STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAFAYETTE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1961

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on February 15, 1977, in Mayo, Florida.

The following appearances were entered: Conrad C. Bishop, Jr., of the firm Weed and Bishop, Perry, Florida, for the Petitioner, Lafayette County; and Vance Kidder, Tallahassee, Florida, for the Respondent, Department of Environmental Regulation.

On October 19, 1976, Lafayette County ("Petitioner" hereafter) forwarded an application for variance to the Department of Environmental Regulation ("Respondent" hereafter). A copy of the application for variance was received in evidence at the final hearing as Hearing Officer's Exhibit 1. In accordance with Florida Statutes, 120.57(1)(b)(3), the Respondent forwarded the application to the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. Petitioner filed an amendment to the application for variance which was received in evidence as Hearing `Officer's Exhibit 2. The final hearing was scheduled by notice dated December 8, 1976. A copy of the notice of hearing was received in evidence as Hearing Officer's Exhibit 3.

The Petitioner called the following witnesses: John Roy, a registered professional engineer; Paul Trawick, the clerk of THE Lafayette County Board of County Commissioners; Bob Lilliott, a deputy clerk of the Circuit Court in Taylor County, Florida who serves as the finance officer for Taylor County; Ellis Putnal, a resident of Lafayette County; Owen Pearson, the Chairman of the Board of County Commissioners of Lafayette County; Sidney Adams, a member of the Board of County Commissioners of Lafayette County; Russell Osteen, a resident of Lafayette County; Franklin Wimberly, a resident of Lafayette County; and John R. Weed, the County Attorney in Taylor County, Florida. The Respondent called the following witness: Frank Derabi, the branch manager of the Respondent's Gainesville office. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits

1. were received into evidence at the final hearing.

   
   

   The Petitioner is seeking a variance from the requirements of the Respondent's regulations respecting-operation of solid waste disposal programs. Rule 17-7.05(3)(j), Florida Administrative Code provides that each volume of

   solid waste at a sanitary landfill must receive a compacted cover of six inches of earth each working day. The Petitioner is seeking a variance from this requirement so that it can operate its sanitary landfills covering all cells twice weekly rather than each working day.

   
   

   It originally appeared that the Petitioner was seeking additional variances. Petitioner appeared to be seeking variances so that it could operate four rather than a single sanitary landfill, and so that it could operate a solid waste disposal system without utilizing "green boxes". It does not appear that the Florida Statutes or the Respondent's rules require that only a single landfill be operated, or that green boxes be utilized. Therefore no variance along these lines would be necessary for the county to operate as it desires to operate.

   
   

   The parties have submitted Posthearing Memoranda of Law respecting the issues in this matter.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner's present solid waste-disposal system consists of the operation of six sanitary landfill sites. These sites are being operated in accordance with temporary permits issued by the Respondent. Four of the sites are not adequate sanitary landfill sites. Two of the sites, which are known as the "Sims Farm" and "Ephesus" sites can be developed into acceptable landfill sites. Petitioner has not developed any comprehensive plan designed to comply with the Florida Resource Recovery and Management Act, and the rules of the Respondent respecting solid waste disposal systems. When its present temporary permits expire the Petitioner intends basically to continue operating the Sims Farm and Ephesus landfill sites, and to' locate at least two other acceptable sanitary landfill sites. Petitioner intends to comply with all of the Respondent's regulations, but it contends that it cannot comply with the regulation which requires that the landfills be covered every working day. Petitioner proposes to cover the landfills twice weekly rather than daily.

      
      

   2. Lafayette County is a large county in terms of area, but is very small in population, having less than 3,500 residents. Residents of the county are engaged primarily in agriculture. The county does not have a broad tax base. Estimated revenues for the 1977 fiscal year are $113,340. Thirty thousand dollars has been designated from the county's budget to operate a solid waste disposal system.

      
      

   3. The clerk of the County Commission is in charge of the county's present solid waste disposal system. The county does not have a full time employee designated to operate the system. The clerk of the County Commission has many duties other than operating the solid waste disposal system. Residents of the county are satisfied with the present system. Prior to the opening of the present sanitary landfill sites there was considerable dumping on private property, on highway right-of-ways, or in the river slough. The amount of waste deposited in the county's present landfills is very small in relation to counties with a higher or more concentrated population. There is very little industrial or commercial waste, and a smaller percentage of putrescible materials than would be found in more urban counties. Although there is a county ordinance prohibiting it, dead animals are occasionally deposited in the landfill sites and burning of trash does occur. Chemical agricultural waste is also deposited in the landfills.

