STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATIE HALL, HENRY C. TUCKER, ) POLLY TUCKER, V. L. HALL, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 83-824

)

JACKSON COUNTY BOARD ) OF COUNTY COMMISSIONERS, and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Marianna, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on July 12, 1983. The parties were represented by counsel:

APPEARANCES

For Petitioners: Robert L. Travis, Jr., Esquire

229 East Washington Street Quincy, Florida 32351

For Respondent J. Paul Griffith, Esquire Jackson County: Post Office Box 207

Marianna, Florida 32446

For Respondent

Department of E. Gary Early, Esquire Environmental 2600 Blair Stone Road Regulation: Tallahassee, Florida 32301

At the prehearing conference, this controversy was narrowed to the following

ISSUES.

Whether petitioners' property values will be adversely affected by environmental degradation of their property attributable to the proposed landfill?

Whether the proposed landfill will be operated so as to prevent or minimize the unauthorized dumping of toxic wastes?

Whether the proposed landfill will cause pollution in violation of Chapter 403, Florida Statutes (1981) and Chapter 17, Florida Administrative Code, of surface waters (sinkholes)?

Whether the proposed landfill will cause pollution in violation of Chapter 403, Florida Statutes (1981) and Chapter 17, Florida Administrative Code, of the groundwater?

FINDINGS OF FACT

1. Respondent Jackson County proposes to build a Class I landfill in western Jackson County, about 1.5 miles south of Campbellton on the west side of State Road 273. The named petitioners live near the proposed site, and all parties stipulated to petitioners' standing or party status on account of the proximity of their homes. The forecast is that the proposed landfill would be in service for 15 years, during the last of which it would receive wastes generated by 16,000 persons.

   
   

2. Contingent on issuance of the construction permit it seeks in these proceedings, Jackson County has agreed to purchase 85 to 89 acres in section 15, township 6N, range 12W, of which 55 acres would be devoted to the proposed landfill. About ten of the remaining acres are covered by the southern reaches of Grant Pond. Grant Pond may be a sinkhole, but there is no connection between its waters and the Florida aquifer. There is no evidence of sinkhole activity on the site at the present time. One hundred ten feet from the southwest boundary of the proposed site long-time residents have shallow wells from which they once drew water with buckets. There are mostly small farms in the area. A trailer and 6 to 8 homes are located within 1,000 yards of the proposed site.

   
   

   LEACHATE NOT ANTICIPATED

   
   

3. Jackson County contemplates eventually dumping 215 cubic yards daily of residential, commercial and agricultural wastes including sewage sludge, in a series of "cells" to H developed seriatim on the site. Developing a cell would entail digging a pit 15 feet deep, 200 feet wide and 650 feet long, lining it with some of the clay removed in excavating, and compacting the two-foot-thick clay bottom liner to 90 percent Proctor. The uncontroverted testimony was that such a liner would be impermeable. A cell is expected to accommodate about a year's worth of refuse. The plan is to have one cell in operation and another in reserve at all times. Waste would be compacted and then covered over with clay soils daily to minimize the possibility of leachate formation. In addition, a six-inch layer of clay would be put down at the end of each "lift," more or less weekly. Once the cell was completely filled, it would be covered with an even thicker layer of clay and/or other materials specified by applicable regulations. Against the possibility of leachate formation before the cell is finally sealed off, the bottom of the cell would be sloped (4:1) so that any leachate generated would accumulate at one point in the cell, from which it could be pumped to a leachate holding pond.

   
   

4. The leachate holding pond is also to be lined with impermeable clays. The engineer who designed the project predicts that no leachate whatsoever will be generated and the project plans do not identify the specific method for disposing of leachate, once it reaches the holding pond. Depending on the quality and consistency of any leachate, it could be left in the holding pond to evaporate, or be removed by truck for disposal off site; or be treated biologically and/or chemically before being spread on site.

