STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSBOROUGH COUNTY, and WASTE ) MANAGEMENT INC. OF FLORIDA, )

)

Petitioners, )

)

vs. ) CASE NO. 80-2167

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

)

Respondent, )

and )

) EAST HILLSBOROUGH CONCERNED ) CITIZENS ASSOCIATION, TAYLOR ) ROAD CIVIC ASSOCIATION INC., and ) RICHARD S. SMOOT, )

)

Intervenors. )

)

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 28 and 29 July 1981 at Tampa, Florida.

APPEARANCES

For Petitioner Robert Vawter, Jr., Esquire (Hillsborough Post Office Box 3324 County): Tampa, Florida 32601

For Petitioner Carlos Alvarez, Esquire and (Waste Management William D. Preston, Esquire Inc.): Post Office Box 6526

Tallahassee, Florida 32301

For Respondent: David M. Levin, Esquire and

Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

For Intervenors John F. Wendell, Esquire and (East Hillsborough John A. Naser, Esquire

Concerned Citizens Post Office Box 5378 Association): Lakeland, Florida 33803

For Intervenor Richard Smoot, pro se (Richard S. Smoot): 11316 Sligh Avenue

Seffner, Florida 33584

By application dated March 14, 1981, Hillsborough County and Waste Management Inc., Petitioners, seek a permit to operate a sanitary landfill on

1. acres of land in Hillsborough County to be known as Hillsborough Heights Sanitary Landfill. After Petitioners were notified by the Department of Environmental Regulation (DER), Respondent, that DER intended to deny this application, Petitioners and Respondent entered into a Stipulation and Settlement Agreement (Petitioners' Exhibit 8) whereby Petitioners revised the application, conditioned upon approval by DER, to limit the actual area within the 218.6 acre site to be used as a disposal site to 64 acres. Intervenors refused to join in this Stipulation and Settlement Agreement.

   
   

   The ultimate issue in this case is whether the permit application, as modified, complies with the requirement of Chapter 403, Florida Statutes, and Chapters 17-4 and 17-7, Florida Administrative Code.

   
   

   At the commencement of the hearing, Intervenors East Hillsborough Concerned Citizens Association moved for a continuance of these proceedings. As grounds therefore it contended that the Stipulation and Settlement Agreement constituted final agency action by DER and removed all issues from further consideration by this tribunal. This motion was denied. The Stipulation and Settlement Agreement is no more, insofar as the jurisdiction of this tribunal is concerned, than a modified notice of intent to issue a permit. Notice by DER of intent to issue a permit has never been held to be final agency action so as to deprive affected parties of their right to a hearing. Even DER issuing a permit without affording affected parties an opportunity for hearing has been held not to constitute final agency action if timely challenged.

   
   

   Thereafter six witnesses were called by Petitioners, one witness was called by Respondent, three witnesses were called by Intervenors, four public witnesses testified and a total of 51. exhibits were admitted into evidence. Proposed findings submitted by Petitioners and by Intervenors and not included below were not supported by competent evidence or were deemed immaterial to the result reached.

   
   

   FINDINGS OF FACT

   
   

   1. The site of the proposed landfill is located near Seffner, Florida, and is northwest of and adjacent to two previously used landfill sites. The proposed site meets all zoning requirements, is not located in the vicinity of an airport so as to be subject to Federal Aviation Administration regulations, and no natural or artificial body of water is located within 200 feet of the site. Inasmuch as the operation of the earlier used landfills created much of the opposition presented at this hearing, a short history of Hillsborough County's landfill operation follows.

      
      

   2. Hillsborough County opened the old Taylor Road landfill, a tract containing 42 acres, in 1976 and closed it in 1980 when it became full. The old Taylor Road landfill site abuts to the southeast the site being applied for it these proceedings.

      
      

   3. In 1977, pursuant to a consent decree between the City of Tampa and the Federal Environmental Protection Agency (petitioners' Exhibit 14) , the City of Tampa's incinerator, at which most of the solid waste in Hillsborough County was

      disposed, was ordered closed by 1979. The City of Tampa engaged consultants to locate an acceptable site for use as a sanitary landfill. In 1978, Hillsborough County, pursuant to an agreement with the City of Tampa (Petitioners' Exhibit 15), assumed the responsibility for solid waste disposal throughout Hillsborough County. Thereafter, it was determined that the best site, from an ecological point of view, was adjacent to the old Taylor Road landfill. Prior to obtaining DER approval to expand this site, the selection of which the County Commission approved in April 1979, time for closing the incinerator was running out and the County was given permission to utilize a 10.6 acre borrow pit, adjacent to and west of the old Taylor Road site, which bad been given to the County by the State Department of Transportation. This approval was given by DER in January 1980.

      
      

   4. When Hillsborough County assumed the responsibility for waste disposal throughout the County, waste from Temple Terrace and Plant City was added which waste had not been disposed of by the City of Tampa incinerator. The County entered into a contract with Waste Management Inc., a large company specializing in developing and operating waste disposal facilities in many parts of the United States and abroad, to design and operate Hillsborough Heights Sanitary Landfill.

      
      

   5. The 10.6 acre site would quickly be filled so it was necessary for the County to `reapply to DER for a permit to operate a landfill capable of serving the County until 1984. At that time, modification to the incinerator to comply with clean air standards and operate as an energy recovery unit will be complete and it can be restored to operation. Before that hearing was held the 10.6 acre site filled, and it became necessary for the County to request an emergency permit from DER to operate a landfill on part of the proposed site. Following a hearing on this request, DER issued an order in July 1980, authorizing Hillsborough County to operate a sanitary landfill on 41.5 acres adjacent to the old Taylor Road landfill and the 10.6 acre borrow pit site. By the application here under consideration, as modified by Stipulation and Settlement Agreement, the Petitioners are seeking to expand this 41.5 acre site to 64 acres, thereby adding 22.5 acres to the already approved site. Two thousand tons of solid waste are deposited at this site daily, six days a week.

      
      

   6. The primary concern respecting a sanitary landfill in the proposed location is the potential for pollution of the Floridan aquifer which underlies this site and the fact that the site is located in a karst area. Unless an impervious surface lies naturally or is constructed between the base of the proposed landfill and the Floridan aquifer, pollution of the aquifer could occur should leachate from the site accumulate and percolate to the aquifer.

      
      

   7. All of Hillsborough County and much of Florida is underlain by limestone containing karst features. One unfortunate characteristic of the karst formation is the potential for the limestone to dissolve thereby creating cavities into which the surface overburden falls to create a sinkhole. Some liquids, including leachate, will dissolve limestone, thereby creating cavities into which the overburden can fall. This risk is reduced by the thickness of the clay layer over the limerock which inhibits the entry of surface water into the aquifer.

      
      

   8. The proposed site has a basal clay from five feet to twenty feet thick above the limerock. However, this base clay is not believed to be continuous throughout the site to this minimum thickness due to sand columns, pinnacles and other anomalies that have formed. Petitioners propose to remove some 35 to 45 feet of the overlying sand and intermediate clay down to the base clay to form

      the pit into which waste will be deposited. The thickness of this base clay over the limerock will then be tested. If at least five feet of clay is not over the limestone, Petitioners will install a minimum of five feet of recompacted clay liner with a density of at least 2.5 - X 10 (to the seventh power) cm/sec. over the bottom of the landfill. Impervious sidewalls around the edges of the landfill will be constructed of either a minimum of five feet of compacted lay or of Hypalon, a synthetic sidewall liner material, in accordance with the Stipulation Agreement. If Hypalon is used, it will be covered with at least two feet of soil before waste is put in the landfill.

      
      

   9. Petitioners will install a leachate collection system for monitoring and removing, if necessary, leachate that may collect in the bottom of this landfill. Perimeter ditches will be constructed around the bottom of the landfill with the floor of the landfill sloped toward the perimeter ditches. These ditches will contain perforated pipe to conduct leachate to sumps from which the leachate can be removed. Should leachate be generated before the landfill is closed, the leachate will be extracted by pumping; and discharged for absorption by solid waste at the landfill, or trucked to a treatment plant for processing.

      
      

   10. After each day's operations at this landfill, at least six inches of soil will be placed over the compacted solid waste accepted that day. This should provide reasonable protection for rodents and insects. Final soil coverage to be used as a top liner for this landfill will consist of at least eighteen inches of compacted clayey soil overlain by six inches of loosely compacted soil in order to provide a final cover to minimize infiltration of surface water runoff. The final surface of the landfill will be graded and sloped so rainfall will not puddle on the landfill but run off to the perimeter of the landfill. Thus, when completed, the deposited waste will be encased in a relatively impermeable container on all surfaces. Perimeter ditches will be installed to keep surface waters out of the landfill, and these ditches will be lined with 18 inches of clay to inhibit seepage of water to the landfill from these ditches. The ditches will discharge into holding ponds located south and southwest of the site. Surface waters in this vicinity flow south to southwesterly.

       
       

   11. Access to the landfill will be controlled by a perimeter fence and entry gate which will be manned during all hours of operation and locked when not manned. Disposal of hazardous or infectious waste will not be allowed. Spotters will be stationed at the dump site to inspect waste entering the site and to detect any hazardous or infectious waste that may reach the landfill. 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.

