Title: Herbert H. and Anna M. Huelsmanvs WAC of Okaloosa County - Final Order
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 Material Information
Title: Herbert H. and Anna M. Huelsmanvs WAC of Okaloosa County - Final Order
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Herbert H. and Anna M. Huelsmanvs WAC of Okaloosa County - Final Order (JDV Box 89)
General Note: Box 19, Folder 11 ( Groundwater Discharge Permitting Materials Solid & Hazardous Waste Management Short Course - 1989 ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004319
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




CITE as


11 FALR 3777


A IV


V.
WAC OF OKALOOSA COUNTY, INC.,
d/b/a WASTE ASSOCIATES
COMPANY AND STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL
REGULATION,
Respondents.
_________________/


CITIZENS FOR A CLEAN
Petitioner,
and
HERBERT H. HUELSMAN,
Intervenor,


DOAH Case No. 88-2531
OGC File No. 88-0402



ENVIRONMENT, INC.,


V.
WAC OF OKALOOSA COUNTY, INC.,
d/b/a WASTE ASSOCIATES
COMPANY AND STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL
REGULATION,
Respondents.
__________________


DOAH Case No. 88-2533
OGC File No. 88-0404


FINAL ORDER


On April 14, 1989, a hearing officer from the Division of
Administrative Hearings ("DOAH") submitted to me and all parties
his Recommended Order, a copy of which is attached as Exhibit A.
On May 1, 1989, Respondent Department of Environmental Regulation
('Department*) timely filed exceptions to the Recommended Order,
attached as Exhibit B. Timely exceptions were also filed by
Respondent WAC of Okaloosa County, Inc., ('WACOC') (Exhibit C) by
SPetitioner Citizens for a Clean Environment, Inc., ("Citizens")
(Exhibit D) and by Petitioner Herbert Huelsman (Exhibit E). On
May 11, timely responses to exceptions were filed by all parties
except Petitioner Huelsman. Mr. Huelsman's exceptions were


Or


FALR


STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION

HERBERT H. AND ANNA N.
HUELSMAN,
Petitioners,







FILR CITE as 11 FALR 3778

originally filed at DOAH but were transmitted by the hearing

officer to the Department and received before the deadline for

exceptions specified in Rule 17-103.200(1), F.A.C. The matter

thereafter came before me as Secretary of the Department for final
agency action.


BACKGROUND


On April 1, 1988, the Department's Northwest District issued

an Intent to Issue Permit No. SC 46-143090, by which the

Department proposed to authorize Respondent WACOC to construct

Phase I (55 acres) of a 1700 acres Class I sanitary landfill, to

be located near Dorcas in east central Okaloosa County. On April

25, 1988, Petitioner Citizens for a Clean Environment, Inc.,

disputed the Department's proposed agency action by filing a

petition for administrative hearing, claiming standing under

Section 403.412(5), Florida Statutes. On April 29, 1988,

Petitioners Herbert and Anna Huelsman also filed a petition

challenging the proposed permit. Both petitions were referred to

the Division of Administrative Hearings (DOAH) on May 23, 1988.

On September 1, 1988, the assigned DOAH hearing officer

entered an order recommending that the Huelsmans' petition, as

amended, be dismissed because the Huelsmans were unable to plead

facts showing that their original petition was timely filed. On

October 5, 1988, I remanded the Huelsmans' petition to the hearing

officer so that the Huelsmans would have an opportunity to
demonstrate that the untimeliness of their petition was caused by
excusable neglect, or to request that their petition be considered

one in intervention. By hearing officer's order dated October 3,

1988, Huelsman was permitted to intervene in the Citizens'

petition.
Following nine days of evidentiary hearing in October and

November 1988, the hearing officer issued his Recommended Order on

April 14, 1989. The Recommended Order found that the synthetic






CITE as 11 FALR 3779 FALR

liner proposed for the landfill would be likely to leak; that the
sands proposed for cap material would not constitute an effective
barrier to rainwater; that the proposed leachate control system
had not been shown to meet Department standards; and that WACOC
had failed to give reasonable assurances that the project would
neither cause ground water pollution nor violate Rule 17-3.402,
F.A.C. The hearing officer therefore recommended that the

proposed permit be denied.




