TO: Jake Varn
FROM: Susan C. Miller RECEIVE ED
DATE: January 31, 1990
CARLTON, FEOS TALLAHASSEE
RE: Groundwater Permitting ,ACO N
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.
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
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.
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).
(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