   STORMWATER

   
   

5. The stormwater management system consists of a series of elongated detention ponds and two ditches, or swales, that drain into Grant Pond. The detention ponds are to be 1.2 feet deep, have varying widths (26.5 to 64 feet), with sides sloping at a 4:1 ratio, and vary in length from 1,000 to 1,600 feet. Water that would accumulate in them as a result of 3.2 inches of rainfall (the amount a 25-year one-hour storm would bring) would fill the ponds. The ponds are designed to overflow through baffled culverts along the swales into Grant Pond. The soils are such that 3.2 inches of rainfall could percolate into the unsaturated soil from the holding ponds in 72 hours. The closest baffle to Grant Pond would be some 200 feet distant; significant sheet flows would also enter Grant Pond.

   
   

6. The landfill is designed to insulate stormwater runoff from contamination by waste or leachate. Only when wastes in an almost filled cell had not yet been covered would there be danger that stormwater falling on wastes would end up in the flow of stormwater draining across the surface of the proposed site and ultimately into Grant Pond. This danger could be all but eliminated by placing the last layer of wastes deeply enough in the cell. The plan is to ring the cells with excavated material, as well. If leachate is generated and pumped to the leachate holding pond and if there is enough of it to fill the pond or nearly to fill it, a storm might result in an overflow from the leachate holding pond that would drain eventually into Grant Pond. This danger, too, could be all but eliminated by operating the landfill so that the level of leachate in the holding pond always remained low enough, and by disposing of all leachate, if the facility generates any, off site, rather than "by landspreading on site." Jackson County's Exhibit No. 6.

   
   

7. The same people who manage the landfill in eastern Jackson County would manage the landfill here proposed. No leachate has been generated at Jackson County's eastern landfill, but litter that can blow out of the cells at the eastern landfill does. If the same practices obtain at the new site, airborne litter that does not reach Grant Pond on the wing, may later be washed into the Pond by stormwater, even though the baffles would eliminate floatables in the water flowing out of the detention ponds.

   
   

   TWO AQUIFERS

   
   

8. The parties are in agreement "that the leachate and or other pollutants will probably never reach the Floridan Aquifer." Petitioners' Closing Argument,

   p. 4. The Floridan aquifer is a limestone rock formation underlying the proposed site at depths varying between 30 and 130 feet, and separated by a layer of stiff clay from the overlying silts and sands. The stringers of saturated sands lying near the surface comprise a distinct, surficial aquifer that lies between five and twenty feet below ground over most of the site but crops out as Grant Pond on the northern edge of the property. No cell would be built within 200 feet of the highwater line of Grant Pond. The water table in the surficial aquifer, which yields potable water, is a subdued replica of the ground topography. Surface water from the southwest part of the proposed landfill site, where wells are closest, flows into Grant Pond. Water sometimes stands on the southeast part of the site, an area one witness described as boggy. A trailer stands on a parcel adjoining the property to the southeast with its near boundary 300 or 400 feet from the site proposed for the first working cell. No cell is to be dug within 500 feet of any existing or proved potable water well.

9. The application contemplates monitoring wells. Groundwater in the Floridan aquifer flows south. Three wells to a depth of about 45 feet each are planned for south of the cells so that, in the unlikely event that pollution reached the Floridan aquifer, it could be promptly determined. There will also be a monitoring station in Grant Pond so the effect of stormwater runoff on water quality in the pond can be gauged. One well, 250 feet east of the west property boundary and 250 feet south of the north boundary, is planned for monitoring the surficial aquifer.

   
   

   TOXIC WASTES

   
   

10. Toxic wastes are generated in Jackson County. Hundreds of drums with a little something still left in them are brought to the County's eastern landfill. No toxic wastes can lawfully be dumped at landfills like the one Jackson County proposes to build near Campbellton, but containers which once held toxic substances can lawfully be disposed of at such landfills, provided they have been rinsed out with water three times. Signs to this effect are to be posted. The landfill would have a single entrance. An attendant would be on duty during the landfill's hours of operation (8 to 5, five days a week), but would not be expected to have sampling equipment or to enforce the triple rinsing requirement, if past practice at the eastern landfill is any indication. When the landfill is not open, according to the applicant's engineer, green boxes will nevertheless be available for dumping.