RULING ON EXCEPTIONS


NACOC and the Department take exception to the Recommended
Order in detail. The Department offers exceptions aimed at 44
individual findings contained in the Recommended Order, while
WACOC submits exceptions to 40 specific factual findings. WACOC

excepts generally to the failure of the hearing officer to
recommend modifications which would make its landfill project
conform with Department rules and further excepts to the hearing
officer's crediting of certain expert testimony sponsored by
Citizens. The Department's 10 exceptions to the hearing officer's
recommended conclusions of law question the hearing officer's
interpretation of provisions of Chapter 17-701 1 and suggest that
he implicitly invalidated these rules by concluding that
compliance with Chapter 17-701 does not assure against the
proposed landfill's causing water pollution in violation of Rule
17-3.402, r.A.C. Citizens does not except to findings of fact
actually included in the Recommended Order, but rather excepts to
the hearing officer's failure to incorporate 10 additional.
findings proposed by Citizens.

1 During the pendency of this proceeding, Part I of Chapter
17-7, F.A.C., was redesignated as Chapter 17-701, F.A.C.,
without substantive change to any rule provision or subsection
numbering, which are identical to those of the former 17-7.
Although the Recommended Order refers to provisions of Chapter
17-7, all such references apply equally to Chapter 17-701.






F RILR CITE as 11 FALR 3780

I have considered the exceptions filed by Citizens and
Mr. Huelsman and find them to be without merit. Mr. Huelsman's

exceptions are in the nature of argument regarding certain

findings of the Recommended Order, but are not supported by any

showing from the record that the findings to which comments were

directed lack substantial evidentiary support. As to Citizens'

exceptions, which propose additional facts not found by the

hearing officer, Citizens has likewise failed to support its

exceptions by reference to the record. See Booker Creek

Preservation. Inc.. v. Florida Department of Environmental

Regulation, 415 So. 2d 750 (Fla. 1st DCA 1982). Under any
circu-stances, none of the exceptions of Citizens or Mr. Huelsman

is dispositive to the outcome of this matter.

In contrast, the exceptions of WACOC and the Department call
into question all of the significant factual findings of the

Recommended Order and many other findings of a less crucial

nature. It is important to bear in mind, however, that my

authority to reject factual findings which are supported by

competent substantial record evidence is closely circumscribed by

established law. Section 120.57(1)(b)10., Florida Statutes (Supp.

1988). Houle v. Department of Environmental Regulation, 10 FALR
3671 (Final Order issued June 13, 1988), affirmed, 538 So. 2d 1257

(Fla. 1st DCA 1989); ERM South v. Department of Environmental

Regulation, 10 FALR 3151, 3154 (Final Order issued May 24, 1988).

For example, to the extent that the hearing officer elected to

credit the testimony of one particular expert witness in

preference to a competing line of testimony given by another

expert, a finding based on such testimony is conclusive against

exception. It is well settled that findings by hearing officers

which rest on testimonial indicia such as witness demeanor or

credibility resolution are accorded great weight and are not

lightly disturbed on review. Wash & Dry Vendina Co. v. State.
Department of Business Regulation, 429 So. 2d 790 (Fla. 3rd DCA
1983).







CITE as


11 FALR 3781


FALR


In a general exception, NACOC suggests that certain findings
of the Recommended Order which expressly credit testimony by
expert witnesses testifying on behalf of Citizens can be rejected
because the witnesses in question all of whom were declared
qualified to render expert testimony by the hearing officer gave
opinions based upon hearsay data without testifying themselves
that they relied on evidence "of a type reasonably relied on by
experts in the subject to support the opinions) expressed. See
Section 90.704, Florida Statutes. This exception, however, in
reality is no more than a request that I substitute my judgment on
witness credibility for that of the hearing officer, who presided
at over a week's worth of hearing in this matter. I do not
possess this power under Florida law.
It is settled that expert witnesses may give opinion testimony
based upon matters which need not be independently admissible in
evidence. Section 90.704, Florida Statutes. Moreover, review of
the testimony of witnesses Kirk Brown, William Cooper, and Millard
Hall all of whom are university professors holding Ph. D.
degrees fails to substantiate that the basis for the testimony
of these witnesses is patently incredible or otherwise unworthy of

acceptance by the trier of fact. What evidentiary significance to
attach to particular expert testimony is a decisional authority
inherently reserved to the hearing officer who resolves a disputed
scientific or technical issue in the context of a Section
120.57(1) proceeding. I cannot lawfully displace the hearing
officer's judgment on the challenged testimony for the reason
urged, and WACOC's exception is therefore rejected.
Resolution of the numerous remaining factual exceptions of
WACOC and the Department must necessarily occur against the
backdrop of the Recommended Order's factual findings, and will
necessarily implicate the points of decisional rationale contained
in the hearing officer's recommendation that the proposed permit
be denied. Because the parties question the chief factual bases
Sof that rationale, my resolution of the primary exceptions
Regarding site geology, liner integrity, and leachate collection






