STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF SURFSIDE, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1021

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Surfside, Florida, on November 20 and 21, 1978, and at Tallahassee, Florida, on December 12, 1978.

APPEARANCES

For Petitioner: Joseph C. Jacobs, Esquire

Melissa L. Allaman, Esquire

Ervin, Varn, Jacobs, Odom and Kitchen Post Office Box 1170

Tallahassee, Florida 32302

Stephen Cypen, Esquire 825 Arthur Godfrey Road Miami Beach, Florida

For Respondent: Silvia Morell Alderman, Esquire

Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

ISSUE PRESENTED

The manner and extent to which the criteria of Rule 17-7.07, F.A.C., entitled "Dump Closing" may be required by Respondent with respect to the Town of Surfside Dump.

FINDINGS OF FACT

1. In 1949, Petitioner purchased approximately 378.8 acres of land located in the northwest section of Miami, Florida. It sold approximately 250 acres of the eastern portion in 1959 to County Line Development Company. Petitioner utilized the remaining land as a solid waste disposal facility known as the "Surfside Dump," and in early 1955, other municipalities in North Dade and South Broward Counties also began using the facility for waste disposal. Originally,

   "white" goods, rubbish, garden trash, vehicle bodies, and tires were disposed of at the site, in addition to domestic garbage. Somewhat later, the receipt of vehicle bodies and other oversize waste was discontinued. For a number of years, the basic procedure for disposal was to dump the refuse into open trenches where it was compacted by bulldozers and covered with a layer of locally available material. The dump presently is bounded by Northwest 215th Street on the north, Northwest 47th Avenue on the west, Snake Creek Canal on the south, and the land previously conveyed to County Line Development Company on the east. A large portion of the dump area on the west side has not been used since 1972. (Petitioner's Exhibits 1, 3)

   
   

2. Inspections of the dump conducted by Department of Pollution Control representatives at various times from 1973 through 1975 revealed that waste was not being covered in a satisfactory manner in that trenches were dug from old refuse, raw garbage was pushed into the water-filled trenches and then recovered with the old refuse. In 1975, the County Line Land Company filed suit against the Petitioner in the Dade County Circuit Court complaining that the dump constituted a public and private nuisance and was being operated in violation of the county code relating to uncovered garbage, Chapter 10D-12 of the Rules of the Department of Health and Rehabilitative Services governing disposal of garbage, and Chapter 17-7 of the Department of Pollution Control pertaining to regulation of solid waste. The Circuit Court found that the dump adversely affected the health and welfare of the surrounding area, and that although the facility was being used for revenue purposes by Petitioner, the conditions existing there had not been improved over the years. It therefore enjoined Petitioner from accepting further refuse at the site commencing June 30, 1976, except from within its own boundaries. It further gave Petitioner until August 1, 1976, to show that it had complied with Chapter 17-7 of the rules of Respondent or that it had received a temporary operating permit under the pertinent regulations. The decision was affirmed by the First District of Appeal on January 4, 1977. State regulations in effect since 1962 have required sanitary landfills to dispose of garbage in compacted layers with not less than a daily six inches of cover material and a final covering of two feet of compacted earth unless otherwise approved by the regulating state agency. (Rule 170C-10.07, State Board of Health; Rule 10D-12.07, Department of Health and Rehabilitative Services)(Respondent's Exhibits 1-3)

   
   

3. On February 4, 1975, the Department of Pollution Control sent Petitioner a Letter of Notice advising that the Surfside Dump was in violation of various provisions of Chapter 403, Florida Statutes, and Chapter 17-7, Florida Administrative Code, by not applying for a temporary operation permit. By letter of March 28, 1975, that Department sent a Warning Notice to Petitioner along the same lines and advising of civil penalties for violation of pollution control laws. On May 3, 1975, Petitioner filed an incomplete application for the temporary operating permit. However, it was not until January 20, 1976, that Petitioner ostensibly furnished the necessary exhibits and public notice of its application. By letter of February 9, 1976, the acting district manager of the Respondent, which had succeeded the Department of Pollution Control, informed Petitioner that the Public Notice which had been published did not meet departmental requirements. (Testimony of Quaas, Respondent's Exhibits 5, 13)

   
   