    
    

    SCREENING

    
    

11. Litter fences are planned only "if needed." A green belt 100 feet wide is proposed along the southern and the eastern perimeter of the property. "Appropriate trees and shrubs" are to be planted there, perhaps bamboo or oleander.

    
    

    SEPTAGE DISPOSAL PITS

    
    

12. In a letter dated December 1, 1982, under the heading "septage disposal pits", C. G. Mauriello, the engineer who designed the proposed landfill, wrote DER's Wayne Hosid:

    
    

    This item was not shown on the original application but should be included. It has been recognized by the County that disposal of this type waste material should be handled at the new west site and therefore, provisions will be made for the disposal.

    Basically, a trench type operation similar to the East Site will be provided. The location of the disposal area will be to the south of the Future Holding Pond and north of the Salvage Area. Jackson County's Exhibit No. 6.

    
    

    A drawing prepared by the same person in July of 1982 shows a "septic tank/drainfield" southeast of the location described for the "septage disposal pits." DER's Exhibit No. 1. The permit DER proposes to issue contains numerous conditions, including the following:

    
    

    Construction of septage drying beds will be identical to those permitted under

    Permit No. 5032-22067 for Jackson East Sanitary Landfill as modified on July 20, 1981. Jackson County's Exhibit No. 9.

    
    

    Permit No. 5032-22067 was not made a part of the record in these proceedings. Incidentally, the word "septage" does not appear in Webster's Third New International Dictionary (1971).

    
    

13. A septic tank or any similar system would differ significantly from the systems described by the witnesses who testified at hearing. Septic tanks eventually discharge their contents into surrounding soils, after treatment by anaerobic bacteria. Septic tanks cannot be sealed off by clay or anything else from the earth around them, if they are to function properly. Sooner or later discharge from any septic tank on site could be expected to enter the surficial aquifer and, ultimately, through the groundwater, Grant's Pond. Nothing in the evidence indicates how long it might take for any such effluent to reach the groundwater or leach into Grant Pond; or what its chemical composition might be.

    
    

    MORAL OBJECTION STATED

    
    

14. Petitioners' witness Frederick L. Broxton, Sr. testified that, even conceding the absence of a scientific or legal basis for objection to the proposed project, it was immoral for the County Commission to choose a site so close to people's homes, when there was so much land available in that part of the county, where nobody lived.

    
    

    PROPOSED FINDINGS CONSIDERED

    
    

15. All parties filed posthearing submissions which have been considered in preparation of the foregoing findings of fact. Respondent Department of Environmental Regulation filed proposed findings which have been adopted, in substance, for the most part. Where proposed findings have not been adopted, it is because they have been deemed immaterial, unsupported-by the weight of the evidence, subsidiary or cummulative.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Department of Environmental Regulation (DER) is empowered to grant Jackson County's application or an appropriate showing, deny it, or issue a permit with "conditions and provisions to ensure compliance with Chapter 17-7,

    F. A. C., and Chapter 403, F.S." Rule 17-7.03(2)(c), Florida Administrative Code. The criteria for sanitary landfills are set out in Rule 17-7.05, Florida Administrative Code, which should be read in conjunction with the prohibitions set out in Rule 17-7.04, Florida Administrative Code. As the applicant for a resource recovery and management facility permit, Jackson County has "the burden of establishing, by a preponderance of the evidence, entitlement . . ." Rule 17- 1.59, Florida Administrative Code. Not all the criteria laid down by rule and statute are at issue in these proceedings, however. The parties have by agreement limited the issues to four.