FILR


CITE as


11 FALR 3782


system design will also serve to explain why I have elected to

accept the recommendation of the hearing officer that the permit

be denied. In light of this, I shall not specifically discuss
each single exception urged by WACOC and the Department, many of

which can properly be characterized as pure argument.2 To the
extent that any single exception is not individually discussed in

this order, it should be deemed to have been considered and

rejected as immaterial to the final resolution of this case.

Four determinative factual findings (and associated
subordinate findings) are the cardinal points on which the

rationale of the Recommended Order hinges. First is that the

design engineers for the landfill project assigned an unreasonably

low average vertical hydraulic conductivity coefficient to clayey

sands located in a geological stratum known as the upper


2. For example, see Department exceptions 22, 23, 24. (Exhibit B,
pages 13-16)

Citronelle formation, which is found on the proposed project
site. The Recommended Order rejects the suitability of these

upper Citronelle clayey sands to cap Phase I of the landfill as

projected by WACOC because these sands are "too permeable to

constitute an effective barrier." Exhibit A, at page 18. The

Recommended Order also rejects that the clayey sands of the upper
Citronelle could constitute, by themselves, a suitable natural
liner beneath the Phase I site. Exhibit A, at page 7. These two

related factual conclusions are central to the Recommended Order's
rationale for denial of the proposed permit, as will be more fully

discussed below.

The second determinative factual finding is that the 60 mil
high density polyethylene (HDPE) liner proposed by WACOC in facial

compliance with Rule 17-701.050(4)(d)2.a., F.A.C., is likely to

leak leachate:


Both through imperfections in the synthetic
liner and, as regards hydrophobic organic
pollutants with low molecular weights, by
diffusion directly through even flawless
*-*






CITE as 11 FALR 3783 FILR

portions of the liner, pollutants in the
leachate will escape into the environment, if
WACOC builds the landfill it has proposed for
Phase I.

Exhibit A, page 29. The hearing officer went on to find:


In 27 acres of plastic, flaws are to be
expected. Good intentions notwithstanding,
the evidence showed holes in the synthetic
liner should be anticipated, and taken into
account in designing a landfill.

Exhibit A, page 30.

Furthermore, he specifically found that evenvn if holes did
not let leachate escape, several carcinogenic, teratogenic, and
mutagenic organic constituents of municipal waste leachate
dissolve in liners like the one WACOC proposes, 'diffuse through
and are released on the other side.' (IT 699)" Exhibit A,

page 19.
Third, the hearing officer found that WACOC's permit
application failed to "demonstrate with calculations that gravity

would induce flow through [leachate collection] pipes at a rate
sufficient to remove leachate deeper than 12 inches" from
landfill cell liners. Exhibit A, page 14. He found also that
once leachate began filling the leachate collection pond, "the

depth of leachate in the pond would never fall below 18 inches
anywhere on the pond bottom." Exhibit A, page 14.

Finally, the Recommended Order finds that the seasonal high
water table on Phase I site has not yet been determined, but that

on October 11, 1988:

[T]he water table was "above the bottom of the
liner of the proposed landfill in cell two,
Portions of cell two, a lot of it, portions of
cell one, and a corner of cell three," (B.T.
44) with "about two feet of water above the
proposed liner in the corner of cell two."

Exception has been taken to all of these findings on the

grounds that no competent substantial evidence supports them.
See Exhibit 9, exceptions 3, 8, 11, 12, 15, 16, 19, 20, 21, 24;
Exhibit C, pages 13-16, 18-21, 23-31, 34-36. Review of the


- U~






FIILR


CITE as


11 FALR 3784


entire record, however, discloses that all of these critical
findings are supported by competent substantial record evidence.