4. On June 1, 1976, the Respondent issued a Notice of Violation to Petitioner which stated that the Surfside Dump was being operated without a valid and current permit in an unsafe and unsanitary manner and thereby had violated various provisions of Chapter 403, Florida Statutes, and Chapter 17-7 Florida Administrative Code. The notice included a section entitled "Orders for Corrective Action" which provided that the Petitioner should reimburse the

   Respondent for expenses, cease to accept any solid material as of September 30, 1976, and implement a specified system of operation and render monthly reports on the same. It also required Petitioner to close the site no later than July 1, 1977, with a final cover of two feet of clean compacted fill with side slopes not to exceed 3:1 slope, and for the entire site to be seeded or planted with grass or other suitable cover vegetation. The orders also required the Petitioner to complete his operating permit application by sending Respondent a compliance schedule and proof of publication of a Public Notice. Subsequently, on January 16, 1977, the parties entered into a "Consent Agreement and Final Department Orders" after having conducted informal negotiations in the matter.

   The agreement provided that Petitioner waived any right to a hearing under Chapter 120, F.S., and that it would close the site or convert it to a sanitary landfill within the time established in Rule 17-7.07, F.A.C. It required Petitioner to submit plans for closing or converting the site within a certain time period and for implementation of an Operation plan to cover each day's waste and any existing exposed waste with six inches of clean compacted fill.

   It further required the Petitioner to submit a plan for monitoring ground water for leachate no later than January 30, 1977. Thereafter, on February 25, 1977, Nathaniel M. Zemel, a consulting engineer employed by Petitioner, submitted a "Landfill Closing Plan" to Respondent's West Palm Beach office which provided for a minimum of 24 inches of earth cover over all refuse on the site. Mr.

   Zemel estimated that between 250 thousand and 300 thousand cubic yards of fill material would be required to complete the covering operation. However, by letter of March 25, 1977, Petitioner advised Respondent that it did not concur in Mr. Zemel's plan and that Dr. Damodar S. Airan would "further refine the plan to reflect new information." The Airan report was submitted to Respondent on October 5, 1977, and essentially concluded that the existing vegetation on the site would be killed and that other harmful effects would result if a final cover of two feet of fill were to be placed over the landfill area. The report therefore recommended that exposed areas of the dump be covered with approximately six inches of clean fill and that corrective measures for surface drainage be accomplished, including sloping, grading, and possible catchment and retention of surface runoff by a drainage canal leading to a small retention basin on the site. A closing plan with drawings to accomplish the report's recommendations was filed with Respondent on November 1, 1977. (Petitioner's Exhibit 1, Respondent's Exhibits 6, 7, 14-17)

   
   

5. Respondent's staff reviewed the Airan report and closing plan and was of the opinion that the study did not prove the basic premise that six inches of cover over the dump area was adequate. Thereafter, on December 4, 1977, Respondent issued a Final Consent Order for Dump Closing," Order No. 91, which ostensibly permitted the Petitioner time to undertake a soil and vegetation effectiveness study conditioned upon its agreement to implement and adhere to a final closing and cover plan as determined by the Department upon its review of the results of the study. This order obviously had been framed prior to the submission of the Airan report since that report was the "soil and vegetation effectiveness study" referred to in the consent order which was to be submitted not later than October 5, 1977. The order also provided that Respondent's determination of a final closing and cover plan would be made no later than December 1, 1977 and that the final closing would be accomplished no later than March 1, 1978. Again, the terms of the Consent Order provided that the Petitioner waived any right to a hearing or administrative or judicial review of its terms. Respondent's review and determination of Petitioner's aforesaid study was reflected in a letter to Petitioner from its subdistrict manager, Warren G. Strahm, dated January 3, 1978. It stated that Petitioner's study did not provide evidence that six inches of final cover would minimize and control potential water pollution from vertical percolation of surface water, but that

   Petitioner's own report showed that thirty-two million gallons more of percolation would result from a six inch as opposed to a two foot final cover. The letter therefore directed Petitioner to implement and adhere to a final closing and cover plan that included a final cover of no less than two feet of compacted earth, grading and sloping of the area, seeding or planting the site with grass or suitable cover vegetation, monitoring of ground water for leachate

