STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAYLOR ROAD CIVIC ASSOCIATION, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2269

)

HILLSBOROUGH COUNTY and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

) RICHARD S. SMOOT, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2270

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and HILLSBOROUGH ) COUNTY, )

)

Respondents. )

) FLORIDA WATER WELL ASSOCIATION, ) WEST COAST CHAPTER, RONALD FRINK,) PRESIDENT, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2271

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and HILLSBOROUGH ) COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned cases, after due notice, at Tampa, Florida, on February 25, I930, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner Douglas A. Mulligan and Taylor Road Civic Morris W. Milton, Esquires Association, Inc.: Post Office Box 13517

St. Petersburg, Florida 33733

Florida Water Well Ronald Frink, President Association, West Post Office Box 11648 Coast Chapter: Tampa, Florida 33680

Richard S. Smoot: Self

For Respondent Elliot Dunn, Esquire and Hillsborough Vincent L. Nuccio, Jr., Esquire County: Post Office Box 1110

Tampa, Florida 33601

Department of Alfred W. Clark, Esquire

Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether Respondent Hillsborough County's application for a temporary operation permit for a landfill in Hillsborough County should be approved pursuant to Chapter 403, Florida Statutes.

The above captioned cases were consolidated pursuant to Order of the Hearing Officer, dated January 22, 1980, because they represented challenges to the issuance of the same temporary operating permit requested by Respondent Hillsborough County.

At the commencement of the hearing, Ronald Frink, president of Petitioner Florida Water Well Association, West Coast Chapter, stated that he would represent Petitioner in lieu of the association's legal counsel, Gene H. Hall, who was not present at the hearing and had not previously requested to withdraw as counsel. Upon inquiry by the Hearing Officer, it was determined that Mr.

Frink did not possess familiarity with the Administrative Procedure Act nor had the agency in question, the Department of Environmental Regulation, published any standards for qualifications of lay counsel in administrative proceedings. Accordingly, in accordance with the holding in the Florida Bar v. Moses, Case No. 53,305 (Fla., opinion filed January 17, 1980), Mr. Frink was not permitted to act as Petitioner's representative at the hearing. He elected not to seek further representation, but did testify as a public witness curing the course of the hearing.

Respondent, Hillsborough County, joined by Respondent, Department of Environmental Regulation (DER) moved for a continuance of the hearing to afford additional time for county water consultants to complete studies concerning the extent and source of any infiltration of foreign substances into the ground water from the landfill site. The motion was denied by the Hearing Officer.

FINDINGS OF FACT

1. On February 1, 1977, DER issued an operation permit to Respondent Hillsborough County for the operation of a solid waste disposal facility (sanitary landfill) with an area of 42 acres, located at Taylor Road and Sligh Avenue in the northeast portion of Hillsborough County. The permit was effective for a period of two years and contained various conditions which required the permittee to abide by applicable rules of the DER. The conditions also specified that water samples from monitoring wells and from any waters

   discharged from the site should be taken and analyzed to determine water quality and such analysis submitted to the Hillsborough County Environmental Protection Commission (HCEPC) acting as the agent for DER within Hillsborough County. The conditions further prohibited open burning at the site without prior approval, control of any objectionable odors, provision for sufficient equipment, and controlled access to the site. (Exhibit 22)

   
   

2. In December 1978, Hillsborough County applied for renewal of its operation permit until February 1, 1980. The application and accompanying letter showed that the county wished to operate the site as a "high rise land fill" due to the fact that dirt accumulated from trench excavation had raised the ground level approximately ten feet. In July, 1979, after submission of requested additional information to DER during the preceding months, the county director of solid wastes submitted closeout plans for the landfill to DER and advised that they were filing a permit application for a new landfill to the east of the current site, utilizing a borrow pit area which had been transferred to the county by the State Department of Transportation. Thereafter, by letter of October 23, 1979, the Hillsborough County Administrator requested that DER consider the previous application for renewal of its operating permit to be withdrawn and that the application be viewed as one for a temporary operating permit. (Exhibit 1)

   
   

3. During the month of August 1979, several inspections of the existing landfill were made by DER, HCEPC, and Regional EPA personnel. A series of memos prepared by the agency personnel reflected that various violations of DER rules governing landfills had been found during the course of the inspections. These included uncontrolled ponding of water in low areas on the site, failure to control the runoff of surface water, lack of adequate control to prevent unauthorized access to the site, failure to provide the requisite six inches of daily cover over the compacted waste, lack of proper ground water monitoring, and destruction of several wells by heavy equipment, and frequent breakdown of equipment used at the site. Residents living nearby or adjacent to the landfill have observed ponding, uncontrolled runoff, and unauthorized personnel on the site. They have experienced a high incidence of rats, birds and flies on their property and have seen septic tank waste trucks at the landfill. They further have noted uncovered garbage and have seen waste flow from the landfill into the area of Interstate Highway 4 which borders the south portion of the site. The State Department of Transportation has also made complaints to the county concerning dirt and debris on the interstate right-of-way.