       
       

   12. Litter will be controlled by temporary fencing or portable litter fences. Bare limestone exposed by excavation will be protected from flow of water from the active landfill area by berms until such time as the limestone is covered by the five feet of compacted base clay.

       
       

   13. During excavation of the landfill, a geologist or hydrologist will be stationed at the site by the operator of the landfill to determine the nature and extent of earth materials encountered. Anomalies found during excavation will be recorded and reported. This will serve to insure the impervious five feet clay base between the landfill and the limestone.

   14. Methane gas control will be provided by the base clay underlying the landfill, the liners to be constructed around the landfill perimeter, and the clay soil cover. Rising gas will vent through the soil cover. If odor problems occur, gas vents will be installed at the high point of the landfill to provide a controlled path for these gases which can then be flared.

       
       

   15. Groundwater monitoring wells will be installed around the perimeter of the site to detect any leachate which may escape. Wells upgrade of the site will be installed to determined whether metals or other impurities detected in the downgrade monitoring wells come from the landfill or are in the groundwater before it gets to the landfill.

       
       

   16. The geology of the site is complex. Numerous test borings have been taken in the 218.6 acre tract, sinkholes in the area have been studied, special photographs of the site have been taken to show where changes and moisture in soil occur as well as other geologic features. All available information shows the 64 acre parcel in the southern part of the 218.6 acre site to be the safest in the site from a catastrophic subsidence (sinkhole)

       
       

   17. Although the Intervenors contend that the site is subject to sinkholes, no credible evidence was presented that this site is more subject to a catastrophic subsidence than is the remainder of Hillsborough County. Competent evidence was presented that a sinkhole is less likely to develop at the proposed 64 acre site than in other areas of Hillsborough County.

       
       

   18. Intervenors' and the public witnesses' primary complaint and vehement opposition to the granting of the permit here requested stem largely from the manner in which the predecessor landfills in this area have been operated; and rightly so. Infectious waste has been dumped on the site on several occasions; inadequate daily cover has been provided; dogs have roamed the site; birds have been killed by insecticides dumped on the site; papers have blown over the site; surface waters from the site have been pumped outside the site in such a manner that well water could be contaminated; inadequate precautions have been taken to prevent rodent and insect infestation of the site; and unpleasant odors have emanated from the site. These complaints go to conditions that existed in the past; they are not necessarily harbingers of things to come. Hillsborough County's lease law should preclude dogs roaming the site. Strict adherence to the conditions of the permit will eliminate the vast majority of those complaints.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   20. Section 403.707, F.S., provides no sanitary landfill shall be constructed or operated without a permit issued by the Department of Environmental Regulation. Chapter 17.7, Florida Administrative Code, establishes certain criteria for the location and operation of sanitary landfills. Among these is the require- ment that the sanitary landfill comply with the provisions of Chapters 17-3 and 17-4, Florida Administrative Code.

       
       

   21. Rule 17-4.07, Florida Administrative Code, provides in pertinent part:

       
       

       1. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively

          provides the Department with reasonable assurance based on plans, test results

          and other information, that the construction

          . . . operation, or the activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations.

          * * *

          (3) The Department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the Department.

          
          

   22. After considering all of the evidence presented, including the Stipulation and Settlement Agreement which contains many provisions not included in the findings above, it is concluded, as a matter of law, that Petitioners have provided reasonable assurances that the installation and operation of the proposed sanitary landfill will not pollute the waters of the State. It is further concluded that if the unsatisfactory conditions, so vividly presented by those opposing this application, are allowed to continue, Petitioners will not be operating this sanitary landfill in accordance with the application or permit. If such transpires, adequate grounds will exist for suspension of this permit.

Subject to the above, it is RECOMMENDED that Hillsborough County and Waste Management Inc. be granted a permit to operate Hillsborough Heights Sanitary Landfill subject to those general conditions and provisions normally attached to sanitary landfill permits and in accordance with the Stipulation and Settlement Agreement executed June 29 and 30, 1981.

ENTERED this 2nd day of September, 1981, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1981.

COPIES FURNISHED:

Robert Vawter, Jr., Esquire Post Office Box 3324 Tampa, Florida 32601

Carlos Alvarez, Esquire and Richard Smoot William D. Preston, Esquire 11316 Sligh Avenue

Post Office Box 6526 Seffner, Florida 33584 Tallahassee, Florida 32301

David M. Levin, Esquire and Douglas H. MacLaughlin, Esquire Department of Environmental

Regulation

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

John F. Wendell, Esquire and John A. Naser, Esquire

Post Office Box 5378 Lakeland, Florida 33803

Docket for Case No: 80-002167

Orders for Case No: 80-002167