   , and compliance with all other requirements of Rule 17-7.07, F.A.C., by March 1, 1978. Petitioner thereafter filed suit against Respondent in the First District Court of Appeal, Case No. 11-447. The suit was dismissed on May 19, 1978, by joint stipulation of the parties wherein it was agreed that Petitioner would seek a Section 120.57, F.S., hearing. On May 25, 1978, Petitioner filed such a petition with Respondent seeking to have that agency declare Petitioner's final cover and closing plan requiring six inches of final cover to be valid, and that final cover only be required on those portions of the Surfside Dump which were actually used on or after October 1, 1974. (Petitioner's Exhibit 2, Respondent's Exhibits 8, 18, 19)

   
   

6. The Surfside Dump has been closed to the receipt of solid waste since March 1977. Although some clandestine dumping of waste has occurred since that time, it has mostly been confined to an area outside of the fenced portion of the site. There are presently relatively small areas of exposed waste in about fifty per cent of the landfill area. Some waste may be seen at the ground level in vegetated areas. A certain amount of ponding occurs in areas of both sparse and dense vegetation. There is a heavy vegetative growth over approximately 90 to 95 per cent of the dump site, consisting primarily of torpedo grass, para grass, guineagrass, common rag weed, caster bean, and sedge. Torpedo grass is a principal species and is abundant in about two thirds of the vegetated area. (Testimony of Quaas, Conn, Hudson, Stotts, Hussin, Gatewood, Busey, Airan, Petitioner's Exhibits 1, 4, 5, Respondent's Exhibits 10-12)

   
   

7. Ground water or infiltrating surface water moving through solid waste can produce leachate, a solution containing dissolved and finely suspended solid matter and microbial waste products. Leachate may leave a landfill at the ground surface as a spring or percolate through the soil and rock that underlie and surround the waste. However, since the solid waste is of variable composition, it is not possible to accurately predict contaminant quantities.

   In completed fills, the amount of leachate can be expected to decrease with time. Leachate percolating through soils underlying and surrounding the solid waste is subject to purification of the contaminants in a variety of ways, but is diluted very little in ground water. Although leachate from a landfill can contaminate ground water, it is necessary to determine the quality of ground water and the aquifer's flow rate and direction to assess its results. Grading of the landfill is a means of diminishing surface infiltration by promoting surface water runoff. Vegetation of a landfill helps to stabilize cover material and thus reduce infiltration. It also reduces infiltration by intercepting and evapotranspiring some of the precipitation. The soil cover over a landfill also reduces percolation into the landfill depending upon its permeability. Clayey and silty loams are well suited for final cover, but are not readily available in South Florida. Sandy soils are primarily available in that area, but allow increased infiltration of precipitation. As a landfill ages, the earth cover will be subject to settlement and maintenance may be required to fill in depressions to avoid ponding of rain water. Such a program should provide for repairing cracks in the fill area due to uneven settlement and reseeding and fertilizing as necessary on the repaired areas, to prevent major erosion and surface water ponding. Leachate leaving the bottom of solid waste can be undesirable for drinking water, surface water, industrial water or irrigation water. However, it is most difficult to determine the character and

   amount of leachate from a particular area due to the many complex factors involved in such an assessment. The most common method for leachate control is to minimize the amount of water infiltrating the site. Ground water monitoring is accomplished by obtaining samples from wells placed at various locations on and near the landfill. It is generally agreed among the expert authorities that a minimum of two feet of compacted soil is required for the final cover when closing a landfill under normal circumstances. It has been the policy of Respondent to apply the sanitary landfill closing requirements of a two foot final cover, as specified in Rule 17- 7.05(3)(m), F.A.C., to the closing of dumps. (Testimony of Quaas, Conn, Hudson, Stotts, Hussin, Busey, Snider, Respondent's Exhibits 21-27)

   
   

8. Expert testimony establishes that most of the vegetative cover on the Surfside Dump will be killed if a two foot cover is placed over it. The plants would re-colonize after such disturbance, but it takes almost two years for new plant growth to reach maturity. The present vegetation has been on the site for a number of years. Vegetation normally will grow at a better rate if its roots extend through the cover soil into the solid waste. However, certain gases created from waste material can be deleterious. A six inch final cover over vegetation would permit certain species to survive well, including torpedo grass, which is abundant on the site. In bare areas, it is best to sprig torpedo grass which provides relatively rapid growth, or to plant bahia grass. (Testimony of Hudson, Gatewood, Busey, Petitioner's Exhibit 1)

