STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. A. BRAY, BRAY LANDFILL, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 77-1613RX

   ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer, for the Division of Administrative Hearings, on January 12 and 13, 1978, in Orlando, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Davisson F. Dunlap, Esquire

   Robert L. Young, Esquire, Carlton, Fields, Ward, Emmanuel,

   Smith & Cutler, P.A. Post Office Box 1171 Orlando, Florida 32802

   
   

   For Respondent: Segundo J. Fernandez, Esquire

   Department of Environmental Regulation Twin Towers Office Building

   2600 Blair Stone Road Tallahassee, Florida 32301

   
   

   1. By his petition, brought pursuant to the provisions of Section 120.56, Florida Statutes (1977), H. A. Bray (hereafter Bray) seeks to challenge the validity of Rule 17-7.05(3)(h), (j), and (l), Florida Administrative Code, contending that requirements for compaction, daily cover and intermediate cover in the operation of sanitary landfills restricted to non- putrescible waste constitute an invalid exercise of delegated legislative authority.

      
      

   2. Bray has also challenged the rule on the ground that it violates both the Florida and United States Constitutions. However, at the hearing Bray's counsel correctly conceded that a Hearing Officer does not have the power to adjudicate the constitutionality of an existing rule. Accordingly, the constitutional issues are not addressed in this order.

      
      

   3. Bray is the owner and operator of the solid waste disposal site located on his property in Orlando, Florida. The Respondent, Department of Environmental Regulation (hereafter DER) sent Bray a letter of intent to deny his permit application for the operation of a solid waste disposal site. The

      proposed denial is based upon Bray's unwillingness to provide compaction and daily cover in accordance with the provisions of the rule being challenged.

      
      

   4. Bray's principal contention is that compaction and daily cover are not necessary for a landfill which accepts only non-putrescible waste. Bray urges that the attenuation of leachate, prevention of fires, prevention of settling and pending of water which provide breeding grounds for mosquitoes and other vectors and reducing the area of land needed to dispose of solid waste are justifications for the requirements of compaction and daily cover of solid waste which may not be present at non-putrescible landfills. Thus, concludes Bray, if these problems do not exist at a particular landfill, regulations requiring compaction and daily cover for that landfill are arbitrary and capricious and do not reasonably relate to the purposes of the enabling legislation. However, the evidence presented by Bray falls far short of meeting his burden of establishing that non-putrescible waste does not require compaction and daily cover.

      
      

   5. There are multiple reasons for the requirement of compaction and daily cover of solid waste. When solid waste is spread to approximately a 2-foot thickness and then compacted to a 1-foot thickness, followed by the daily application of a cover of 6 inches of compacted earth, a layering effect is created which helps attenuate, if not prevent, the formation of leachate from both putrescibles and non-putrescibles which may be contained in the waste. Leachate is a liquid that has percolated through solid waste, usually originating as rain, which contains dissolved or suspended material that may contaminate ground water supply. Leachate occurs in landfills that accept putrescible material as well as landfills that accept only non-putrescibles. Compaction and daily cover consequently slow, if not prevent, the contamination of ground water supplies.

      
      

   6. The formation of leachate containing various chemicals which would have adverse affects on the human body is expected when water percolates through strictly non-putrescible waste. Commonly discarded non-putrescibles such as metals, plastics, ashes, rocks and dirt from an industrial site, miscellaneous organics, heavy metal solutions and sludges, organic solvents and oils, caustic and acid solutions, inorganic chemical solutions and sludges, pesticides and fungicide wastes, paint and ink wastes, asphalt roofing and paving material, explosive waste and radioactive waste are probable sources of leachete contamination. The process of leechate formation from non-putrescibles involves the physical and chemical reaction of compounds in the non-putrescibles with the water percolating through them.

      
      

   7. The contamination of ground water supplies by leachate from either a putrescible or non-putrescible site constitutes a threat to the health, safety and welfare of the public as many of the contaminates are toxic and have adverse affects on the human body. In particular, leachate from non-putrescibles may contain toxic metal solutions, carcinogenic pesticides and other organic compounds as well as toxic inorganic compounds.

      
      

   8. Another reason for compacting and daily cover is the prevention of fires. Exposed, non-putrescible wastes can ignite and result in serious dump fires. Daily cover, if applied serves as a fire break and eliminates the fire hazard created by exposed combustible non-putrescible wastes. Furthermore, compaction and daily cover prevent settling and ponding which would contribute to both downward flow of water through the solid waste and the creation of breeding grounds for mosquitoes and other vectors. Compaction and daily cover contribute to the general aesthetics of the site and reduce the area of land needed to dispose of solid waste.

   9. In support of his rule challenge, Bray attempts to show that his method of operation effectively screens putrescible wastes from the site and otherwise adequately protects the public health, safety and welfare. However, the evidence which belies the assertion, shows that putrescibles have, in fact, been dumped at Bray Landfill. Coliform readings obtained in samples from monitoring wells at the Bray property can reasonably be attributed to putrescible matter on site. Birds have been observed feeding on site and these would not be feeding on non-putrescible wastes. The policing techniques are largely ineffectual.

      The site contains unopened trash bags with undisclosed contents as well as observed putrescible garbage. Trucks enter the site and dump their loads without inspection. Two major dump fires have occurred at the Bray landfill during the past four years.

      
      

   10. Even if Bray were able to establish that the operation of a sanitary landfill without compaction and daily cover would not result in a threat to the public health, safety and welfare, the operator of such landfill would find relief in the application of the provisions of Section 403.201, Florida Statutes (1977) and Rule 17-1.25(3), Florida Administrative Code, providing for the granting of variances to relieve or prevent hardships of the kind that would be generated by such circumstances.

It is therefore concluded that the challenged rules are reasonably related to the protection of public health, safety and welfare, the prevention of the spread of disease and creation of nuisances and the enhancement of the beauty and quality of the environment. The rules are not arbitrary or capricious.

Accordingly, Bray has not established that the rules in question constitute an invalid exercise of delegated legislative authority.

DONE and ORDERED this 28th day of March, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Davisson F. Dunlap, Esquire Robert L. Young, Esquire Carlton, Fields, Ward, Emmanuel

Smith & Cutler, P.A. Post Office Box 1171 Orlando, Florida 32802

Segundo J. Fernandez, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Liz Cloud Department of State The Capitol

Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedure Committee Room 120, Holland Building Tallahassee, Florida 32304

Docket for Case No: 77-001613RX

Orders for Case No: 77-001613RX