STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF DAVIE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1239

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, and ) BROWARD COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on September 1 and 2, 1983, in Fort Lauderdale, Florida. The following appearances were entered: Grover C. Herring and Stanley M. Lipnick, West Palm Beach, Florida, and Barry Webber, Hollywood, Florida, appeared on behalf of the Petitioner, Town of Davie; Dennis Erdley, Tallahassee, Florida, appeared on behalf of the Respondent Department of Environmental Regulation; and Larry E. Lymas Johnson, Fort Lauderdale, Florida, appeared on behalf of the Respondent Broward County.

On or about December 9, 1982, Broward County filed an application with the Department of Environmental Regulation to construct an addition to an existing landfill which the county operates in the Town of Davie, Florida. On or about March 24, 1983, the Department issued a notice stating its intention to grant the permit application. The Town of Davie requested a formal administrative hearing. On April 25, 1983, the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The hearing was originally scheduled to be conducted on August 2, 1983. Petitioner filed a Motion for Continuance which was granted, and the hearing was rescheduled as set out above.

At the hearing, the Town of Davie moved to amend and supplement its Petition by raising an additional issue respecting compliance with local zoning ordinances and land use planning policies. The Motion to Amend was denied on the record at the hearing because it was not filed in a timely manner. The following witnesses testified on behalf of Broward County: Edward J. Jablonowski, a consulting engineer who was previously the Director of the Broward County Solid Waste Division; Peter E. Robinson, a consulting civil and environmental engineer; and Vincent T. Amy, a consulting hydrogeologist. The following witnesses testified on behalf of the Department of Environmental Regulation: Steven K. Burian, an environmental specialist employed by the Department in its Southeastern District Office; and John A. Guidry, the Supervisor of. Environmental Permitting in the Department's Southeastern District Office. The following witnesses testified on behalf of the Town of Davie: William T. Cooper, a consulting chemist; Thomas J. Vageline, the City Planner for the Town of Davie; William N. Gray, a consulting architect and planner who was formerly the Growth Management Director of the Town of Davie;

and R. Lee Steiner, a consulting environmental engineer. Petitioner's (Town of Davie's) Exhibit 1, Department of Environmental Regulation Exhibits 1 through 8, and Broward County Exhibits 1 through 5 were offered into evidence and received.

The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.

FINDINGS OF FACT

1. Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally.

   
   

2. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately

   11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986.

   
   

3. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit

   sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated.

   
   

4. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters.

   
   

5. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells

   1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards.

   
   

6. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards.

   
   

7. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely

   to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal.

   
   

8. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation.

   
   

9. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely.

   
   

10. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters.

    
    

11. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

    
    

13. The applicant has the burden of establishing its entitlement to licensure. Florida Department of Transportation v. J.W.C. Company, Inc., 396

    So.2d 778 (1 DCA Fla. 1981); Rule 17-1.59, Florida Administrative Code. The applicant must provide reasonable assurance that its proposed facility will not result in pollution in contravention of Department of Environmental Regulation rules and regulations. Rule 17-4.07(1), Florida Administrative Code.

    
    

14. The evidence in this proceeding establishes that if the leachate collection system for the proposed Cell 14 does not operate in such a manner as to prevent introduction of leachate into groundwater beneath the site, violations of the Department's standards are likely. The leachate collection system designed for the proposed Cell 14 is adequate except insofar as it interfaces with existing cells. Significant quantities of leachate from the proposed Cell 14 are likely to enter existing cells. Liners under some of the existing cells have already proven inadequate to contain leachate. No assurance has been provided that liners under the remaining cells are not also inadequate. The applicant has therefore failed to provide reasonable assurance that leachate from the proposed cell will not enter groundwater under the site.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Environmental Regulation denying the application of Broward County to construct the addition known as Cell 14 to the Broward County landfill located in the Town of Davie, Florida.

RECOMMENDED this 21st day of October, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 21st day of October, 1983.

COPIES FURNISHED:

Grover C. Herring, Esquire Stanley M. Lipnick, Esquire Suite 904, Forum III

1665 Palm Beach Lakes Blvd. West Palm Beach, Florida 33401

Barry Webber, Esquire

Town Attorney, Town of Davie Post Office Box 8549 Hollywood, Florida 33084

Dennis Erdley, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Larry E. Lymas-Johnson, Esquire Assistant General Counsel

Room 248, Broward County Courthouse

201 S.E. Sixth Street

Fort Lauderdale, Florida 33301

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 83-001239

Orders for Case No: 83-001239