   
   

9. The landfill site consists of an undulating terrain with surface drainage going in different directions from high to low level areas, but the overall drainage pattern is in a northerly direction. Two low-lying areas in the center and eastern portions of the landfill are subject to ponding after rainfall. These areas need to be filled, graded and planted in order to provide an overall northward direction of flow, together with grading and sloping on the eastern and southern boundaries of the area. Petitioner proposes to install subsurface drainage pipes, if found necessary, to promote horizontal movement of surface water and to provide catchment and retention of surface runoff diverted from the landfill area. This may include a shallow drainage canal along the northern boundary leading to a small retention basin in the northwest corner. Although these proposals were included in Petitioner's final closing plan submitted to Respondent, they were not considered by the latter's staff in evaluating requirements for the dump closing. Some profile corrections of the site were accomplished during the past year which eliminated ponding in the southwest corner of the landfill and improved drainage in the western portion. When further profile corrections are made to remove the remaining low spots, it is estimated that surface and subsurface runoff would increase and result in less leachate reaching the ground water table. (Testimony of Hudson, Airan, Petitioner's Exhibits 1, 4)

   
   

10. Field and laboratory tests performed to determine the permeability of the soils on the landfill were performed by Petitioner at representative sites and by surface and subsurface soil samples. These tests showed that the infiltration rate at unvegetated locations was lower than that of adjacent vegetated areas, but this was attributed to the fact that in unvegetated areas, the soil is heavily compacted, very rocky, or no fill material is present. When infiltration was measured directly on waste material, it was found to be lower than that for surface soil. Mathematical calculations as a result of the tests showed that a maximum of 32 million gallons more would percolate annually through a six inch soil cover than a two foot cover. However, these calculations did not take into consideration the amount of surface and subsurface runoff. Petitioner's experts estimate that at least half of the

    percolation would be dissipated in that manner, leaving approximately 16 million gallons annually that would penetrate through the solid waste to the ground water. In considering this fact and the amount of water flowing laterally through the waste material, Petitioner concludes that only approximately one per cent of the total water flowing through the average ten foot waste layer under the water table would consist of vertical percolation. (Testimony of Airan, Petitioner's Exhibits 1, 4, 6-8, 10-13, Respondent's Exhibit 31-33)

    
    

11. The Surfside Dump overlies the Biscayne aquifer. The Snake Creek Canal at the southern boundary of the dump site flows into Biscayne Bay some miles distant. There is a well field approximately one mile south of the dump at Carol City. Upstream of the Snake Creek Canal to the west is the North Dade County Landfill which is still in use. Snake Creek Canal is approximately fifteen feet wide and the bottom of the canal is approximately fifteen feet below original ground level. It is approximately thirty feet below the top of the landfill surface. Ground water flows generally in a southeasternly direction through the landfill. Approximately ten per cent of the ground water flows through the solid waste and the remaining 90 per cent bypasses and goes around the perimeter of the landfill. In May, 1977, a water quality monitoring program was undertaken by Petitioner that utilized nine sampling wells in three clusters of three each located in the northwest corner, center, and southeast corner of the landfill. In each cluster, one well was drilled to about five feet below the solid waste layer, the second ten feet below that point, and the third was ten feet above the waste layer. Water samples were taken in 1977 and in 1978. Tests of the samples showed that water quality generally improved with the depth of the well, and that the center group of wells had the highest level of contaminants because they were drilled in the middle of solid waste layers. In a number of instances, the pollutant levels for various substances were in excess of state standards. One well in the center of the landfill was dry during the rainy season which could indicate that the center of the landfill is less permeable than the outer layers and that a certain amount of water had been subject to subsurface runoff. It is conceded by both parties that the location and method of sampling wells does not provide sufficient definitive information concerning water quality in the area and that further monitoring needs to be undertaken in the future. Testing of Snake Creek Canal from points upstream and downstream of the Surfside Dump show that the surface water quality is most affected by contaminants from upstream. The North Dade County Landfill west of the Surfside Dump is undoubtedly a major influence on the quality of Snake Creek Canal water prior to reaching the Surfside Dump area. Leachate has not been found in canal water samples even though it is sufficiently deep to intercept the same if present. However, it is conceivable that any leachate plume could extend below the bottom of the canal. (Testimony of Stotts, Hussin, Snider, Airan, Patton, Petitioner's Exhibits 1, 4, 9, 12, Respondent's Exhibits 29 a-f)

