit any discharge whatsoever.

While the Hearing Officer rejected DER's interpretation of

the "free-from" rule, the Hearing Officer did accept the

Department's methodology for calculating concentrations in a

cubic foot of groundwater. Thus, while no volume of groundwater

is mentioned in the rule, the Department has determined that the

concentration of a carcinogenic substance in one cubic foot of

groundwater is determinative of whether the rule would be


Issue Two: The Reasonable Assurance Test

The Hearing Officer found that under a "realistic" scenario

the minimum criteria would be violated and, thus, the permit

should be denied. The Department rejected the Hearing Officer's

finding and found that the Hearing Officer's scenario was

"unrealistic, overly speculative and unreasonable -- far beyond

any 'worst case scenario' that may be appropriate for the

Department to consider in the context of reasonable assurance".

In explaining its position, the Department said that applicants

"are not required to give absolute guarantees that their project

will not under any circumstances cause pollution". The standard

is one of reasonableness; protection to the greatest degree

practicable; and freedom from harmful quantities.

Issue Three: Rebuttable Presumption

In Huelsman v. WAC of Oklaloosa County, Inc., 11 FALR 3777

(Final Order, dated May 29, 1989) DER held that a proposed

landfill meeting the design standards of Rule 17-701.050, F.A.C.,

is presumed to meet the performance requirements of the rule.

This presumption is rebuttable and the burden is on the opposing

party to overcome this burden.

In the present case, the Hearing Officer found that the

petitioners had rebutted the presumption. The Department

rejected the Hearing Officer's determination. The Department

reinforced its position from the Huelsman case that there is a

presumption that a landfill which meets all design criteria does

not violate the water quality criteria. Further, the Department

said that there is no burden to guarantee that no pollution will

result from the proposed landfill under any set of

circumstances. Hypothetical assumptions that question the design

criteria must be related to the specifics of the site and

design. Otherwise, the result would be that the landfill

permitting process would suffer from a total lack of consistency

and predictability.

Issue Four: Monitoring

Monitoring plans are not expected to detect all leaks in

order to comply with the DER rules. A monitoring plan cannot be

expected to detect all leaks unless the wells are placed side-by-

side. Therefore, from a very practical viewpoint, DER determined

that the fact that a monitoring plan may not detect an individual

plume is not a basis for permit denial The Department must

balance the costs of the plan with its ability to detect the

magnitude and direction of the discharge plume from the landfill

as a whole and balance the cost against the likelihood of the

threat to the public health posed by such a plume. The purpose

of a monitoring plan is to detect any significant, generalized

leak. In order to modify the monitoring plan, the opposing party

must show that the proposed monitoring plan will not provide

adequate and reliable data, or that increasing the number of

monitoring wells is justified by the likelihood of obtaining more

reliable information.

Again, this case is extremely informative to anyone wanting

to gain a better understanding of DER's position and

interpretation of its groundwater discharge criteria. However,

it has been reported that this case is going to be appealed, so

stay tuned.


University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs