STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. A. ALFORD, III, et al., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 80-1123

   ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, and ) BAY COUNTY BOARD OF COUNTY )

   COMMISSIONERS, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 15 October 1980 at Panama City, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Kenneth F. Hoffman, Esquire

   646 Lewis State Bank Building Tallahassee, Florida 32301

   
   

   For Respondent, William W. Deane, Esquire and DER: Douglas McLaughlin, Esquire

   Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

   
   

   For Respondent, Les W. Burke, Esquire and Bay County: Nevin Zimmerman, Esquire

   Post Office Box 1818

   Panama City, Florida 32401

   
   

   By Petition served 9 June 1980 S. A. Alford et al., Petitioners, contest the Notice of Intent of the Department of Environmental Regulation (DER), respondent, to issue a permit to Bay County, respondent, for the construction of a sanitary landfill in Bay County . As grounds for contesting the issuance of the permit, Petitioners allege that Bay County has not given reasonable assurances that the operation of the landfill will not contaminate the waters of this State. Petitioners further allege the operation of the proposed landfill will create a public nuisance due to the noise and odors generated thereby.

   
   

   Petitioners are land owners living in the vicinity of the proposed landfill and Respondents stipulated that they have standing to bring this action. At the commencement of the hearing, Petitioners contested the intervention of Bay County into these proceedings. As grounds therefor, Petitioners point out that Bay County did not file notice of intervention or petition to become a party to

   these proceedings within five days of the hearing as required by Rule 28-5.207, Florida Administrative Code. Bay County was named as a Respondent in the Notice of Hearing dated July 30, 1980. Accordingly, Petitioners' objection to Bay County participating in these proceedings was overruled.

   
   

   Thereafter, eight witnesses were called by Petitioners, three witnesses were called by Respondents, and 22 exhibits were admitted into evidence. The primary, if not sole, issue presented is whether or not the installation of a PVC liner during the construction of a sanitary landfill will contain the leachate generated by the waste deposited in the landfill and thereby provide reasonable assurances that there will be no contamination of the waters of the State There was no real dispute as to the facts here involved. Proposed findings submitted by the parties and not included below were not supported by competent evidence or were deemed immaterial to the results reached.

   
   

   FINDINGS OF FACT

   
   

   1. Bay County's application to construct a sanitary landfill comprising nearly 80 acres located at the north end of Bay County abutting Washington County near the intersection of S.R. 20 and S.R. 77 was initially submitted to the Department of Environmental Regulation (DER) in November, 1979 (Exhibit 1). The site is surrounded by 400 feet of pine woods which buffer the site from all roads and residences . There are no residences within several hundred yards of the proposed site and the nearest natural body of water is over one-fourth mile from the site. The noise generated by the operation of the landfill will be similar to the noise generated on S.R. 20 and S.R. 77 by passing vehicles.

      
      

   2. Following conferences between representatives of Bay County and DER and several revisions of the application of May 16, 1980 DER issued its notice of intent to grant the applied-for permit (Exhibit 10) and this proceeding was initiated by Petitioners.

      
      

   3. The site is located in an area of predominately "Lakeland series" sands which provides little barrier to the percolation of surface or ground waters into the Floridan Aquifer. The site is one of the highest in Bay County and the ground water table is located about 45 feet below the surface in this area. The Floridan aquifer lies some 100 feet below the proposed site and is in direct contract with the ground water table. Accordingly, contamination of the ground water by the proposed landfill would enter into the Floridan Aquifer and degrade the water quality of this aquifer. Additionally escaping leachate could contaminate and degrade the waters of the lakes in the general vicinity of the proposed site.

      
      

   4. As initially presented the application was denied by DER and recommended for denial by the other state agencies involved, viz. Florida Game and Freshwater Fish Commission and the Northwest Florida Water Management District. The reason for disapproval was that, absent some impervious surface between the aquifer and lakes in the vicinity could occur and was likely. Not only is the site located in a recharge area to the Floridan Aquifer but also in a karst area, in which the topography is marked by sinkholes resulting from the collapse of cavernous limestone under the ground. While the possibility exists that a sinkhole could develop under the proposed landfill this is no more likely than that a sinkhole will develop anywhere else in the northern half of Bay County.