    
    

17. The first is whether petitioners' property values will be adversely affected by environmental degradation of their property attributable to the proposed landfill. There was no showing that property values would fall, and the effect on property values is not a pertinent consideration on the merits of any permit DER issues, although environmental degradation as a result of violations of rules or statutes is. Without fences, surrounding lands might be environmentally degraded as a result of airborne litter of the kind now strewn

    over the grounds of the landfill Jackson County operates in the eastern part of the county, Rule 17-7.05(4)(b), Florida Administrative Code provides:

    
    

    The disposal site shall be provided

    with operation features and appurtenances necessary to maintain a clean and orderly operation. These minimum features are:

    1. An effective barrier designed to prevent unauthorized entry and dumping into the landfill site . . .

       6. Litter control devices; portable fences, or other suitable means.

       
       

       See also Rule 17-7.04(3)(d), Florida Administrative Code. Portable fences should be placed around every cell or pit in use to contain litter in the cell; the grounds should be policed daily; and the worksite should be fenced to keep litter off neighboring land and out of Grant's Pond.

       
       

18. The second issue is whether the proposed landfill will be operated so as to prevent or minimize that authorized dumping of toxic wastes. There is no practical, ironclad means of preventing the dumping of toxic wastes at the proposed landfill site (or at many other sites) by people willing to break the law. All a permit applicant need show is reasonable assurances that the applicable DER rules will be complied with. The application here contemplates planting shrubs and trees around the sides which might tend to discourage unauthorized entry for dumping toxic wastes but will not amount to an "effective barrier designed to prevent unauthorized entry and dumping." Rule 17- 7.05(4)(b)(1), Florida Administrative Code. An attendant is to be on duty during the landfill's hours of operation, as required by Rule 17-7.05 (4)(c)(1) Florida Administrative Code, who will be able to stand guard at the only access road to the site, across which a gate is to be drawn when the landfill is not in operation. Jackson County has yet to formulate a plan specifying "inspection procedures, number and location of spotters and procedures to be followed if prohibited types of waste are discovered," Rule 17-7.05(3)(d)(11), Florida Administrative Code, but such a plan must be formulated before an operating permit can issue.

    
    

19. The third issue is whether the proposed landfill will cause pollution of surface waters. The evidence was clear that the landfill can be operated so as to prevent stormwater's washing over the wastes being disposed, with the exception of litter scattered by the wind. With such litter contained by portable fences around the cell in use, there is no reason to believe that stormwater runoff entering Grant Pond would not meet the "water quality standards of Chapters 17-3 and 17-4, F.A.C.". Rule 17-7.05(4)(f), Florida Administrative Code. The evidence was all the other way. Since the groundwater in the surficial aquifer communicates with the waters of Grant Pond, pollution of the groundwater might eventually result in surface water pollution, as well; but groundwater pollution has been stated as a separate issue.

    
    

    GROUNDWATER POLLUTION

    
    

20. The scheme for preventing groundwater pollution developed in the evidence at hearing hinged on insulating the wastes, and any leachate they might produce, from surrounding soils by impermeable clay barriers. All evidence was to the effect that this technique would prevent pollutants from reaching the groundwater. No evidence tended to show otherwise. None of the cells are to be dug into the surficial aquifer itself, moreover, because of the prohibition

against disposing of solid waste "in any natural or artificial body of water including groundwater." Rule 17-7.04(3)(b), Florida Administrative Code. But there was no discussion at hearing of "septage disposal pits" or anything of the kind. There was no showing in the evidence that these pits would be lined with clay or that they could be so lined, consistently with their intended function.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation issue Jackson County a permit for construction of a landfill at the site proposed subject to the conditions (except condition No. 24) stated in the proposed permit, Jackson County's Exhibit No. 9, and subject to the following additional conditions: (a) any leachate generated shall be disposed of off site (b) the whole landfill shall be fenced, and the view from State Road 273 shall be obstructed (c) portable fences shall be placed around any cell in use (d) an additional monitoring well shall be placed between the well southeast of the site and the nearest cell and (e) no septic tank or "septage" disposal pits shall be built on site.

DONE and ENTERED this 17th day of August, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 17th day of August, 1983.

COPIES FURNISHED:

Robert L. Travis, Jr., Esquire

229 East Washington Street Quincy, Florida 32351

J. Paul Griffith, Esquire

P. O. Box 207

Marianna, Florida 32446

E. Gary Early, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 83-000824

Orders for Case No: 83-000824