    
    

12. Based on the foregoing Findings of Fact, it is further found:

    
    

    1. The Surfside Dump presently is contributing to contamination of the ground water table in an unknown amount and is a potential source of pollution to the Snake Creek Canal and Biscayne Bay;

       
       

    2. The amount of pollution caused by leachate can be reduced through the implementation of corrective measures for surface drainage, including the filling of low lying areas, and grading and sloping to permit maximum surface water runoff. Additionally, infiltration of water into the landfill will be reduced by preserving the existing vegetation thereon which is an important factor in stabilizing surface cover and reducing percolation through evapotransportation most of the present vegetation will not survive if a two

       foot cover of soil is placed over it, and reestablishment of vegetation to its present state will take approximately two years. A surface cover of six inches over the vegetation would permit survival of most existing vegetation.

       
       

       CONCLUSIONS OF LAW

       
       

13. This controversy arose by Respondent's initiation of administrative enforcement proceedings against Petitioner pursuant to Section 403.121(2), Florida Statutes, and pertinent agency rules, requiring Petitioner to complete an operating permit for the Surfside Dump, operate it in a particular manner until September 30, 1976, at which time it was to be closed for the acceptance of solid waste, and to finally close the site no later than July 1, 1977. As heretofore indicated, consent agreements between the parties and final departmental orders thereon were issued in January and December, 1977, after operation of the dump had ceased and the only remaining point of controversy was the depth of the final cover on the site. The preliminary determination by Respondent by its letter of January 3, 1978, that two feet of final cover was required led to the institution of judicial proceedings which were mutually dismissed to permit a determination through this administrative proceeding. Petitioner had agreed in Consent Order 91 to "implement and adhere to the final closing and cover plan as determined by the Department upon its review of the results from the engineering study." Respondent's letter of January 3, 1978, would ordinarily have been considered final agency action not subject to Section

    120.57 administrative proceedings. However, since the parties have mutually agreed to resolve the matter, if possible, in administrative channels, it is considered that Petitioner's waiver of a Chapter 120 hearing in Consent Order No. 91 in November, 1977, is not a bar to a hearing on the determination made by Respondent through its letter of January 3, 1978.

    
    

14. Section 403.121, F.S., provides pertinently as follows:

    
    

    403.121 Enforcement; procedure; remedies.-- The department shall have the following administrative remedies available to it for violations of this chapter, as specified

    in section 403.161(1).

    (2) Administrative remedies:

    (b) If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action.

    
    

    Section 403.161, F.S., provides in part:

    
    

    403.161 Prohibitions, violations, penalty, intent.--

    1. It shall be a violation of this chapter, and it shall be prohibited:

       1. To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant or aquatic life or property.

       2. . . . . to violate or fail to comply with any rule, regulation, order . . . .

          adopted or issued by the department pursuant to its lawful authority.

          
          

15. Rule 17-7.02(7), F.A.C., defines "Dump" as a "land disposal site at which solid waste is disposed of in a manner which does not protect the environment and is exposed to the elements, vectors and scavengers." Paragraph 17-7.07 provided in part as follows:

    
    

    17-7.07 Dump closing.--

    It shall be required of all persons operating land disposal sites which are dumps, as defined in section 17.02(7) to eliminate or convert them to sanitary landfills as expeditiously as possible but no later than July 1, 1977. The site shall be closed in accordance with the following criteria:

    1. Steps shall be taken where potential water pollution exists, to prevent its continuance by diverting surface waters around the site, re- moving waste from the water table or by other means approved by the department.

    2. Upon completion, the closed site shall be seeded or planted with grass or suitable cover

    vegetation to minimize erosion. (Emphasis supplied)

    
    

    Departmental regulations for the closing of sanitary landfills provide in Rule 17-7.05(3)(f) that all completed portions shall be planted with grass or acceptable cover vegetation to minimize infiltration, erosion and dust.