   
   

4. In a letter to DER, dated October 2, 1979, the county director of public utilities and safety responded to the various complaints and alleged violations. He acknowledged the validity of a number of the problems and indicated the corrective action that had or would be taken to prevent recurrence. (Testimony of Brantner, Warner, Smoot, Exhibit 8, supplemented Exhibits 10-15, 20, 23)

   
   

5. By letter of October 23, 1979, DER's Southwest District manager issued Notice of Intent to issue a temporary operation permit for the high-rise landfill pursuant to Section 403.087, Florida Statutes, and Sections 17-4.07, Florida Administrative Code, with an expiration date of February 1, 1980. The stated reasons for the proposed issuance of the permit were because the facility did not qualify for an operation permit, but the applicant was making bona fide efforts to provide an acceptable alternate waste disposal system, and that the permit would allow time to establish a five-year monitoring program to ensure that the site had stabilized and was not a significant water pollution source. Conditions attached to the proposed permit were such as to reasonably preclude

   the recurrence of past violations with regard to daily cover, controlling access to the site, establishment of a gas monitoring program, and installation of additional monitoring wells for periodic sampling as to water quality. A compliance schedule was stated which required the submission of plans to accomplish the requirements of the permit and such schedule called for the cessation of all filling operations by February 1, 1980 and commencement of the closeout operation on March 1, 1980. The petitions for hearing herein were thereafter filed with DER and referred to this Division on November 15, 1979. (Exhibit 3)

   
   

6. In December, 19.79, DER received notification from the regional office of the United States Environmental Protection Agency that volatile organic analysis on well supply samples from private residences in the vicinity of the landfill indicated a potential health risk and that the agency had therefore advised the well owners not to drink the water. Inspections of the landfill in mid-January 1980 by DER and HCEPC personnel showed that solid waste was not being adequately covered on a daily basis and that ponding of water in various areas was observed. The county attributed the ponding to heavy rainfall during the period, but claimed that the waste had been covered on a daily basis although the heavy equipment had scattered paper and other debris through the cover soil in view of the sticky nature of the clayey soil. (Exhibits 6, 16-18)

   
   

7. After Hillsborough County officials became aware of the EPA well tests, a private consulting firm of ground water hydrologists and geologists was employed by the county to undertake a water quality analysis of the round water in and around the landfill. The program commenced in late December 1979, and a preliminary assessment of ground water quality was submitted in February 1980. Water samples were taken from private wells adjoining the landfill and from a well within the landfill itself. Analysis of the samples led to preliminary conclusions that organic and inorganic constituents of samples from within the landfill correlated well with those wells adjacent to the landfill, thereby suggesting landfill leachate as a source of contaminants. However, the consultants are of the opinion that several wells which exhibited traces of organic but no discernible inorganic contaminants may be affected by sources of contamination not related to landfill leachate, such as petroleum products, septic tank cleaners, and other household products. It was found that inadequate regional and site specific hydrogeologic data was available upon which to base a complete statistical analysis. It was further found that the wells used in the study were "uncontrolled" and therefore did not represent a valid basis for determining the origin of their contamination. Further study is planned which will involve testing of samples from twenty new monitoring wells designed to determine the rate of movement and attenuation of leachate. The results of such study will be available within five or six months. Although it is generally agreed that ground water flows in a southwesterly direction at the site, more information is required to ascertain the precise direction of flow. At the present time surface water falling on the landfill flows toward a county owned borrow pit to the southwest of the landfill. (Testimony of Schreuder, Becker, Bush, Exhibits 7, 19)

   
   

8. The closing plans for the landfill site provide for surface water to be channeled away from the area and directed through swales to travel in the natural direction to the west. A final two-foot cover of soil will be place over completed cells and a three and one-half foot cover of compacted soil will be placed on side slopes of the landfill. Such final cover and grading of the area is designed to preclude infiltration of surface water. Trees will be planted around the periphery of the area and trenches will be dug to force any gases upward to a high point where an exhaust will be placed. Soil borings show

   that there is an extensive layer of clay at the bottom of the landfill but the permeability of this material is unknown. The solid waste cells are at a maximum of 40 feet below the ground surface and the average height of the compacted waste above ground surface is approximately 28 feet. The county permanently ceased accepting solid waste at the landfill on February 11, 1980, and has commenced closing operation to a minimal degree. As a result of the fact that solid waste is no longer being accepted, the intended elevation to be reached in the southern portion of the site will not take place and accordingly the closing plan will have to be revised in that respect. It is estimated that closing will take approximately one year to accomplish. Upon final closing with vegetative cover and proper grading, it is anticipated that pending and vector problems will be resolved. At the present time, inadequate fencing exists around the boundaries of the landfill. (Testimony of Bush, Becker, Exhibits 2- 21)

   
   

9. In recognition of the fact that Hillsborough County ceased using the landfill for disposal of solid waste, the county and DER entered into a written stipulation, dated February 25, 1980, confirming this fact and revising special conditions to the proposed temporary operating permit. These conditions included a proviso that the proposed permit would expire three years from the date of issuance to permit a long-term monitoring and surveillance program to be conducted until the site has stabilized and is not a significant water pollution source. The conditions also call for the county to establish an acceptable program for monitoring gases at different points within the landfill, to control access to the site, and to complete the study to determine the extent and source of any infiltration of foreign substances into the ground water from the site. In addition, the conditions would require the county to submit an acceptable plan for long-term monitoring of ground water, including the installation of additional monitoring wells if required. It also provides that the final closeout of the site shall be completed within one year from the date of the final order and that such closeout shall be completed in accordance with applicable law and in accordance with previous closeout plans to the extent made possible by final elevations. (Exhibit 4)