The test is not whether sufficient record evidence supports a

party's alternative to a hearing officer's finding, but only

whether a record foundation exists for the challenged finding.

FU.S.A.. FTP-NEA v. Hillsborouoh Community College, 440 So. 2d

593 (Fla. 1st DCA 1983). Accordingly, the above-listed

exceptions of the Department and WACOC are rejected.

Multiple exceptions have also been aimed at the ultimate

finding of the Recommended Order: that the installation of a

synthetic liner as proposed by WACOC will not give reasonable

assurances against groundwater pollution caused by leachate

exfiltration. The Department and WACOC except as well to related

subordinate findings, such as the hearing officer's crediting of

the testimony of Kirk Brown, Ph. D., that violations of

Department groundwater standards would eventually be caused by

the proposed project. See Exhibit A, page 49. For example,

almost all of the findings contained under the heading

"Groundwater Pollution" (Exhibit A, pages 29-32) draw their

evidentiary support from testimony of Dr. Brown.

WACOC brands the testimony of Brown and other experts

sponsored by Citizens as "suspect, conditional, and speculative,"

(Exhibit C, page 35) while the Department for its part assents

that Brown's expert opinion testimony does not constitute

competent substantial evidence. (Exhibit B, Exception 30, pages

19-20) As discussed earlier, however, I lack the authority to

reject credited expert opinion testimony simply because I may not

agree with its premises. Therefore, I have no option but to

reject all exceptions to the ultimate findings of the Recommended

Order, including Department Exceptions 27, 28, 29, 30, and 31
(Exhibit B, pages 15-21); and pertinent WACOC exceptions,

(Exhibit C, pages 33-39) because I find the ultimate findings to

be supported by competent substantial evidence, albeit in the
form of expert opinion testimony.

I have not overlooked any exception which contests the


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CITE as 11 FALR 3785 FILR

evidentiary support for any finding contained in the Recommended
Order; I have found each such exception to lack merit. While I

am compelled to sustain the hearing officer's findings, and while

I accept his recommendation to deny the permit, I cannot sustain

his rationale, which is not clearly articulated in the

Recommended Order, and which appears to be predicated on

questionable interpretations of Department rules. Furthermore, I

must offer comment so that several too-sweeping generalizations

contained in the Recommended Order do not receive tacit

approval. Finally, I must offer some practical guidance to

WACOC, which has clearly indicated its desire to proceed with the

establishment of a landfill on the proposed site on terms
acceptable to the Department, even if those terms are different

from those specified in the Department's original intent to issue.
WACOC asserts that, even if the hearing officer's findings

were to be sustained, I am required by the decision in Hoowood v.
State of Florida Department of Environmental Regulation. 402 So.

2d 1292 (Fla. 1st DCA 1981), to issue WACOC a permit hedged by
conditions sufficient to obviate the project shortcomings
identified by the hearing officer. I do not agree. At issue in
Hopwood was the Department's failure to exercise its discretion

in a manner reasonable under the unique facts presented, where

modifications fully identified in the record rendered the project

clearly permittable. In the current case, however, several
evidentiary problems foreclose the "modified permit" approach
urged by WACOC.
Chief of these problems is the fact that the seasonal high
water table level for the Phase I site has not been ascertained,
as the hearing officer correctly found. WACOC offers to raise

the bottom elevation of its landfill cells expressly to avoid any

potential for contact with the seasonal high water table.
Exhibit C, pages 2-8; 29-30. Even if I were inclined to order a
permit so conditioned, I could not, based on this inadequate

record, prescribe a proper bottom elevation except as an

arbitrary, rule-of-thumb exercise. Needless to say, I decline to


-~SPSICIi-L~WI-.







F/ILR CITE as 11 FALR 3786

do so.
Secondly, notwithstanding WACOC's willingness to redesign its

project, allowance of the substantial modifications necessary to

render the project in conformance with the Recommended Order's

findings would constitute new agency action under the terms of

Rule 17-4.054(6), F.A.C., subject to third party challenge under

Rule 17-103.155, F.A.C. Florida Keys Coalition v. 1800 Atlantic

Developers, 8 FALR 5564 (Department of Environmental Regulation

1986), appeal pending. Due process notions also dictate that I
cannot lawfully deprive Citizens or other potential third party
challengers of the point of entry ordinarily available by
Department rule to contest new agency action. Therefore, I
reject WACOC's exception which claims an entitlement to a permit
conditioned to defuse objections directed at the original

project. (Exhibit C, pages 2-8)
Both WACOC and the Department suggest, as a second

alternative to outright denial of the application, that the

record be remanded to the hearing officer for the taking of

further evidence on suitable modifications. While this approach

would eliminate some potential due process objections which could

be expected in the absence of any additional hearing, a remand

here would approach the "never-ending round of rebuttal and

surrebuttal" which the court held unauthorized by Chapter 120 in

Department of Transportation v. J.W.C. Company. Inc., 396 So. 2d
778 (Fla. 1st DCA 1981). Accordingly, no remand is in order here.

Turning next to my reasons for accepting the hearing

officer's recommendation that WACOC's application be denied, it

must first be stated that the outcome here does not constitute in

any way a successful "end run" challenge to provisions of Chapter

17-701, F.A.C. To the contrary, the hearing officer made clear

throughout the proceedings that this case involved only whether
WACOC's proposed project complied with Department rules, not

whether those rules were optimal for their stated purposes. I
too view this case as involving only the question of compliance
with Chapter 17-701. I agree that, on the record before me,






CITE as


11 FALR 3787


FALR


WACOC's application has failed to provide the requisite
reasonable assurances as to certain aspects of its proposed
project, but my reasons for so concluding differ from those
stated in the Recommended Order.
In exceptions, WACOC and the Department suggest that because
WACOC's proposed synthetic liner and other landfill design
features meet the design criteria of Chapter 17-701, the project

should be presumed to meet Department performance standards as
well and given a permit. This suggestion overlooks a significant
fact: the hearing officer expressly found that the proposed
WACOC landfill design would not fulfill performance standards as
to leachate control and removal, and would not provide adequate
groundwater protection. In other words, the hearing officer
concluded that the proposed project did not meet the performance
standards of Chapter 17-701. Even if a presumption in favor of
the design did attach because of the proposed facial compliance
with 17-701.050 criteria, the presumption was rebutted by
evidence sponsored by Citizens. It must be underscored that the

presumption of reasonable assurances which is associated with a
landfill design meeting Department design standards is only
rebuttable. Given the controlling significance of site geology
to any proposed landfill's permittability, the submission of
evidence that a single synthetic liner may not provide adequate
assurances because of site-specific conditions does not
constitute an attack on the Department's rule requiring liners
for Class I landfills. To the contrary, it is a justification
for the establishment of the liner requirement as a minimum
standard.
It is to be expected that, on most landfill sites, a single
HDPE liner will provide ample assurances against groundwater
pollution resulting from leachate. If "credible and credited"
evidence is adduced which shows that a single liner may not be

Adequate based on site-specific geotechnical considerations,
alternative design configurations -- such as double synthetic or

Composite synthetic/clay liners -- may well be necessary. On

line-r --- ;e e .n







FALR CITE as 11 FALR 3788

this record, as WACOC recognizes, such an alternative
configuration may be required to ensure protection to the

groundwater resource. It is up to WACOC, however, and not to a

DOAH hearing officer, to devise a suitable alternative design.

The hearing officer found inadequate WACOC's proof that its

leachate collection system would comply with the design standard

required by rule. Rule 17-701.050(4)(f)2. specifies that permit

applications are to incorporate calculations that the maximum

one-foot leachate depth on the liner will be achieved. Despite

testimony that WACOC performed calculations regarding leachate

depth control, none were supplied as part of the application, as

the hearing officer correctly found. This lack must be remedied

in any subsequent reapplication for an appropriately modified and

substantiated landfill design.

In this context, I note that substantial confusion appears to

have been generated as to leachate control issues because of

WACOC's proposal to use on-site clayey sands for the barrier

layer when capping the Phase I site. I concur with WACOC's view

that the issue of how best to cap a landfill cell which is ready

for closure can easily be revisited when approval for closure is
requested through the required closure permit. However, it is

still necessary, at the landfill construction permit stage, to

assess the amount of leachate to be expected after closure so

that the leachate collection system can be sized properly to

handle both average and peak flows after closure. The record

shows that WACOC failed to settle on a consistent post-closure

leachate production projection, especially given the apparent
unsuitability of the site's clayey sands to bar large volumes of
infiltrating rainwater.