      
      

   5. As finally proposed the site will be developed into cells some 400' x 500' x 28' deep which are expected to be filled in about six months, covered

      with a a clayey soil and vegetation replanted over the cell. To keep leachate from escaping to the lakes or aquifer the cells will be lined with a polyvinyl chloride (PVC) liner is 20 mils thick manufactured by B. F. Goodrich. If the liner functions as proposed there will be no escape of leachate and hence no degradation of the waters. Petitioners contend that reasonable assurances have not been given that the PVC liner will adequately perform this function and this was the only real issue presented at the hearing.

      
      

   6. PVC liners for landfills have been in use for only bout 10 years. However, numerous tests have been conducted and, projecting the deterioration of the PVC observed during the test period to the estimated life of the landfill, leads to an expected liner life well beyond the life of leachate production in the landfill.

      
      

   7. To give PVC the flexibility and elasticity necessary to lay it over uneven surfaces in sheets, plasticizers are added to the PVC during the manufacturing process. These plasticizers will be released from the PVC if exposed to sunlight for an extended period. However, as proposed for use here, even if the liner was exposed to sunlight for the entire six months the cell will be open, or even for one year, no significant loss of plasticizer will result. Once the cell has been closed, no further dynamic stresses will be placed on the liner. Accordingly, even if the liner lost all of its plasticizer and thereby lost its elasticity and flexibility, it would remain impervious and prevent the pasage of leachate through the liner.

      
      

   8. To protect the liner from solid waste, trash, and equipment used in the cell to compress the solid waste, the liner will be covered with two feet of sand before any solid waste is placed in the cell. Each night the solid waste dumped that day will be covered with six inches of on-site earth material to deter flies, odors, etc. The two feet of sand cover will protect the liner from puncture by solid waste or equipment.

      
      

   9. The liner will be placed on a tight slope with a sump provided near the low end of each cell from whence leachate will be pumped from the cell and treated, if necessary. Additionally, vents will be installed to exhaust gases from the cell once it is closed.

      
      

   10. Monitoring wells will be placed around the land fill to detect if leachate is escaping from the site. These wells would allow detection of escaping leachate before it could progress to the natural water bodies in the general vicinity.

       
       

   11. The three to one slope proposed for the sides of the landfill will result in some movement of free sand resting on the liner along the sides and could bare the liner. To insure there will be a minimum of two feet of soil between the fill material and the liner the cell will not be filled completely to the side of the liner to fill in the space left between the garbage and the side wall each day when the material dumped that day is covered.

       
       

   12. Hazardous wastes will not be allowed at the site. The site will be enclosed and have an attendant on duty at all times it is opened to receive solid waste. Public access will be restricted and the attendant on duty will monitor the waste dumped in the cell. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. The sand over the liner, the pumping out of the leachate and overall operation of the landfill are adequate to protect against these small amounts of hazardous materials.

   13. Bay County proposes to use an existing disposal site to dump tree and hedge trimmings and may provide a place to dump this woody trash at the proposed site other than in the cells. This will increase the capacity of the cells for solid waste and diminish the possibility of damage to the liner by woody products.

       
       

   14. The only credible evidence submitted regarding the availability of alternate sited for the proposed landfill was that other areas further south were investigated and were unacceptable because the groundwater table was above the bottom of the proposed cells. This would result in dumping solid waster directly into the water table, and is unaceptable.

       
       

   15. Petitioner's principal contention is that there has been insufficient experience with PVC liners and the tests that have been conducted were not sufficiently rigorous or extensive to provide assurances that leachate would no escape from the site and contaminate the waters of the State. Petitioners also contend that joining of sections of PVC in field, which will be necessary to cover that bottom of the cells (because a liner large enough to cover the bottom of one cell would be too large and heavy to handle), would also create unacceptable risks in the making of these "field seams". Bay County has arranged for the manufacturer of the PVC to provide personnel to supervise the "field seaming" of the sections of the PVC. These seams do not need to be wrinkle-free and no particular problem with respect to joining sections of PVC liner so as to make it watertight was shown. The tests conducted by the Environmental Protection Agency on PVC liners have been ongoing for nearly ten years. None of these tests to date show any reason to question the effectiveness of a PVC liner properly installed to provide an impermeable barrier to leachate in a sanitary landfill.

       
       

   16. Petitioners also object to the use of cover material proposed by Bay County when a cell is closed. The soil analysis submitted with the application for the cover proposed does not have a high clay content and is more permeable than would be desired. At the hearing, Bay County officials testified they would use a more impermeable soil to cover the cells. Failure to do so would increase the amount of water from rainfall that would penetrate the cell, thereby increasing the quantity of leachate to be pumped from the sump. This would increase the maintenance cost of the landfill to the point it would be uneconomical not to put a water-repellant cover on the cell when it is closed. No evidence was presented that the formation of additional leachate would increase the risk of leachate escaping from the cell.

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

       
       

   18. Section 403.707, Florida Statutes, provides that no sanitary landfill (resource recovery and management facility) or site shall be constructed without and appropriate and currently valid permit issued by the Department.

       
       

   19. Chapter 17-7, Florida Administrative Code, implements Chapter 403, Florida Statutes, and regulates disposal of solid waste, and establishes criteria for locating and operating sanitary landfills.

       
       

   20. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the County has given reasonable assurances that

construction of the proposed solid waste resource recovery and management facility will not cause a violation of the provisions of Chapter 403, Florida Statutes, or Chapter 17-7, Florida Administrative Code. Sufficient evidence was presented to establish that the proper installation of the PVC liner and leachate collection and treatment system, as described in the application, will satisfy the requirements of Section 17-7.05(2)(c)2, 17-7.05(3)(e), and 17- 7.05(4)(f), Florida Administrative Code, concerning protection of the groundwater. The presence of an attendant during hours of operation and restriction of public access at other times satisfies the requirement s of Sections 17-7.05(4)(b)1 and 17-7.05(4)(c)1, Florida Administrative Code, and prevents unauthorized hazardous wastes from entering the site. There is no requirement that the Department compare the suitability of the location of the landfill site in the application to other locations. Therefore, the County is entitled to the issuance of a construction permit for the proposed site in accordance with the conditions contained in the Notice of Intent issued by the Department. It is therefore

RECOMMENDED that the Department issue to Bay County the permit as reflected in the Notice of Intent issued by the Department on May 16, 1980.

ENTERED this 7th day of November, 1980, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301

William W. Deane, Esquire Douglas McLaughlin, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

Les W. Burke, Esquire Nevin Zimmerman, Esquire Post Office Box 1818 Panama City, FIorida 32401

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

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

S. A. ALFORD, III, BEVERLY ALFORD, LAVADA BAGGETT, PANSY P. BJORKLUND, JACK CULPEPPER, BILLY GILBERT, GRIFF GODFREY, PAUL GORDY, LARRY KELLEY, SUE KELLEY, DICK LOCKLER, MODESTO B. PATE, C.J. PORTER,

W. RODGERS, CURTIS SAUNDERS, CRAIG STEVENS, GAIL STEVENS, JIMMY, TRAWICK and EMMA O. TRAWICK,

Petitioners,

vs. CASE NO. 80-1123

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and BAY COUNTY BOARD OF COUNTY COMMISSIONERS,

Respondents.

/

FINAL ORDER

BY THE DEPARTMENT

On November 7, 1980, the duly appointed Hearing Officer in the above0- styled matter submitted to the Department and all parties a Recommended Order consisting of Findings of Fact, Conclusions of Law, and Recommendation. A copy of said Order is attached hereto as Exhibit "A". On November 13, 1980, Petitioners filed Exceptions to the Recommended Order pursuant to Section 120.57(1)(6)8, Florida Statutes and Section 17-1.68(1), Florida Administrative Code. Neither the Department or Bay County filed Exceptions to the Hearing Officer's Recommended Order. Petitioners' request for oral argument is hereby denied.

RULINGS ON EXCEPTIONS TO RECOMMENDED ORDER

Petitioners' Exceptions, including those addressing statements found in the Conclusions of Law of the Hearing Officer, dispute Findings of Fact of the Hearing Officer and not Conclusions of Law.

Section 120.57(1)(b)(9), Florida Statutes, expressly provides that:

The agency may adopt the recommended order as the agency's final order. The agency in its final order may reject or modify the

conclusions of law and interpretation of administrative rules in the recommended order, but my not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of act were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential

requirements of law. . ." (Emphasis supplied.)

The Department preserved the proceedings of the final hearing in this matter with mechanical transcription equipment, and had previously noticed the parties of this arrangement by Notice of Transcription dated June 18, 1980, a copy of which is attached hereto as Exhibit "B". The Notice of Transcription informed the parties that:

. . . the recording tapes will be available to all parties upon request. If any party desires the presence of a court reporter, the Department, after the receipt of a written request which includes the guarantee of payment, will provide the necessary court reporter. Original written transcriptions may be ordered directly from the court reporter or from the Department after guarantee of payment.

None of the parties requested a court reporter for the final hearing, or ordered a transcript from the Department.

Petitioners have chosen not to furnish a written transcript of the hearing for my consideration. The "record" in cases governed by Section 120.57(1), Florida Statutes, includes the official transcript, as provided for in Section 120.57(1)(b)3i, Florida Statutes. The statute also provides that:

The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any part, it shall make a full or partial transcript available at no more than actual cost. Section 120.57(1)b6, Florida Statutes.

Without the complete record before me to review, I am without the authority to change, modify, or amend the Hearing Officer's Findings of Fact. Booker Creek Preservation, Inc., et al. v. City of St. Petersburg, Florida, and State of Florida Department of Environmental Regulation, DOAH Case No. 79-1667 (Department Final Order signed January 24, 1980); Isles of Capri Civic Association v. State of Florida Department of Environmental Regulation and Williams Capri Marine, Inc., DOAH Case NO. 79-2415 (Department Final Order signed April 11, 1980).

Additionally, the Hearing Officer did not establish a standard for the "amount" of hazardous household materials necessary before those materials could be considered hazardous, but, instead, found the site was adequately desinged to

protect against the small amounts of hazardous household materials that may enter the site.

Accordingly, Petitioners' Exceptions to Findings of Fact are rejected.

The Hearing Officer drew the conclusion of law that the applicant had provided reasonable assurances that Department Rule 1707,05(2)(e)2 and Department Rule 17-7.05(3)(e), Florida Administrative Code, would not be violated. For the reasons stated below, this conclusion of law presents me with great concern.

The Hearing Officer found in Findings of Fact paragraph number 3:

3. The site is located in an area of predominately 'Lakeland series' sands which provides little barrier to the percolation of surface or ground waters into the Floridan Aquifer. The site is one of the highest in Bay County and the ground water table is located about 45 feet below the surface in this area. The Floridan Aquifer lies some

100 feet below the proposed ground water table. Accordingly, contamination of the ground water by the proposed landfill would enter into the Floridan Aquifer and degrade the water quality of this aquifer. Additionally escaping leachate could contaminate and degrade the waters of the lakes in the general vicinity of the proposed site.

Additionally, the Hearing Officer found in paragraph 4 of the Findings of Fact:

. . . Not only is the site located in a recharge area to the Floridan Aquifer but also in a kakrst area, in which the topography is marked by sinkholes resulting from the collapse of cavernous limestone under the ground. While the possibility exists that a sinkhole could develop under the proposed landfill this is no more likely than that a sinkhole will develop anywhere else in the northern half of Bay County.

Based on these findings, the Department concludes that for hydrogeological reasons, the proposed location of the landfill is an unacceptable site for a landfill. Specifically, the site is unacceptable because:

1. The site is underlaid by potable water in the Floridan Aquifer which serves as a source of drinking water.

   
   

2. There is direct contact between the Floridan Aquifer and the groundwater table directly below the proposed site.

3. The site is underlaid with "Lakeland series" sands which provides little barrier to the percolation of water or other liquids into the Floridan Aquifer.

In sum, it is the combination of all of the foregoing factors that have led me to conclude that the risk of groundwater pollution is too great at this site. Because of this high risk, it is my conclusion that this site is unacceptable as a landfill. See, Request of Hillsborough County and Waste Management, Inc., Immediate Final Order, Case No. SW-72-80, State of Florida Department of Environmental Regulation, July 31, 1980.