    Subparagraph (3)(m) provides that "All completed cells shall receive a final cover of two (2) feet of earth compacted in six (6) inch layers within one (1) year of cell completion with the final six (6) inches loosely compacted to promote plant growth."

    
    

16. Respondent seeks to require the placement of a two foot earth cover over the entire area of the Surfside Dump. It contends that this requirement is reasonable and falls within the context of the term "other means approved by the department" as a step to be taken in closing a dump under Rule 17-7.07(6). Respondent further points out that it has been its policy in the past to require other dumps to conform to such a requirement. On the other hand, Petitioner maintains that the requirement is unnecessary in view of the present vegetative condition of the dump area and would in fact be counterproductive to the prevention of pollution. It is considered that Respondent's contention would not be unreasonable if applied to the future closing of a currently operated dump. Expert evidence is overwhelming that at least a two foot cover is essential to prevent undue percolation of water to the ground water table under ordinary circumstance. However, in this instance, the site in question has not been in use in any manner for almost two years, and the use of a large portion of the area was discontinued in 1972. Since that time, vegetative growth has flourished to the extent that the area is almost completely covered with plant life at this time. Based on the findings of fact heretofore made as to the value of the present vegetation in controlling vertical percolutation of the surface waters, it is concluded that modification of the normal requirement is warranted.

    
    

17. It is further noted that Respondent based its requirements contained in the January 3, 1978 letter on an erroneous premise that 32 million more gallons of water per year would percolate into the water table through a six

    inch rather than two foot soil cover. Although the above figure was derived from Petitioner's study, evidence at the hearing established that if water runoff is taken into consideration, only approximately half that amount would be subject to percolation.

    
    

18. It is concluded that Respondent has the authority to issue a final order requiring compliance by Respondent with Rule 17-7.07, F.A.C. Such order should include the six requirements stated in the January 3, 1978, letter of Respondent to Petitioner, modified as follows:

    
    

    1. Final cover of no less than two feet of earth compounded in six inch layers with the final six inches loosely compacted to promote plant growth shall be placed on all exposed areas of the Surfside Dump. Final cover of no less than six inches of earth shall be placed over all vegetated portions of the Surfside Dump.

    2. The grade of the final cover shall drain surface runoff water to prevent uncontrolled ponding.

    3. The site shall have a slope not to exceed one foot vertical to three foot horizontal.

    4. The site shall be seeded or planted with grass or suitable cover vegetation to minimize erosion, as necessary.

    5. Monitoring ground water for leachate shall continue until otherwise notified by the department.

    6. Compliance with all other requirements of Section 17-7.07, Florida Administrative Code, entitled "Dump closing" not explicitly stated in items 1 - 5 above.

    
    

    It is further concluded that a period of 90 days for Petitioner to effectuate the above requirements should be granted in the final order.

    
    

19. Petitioner claimed that certain portions of the Surfside Dump should not be subject to the requirements of Rule 17-7.07, F.A.C., because they had been closed for disposal of waste prior to 1974, the effective date of the rule. It is considered unnecessary to address this problem from a legal standpoint because insufficient evidence was presented by Petitioner to establish the precise extent of use of the landfill prior and subsequent to 1974.

RECOMMENDATION

That Respondent issue a final order requiring Petitioner to comply with the requirements set forth in paragraph 6 of the foregoing Conclusions of Law with regard to closing the Surfside Dump.

DONE and ENTERED this 11th day of January, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Silvia M. Alderman, Esquire Assistant General Counsel Department of Environmental

Regulation

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

Joseph C. Jacobs, Esquire Melissa L. Allaman, Esquire Ervin, Varn, Jacobs, Odom and

Kitchen

Post Office Box 1170 Tallahassee, Florida 32302

Stephen Cypen, Esquire 825 Arthur Godfrey Road Miami Beach, Florida

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

TOWN OF SURFSIDE,

Petitioner,

vs. CASE NO. 78-1021

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On January 12, 1979, the duly appointed Hearing Officer of the Department of Administration, Division of Administrative Hearings submitted to the Department and Petitioner a Recommended Order, a copy of which is attached hereto as Exhibit A.