   4. Lafayette County has utilized temporary permits to operate its present landfill sites. The permits require the submission of periodic reports. The county has not submitted these reports as required by the permits.

      
      

   5. Counties surrounding Lafayette County have had varying experiences in reaching full compliance with the Florida Resource Recovery and Management Act, and the rules of the Respondent dealing with solid waste disposal systems. In Taylor County, a county with a population of approximately 14,500, approximately

      $120,000 was invested in equipment. Daily cover of sanitary landfills, including the dumping of green boxes utilized in Taylor County cost $6,512.42 in January, 1976, and $7,159.85 in January, 1977. Compliance with the statutes and regulations necessitated an increase in the county's tax rate. Compliance is being achieved in Gilchrist County, a small agricultural county at very low cost utilizing a single sanitary landfill site system. Compliance has been achieved in Dixie County, a small agricultural county through use of a green box system. Very little research has been performed by Lafayette County to determine how compliance could be achieved most inexpensively.

      
      

   6. Daily cover of sanitary landfill sites is desirable. Daily cover is the most effective means of preventing open burning in landfill sites, leachate of solid waste, flies and rodents. Daily cover does not totally alleviate these conditions, but it is the most effective means of combating them. Daily cover is much more necessary in areas where there are large amounts of solid wastes than it is in areas with small amounts. Daily cover is also more necessary in areas where there is a large proportion of putrescible versus non-putrescible materials than it is in areas with a smaller percentage.

      
      

   7. In order to comply with the Respondent's regulations when its present temporary permits expire, the Petitioner will need to purchase a tractor or bulldozer in order to provide a cover at the landfill sites. If daily cover is required, the county will need to hire a full-time individual to perform the cover. If twice weekly cover is permitted the county will be able to operate its system without the necessity of employing an additional person. Twice weekly cover would reduce the operating costs of the county's system by reducing fuel and maintenance costs of vehicles.

      
      

   8. In view of the fact that no detailed examination has been made of the cost of full compliance, it is not possible to determine from the facts presented whether it is practicable for the Petitioner to comply with the regulations, or whether the expense or cost of measures which the Petitioner must take in order to comply are so great that they should be spread over a considerable period of time. The most that can be determined is that daily cover would be more expensive than twice weekly cover, and that twice weekly cover would not have any profoundly negative environmental effects in Lafayette County.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter of this case, and over the parties. Florida Statutes, 120.57(1).

      
      

   10. The Florida Resource Recovery and Management Act, Florida Statutes, 403.701, et seq. provides that the Respondent will have the responsibility for implementing and enforcing regulations respecting solid waste disposal. The Respondent has adopted rules and regulations in accordance with the statute. Florida Administrative Code, Chapter 17-7. Rule 17-7.05(3)(j) provides:

       "All cells [volumes of solid wasted shall receive a compacted cover of six (6) inches of earth each working day."

       
       

   11. Florida Statutes, 403.201 provides:

       
       

       "(1) Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto.

       Variances and renewals thereof may be granted for any one of the following reasons:

       1. There is no practicable means known or available for the adequate control of the pollution involved.

       2. Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a time table for the taking of the measures required.

       3. To relieve or prevent hardship of a kind other than those provided for in paragraphs

          (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of twenty- four months except that variances granted pursuant to Part II may extend for the life of the permit or certification."

          
          

          An applicant for a variance has the burden of establishing that the variance should be granted.

          
          

   12. Insufficient proof was offered at the hearing from which it could be concluded that there is no practicable means for the Petitioner to comply with Rule 17-7.05(3)(j). There was also insufficient evidence offered from which it could be determined that compliance with the rule would necessitate the taking of measures which because of their extent or cost should be spread over a longer period of time. If all alternatives are pursued, the Petitioner may learn that it is able to fully comply with the Respondent's regulations without the large expenditures experienced in Taylor County. If that turns out not to be the case, then it would appear proper to spread the initial costs over a period of years, which could be permitted through the granting of a variance such as is being sought in this case. Until a full study is made of all of the alternatives, however, the granting of the variance would be inappropriate.

       
       

   13. The Petitioner's application for variance should be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a final order be entered denying the Petitioner's application for variance.

RECOMMENDED this 18th day of March, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Vance W. Kidder, Esquire

Department of Environmental Regulation 2562 Executive Center Circle E. Montgomery Building

Tallahassee, Florida 32301

Conrad C. Bishop, Jr., Esquire Weed & Bishop

P. O. Box 1090

Perry, Florida 32347

Mr. Jay Landers, Secretary

Department of Environmental Regulation 2562 Executive Center Circle E. Montgomery Building

Tallahassee, Florida 32304

Docket for Case No: 76-001961

Orders for Case No: 76-001961