On the topic of leachate control, the hearing officer erred
in faulting the permit application because a minimum of 18" of

leachate might be found standing in the leachate collection

pond. This does not contravene Rule 17-701.050(4)(e)'s leachate

control performance standards. To stress the obvious, the liner


___






CITE as 11 FALR 3789 FILR


within a landfill cell, beyond the reach of periodic maintenance,
is the object to be protected by limiting the continuous leachate
depth there to the one foot standard of the rule. Moreover, in
order to maintain an appropriate depth on the liner, it is
entirely foreseeable and expected that the leachate depth in a
lined leachate impoundment may from time to time exceed one foot
prior to pumpout and
treatment. Regular removal of leachate from the impoundment is
the key to satisfaction of Rule 17-701.050(4)(e), F.A.C. rather
than a blanket height limitation of one foot at all times in the
impoundment. Accordingly, while I agree that WACOC has failed to
prove that its proposed leachate control system passes general
muster, the expected 18" leachate depth in the leachate
collection pond is not a significant application defect for which
the permit must be denied.
Turning next to the question of expected leakage due to liner
imperfections and mass diffusion across the liner of hydrophobic
organic of low molecular weight, I must observe that nothing in
Chapter 17-701, F.A.C., demands that each lined Class I landfill
be certified to be leak-free. It is unrealistic to expect that,
the best QA/QC plans notwithstanding, every synthetic liner can
be installed with zero defects. Moreover, as to mass diffusion
through polyethylene, the record here shows that the phenomenon
exists, even if no actual expected concentrations of diffused
organic outside the liner can be "forecast," in the words of the
Recommended Order. See Exhibit A, page 30. The mere possibility
of a leak or some diffusion is not sufficient to compel denial of
a properly engineered Class I landfill which otherwise complies
with Chapter 17-701 standards. If, however, as here, "credible
and credited" evidence is adduced by the permit challenger that
landfill cell leakage or diffusion may adversely affect the
groundwater resource, it is incumbent upon the applicant to rebut
the challenger's evidence with an appropriate showing that any


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FILR CITE as 11 FALR 3790


expected exfiltration will pose no threat to groundwater. While

an applicant may elect, as WACOC did here (Exhibit C, page 12),

to rest on an assertion that no leakage or diffusion will occur,

such an applicant risks the result which befell WACOC: a finding

that its permit application fails to provide reasonable

assurances against groundwater pollution and a recommendation for

dismissal of the application.

In this context, I must observe that I reject the Recommended

Order's conclusion of law that an expected presence of

unspecified quantities of unidentified diffused organic chemicals

within the zone of discharge of the proposed facility constitutes

a violation of Rule 17-3.402(1)(b), F.A.C., the so-called

"free-from" rule. This rule, which establishes the Department's

minimum criteria for ground water quality, states in pertinent

part:

All ground water shall at all places and at
all times be free from domestic, industrial,
agricultural, or other man-induced non-thermal
components of discharges in concentrations
which, alone or in combination with other
substances, or components of discharges
(whether thermal or non-thermal):
a
(b) Are carcinogenic, mutagenic, teratogenic,
or toxic to human beings, unless specific
criteria are established for such components
in 17-520.420.


The minimum criteria specified in this rule apply within the zone

of discharge allowed a permitted facility under Rule 17-4.245,

F.A.C. Rule 17-3.404(3), F.A.C.

In construing Rule 17-3.402(1)(b) to prohibit the discharge

from a landfill of even the minuscule quantities of deleterious

substances, the hearing officer overlooked the fact that the rule

plainly specifies that "man-induced non-thermal components of

discharges" must be "in concentrations" sufficient to cause the

one or more of the environmental harms enumerated in Rule

17-3.402(l)(a-f). He also overlooked the procedure in Rule

17-3.402(3) by which the Secretary of the Department "is

authorized to make determinations in individual permitting or







CITE as 11 FALR 3791 FALR


enforcement proceedings, that a particular level for a substance
is a prohibited concentration in violation of a minimum criteria
pursuant to subsection (l)(b)."