Pursuant to Section 17-1.68(1), Florida Administrative Code, and Section 120.57(1)(b)8., Florida Statutes, the parties were given the opportunity to submit written exceptions to the Recommended Order. Petitioner filed exceptions. A copy of those exceptions is attached hereto as Exhibit B. The Department did not file exceptions. None of the parties requested oral argument.

EXCEPTIONS

Exception 1: Petitioner takes exception to the Hearing Officer's Conclusion of Law that the Department has the authority to issue a Final Order requiring Petitioner to monitor groundwater for leachate until otherwise notified by the Department.

While Section 17-7.07, Florida Administrative Code, contains no specific provision requiring monitoring, it does provide in subsection (6) that where potential water pollution exists, steps shall be taken to prevent its continuance by diverting surface waters around the site, removing wastes from the water table or by other means approved by the Department.

The Hearing Officer made the finding that the Surfside Dump is presently contributing to contamination of the groundwater table and is a potential source of pollution (Recommended Order, paragraph 13, page 12). He also made the finding that both parties conceded that further monitoring needs to be undertaken. The Department has the authority pursuant to Section 403.061(10), Florida Statutes, to issue such orders as may be necessary to effectuate the control of water pollution.

In order to determine if the closing procedures which shall be executed are reasonably preventing the contamination of the groundwater, it will be necessary to monitor the leachate generation activity of the landfill. Five (5) years would be a reasonable amount of time to make a determination of the effectiveness of the final cover procedures. Petitioner shall continue monitoring and submit monitoring reports biannually in April and October for a period of five (5) years from the date of completion of the closing procedures.

Exception 2: Petitioner takes exception to the Conclusion of Law that two

1. feet of final cover over exposed areas is required in this instance. Petitioner alleges that said cover will not prevent water pollution to any substantial degree.

Petitioner makes no allegation in this exception that the findings entered by the Hearing Officer were not based on competent and substantial evidence.

After hearing the testimony, the Hearing Officer concluded that expert evidence is overwhelming that at least a two (2) foot earth cover is essential to prevent undue percolation of water to the groundwater table under ordinary circumstances (Recommended Order, page 15).

The aspect of this dump which removes portions of it from the ordinary is the lush vegetative growth which is present over the majority of the site

(Recommended Order, page 15). The Recommended Order provides for a two (2) foot earth cover over areas of exposed waste. Those exposed areas do not have the vegetative cover which would provide an immediate mechanism for leachate prevention. Consequently, the Hearing Officer correctly ruled that two (2) feet of cover should be placed over exposed areas which do not have the lush vegetative cover capable of performing leachate prevention functions.

Exception 3: Petitioner takes exception to the Recommended Order referencing the placement of six (6) inches over all vegetated portions of the site, if the Department would apply that requirement to portions which already have six (6) inches of cover.

A review of the Findings of Fact and Conclusions of Law reveals that a proper application of the Hearing Officer's recommendation would be to place six

1. inches of cover over vegetated portions of the site which have exposed wastes or have an earth cover of less than six (6) inches over the waste. To this end, Petitioner's exception is extinguished since the Department is not taking the position that six (6) inches need be applied to those vegetated areas which already have six (6) inches or more of earth cover and show no exposed wastes.

   
   

   Exception 4: Petitioner takes exception to the Conclusions of Law requiring grading, sloping and seeding or planting.

   
   

   Seeding or planting is required by Section 17-7.07, Florida Administrative Code. Rules of the Department may only be waived by variance pursuant to Section 403.201, Florida Statutes. The Hearing Officer properly included this requirement in his Recommended Order.

   
   

   Grading and sloping as described in the Recommended Order is the generally accepted method of treating final cover so as to prevent or minimize infiltration and erosion. Section 17-7.05(3)(n) Florida Administrative Code, which applies to sanitary landfills, provides that the side slopes shall have a slope not to exceed one (1) foot vertical to three (3) feet horizontal. A landfill which has been operated in a less than sanitary manner must at a minimum comply with general requirements of properly operated landfills.

   
   

   The Hearing Officer made the finding that low lying areas in the center and eastern portions of the landfill are subject to ponding and must be filled, graded and planted, together with grading and sloping on the eastern and southern boundaries. He made the further finding that when further profile corrections are made to remove remaining low spots), surface and subsurface runoff would increase and result in less leachate reaching the groundwater table. (Recommended Order, page 9, citing the Testimony of Hudson and Airan and Petitioner's Exhibits 11, 4).