Although this site is unacceptable and poses an unreasonable risk to groundwater a construction permit, and upon application and Department approval a time limited operation permit, can be granted for the facility for the following reason:

The County's present solid waste disposal sites are unacceptable in that they do not comply with Department rules. Bay County Board of Commission, Order No. 121, Florida Department of Environmental Regulation, November 1, 1977 (Majette Tower Landfill); and DER Case No. NWSL031006, October 19, 1980 (Southport site).

Petitioners challenge whether the liners can or will be properly installed.

The Hearing Officer found that they could be properly installed. Whether they will be can only be determined during or after installation. The Department's permitting system recognizes this contingency by requiring both construction and operation permits, Section 17-4.21(3), Florida Administrative Code. An operation permit can be issued only after a showing of proper construction and installation of equipment and materials and the showing of reasonable assurances that applicable rules have been complied with. Therefore, the construction permit issued pursuant to this order should provide for notice to the Department of the dates the P.V.C. liners are to be installed. No solid waste shall be disposed of at this site until inspection and approval by the Department of Environmental Regulation of the lines, the monitoring wells and other equipment required by the construction permit and until an operation permit is issued.

The operation permit shall require similar notice, inspection and approval for each cell.

In view of the risk posed to ground water at this site, the proposed facility shall not be used beyond 24 months from the date hereof unless extended by further order. To eliminate the risk in a timely fashion a time-schedule for selecting an alternate acceptable site or for alternate solid waste disposal methods such as resource recovery must be imposed.

In determining the acceptability of an alternate site for a landfill the following factors must be met as well as all other requirements of Chapter 403, Florida Statutes, and Chapter 17-7, Florida Administrative Code, if there is potable water beneath the site.

1. That a confining or semi-confining layer be beneath the landfill site and above the potable water supply.

   
   

2. A surficial aquifer exist above the confining or semiconfining layer.

   
   

3. The potable water aquifer exist above the confining or semiconfining layer have sufficient pressure or potentiometric surface to hinder rapid transfer of water to the lower aquifer.

4. There be no probability of greater than normal sinkhole formation.

The remaining Exceptions to the Conclusions of Law filed by the Petitioners are rejected in that they are attacks on the Findings of Fact of the Hearing Officer and, as stated above, these findings are binding on the Department.

CONCLUSIONS AND ORDER

Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Petitioners' Exceptions, and Respondent's Response to Petitioners' Exceptions, it is, therefore:

ORDERED that the Hearing Officer's Findings of Fact are adopted; his Conclusions of Law and Recommended Order, to the extent that they are consistent with this Final Order, are adopted; and

ORDERED that the permit reflected in the Notice of Intent issued by the Department on May 16, 1980, be issued with the following additional conditions:

1. The applicant shall notify the Department at least on week in advance of when the P.V.C. is to be installed and allow for on-site inspection of its installation by Department personnel.

   
   

2. No operation permit will be issued unless the applicant has shown reasonable assurances that the P.V.C. has been properly installed and all other applicable rules of the Department and the applicable Florida Statutes have been complied with.

   
   

3. Any operation permit issued shall be for only one cell and no permit for subsequent cells shall be approved in accordance with 2. above without a showing of proper operation for the previous cells.

   
   

4. The final cover material for each cell shall be clay, substantially clay or other impermeable material.

   
   

5. Any DER permits for this site shall only be valid until 24 months from the date of this order.

ORDERED that the country shall submit within thirty days a plan with schedule by which this landfill site will be phased out in 24 months, which shall include selection of alternate acceptable sites or the implementation of a resource recovery program in accordance with 17-7, Part II, Florida Administrative Code.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980.

JACOB D. VARN, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing "Final Order" has been furnished by United States Mail to Kenneth F. Hoffman, Esquire, Oertel and Laramore, P.A., 646 Lewis State Bank Building, Tallahassee, Florida 32302, Les

W. Burke, Esquire, County Attorney, Bay County, Post Office Box 1818, Panama City, Florida 32401, and K.N. Ayers, Hearing Officer, Division of Administrative Hearings, Collins Building, Room 101, Tallahassee, Florida 32301, this 22nd day of December, 1980.

DOUGLAS H. MacLAUGHLIN

Assistant General Counsel State of Florida Department

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

(904) 488-9730

Docket for Case No: 80-001123

Orders for Case No: 80-001123