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 403.707, Florida Statutes (Supp. 1978), requires a permit issued by the DER for the operation, modification, or maintenance of a resource and management facility or site. Section 403.703(7) defines "resource recovery and management facility" to include any solid waste disposal area. Section 403.707(3) provides that all applicable provisions of Sections 403.087 and

    403.088 relating to permits and temporary operation permits include control of resource recovery and management facilities. The issuance of a temporary operation permit pursuant to Section 403.088(4) normally contemplates that a facility which does not qualify for an operation permit may nevertheless conduct temporary operations for a period to bring the facility into an acceptable condition or devise an alternate waste disposal system, if denial of the permit would work an extreme hardship upon the applicant, is in the public interest, and the operation will not unreasonably be destructive to the quality of any receiving waters.

    
    

11. In this case, operation of the landfill in question has been discontinued and all the applicant seeks is to implement a proposed closing plan which will meet departmental criteria. When the original application was filed in December 1978 for renewal of an existing sanitary landfill operation permit, DER had no published rules as to closing requirements for a sanitary landfill, but only as to dump closing in Rule 17-7.07, F.A.C. That rule was amended in

    May 1979 and established closing procedures for all land disposal sites. The applicant amended its application in October 1979 to seek a temporary operation permit rather than an extension of its previous operation permit. Accordingly, it is concluded that such amendment effectively created a new and different type of application to which the current provisions of Rule 17-7.07 apply.

    
    

12. Rule 17-7.07 sets forth nine separate requirements for closure of land disposal sites. These concern restriction of access to the site, placement of informational signs, final cover and vegetation specifications, erosion control, prevention of ponding, and prevention of waste from becoming a hazard or nuisance until stabilization, and continued monitoring including collection and treatment of leachates if necessary. The evidence shows that the applicant agrees to conform to those requirements during the course of the closeout operation, and the revised agreed special conditions to the issuance of the permit address certain of these requirements and otherwise require the applicant to abide by applicable law and its closeout plan.

    
    

13. It is recognized that Hillsborough County has not acceptably maintained the landfill in the past as reflected in the foregoing findings of fact. Further, it is clear that insufficient data is known or available at the present time to accurately determine the amount and composition of leachates being generated by the landfill or the extent to which it is or may in the future escape to surrounding areas. Also, the attenuating capability of the clay soil underlying the landfill has not been ascertained nor has precise information as to the ground water table and its direction of flow. However, it is considered that the ongoing scientific study by qualified consultants will in due course produce sufficient information in those respects upon which adequate controls may be based. The fact that the DER will retain jurisdiction over the matter by means of a three-year permit will enable the Department to impose modifications or additional conditions to the permit if the results of the study show a need for further safeguards. In the interim period, frequent inspection and insistence upon the permittee's adherence to the required closing procedures and special conditions should be undertaken by agency personnel with a view to immediate cure of present deficiencies, such as inadequate fencing, ponding, vector control and other verified complaints lodged by adjoining landowners.

    
    

14. It is concluded that the foregoing measures will serve adequately to properly close out the site with minimal adverse effects. It therefore is considered that the applicant has provided reasonable assurances that the requirements and standards of Chapter 17-7, F.A.C. and Chapter 403, F.S., will be met and that a temporary operation permit should he issued under the revised special conditions. The supervision and inspection requirements of Rule 17- 7.08, F.A.C., should be strictly observed during the permit period.

    
    

15. The Proposed Recommended Orders filed by the parties have been fully considered and those portions not adopted or discussed in this Recommended Order are considered to be either unnecessary, irrelevant, or incorrect in fact or law, and are rejected.

RECOMMENDATION

That the applicant Hillsborough County be issued a temporary operating permit for the closing of the landfill specified in the application.

DONE and ENTERED this 26th day of March, 1980, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Honorable Jacob Varn Morris W. Milton, Esquire Secretary, Department of Douglas A. Mulligan, Esquire Environmental Regulation Post Office Box 13517

2600 Blair Stone Road St. Petersburg, Florida 33713 Tallahassee, Florida 32301

Alfred W. Clark, Esquire Vincent L. Nuccio, Jr., Esquire Department of Environmental Post Office Box 1110 Regulation Tampa, Florida 35601

2600 Blair Stone Road Tallahassee, Florida 32301

Gene T. Hall, Esquire Elliot Dunn, Esquire

209 East Robertson Street Post Office Box 1110 Brandon, Florida 33511 Tampa, Florida 33601

Richard S. Smoot Ronald Frink, President

Post Office Box 682 Florida Water Well Association Seffner, Florida 33584 Post Office Box 11648

Tampa, Florida 33680

Docket for Case No: 79-002269

Orders for Case No: 79-002269