   
   

   These profile corrections may negate the need to install subsurface drainage pipes which will cause previously covered waste to be exposed and create a sanitary hazard and odor problems to workmen and area residents. To the extent that Petitioner needs to install a surface drainage collection system, in and over areas which do not have buried wastes in order to prevent flooding of adjacent areas, it is recommended that Petitioner undertake procedures detailed in its plan. Otherwise, the conclusions of the Hearing Officer are properly based on his Findings of Fact and need not be overturned.

   Exception 5: Petitioner takes exception to the requirement that the provisions of the final closing be undertaken within ninety (90) days.

   Petitioner seeks 180 days.

   
   

   Upon Petitioner's recommendation, it would appear that 180 days is a more reasonable amount of time to complete the closing procedures, since ninety (90) days may not allow Petitioner sufficient time to fulfill the requirements of the final site closing and its other governmental obligations relative to advertising and bidding of contracts.

   
   

   Exception 6: Petitioner takes exception to paragraph 7 of the Conclusions but does not specify a purpose for the reversal of this conclusion.

   
   

   The Hearing Officer found that the landfill had been operated for years for revenue purposes in an unsanitary manner and that the Circuit Court for Dade County ordered Petitioner to comply with Chapter 17-7, Florida Administrative Code, in 1976. (Recommended Order, Findings of Fact, pages 2 and 3). To date, the landfill has not been properly closed.

   
   

   Regardless of the evidence relative to activities of the Petitioner at the site prior to and after 1974, specific requirements directed to the operation of landfills in a sanitary manner existed in the Florida Administrative Code before 1974. See Rule 170C-10.07, State Board of Health, Rule 10D-12.07, Department of Health and Rehabilitative Services. (Recommended Order, Findings of Fact, page 3). These requirements included six (6) inches of daily cover and two (2) feet of final cover (Recommended Order, Findings of Fact, page 3). The promulgation of Chapter 17-7, Florida Administrative Code, in 1974 did not therefore constitute a retroactive or improper application of the law.

   
   

   CONCLUSION

   
   

   The Conclusions of Law found in the Hearing Officer's Recommended Order, except as modified or clarified above, inevitably flow from his Findings of Fact. They do not constitute an erroneous application of Florida law.

   Accordingly, they may not be otherwise disturbed.

   
   

   Having carefully considered the Recommended Order, including the Findings of Fact and Conclusions of Law, and all other matters before me, it is therefore,

   
   

   ORDERED by the State of Florida, Department of Environmental Regulation as follows:

   
   

   1. The Findings of Fact are adopted in toto.

      
      

   2. The Conclusions of Law are adopted in toto along with the applicable law as discussed in this Order.

      
      

   3. The recommendations of the Hearing Officer found on page 16 of the Recommended Order are adopted with the exceptions enumerated below:

1. Recommendation 1 is adopted as to the placement of two (2) feet of earth cover and clarified as to the six (6) inch requirement so that six (6) inches of earth shall be placed over all vegetated portions of the dump where waste lies exposed on the surface or less than six (6) inches from the surface.

2. Recommendation 2 is adopted with the addition that Petitioner's closing plan procedures relative to prevention of flooding of adjacent areas be utilized to insure that runoff is retained on Petitioner's property in areas which do not have buried wastes.

   
   

3. Recommendation 3 is adopted.

   
   

4. Recommendation 4 is adopted.

   
   

5. Recommendation 5 is adopted with the clarification that monitoring shall be undertaken for a period of five (5) years as described in the discussion of Exception 1 above.

   
   

6. Recommendation 6 is adopted.

   
   

7. A period of 180 days from the date of this Order shall be allowed for the completion of the closing procedures outlined herein.

DONE AND ORDERED this 11th day of April, 1979, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JACOB D. VARN

Secretary

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

Telephone: (904) 488-9730

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing "Final Order" has been furnished by hand-delivery to MELISSA FLETCHER ALLAMAN, ESQ., on this 12th day of April, 1979.

SILVIA MORELL ALDERMAN

Assistant General Counsel

State of Florida, Department of Environmental Regulation

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

Telephone: (904) 488-9730

Docket for Case No: 78-001021

Orders for Case No: 78-001021