Title: Memo re: Update of McCormick v City of Jacksonville by Jake Varn
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 Material Information
Title: Memo re: Update of McCormick v City of Jacksonville by Jake Varn
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Memo re: Update of McCormick v City of Jacksonville by Jake Varn (JDV Box 89)
General Note: Box 19, Folder 11 ( Groundwater Discharge Permitting Materials Solid & Hazardous Waste Management Short Course - 1989 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004310
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







MEMORANDUM


TO: Jake Varn

FROM: Susan C. Miller RECEIVE ED

DATE: January 31, 1990
CARLTON, FEOS TALLAHASSEE
RE: Groundwater Permitting ,ACO N



Issue



You asked me to identify what is happening in groundwater

permitting and how DER is handling the process based on McCormick

v. City of Jacksonville.



Brief Answer

Five basic areas of the permitting process were dealt with

in the Final Order:

1. Rule 17-3.402 ("Free-From" Rule) does not prohibit
all discharge.

2. Permit applicants do not have to give an absolute
guarantee of no pollution.

3. The Department must use site specific evidence to rebut
the presumption that a landfill which meets all design
criteria does not violate water quality criteria.

4. Monitoring plans are not expected to detect all leaks.

5. Leakage of undetermined but minute quantities of unknown
chemicals does not require permit denial.










Discussion



1. The intent of Rule 17-3.402 is to protect the groundwater but

not to prohibit any discharge whatsoever. The rule is not a "no

discharge" rule. (p. 10-11).

A. The rule's language is "directed at concentrations in

the groundwater, not in the leachate itself." The actual

groundwater itself must contain a substance in a concentration

that is carcinogenic and not the leachate.

B. The Department interprets the rule as requiring more-

than a showing of "at least some carcinogenic chemicals" and

certainly more than "one carcinogenic molecule."

(1) The concentration of a carcinogenic substance in

one cubic foot of groundwater is determinative of whether the

rule is violated.

(2) The express language of the rule provides, "that

such a substance must be found in concentrations which, if

ingested, would pose an unacceptable risk of cancer."





2. Applicants for department permits are not required to give

absolute guarantees that their project will not under any

circumstances cause pollution. (p. 17).

A. The standard is one of reasonablness; protection to the

greatest degree practicable; and freedom from harmful quantities.

(See 403.021(3), F.S.)










B. The Department does not find it realistic to assume a

"worst case" scenario. While some "worst case" findings might

individually be possible, the simultaneous and continuous

occurrence of all worst-case scenarios is unrealistic, overly

speculative, and unreasonable. (p. 19).





3. There is a presumption that a landfill which meets all design

criteria does not violate water quality criteria (p. 28)

A. There is no burden to guarantee that no pollution will

result from the proposed landfill under any set of circumstances.

B. Hypothetical assumptions that question the design

criteria (as set forth in the rule) are unrelated to the

specifics of the site and design and as such their adoption could

supplant the design criteria in the rule. The result would be

that the landfill permitting process would suffer from a total

lack of consistency and predictability.



4. Monitoring plans are not expected to detect all leaks in

order to comply with department rules. (p. 36-37).

A. No monitoring plan can be expected to detect all leaks

unless the wells are placed side-by-side at the edge of the

landfill. Therefore, the fact that a monitoring plan may not

detect individual plumes is not a basis for permit denial (even a

10 foot wide leak at the edge of a Class I, disposal area

situated between two wells 500 feet apart).


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(1) 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; (p. 38) and

(2) balance the cost against the likelihood of threat

to the public health from such a plume. (p. 39).



B. The monitoring plan is required to be able to detect

any significant, generalized leak. (p. 39).

C. Evidence must show that the monitoring plan will not

provide adequate and reliable monitoring data, or that increasing

the number and costs of monitoring wells is justified by the

likelihood of obtaining more reliable information.





5. The expected leakage of undetermined but minute quantities of

unknown chemicals is not a sufficient reason to deny a permit

(p. 42-43).







/vc:Susan2


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