It is not possible to determine from this record either what

substances or what concentrations of substances might be expected

to be found below the proposed liner as a result of liner leakage

or mass diffusion of hydrophobic organic. There is no record
basis for me to determine, as part of final agency action in this
case, that any particular substance would be introduced via
leachate into ground water on the site in such concentrations as
to cause a "free from" violation within or without the zone of
discharge in contravention of Rule 17-3.402(1)(b), F.A.C. If the
only defect shown in WACOC's project were the expected leakage or
diffusion of undetermined but minute quantities of unknown

organic chemicals, I would not consider it a sufficient reason to

deny a permit for the project. The "free from" rule is not to be

construed as an insurmountable barrier preventing the permitting

of synthetically-lined landfills. It was never the intent of the

Department in developing its ground water rules to prohibit any
contact whatsoever by pollutants with ground water. Such a

prohibition, sometimes referred to as a "nondegradation"
standard, was debated and rejected by the Environmental

Regulation Commission when the current rule was adopted in 1982.
See Green and Preston, Florida's New Ground Water Regulations, 57

Fla. B.J. 345 (1983).

Both NACOC and the Department have correctly excepted to the
hearing officer's mistaken view of the "free-from" rule. See

Exhibit B, Exception 40, page 25; Exhibit C, page 34. While
these exceptions are meritorious, granting them does not alter
the fact that NACOC has failed to carry its burden to prove its
entitlement to a permit for its landfill project.
As mentioned above, it is up to WACOC to devise a landfill
design which complies with Chapter 17-701 standards and
eliminates the potential for adverse ground water impact found to


~I__ ____ I_(~____ __ _~_~ i ___~_~_ ___j







F/ILR CITE as 11 FALR 3792

exist in its original design. In the event that WACOC can

demonstrate a modified design which provides the requisite

assurances, the Department may then find the project permittable,

since under the Florida Supreme Court's ruling in Thomson v.

Department of Environmental Regulation, 511 So. 2d 989, (Fla.

1987), the doctrine of administrative res iudicata will not

operate as a bar to the approval of a subsequent application for

the site based upon such a modified design.

In summary, I sustain and adopt the factual findings

contained in the Recommended Order; they are all supported by

competent substantial evidence of record in this proceeding.

while I accept with the hearing officer's recommendation that

WACOC's permit application be denied, I reject the precise

rationale for denial offered by the Recommended Order and

substitute my own rationale and conclusions of law as set forth

in this Order. I make the following:



CONCLUSIONS OF LAW





1. WAC of Okaloosa County, Inc., has not provided reasonable

assurances that its proposed landfill project will satisfy the

design and performance standards contained in Rules

17-701.050(4)(e)4. and (4)(f)2., F.A.C.

2. WAC of Okaloosa County, Inc. has not provided reasonable

assurances that its proposed project will not cause water

pollution in contravention of Rule 17-701.050(2)(c)2., F.A.C.

Accordingly, based upon the foregoing analysis and conclusions,

it is ORDERED:

1. The findings of fact and conclusions contained in Exhibit A

are adopted, except as modified herein.

2. Permit Application No. SC 46-143090 is DENIED.

Any party to this Order has the right to seek judicial review

of the Order pursuant to Section 120.68, Florida Statutes, by the

filing of a Notice of Appeal pursuant to Rule 9.110, Florida


---- -r-~-r~-.~w~i.ri*-~rLLlh3;i


L





T ------------"


CITE as 11 FALR 3793 F/ILR

Rules of Appellate Procedure, with the clerk of the Department in

the Office of General Counsel, 2600 Blair Stone Road,

Tallahassee, Florida 32399-2400; and by filing a copy of the

Notice of Appeal accompanied by the applicable filing fees with

the appropriate District Court of Appeal. The Notice of Appeal

must be filed within 30 days from the date this Order is filed

with the clerk of the Department.

DONE and ORDERED this e_ day of May 1989. in

Tallahassee, Florida


STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION




'bALE TWACHTMANN
Secretary

Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904)488-4805













STATE OF FLORRDA
DIVISION OF ADMINISTRATIVE HEARINGS


HERBERT H. AND ANNA M.
HUELSMAN,

Petitioners,

vs. CASE NO. 88-2531

WAC OF OKALOOSA COUNTY, INC.
d/b/a/ WASTE ASSOCIATES COM-
PANY AND STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL
REGULATION,

Respondents.
______________________________________________________________ )




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